FCC Chief Dances and Dodges on Plan for Internet ‘Fast Lanes’

Tom Wheeler defends his net-neutrality proposal.

Federal Communications Commission (FCC) Chairman Tom Wheeler testifies before the Communications and Technology Subcommittee on Capitol Hill in Washington, DC, May 20, 2014.
National Journal
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Brendan Sasso
May 20, 2014, 12:06 p.m.

Fed­er­al Com­mu­nic­a­tions Com­mis­sion Chair­man Tom Wheel­er didn’t have many friends at a House hear­ing Tues­day.

Re­pub­lic­ans ac­cused him of try­ing to stifle the In­ter­net with un­ne­ces­sary reg­u­la­tions, while Demo­crats warned that his net-neut­ral­ity pro­pos­al could dis­tort the In­ter­net in fa­vor of the largest cor­por­a­tions.

Wheel­er was put­ting it mildly when he said he has taken “a lot of heat” over the is­sue.

“Giv­en some of the most re­cent ac­tions out of the com­mis­sion, I fear that we may be head­ing in­to rough wa­ters,” said Rep. Greg Walden, the Re­pub­lic­an chair­man of the House En­ergy and Com­merce Com­mit­tee’s Com­mu­nic­a­tions and Tech­no­logy Sub­com­mit­tee, which held the hear­ing.

Last week, the FCC voted to move ahead with a net-neut­ral­ity pro­pos­al that would lim­it the abil­ity of broad­band pro­viders to tamper with In­ter­net traffic. The pro­pos­al would bar pro­viders like Com­cast from block­ing web­sites, but they could charge web­sites for faster ser­vice as long as the ar­range­ments are “com­mer­cially reas­on­able.”

Wheel­er is try­ing to re­write the net-neut­ral­ity reg­u­la­tions after a fed­er­al ap­peals court struck down the old (stronger) rules earli­er this year. The com­mis­sion is now ac­cept­ing com­ments on its pro­pos­al and will have to vote again in sev­er­al months to en­act fi­nal reg­u­la­tions.

Wheel­er’s pro­pos­al has out­raged many lib­er­als, who ar­gue that “fast lanes” would al­low In­ter­net pro­viders to ex­tort “tolls” and stifle in­nov­at­ive start-ups that can’t af­ford to pay. Act­iv­ists camped out­side the FCC last week, de­mand­ing that Wheel­er en­act stronger net-neut­ral­ity rules.

“I sup­port a ban on paid pri­or­it­iz­a­tion deals,” Rep. Dor­is Mat­sui, a Cali­for­nia Demo­crat, said. “We can’t af­ford a two-tiered In­ter­net sys­tem.”

She warned that if Wheel­er’s pro­pos­al moves for­ward, it could “in­ad­vert­ently block the next Google or Amazon from the mar­ket without even­ing know­ing it.”

“Paid pri­or­it­iz­a­tion rep­res­ents a fun­da­ment­al de­par­ture form the In­ter­net as we know it,” warned Cali­for­nia Rep. Anna Eshoo, the sub­com­mit­tee’s top Demo­crat. She pressed Wheel­er to ex­pli­citly state wheth­er he would would ban paid-pri­or­it­iz­a­tion of In­ter­net traffic.

“I don’t be­lieve there ought to be haves and have-nots,” Wheel­er began be­fore Eshoo cut him off. “No, no — just an­swer my ques­tion. Just tell me.”

Wheel­er ex­plained that his pro­pos­al would at least block deals that are bad for com­pet­i­tion or con­sumers. 

He tried to al­lay the Demo­crats’ con­cerns, stat­ing re­peatedly he wants to pro­tect the open­ness of the In­ter­net.

“There is not a fast In­ter­net and a slow In­ter­net. There is one In­ter­net,” he said. “When a con­sumer is buy­ing ac­cess to the In­ter­net, they are buy­ing ac­cess to the full In­ter­net.”

He prom­ised he wouldn’t al­low pro­viders to de­grade ser­vice in or­der to make fast lanes more ap­peal­ing. The com­mis­sion has also asked for in­put on wheth­er it should try to ban pay-for-pri­or­ity out­right.

But Wheel­er is in a tough spot leg­ally. When the D.C. Cir­cuit Court of Ap­peals struck down the old rules, it said the com­mis­sion had gone too far by try­ing to cut off all pay-for-pri­or­ity deals.

Us­ing the cur­rent leg­al au­thor­ity, the FCC es­sen­tially must al­low at least some “fast lanes” or its rules will just get thrown out again.

“I am con­cerned your hands may be tied here,” Mat­sui said. “Even if the com­mis­sion wanted to ban anti-com­pet­it­ive paid-pri­or­ity deals, you may not have the au­thor­ity or the tools to do so.”

Lib­er­al ad­vocacy groups are ur­ging the FCC to rely on a stronger leg­al au­thor­ity. The FCC could re­clas­si­fy broad­band In­ter­net as a “com­mon car­ri­er” util­ity un­der Title II of the Com­mu­nic­a­tions Act — the au­thor­ity it cur­rently uses to reg­u­late tele­phone ser­vice. The move would grant the FCC sweep­ing new leg­al powers, in­clud­ing the abil­ity to en­act stronger net-neut­ral­ity rules.

Wheel­er’s pro­pos­al re­lies on the ex­ist­ing au­thor­ity but asks for com­ment on wheth­er the com­mis­sion should re­clas­si­fy broad­band un­der Title II. Some Demo­crats said Tues­day that they’re happy Wheel­er is still open to the op­tion but few have ex­pli­citly called for him to use Title II.

Re­pub­lic­ans, on the oth­er hand, made it clear they would use all their power to try to block the FCC from ap­ply­ing util­ity reg­u­la­tions to the In­ter­net.

Rep. Fred Up­ton, the chair­man of the full com­mit­tee, said Title II would im­pose “bur­den­some reg­u­la­tions” that are “in­ap­pro­pri­ate for the In­ter­net.”

“Nobody wants tele­phone ser­vice to look like it did in 1984, and we cer­tainly shouldn’t wish for our In­ter­net ac­cess to re­turn to that rotary-phone era either,” Up­ton said.


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