WASHINGTON — The Federal Communications Commission tentatively approved new net neutrality rules on Thursday, calling for equal treatment of all legal data traffic on the Internet but leaving room for content providers to pay for prioritized access on the so-called "fast lanes" delivered by Internet service providers.
The outcome was widely criticized by net neutrality proponents who fear that Internet service providers (ISPs) would use the new rules to justify discriminating against content providers who are reluctant or can't afford to pay for faster lanes. They've called for more stringent oversight measures — applied to utilities and telephone companies — to be imposed on ISPs. Comcast, Verizon and other large cable companies that provide Internet access have vigorously opposed any measures that would reclassify them in this manner.
The vote played out along political lines, with FCC Chairman Tom Wheeler, appointed by President Obama last fall, casting the deciding vote after two Democratic commissioners voted in favor, and two Republicans dissented.
"If someone acts to divide the Internet between haves and have-nots, we will use every power to stop it," Wheeler said. "I strongly support an open Internet. This agency supports an open Internet, although you have seen today that the ability to ensure an open Internet is a matter of dispute."
For now, the rules mean the commissioners agree on the draft as it stands. But they haven't been formally adopted, as the agency will take several months to take comments from the public. The rules may be modified based on the reaction, and formal adoption is expected in the fall.
Throughout its internal deliberations, the hot button for the agency remained whether its new rules should allow fast lanes to consumers' homes, the so-called "last mile," that content providers such as Netflix can buy as long as the same opportunities are available to others on "commercially reasonable" terms.
As proposed, the rules allow for consideration of paid prioritization of data on the Internet.
"A pay-for-priority Internet is unacceptable," said Craig Aaron, CEO of media watchdog group Free Press. "Wheeler spoke passionately about the open Internet, but his rousing rhetoric doesn't match the reality of his proposal."
Wheeler was adamant that his proposals do not lead to fast Internet lanes. But the rules, as they stand today, don't specifically ban them, which net neutrality proponents interpret as tacit approval of fast lanes. Wheeler also has supported fast lanes for some public safety-related data, such as health care companies sending electrocardiography results.
While taking questions from reporters Thursday, he called for more patience as the agency collects public comments before it finalizes the rules on whether to ban them outright.
"There is nothing in this rule, in this proposal, that authorizes fast lanes," he said. In the proposal, "we ask the question, 'Should there be a ban on paid prioritization?' Talk to me after we get the input on those questions."
Netflix, which occupies about a third of the U.S. peak Internet traffic and called for strong net neutrality rules, was not assuaged by Thursday's vote. "We remain concerned that the proposed approach could legalize discrimination," it said. "Netflix is not interested in a fast lane."
Fear among netizens
Commissioners were met by protesters outside the agency and within the packed hearing room. Several vocal protesters interrupted the proceedings, clamoring for the FCC to regulate the Internet as a "common carrier," as telephone service is regulated.
Democratic commissioners Mignon Clyburn and Jessica Rosenworcel voted in support of the proposed rules, while Republicans Ajit Pai and Michael O'Rielly were in opposition.
O'Rielly noted that prioritization "is not a bad word," but a necessary part of ensuring that important data aren't hampered by network traffic. He said he opposed the rules because they lead to the "slippery slope of regulation."
Pai recommended further economic studies but remarked that the votes represent a "bipartisan agreement on net neutrality."
The FCC is adopting new rules because the previous set of net neutrality rules were tossed out by the U.S. Court of Appeals for the District of Columbia in January. The court gave the FCC an opportunity to recast them, and Wheeler presented a draft of new rules to commissioners three weeks ago, triggering a furor among net neutrality watchdogs.
Speaking to those who oppose the potential for "fast lanes," Wheeler reiterated Thursday that "the speed and quality of the connection the consumer purchases must be unaffected" so long as content being transmitted is legal.
If an ISP blocks access to content or slows the speed below what a consumer has paid for, such practices would be "commercially unreasonable" and would be prohibited, Wheeler said.
Wheeler was also asked about Netflix's recent deal to pay Comcast and Verizon to connect directly with their networks for faster transmission speeds for the ISPs' customers, a back-end arrangement called "peering" by industry insiders.
Net neutrality proponents saw them as pay-to-play schemes, and cited the deals as examples that underscore the need to strengthen federal oversight. Even Netflix conceded that it signed the agreements reluctantly and called for more stringent regulations regarding such deals.
But Wheeler said the fast-lane issues being discussed by the commissioners don't apply to such peering agreements. Netflix's deals are "an entirely different issue," he said. "It's an issue we are investigating, but it's not the issue (we are talking about today)."
Wireless carriers weren't part of the old net neutrality rules that were tossed out. But the new set voted on Thursday asks whether wireless carriers should be subject to the rules.
But, Wheeler says, "there is one Internet. Not a fast Internet; not a slow Internet; one Internet."