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The FCC’s new net neutrality proposal everyone is so excited about may have a huge loophole

Published Feb 5th, 2015 9:05AM EST
Net Neutrality Title II Loophole

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We won

. The Federal Communications Commission on Wednesday took a huge step toward realizing web users’ dream of a truly free Internet; an Internet where net neutrality is real and service providers are barred from boosting their bottom lines by allowing big corporations to pay for priority pipelines. The Commission announced a new proposal that would see broadband Internet service reclassified as a utility under Title II of the Telecommunications Act.

Even a few short weeks ago, it seemed impossible that we would even get this far… but it looks like there is a pretty serious loophole in the new proposal that could be a big roadblock for net neutrality down the line.

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“I am proposing that the FCC use its Title II authority to implement and enforce open internet protections,” FCC chairman Tom Wheeler said. “Using this authority, I am submitting to my colleagues the strongest open internet protections ever proposed by the FCC. These enforceable, bright-line rules will ban paid prioritization, and the blocking and throttling of lawful content and services. I propose to fully apply — for the first time ever — those bright-line rules to mobile broadband.”

Indeed, it appears as though chairman Wheeler finally put his days as top cable industry lobbyist behind him, at least temporarily.

Wheeler continued, “To preserve incentives for broadband operators to invest in their networks, my proposal will modernize Title II, tailoring it for the 21st century, in order to provide returns necessary to construct competitive networks.”

The bottom line is this: Wheeler’s new proposal prevents three of the biggest current threats to the open Internet, which are paid traffic prioritization, data blocking and bandwidth throttling.

But as GigaOm’s Stacey Higginbotham points out, there may be a fairly substantial loophole in the new net neutrality proposal that could pose big problems in the future.

Wheeler’s new proposal includes a catch-all rule that would provide general guidelines and best practices for the open Internet. This rule would theoretically prevent Internet service providers from implementing new policies that harm consumers or impede net neutrality.

The worry here, however, is that this portion of the proposal still has an obvious drawback: It would give the FCC plenty of leeway in deciding whether or not new policies or practices implemented by ISPs actually harm consumers or impede net neutrality.

Of course, a senior FCC official denied to GigaOm that this might be the case. “We see this as a safety net to catch any issues that are not covered as a bright line rule and to protect against new practices that may discriminate,” he said.

It’s a tough situation indeed, and finding a solution that truly eliminates vagaries and offers protection for consumers won’t be easy. Then again, this is exactly the type of tough situation our tax dollars are supposed to pay lawmakers to resolve.

Zach Epstein
Zach Epstein Executive Editor

Zach Epstein has been the Executive Editor at BGR for more than 10 years. He manages BGR’s editorial team and ensures that best practices are adhered to. He also oversees the Ecommerce team and directs the daily flow of all content. Zach first joined BGR in 2007 as a Staff Writer covering business, technology, and entertainment.

His work has been quoted by countless top news organizations, and he was recently named one of the world's top 10 “power mobile influencers” by Forbes. Prior to BGR, Zach worked as an executive in marketing and business development with two private telcos.