Net Neutrality Update: Wheeler Reportedly Shifting Gears

By Peter Bernstein May 12, 2014

The Net Neutrality debate in the U.S. is still in high gear. Federal Communications Commission (FCC) Chairman Tom Wheeler remains determined to press ahead this week in offering a Notice of Proposed Rulemaking (NPR) to fix the badly broken Open Internet regime. However, as review of last week’s activities illustrated, unfortunately for the moment he appears to be a lone driver who wants to use the commuter lanes in rush hour in what I called and continues to be, “The Storm before the lull.”

Reality is for Wheeler to press ahead, and not damage his ability in the process to deal with other pressing matters before the FCC, he needs passengers to get his efforts into the proverbial “fast lane” (double meaning intended). He certainly is trying.

As reported in the Wall Street Journal, over this past weekend, Wheeler responded to critics from Silicon Valley saying in a letter:

“…Last week, at the convention of the nation's cable broadband providers, I made clear that if someone acts to divide the Internet between haves and have nots, I will use every power at our disposal to stop it, including Title II. I will not allow some companies to force Internet users into a slow lane so that others with special privileges can have superior service.

The item we will vote on next week seeks input on the best way to accommodate this goal. We will specifically ask whether Title II or Section 706 of the Communications Act is the best way to address the matter of Internet openness.

As an entrepreneur who started companies that offered new programs and services to cable companies, I was subject to being blocked from access to cable networks. It is an experience that made me especially wary of the power of closed networks to innovate on their own agenda to the detriment of small entrepreneurs.

To a very large extent, this experience has been the backbone of my long-time support for the Open Internet. It is the openness of the Internet that makes it special. My job at the FCC is to protect that openness, and the innovation and expression it allows to flourish.”

It was also reported by unnamed sources that Wheeler will be altering his yet to be revealed approach to use the stick of common carrier regulation to assure people open access while leaving open the option for those seeking premium speeds the ability to purchase them so long as they in no way impair access and use by everyone. 

As has been noted in several previous articles on this, because of a history of bad decisions by previous FCC regimes and a series of court cases that highlight the wrong-headedness of those decisions, Wheeler has a balancing act of almost unprecedented proportions. He needs to craft a new regime that can withstand market, consumer and policy criticisms. Rough justice appears to be the order of the day meaning coming up with a regime that should work when put to a stress test but is fair in handing out displeasure to all interests. 

The difficulty he has run into in just getting the NPR out there for a vote by his colleagues, and then for comment and fine-tuning, shows just how hard this is going to be. The addition the past few days of the voices of 11 Democratic Senators notifying the chairman that they are not pleased with the idea of a bifurcated Internet only amplifies the difficulty involved.

Assuming the reports are correct, and the Wheeler letter appears to indicate they are reasonably accurate, the first step seems to be to a shift in perception and presumably language that can placate Democratic Commissioners Jessica Rosenworcel and Mignon Clyburn about just how neutral the NPR will be when it sees the light of day.

This is now a very high-stakes process. It is not just on the net neutrality issue at hand. It is as noted, also about whether the FCC can be a viable policy-making institution. Plus, this is shaping up as a partisan battle ground as well. Shifting, if not completely into neutral if not locking it in, makes sense. It is still anybody’s guess, whether it is enough to get additional passengers in the Wheeler car so he can get to the destination of a new Open Internet regime faster.   

Actress Bette Davis in the movie All About Eve has a now infamous line, “Fasten your seatbelts, it's going to be a bumpy night!”  That seems to be the best advice anyone can offer as we approach reveal day. 

Edited by Maurice Nagle
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