No Compromise: FCC Should Reject Risky, Confusing "Hybrid" Net Neutrality

Back in May the Federal Communications Commission proposed flawed "net neutrality" rules that would effectively bless the creation of Internet "slow lanes." After months of netroots protests the FCC is now reportedly considering a new "hybrid" proposal. EFF is deeply concerned, however, that this "compromise" risks too much, for too little.

To see why, a little background is helpful. As we explained back in June, if the FCC is going to craft and enforce clear and limited neutrality rules, it must first do one important thing: reverse its 2002 decision to treat broadband as an "information service" rather than a "telecommunications service." This is what's known as Title II reclassification.

That 2002 decision, as interpreted by the D.C. Circuit last January, now actually prevents the FCC from truly promoting a neutral Internet. That is because the court said that rules that actually do what many of us want--such as forbidding discrimination against certain applications--require the FCC to treat access providers like "common carriers, " treatment that can only be applied to telecommunications services. Having chosen to define broadband as an "information service," the FCC can impose regulations that "promote competition" (good) but it cannot stop providers from giving their friends special access to Internet users (bad).

The hybrid approach, according to reports, attempts to "split the baby." The FCC will reclassify the relationship between "edge providers" (like Netflix) and ISPs as a telecommunications service, and regulate accordingly, but leave the legal status of the relationship between ISPs and users unchanged.

While we don't know precisely what the FCC is thinking, based on what we are hearing, we are worried.

First, we worry that this approach will not survive the inevitable legal challenge. The law defines "telecommunications service" as service offered "for a fee." But edge providers don't typically pay a fee to ISPs (indeed, in many cases such fees would be exactly what the FCC should forbid). There are some complicated legal theories that try to find an equivalent for that "fee" but the success of those theories depends on a sympathetic court. Given the existence of a clear, and much less complicated path (full reclassification), we fear courts will not be sympathetic. In fact, they may be irritated that the FCC continues to drag them into a legal quagmire.

Second, the approach appears to rest on a distinction between "edge providers" and "subscribers" that doesn't reflect the reality of the Internet. We are all providers of information on the Internet, from social media users, to big and small tech companies, to independent journalists. The wonderful thing about the Internet is that everyone can speak and be heard. For example, over three million people wrote in to the FCC and demanded real net neutrality that protects their rights on the Internet. They didn't get involved to push a half-measure that protects big companies but leaves everyday people at the mercy of their ISPs, or to entrench legal distinctions between favored "edge providers" and "subscribers" with limited rights.

Third, a hybrid approach, while seemingly limited, could actually be a vehicle for future FCC overreach. In fact, it seems to replicate exactly the kind of confused legal theories that has long made us fearful that the FCC would abuse its power. With respect to net neutrality, the FCC started out by claiming a broad "ancillary" authority to regulate the Internet - a claim that, if accepted, could have been a Trojan horse for ever-expanding regulation. If the agency couldn't articulate a reasonable and clear legal authority for its actions, how could we trust it to recognize the limits of that authority? "Hybrid" rules may carry the same risk. Hybrid proposals could be used to argue that ISPs have a legally-cognizable relationship with every single person whose information flows over their network and use that relationship as the basis of regulation. This has long been the argument of telecoms trying to extract payments from commercial content providers. We have grave concerns about endorsing a legal view that has previously been advanced to undermine net neutrality. Moreover, the FCC would retain its broad powers to "promote competition" with respect to the relationship between ISPs and user, which could be just as vulnerable to misuse by a future FCC as any other regulatory authority.

Fourth, we're hearing nothing so far about forbearance. Forbearance is the process by which the FCC expressly commits NOT to apply certain rules. It can choose to do that where enforcement of a given rule is not necessary to ensure reasonable and nondiscriminatory practices, or to protect consumers, and forbearance is consistent with the public interest. Normally the FCC forbears in response to a specific petition from a service provider but it can also do so on its own. Forbearance is how we help ensure the FCC does what is necessary - and no more. It isn't an iron-clad limit; the FCC must choose to do it, and it can change course if need be. But having made the choice to forbear, the FCC can't change its mind willy-nilly, or in secret. Instead, it has to invite public comment, and respond to public concerns. If Internet users stay vigilant, forbearance would give us some confidence that the FCC couldn't quietly use "net neutrality" as an excuse to interfere with free expression and innovation.

Given all of these problems, and the fact that relatively few people on either side of the debate seem to want a "hybrid" approach, we're scratching our heads on this one. There's a better way forward, and the FCC should take it.