FCC Chair Wheeler may still be trying to split the baby on regulation of Internet as common carrier telecom service

U.S. Federal Communications Commission Chairman Tom Wheeler issued a fact sheet today summarizing a draft rulemaking the FCC will vote on this month to classify Internet service as a common carrier telecommunications utility under Title II of the Communications Act. It should be borne in mind this document represents a starting point in the FCC's deliberations preceding formal promulgation of proposed regulations and the public comment period before their final adoption.

Here are some quick takes on some of the provisions mentioned in the FCC fact sheet:

Reasonable Network Management: For the purposes of the rules, other than paid prioritization, an ISP may engage in reasonable network management. This recognizes the need of broadband providers to manage the technical and engineering aspects of their networks.

This is a big loophole that will likely send net neutrality proponents up the wall. A major friction point between core content providers and ISPs is the edge ISPs won't upgrade their last mile networks to fiber to support higher throughput. "Reasonable network management" could thus mean core content will have to be throttled so as to not overwhelm their networks.
 

Some data services do not go over the public Internet, and therefore are not “broadband Internet access” services subject to Title II oversight (VoIP from a cable system is an example,

This carves out Internet voice service from Title II -- a major telecommunications service.

Bolsters universal service fund support for broadband service in the future through partial application of Section 254.

It will be interesting to see what exactly "partial" means. Section 254(b) of the Communications Act requires common carriers to provide access to advanced telecommunications and information services (i.e. Internet service) in all regions of the nation. Will the FCC provide waivers for some areas of the country even as it finds Internet infrastructure is not being timely deployed to all parts of the nation?

The proposed Order applies “core” provisions of Title II: Sections 201 and 202 (e.g., no
“unjust and unreasonable practices.”

Section 202 bars “discrimination in charges, practices, classifications, regulations, facilities, or services...” It also contains an anti-redlining provision barring providers from discriminating against localities in providing service. That means dominant providers would have to serve all premises in their service territories and not just selected neighborhoods, roads and streets as is current practice.

No last-mile unbundling.

This effectively neuters common carrier under Title II and protects the closed access monopoly incumbent providers enjoy over what services are sold to customers since they would continue to be able to bar access to ISPs offering competing content and services.