FCC Chairman Tom Wheeler is halfway home on his proposal to regulate the internet. How? With a little help from President Obama he managed to sell internet regulation as “net neutrality.” It sounds so much nicer for Chairman Wheeler to rebrand his proposal to reclassify internet service as a public utility in such a way and he is confident of a win in a vote set for February 26. It’s easy to see how he would be with Democrats holding a 3-2 edge among the FCC’s five commissioners. Chairman Wheeler’s stated goal is to ensure that the internet stays “fast, fair, and open” under his watchful eye. What he is not so upfront about is just what reclassification allows. Title II of the Communications Act of 1934 grants the FCC authority to regulate rates and contains provisions such as an unbundling requirement that, if used on Internet service providers, would require ISP’s to lease network access to competitors or file tariffs. So far though Chairman Wheeler has reassured users and ISP’s that the new regulations would be carried out with a light touch so as to allow for continued investment in, and improvement of, high-speed networks. But his proposal also leaves room for what is termed “reasonable network management.” What it allows for remains to be seen.
Whatever uncertainty remains over how the FCC would carry out its “network neutrality” proposal two things are clear: Chairman Wheeler’s continued insistence on hiding the details of a 332 page draft of “net neutrality” rules makes clear the need for the kind of rebranding that has been carried out. Chairman Wheeler did pick a good adversary when he set his sights on Internet service providers. A summer of merger news (Time Warner/Comcast, AT&T/Verizon) and a season of lousy PR for pay TV in general and Time Warner Cable in particular over its blackout of the Dodgers has left “big telecom” about as popular as Congress. It’s the perfect environment for the FCC to ride to the rescue in and is also the greatest weakness of its net neutrality proposal. For all their stated concern over ISP’s selling preferential treatment to certain websites or content neither Chairman Wheeler nor President Obama can cite any examples of such a thing happening. Their newest proposal is built on the foundation of a possibility. It also follows the ruling of a federal court, which for the second time, tossed out FCC rules that relied on a different part of telecommunications law. So here comes Title II reclassification as an end run around an unfriendly court ruling. One thing is certain, Chairman Wheeler has kept his word about considering “all available options.”