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
See more stories about...
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.’ “

{{ BIZOBJ (video: 4674) }}

What We're Following See More »
TAKING A LONG VIEW TO SOUTHERN STATES
In Dropout Speech, Santorum Endorses Rubio
2 days ago
THE DETAILS

As expected after earlier reports on Wednesday, Rick Santorum ended his presidential bid. But less expected: he threw his support to Marco Rubio. After noting he spoke with Rubio the day before for an hour, he said, “Someone who has a real understanding of the threat of ISIS, real understanding of the threat of fundamentalist Islam, and has experience, one of the things I wanted was someone who has experience in this area, and that’s why we decided to support Marco Rubio.” It doesn’t figure to help Rubio much in New Hampshire, but the Santorum nod could pay dividends down the road in southern states.

Source:
‘PITTING PEOPLE AGAINST EACH OTHER’
Rubio, Trump Question Obama’s Mosque Visit
2 days ago
WHY WE CARE

President Obama’s decision to visit a mosque in Baltimore today was never going to be completely uncontroversial. And Donald Trump and Marco Rubio proved it. “Maybe he feels comfortable there,” Trump told interviewer Greta van Susteren on Fox News. “There are a lot of places he can go, and he chose a mosque.” And in New Hampshire, Rubio said of Obama, “Always pitting people against each other. Always. Look at today – he gave a speech at a mosque. Oh, you know, basically implying that America is discriminating against Muslims.”

Source:
THE TIME IS NOW, TED
Cruz Must Max Out on Evangelical Support through Early March
2 days ago
WHY WE CARE

For Ted Cruz, a strong showing in New Hampshire would be nice, but not necessary. That’s because evangelical voters only make up 21% of the Granite State’s population. “But from the February 20 South Carolina primary through March 15, there are nine states (South Carolina, Alabama, Arkansas, Georgia, Oklahoma, Tennessee, Kentucky, Mississippi, and North Carolina) with an estimated white-Evangelical percentage of the GOP electorate over 60 percent, and another four (Texas, Kansas, Louisiana, and Missouri) that come in over 50 percent.” But after that, he better be in the catbird’s seat, because only four smaller states remain with evangelical voter majorities.

Source:
CHRISTIE, BUSH TRYING TO TAKE HIM DOWN
Rubio Now Winning the ‘Endorsement Primary’
2 days ago
WHY WE CARE

Since his strong third-place finish in Iowa, Marco Rubio has won endorsement by two sitting senators and two congressmen, putting him in the lead for the first time of FiveThirtyEight‘s Endorsement Tracker. “Some politicians had put early support behind Jeb Bush — he had led [their] list since August — but since January the only new endorsement he has received was from former presidential candidate Sen. Lindsey Graham.” Meanwhile, the New York Times reports that fueled by resentment, “members of the Bush and Christie campaigns have communicated about their mutual desire to halt … Rubio’s rise in the polls.”

Source:
ARE YOU THE GATEKEEPER?
Sanders: Obama Is a Progressive
1 days ago
THE LATEST

“Do I think President Obama is a progressive? Yeah, I do,” said Bernie Sanders, in response to a direct question in tonight’s debate. “I think they’ve done a great job.” But Hillary Clinton wasn’t content to sit out the latest chapter in the great debate over the definition of progressivism. “In your definition, with you being the gatekeeper of progressivism, I don’t think anyone else fits that definition,” she told Sanders.

×