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
Brendan Sasso
May 20, 2014, 12:06 p.m.

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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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