FCC Chief Outlines Case-By-Case Net-Neutrality Enforcement

Open-Internet advocates want the agency to take bolder action.

Tom Wheeler
National Journal
Brendan Sasso
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Brendan Sasso
Jan. 28, 2014, 7:35 a.m.

Fed­er­al Com­mu­nic­a­tions Com­mis­sion Chair­man Tom Wheel­er hin­ted on Tues­day that he has no im­me­di­ate plans to form­ally re­in­state his agency’s net-neut­ral­ity reg­u­la­tions.

In­stead, Wheel­er touted the be­ne­fits of wait­ing for ab­uses to oc­cur and then crack­ing down on a case-by-case basis. The FCC chief said he fa­vors ad­dress­ing prob­lems “in a dy­nam­ic rather than a stat­ic way.”

“Case-by-case is a dy­nam­ic ap­proach rather than ‘Well, every­body’s got to go through the eye of this needle,’” Wheel­er said in a dis­cus­sion at the State of the Net con­fer­ence in Wash­ing­ton.

The D.C. Cir­cuit Court of Ap­peals struck down the FCC’s net-neut­ral­ity reg­u­la­tions earli­er this month. The rules re­quired In­ter­net ser­vice pro­viders to treat all Web traffic equally. Sup­port­ers of the rules fear that In­ter­net pro­viders could soon be­gin slow­ing down or block­ing web­sites that fail to pay spe­cial fees.

These ad­voc­ates ar­gue that pro­tect­ing the In­ter­net as an open plat­form where all sites are treated equally is the best way to pro­mote in­nov­a­tion and com­pet­i­tion.

But the court agreed with Ve­r­i­zon’s law­suit, con­clud­ing that the rules in­ap­pro­pri­ately treated In­ter­net pro­viders as “com­mon car­ri­ers” — which the agency is barred from do­ing. Wheel­er, however, noted that the court up­held a broad FCC au­thor­ity to reg­u­late the In­ter­net.

The FCC could use that broad au­thor­ity to pun­ish In­ter­net pro­viders that en­gage in flag­rant net-neut­ral­ity vi­ol­a­tions, Wheel­er sug­ges­ted. The agency can bring ac­tions with the goal of pro­mot­ing broad­band de­ploy­ment, pro­tect­ing con­sumers, or en­sur­ing com­pet­i­tion, for ex­ample.

But any FCC en­force­ment ac­tion over net neut­ral­ity would al­most cer­tainly face im­me­di­ate leg­al chal­lenges. It’s un­clear what prin­ciples the FCC could en­force through ad hoc ac­tions that it couldn’t en­force through form­al reg­u­la­tions.

Net-neut­ral­ity ad­voc­ates are ur­ging the FCC to take a bolder move to save the rules. They want the agency to re­clas­si­fy broad­band In­ter­net as a “tele­com­mu­nic­a­tions ser­vice.” Un­der the Com­mu­nic­a­tions Act, the FCC has sweep­ing powers to reg­u­late tele­com­mu­nic­a­tions ser­vices, in­clud­ing as com­mon car­ri­ers.

Re­clas­si­fy­ing broad­band would put the rules on firmer leg­al ground but would prompt a massive fight with con­gres­sion­al Re­pub­lic­ans that could de­rail Wheel­er’s oth­er pri­or­it­ies.

At the con­fer­ence, the FCC chair­man also in­dic­ated he has no prob­lem with cel­lu­lar car­ri­ers dis­crim­in­at­ing between dif­fer­ent kinds of sites and ser­vices. Al­though the FCC’s net-neut­ral­ity rules largely ex­emp­ted wire­less traffic, Wheel­er’s com­ments likely dis­may open-In­ter­net ad­voc­ates who thought the ori­gin­al rules should have been stronger.

“[The net-neut­ral­ity or­der] clearly al­lows and en­cour­ages in fact this kind of thing,” Wheel­er said of wire­less dis­crim­in­a­tion. “We be­lieve that mar­kets should be in­nov­at­ive. And at the same point in time, we are not reti­cent to say, ‘Ex­cuse me, that’s an­ti­com­pet­it­ive. Ex­cuse me, that’s self-deal­ing. Ex­cuse me, this a con­sumer ab­use.’ “

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