Put Away the Party Hats – Wheeler in His Own Words

Before an audience of the nation’s largest broadband providers, Federal Communications Commission Chairman Tom Wheeler defended his latest proposal for Open Internet/network neutrality rules. We outlined just last week what that proposal looks like and shared initial reaction. Needless to say, the debate only heated up more this week. Chairman Wheeler aimed to discredit any notion that “we are gutting the Open Internet rules.”

At The Cable Show in Los Angeles, Chairman Wheeler dispensed with niceties and told the audience to “Put away the party hats.” As the former chief lobbyist for the cable industry, Chairman Wheeler noted, “It has gone from regulatory constraints that were breathtakingly inhibiting to regulatory constraints that are barely discernible.” Especially concerning broadband, Wheeler noted that “the cable industry has important technical advantages, a leading market position, and very limited regulation. It is, to engage in understatement, an unusual situation.”

Chairman Wheeler made it clear that he agrees with the DC Circuit court and previous FCC findings that broadband providers:

• Represent a threat to Internet openness and could act in ways that would ultimately inhibit the speed and extent of future broadband deployment;
• Have incentives to interfere with competing edge-providers; and
• Have powerful incentives to accept fees from edge providers, either in return for excluding their competitors or for granting them prioritized access to end users.

So Chairman Wheeler in this speech wanted to make clear to this audience that new “Open Internet rules will be tough, enforceable and, with the concurrence of my colleagues, in place with dispatch.”

“With dispatch” is no throwaway phrase in the Chairman’s thinking. Wheeler made clear that he is “interested in results” and wants to “quickly get to legally enforceable Open Internet rules” which “until now have been only a matter of debate and litigation.” “[T]he sooner we can get enforceable rules in place, the better off everyone will be.”

This emphasis on (political) expediency has generated a good deal of criticism, especially from net neutrality advocates. Wheeler, in the Notice of Proposed Rulemaking (NPRM) that the FCC is expected to adopt on May 15, favors basing Open Internet rules on the authority granted to the FCC by Congress in Section 706 of the Telecommunications Act of 1996. This provision, as Andrew Jay Schwartzman wrote here in February, directs the FCC and state public service commissions to "encourage the deployment on a reasonable and timely basis of [broadband] to all Americans...," by using "price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods...."

But network neutrality advocates, the Benton Foundation among them, are urging the FCC to reclassify broadband as a telecommunications service (Title II in wonkspeak) and apply the consumer protections to high-speed Internet access that we associate with traditional telephone service. But, in political terms, this is referred to as the “nuclear option” with the specter of a “raft of regulatory obligations from the days of monopoly telecommunications regulation -- potentially including price regulation."

But Wheeler said it is his “strong belief” that Sec 706 “will produce similar protections more quickly” than Title II -- although, in another point stressed a number of times in his speech, Wheeler said that resorting to Title II remains an option as the FCC considers crafting new rules. The FCC will specifically ask for public comment on whether or not Title II is the best course of action.

What will the new rules look like? As noted above, Wheeler said they’ll be “tough” and “enforceable.” Wheeler also said the rules will:

• Guarantee every user has the ability to effectively use the Internet;
• 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;
• Maintain a broadly available, fast and robust Internet as a platform for economic growth, innovation, competition, free expression, and broadband investment and deployment;
• Encourage broadband providers to continually upgrade service to all;
• Ban prioritizing some traffic by forcing the rest of the traffic into a congested lane; and
• Not allow some companies to force Internet users into a slow lane so that others with special privileges can have superior service.

“The bottom line, Wheeler said, “is that the Internet will remain an open pathway. If users can’t effectively use the pathway then the conduct will be a violation of the Open Internet rules.” And, “If someone acts to divide the Internet between ‘haves’ and ‘have-nots,’ we will use every power at our disposal to stop it.”

Chairman Wheeler also returned to what he calls the Network Compact which he first outlined in a speech at The Ohio State University in December. “Our values are implicated, among other things, by our ability to transmit and receive facts, ideas, and opinions,” Wheeler said this week to the cable industry, “and therefore of the practices you adopt with respect to the openness of our broadband networks. As a result of the importance of our broadband networks, our society has the right to demand highly responsible performance from those who operate those networks.”

Wheeler noted how the FCC and industry are working together to make broadband networks more available and more secure. He noted how the FCC’s Connect America Fund and E-rate program make investment in broadband more affordable in hard to serve areas and in schools and libraries. The FCC -- through its Communications, Security, Reliability and Interoperability Council -- is allowing industry to take the lead on assessing cyber readiness and communicating risk assessments. “In addition to ensuring the availability and security of our broadband networks,” Wheeler said, “we have to assure the openness of the networks and the Internet for all lawful uses.”

Wheeler then pointed to competition as an effective tool for ensuring Internet openness. “Competition promotes efficient pricing, technical progressiveness, consumer protection, and, yes, private investment,” he said. But he also said that it is “historical fact” that “for many parts of the communications sector, there hasn’t been as much competition as consumers and innovation deserve.” That makes it important, Wheeler said, “that we knock down public and private barriers to competition and avoid erecting new ones. It is equally important that we encourage competition wherever it is possible.” Sec 706, Wheeler believes, gives the FCC authority to preempt state laws that ban competition from community broadband. “[I]f municipal governments -- the same ones that granted cable franchises -- want to pursue [community broadband], they shouldn’t be inhibited by state laws.”

Wheeler concluded by noting cable’s limited regulation despite it’s technical and market advantages. “The only way to maintain this situation is to uphold your responsibilities,” he said.

As we noted last week, we're tracking the net neutrality debate closely. We conclude, then, with some encouraging words from our good friend, Harold Feld who recently wrote about the upcoming FCC proceeding as an opportunity for network neutrality advocates to "correct the mistake the FCC made four years ago when it failed to classify broadband as a Title II service and adopt an absolute ban on ‘paid prioritization’ and other unjust and unreasonable practices. True, the current proposal reaches the wrong tentative conclusion. But it frames the right questions and gives us our chance if we step up and make our case."

More to the point, Feld squarely places the responsibility of crafting good policy on all of us:

YOU CAN’T OUTSOURCE CITIZENSHIP. You can’t let “the tech companies” or even “the consumer advocates” or anyone speak for you. Citizenship carries responsibilities that go beyond the ritual of voting every two years. But when citizens wake up and speak up, and speak to each other, they find — to their surprise — they are strong. They find they have power. And they find that being a citizen may take hard work, but it is so, so, SO much better and more satisfying than being a couch potato. As the great Jewish sage Hillel said: ‘If I am not for myself, who will be for me? If I am only for myself, who am I? If not me then who? If not now, when?’

Indeed.

Until next week, we'll see you in the Headlines.