FCC Chief Vows to Fight for Net Neutrality

Tom Wheeler isn’t accepting defeat on the open Internet rules.

Venture capitalist Tom Wheeler, US President Barack Obama's nominee to head the Federal Communications Commission (FCC), attends the announcement in the East Room of the White House in Washington, DC, on May 1, 2013.
National Journal
Brendan Sasso
Jan. 16, 2014, 8:24 a.m.

Tom Wheel­er, the chair­man of the Fed­er­al Com­mu­nic­a­tions Com­mis­sion, doesn’t plan to roll over and ac­cept a fed­er­al court rul­ing strik­ing down the agency’s net neut­ral­ity reg­u­la­tions.

“The great re­volu­tion in the In­ter­net is how it em­powers in­di­vidu­als to both con­sume and cre­ate,” Wheel­er said dur­ing a speech Thursday. “To do so re­quires an ac­cess­ible and open In­ter­net, and we will fight to pre­serve that cap­ab­il­ity.”

He said the FCC will “ac­cept the court’s in­vit­a­tion to re­vis­it the struc­ture of the rules that it va­cated.”

we ac­cept the court’s in­vit­a­tion to re­vis­it the struc­ture of the rules that it va­cate­dac­cept the court’s in­vit­a­tion to re­vis­it the struc­ture of the rules that it va­cated

But it re­mains un­clear what step Wheel­er plans next to try to sal­vage the rules.

The D.C. Cir­cuit Court of Ap­peals sided with a law­suit from Ve­r­i­zon on Tues­day, con­clud­ing that the FCC ac­ted out­side of its au­thor­ity when it en­acted net neut­ral­ity, form­ally called the Open In­ter­net Or­der, in 2010.

The reg­u­la­tions bar In­ter­net ser­vice pro­viders from block­ing web­sites or from speed­ing up or slow­ing down any sites.

The de­cision could al­low In­ter­net pro­viders to force sites like Net­flix, Google or Amazon to pay spe­cial fees or see their sites slowed to a crawl. Pro­viders could also block sites en­tirely.

Sup­port­ers of net neut­ral­ity ar­gue that the In­ter­net should be an open plat­form where all sites com­pete equally. They fear that small start-ups would be un­able to pay for In­ter­net fast lanes and could be pre­ven­ted from even get­ting off the ground.

But crit­ics, in­clud­ing most Re­pub­lic­ans, say the gov­ern­ment shouldn’t be in­volved in mi­cro­man­aging the busi­ness de­cisions of In­ter­net pro­viders. They ar­gue that there’s noth­ing wrong with In­ter­net pro­viders, who have in­ves­ted bil­lions of dol­lars in in­fra­struc­ture, from try­ing to re­coup some of the costs from Web firms who are mak­ing money us­ing their net­works.

“The court in­vited the com­mis­sion to act, and I in­tend to ac­cept that in­vit­a­tion,” Wheel­er said in his speech Thursday be­fore the Minor­ity Me­dia & Tele­com­mu­nic­a­tions Coun­cil in Wash­ing­ton.

The court made it clear that the FCC’s leg­al prob­lems stem from its de­cision dur­ing the Bush ad­min­is­tra­tion to clas­si­fy broad­band In­ter­net as an “in­form­a­tion ser­vice.” Con­gress has gran­ted the FCC very lim­ited au­thor­ity over in­form­a­tion ser­vices.

But the FCC could po­ten­tially save the rules by re­clas­si­fy­ing broad­band as a “tele­com­mu­nic­a­tions ser­vice” — which it has broad power to reg­u­late.

That move, however, would spark a mo­nu­ment­al fight with con­gres­sion­al Re­pub­lic­ans, who fear the FCC would be try­ing to takeover the In­ter­net.

A pro­trac­ted battle with Re­pub­lic­ans could de­rail all of the oth­er items on Wheel­er’s agenda. 

Al­though re­clas­si­fic­a­tion would be the surest way to save the rules, it’s not Wheel­er’s only op­tion. He could also first ap­peal the de­cision to the full D.C. Cir­cuit or to the Su­preme Court.

Or he could re-write the rules un­der the cur­rent clas­si­fic­a­tion to try to sat­is­fy the court. But that would al­most cer­tainly mean wa­ter­ing them down and would likely still face Re­pub­lic­an res­ist­ance.

Wheel­er could also wait for an ab­use to oc­cur and then try to en­force the prin­ciple of net neut­ral­ity on a case-by-case basis un­der the agency’s oth­er au­thor­it­ies. But any sanc­tion would face im­me­di­ate leg­al chal­lenges, and it’s un­clear the FCC could win in court.

The one op­tion Wheel­er seems to be rul­ing out is to do noth­ing and ac­cept de­feat. 

“Make no mis­take about it, our job is to en­sure growth and in­nov­a­tion through an open In­ter­net,” Wheel­er said.

Ve­r­i­zon and oth­er In­ter­net pro­viders is­sued state­ments in the wake of the court’s rul­ing say­ing they are com­mit­ted to an open In­ter­net and have no plans to block web­sites. They didn’t, however, ex­pli­citly rule out char­ging sites for faster ser­vice.

Wheel­er said the FCC has “noted with great in­terest” the In­ter­net pro­viders’ state­ments and that the com­mis­sion will “take them up on their com­mit­ment.”

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