Last week the Federal Communications Commission (FCC) set off a rather large firestorm on the Internet about the future of the Internet. When the Wall Street Journal reported that the FCC was going to submit new draft rules changes to the Open Internet Order, that report was interrupted by many to be the first step in creating a tiered Internet system wherein moneyed interests could pay for premium access, or in other words, create a “fast lane” for certain content. Protestations from the FCC and its relatively new Chairman, Tom Wheeler, that the critics were “flat out wrong” were met with heightened and increasing skepticism.
Today, FCC Chairman Wheeler issued a new blog post that, if nothing else, is seeking to further calm down the critics of his vision on how he would like the FCC to proceed. Using some pretty tough talk, Wheeler essentially says that if what the new rules propose don’t work, the fall back would be for the FCC to label the Internet a public utility and regulate it within that framework. A skeptic might see that as saying if the leash can’t restrain the dog, we’ll have to build a fence, but only after we see if the dog can escape the leash to kill the neighbor’s chickens.
Is Wheeler’s tough talk going to tamp down some of the heated criticism? It is too early to tell. To be fair, Wheeler and the FCC have an unenviable task in attempting to strike a balance that would protect consumers, foster an environment that allows for innovation from smaller companies, and still allows larger entrenched commercial interests to make a buck. But let’s take a look at what the blog post has to say in light of recent reporting, legitimate fears about the future of the Internet, and also that wonderful aspect of human kind, greed.
Wheeler says that the criticism so far has been unfair, and that what he is seeking to do is to ensure an open Internet for all parties. He does lay out a compelling case for moving the discussion along in an expeditious manner. He has a target of having enforceable rules in place by the end of 2014. To delay would allow existing broadband providers to continue to put practices in place that would be difficult to scale back if new rules are proposed that would come in conflict with those practices.
The idea of net neutrality (or the Open Internet) has been discussed for a decade with no lasting results. Today Internet Openness is being decided on an ad hoc basis by big companies. Further delay will only exacerbate this problem. The NPRM is seeking input on the best way to protect and promote the Open Internet.
To act on that urgency, Wheeler is building these discussions and proposals off of a court order in which the FCC lost a case against Verizon with the court declaring that essentially the FCC did not have the jurisdiction under current guidelines.
In its Verizon v. FCC decision the D.C. Circuit laid out a blueprint for how the FCC could use Section 706 of the Telecommunications Act of 1996 to create Open Internet rules that would stick. I have repeatedly stated that I viewed the court’s ruling as an invitation that I intended to accept. We ask for comment on this approach in the NPRM.
His assertion is that following the court ruling will be the quickest path to arriving at a workable and reasonable solution to this long standing problem.
Wheeler responded to the initial outpouring of anger after the WSJ report with an earlier blog post. Unfortunately in that post he used a fuzzy phrase, “commercially reasonable” that we, and many others, thought left the door open too wide for interpretation. Today’s blog post sought to define “commercially unreasonable” in more specific terms.
Let me be clear, however, as to what I believe is not “commercially reasonable” on the Internet:
- Something that harms consumers is not commercially reasonable. For instance, degrading service in order to create a new “fast lane” would be shut down.
- Something that harms competition is not commercially reasonable. For instance, degrading overall service so as to force consumers and content companies to a higher priced tier would be shut down.
- Providing exclusive, prioritized service to an affiliate is not commercially reasonable. For instance, a broadband provider that also owns a sports network should not be able to give a commercial advantage to that network over another competitive sports network wishing to reach viewers over the Internet.
- Something that curbs the free exercise of speech and civic engagement is not commercially reasonable. For instance, if the creators of new Internet content or services had to seek permission from ISPs or pay special fees to be seen online such action should be shut down.
In other words, the Internet will remain an open pathway. If broadband providers would seek to use the commercially reasonable test as justification of activities in which users can’t effectively use that pathway, or the capabilities of it are degraded, I suggest they save their breath since such conduct would be a violation of the Open Internet rules we propose. If anyone acts to degrade the service for all for the benefit of a few, I intend to use every available power to stop it.
The toughest language Wheeler used today relates to Title II of the Communications Act. In Title II, the FCC could indeed declare the Internet as a public utility and classify broadband providers as common carriers. This would subject them to the same kind of regulation as telephone service providers. Broadband providers do not want to see that happen. Wheeler’s words are very specific here:
Using every power also includes using Title II if necessary. If we get to a situation where arrival of the “next Google” or the “next Amazon” is being delayed or deterred, we will act as necessary using the full panoply of our authority. Just because I believe strongly that following the court’s roadmap will enable us to have rules protecting an Open Internet more quickly, does not mean I will hesitate to use Title II if warranted.
Sounds like FCC Chairman Tom Wheeler is one of the good guys judging from those statements. But the history of commerce proves that giving companies an inch typically results in them taking advantage of any loophole they can find to run roughshod over consumers. If that weren’t the case historically, we wouldn’t need regulation to begin with.
These recent statements are still being met with skepticism and that is healthy. Given how the U.S. political process works these days, Wheeler’s past work as President of the National Cable Television Association(NCTA) and CEO of the Cellular Telecommunications & Internet Association (CTIA), and the FCC’s past reluctance to act, that urgency needs to be meet with ongoing careful scrutiny of the process.
Many have questioned Wheeler’s role in this debate and his role as Chairman of the FCC, given his background as a lobbyist of NCTA and CTIA, and I think that is fair game. With that in mind, I’m reminded of one of my grandfather’s pearls of wisdom about politicians: “Why do you want to elect someone to write laws if they aren’t smart enough to know how to break them.” That could cut either way in this case.