Net Neutrality

In the face of continued negative commentary about his proposal for new Open Internet (a/k/a Net Neutrality) rules, FCC Chairman Tom Wheeler has once again taken to the blogosphere to defend his position. Calling the commentary a “misinformed interpretation” of his proposal, he offered additional details on his proposal and also addressed the potential for Title II (full common carrier) regulation of ISPs.


First, he notes that the court that overturned the FCC’s original Open Internet rules “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.” He expressed concern that ignoring the court’s guidance or adopting a new approach “invites delay that could tack on multiple more years before there are Open Internet rules in place. We are asking for comment on a proposed course of action that could result in an enforceable rule rather than continuing the debate over our legal authority that has so far produced nothing of permanence for the Internet.” The rules will incorporate the “commercially reasonable” standard discussed by the court.


Second, he defended his proposal against charges it would result in a so-called “fast lane” and Internet “haves” and “have-nots.” Instead he said that the rule he is proposing “is built to ensure that everyone has access to an Internet that is sufficiently robust to enable consumers to access the content, services and applications they demand, as well as an Internet that offers innovators and edge providers the ability to offer new products and services.”


Wheeler also fleshed-out activities he believes would not to be “commercially reasonable” on the Internet, as follows:

  • 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.


Wheeler went on to say that “[i]f anyone acts to degrade the service for all for the benefit of a Tom Wheelerfew, I intend to use every available power to stop it.”


In response to those who are urging that the FCC reclassify broadband Internet access as a telecommunications service and apply common carrier regulation, Wheeler emphasized that “all regulatory options remain on the table. If the proposal before us now turns out to be insufficient unlike with Title II, we can use the court’s roadmap to implement Open Internet regulation now rather than endure additional years of litigation and delay.”


Wheeler also reiterated his concern about the “shortfall in adequate broadband competition” and his intent to address the matter of municipal ownership or sponsorship of competitive broadband networks “shortly.”


Separately, Wheeler addressed this same issue in an April 30, 2014, speech before the National Cable & Telecommunications Association. There he said, among other things: “If you read some of the press accounts about what we propose to do, those of you who oppose net neutrality might feel like a celebration was in order. Reports that we are gutting the Open Internet rules are incorrect. I am here to say wait a minute. Put away the party hats. The Open Internet rules will be tough, enforceable and, with the concurrence of my colleagues, in place with dispatch.”  


Echoing the themes in his blog, Wheeler said:

“There has been a great deal of talk about how our following the court’s instruction to use a “commercially reasonable” test could result in a so-called “fast lane” and Internet “haves” and “have-nots.” This misses the point that any new rule will assure an open pathway that is sufficiently robust to enable consumers to access the content, services and applications they demand and innovators and edge providers the ability to offer new products and services. Put another way, the focus of this proposal – on which we are seeking comment – is on maintaining a broadly available, fast and robust Internet as a platform for economic growth, innovation, competition, free expression, and broadband investment and deployment. Our goal is rules that will encourage broadband providers to continually upgrade service to all. We will follow the court’s blueprint for achieving this, and, I must warn you, will look skeptically on special exceptions.”


He added:

“Let me be clear. If someone acts to divide the Internet between “haves” and “have-nots,” we will use every power at our disposal to stop it. I consider that to include Title II. Just because it is my strong belief that following the court’s roadmap will produce similar protections more quickly, does not mean I will hesitate to use Title II if warranted. And, in our Notice, we are asking for input as to whether this approach should be used.”



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