FCC Chairman Tom Wheeler Says Title II for ISPs and Mobile Operators It Shall Be

By Peter Bernstein February 04, 2015

In front of the scheduled February 6 release of his proposed plans on how to create a new net neutrality regime, FCC Chairman Tom Wheeler took advantage of our connected world and tipped his hand about his intentions in an op-ed posting on Wired.com

We are still very early into the reaction stage, but the blogosphere is already abuzz.  The reason is in his piece, This Is How We Will Ensure Net Neutrality, the chairman says:

Originally, I believed that the FCC could assure internet openness through a determination of “commercial reasonableness” under Section 706 of the Telecommunications Act of 1996. While a recent court decision seemed to draw a roadmap for using this approach, I became concerned that this relatively new concept might, down the road, be interpreted to mean what is reasonable for commercial interests, not consumers.

That is why I am proposing that the FCC use its Title II authority to implement and enforce open internet protections.

You read correctly, after a rather lengthy preamble that sets the context for his thinking on the subject, Wheeler, to what will be the chagrin of ISPs, believes that regulation and not “commercial reasonableness” is the correct path forward.  He goes on to note:

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. My proposal assures the rights of internet users to go where they want, when they want, and the rights of innovators to introduce new products without asking anyone’s permission.

Again you read correctly, this is not only going to rile ISP feathers but mobile operators as well. To say this is fascinating given Wheeler’s long and successful stewardship as head of first the cable industry’s trade association and then CTIA, the mobile industry’s powerful association, would be a gross understatement. 

While all of this has already stirred up the praise and condemnation one would expect from interested parties, it should also be noted that in an attempt to mollify critics, the proposal, and the language here will be parsed very carefully by all concerned, is supposed to be a net neutrality regulatory regime for the 21st century.  According to Wheeler this means, “For example, there will be no rate regulation, no tariffs, no last-mile unbundling.”  I, like everyone else, can’t wait to see how what appears to be such light touch regulation fits with the rest of the proposal.

Wheeler, has laid out a vision based on his reading of what the millions of those who have contacted the FCC with their opinions on the matter have said.  At a high level, everyone wants the same thing an Internet that is fast, fair, open and a platform that encourages innovation and hence does not serve as an obstacle of everyone and anyone having the chance to test their ingenuity.  I am actually surprised that he did not add “universally accessible” and “affordable.” 

It goes without saying that the amplification of noise around the proposal release this week and the pending February 26 vote by the full FCC is going to be deafening.  In fact, I am looking into noise cancellation technology to protect my browser and inbox. 

As someone with now almost four decades of experience watching communications policy being made, I hate to be a spoiler, but don’t look for whatever the proposal is, to become the law of the land any time soon. It has been clear from the get-go when the courts threw out the old net neutrality regime that regardless of what the FCC does or does not do, this one is going to be litigated.  And, as we all know litigation takes time.

Plus, we now have the prospect of this becoming a political football in the U.S. Congress, with the potential of it becoming a rather partisan affair.  The big reason is that making this a contested issue in some way the legislative equivalent of striking gold.  If you look at who the largest campaign contributors are and which organizations spend the most on lobbying, communications and now technology companies top the list.  With the 2016 presidential race already in gear, and Representatives and Senators already putting the arm on donors, it really does not get any better than this. 

Call me way too cynical but because of the potential to milk contributors for years, gridlock on these types of issues is always the best political monetization path.  In short, the worst outcome for polls is to actually pass something.

In conclusion,  I actually think Chairman Wheeler is on to something here by seemingly threading the needle between having a regulatory regime but using a light touch.  I wish him luck.

As I have written in the past, the worst decisions in the history of our industry were the Computer Inquiries I and II which tried to delineate a fine line between regulated communications services and unregulated information services.  Given even way back then what was anticipated as the future of the communications network being a digital and converged one, the attempt to create boundaries never made sense and we have spent several decades trying to figure out a way out of this problem. 

Wheeler and his colleagues at the FCC are once again trying a fix, which given the passage of time and the accelerating pace of technology innovation and its impact on businesses and consumers, is long overdue.   The facts are that the U.S. is falling behind other countries in regard to broadband speeds and feeds,  and our regulatory regime for getting us where we need to be, is both broken and in desperate need of being fixed sooner rather than later.  While the FCC is positioned to at least put something on the table, I hope I am totally wrong that this will get resolved later, rather than sooner.  

Edited by Stefania Viscusi
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