In yet another public blog about new neutrality and the open internet, FCC Chairman Tom Wheeler, has once again tried to clarify where he stands on the open internet and net neutrality, while almost entirely focusing on the open internet and trying to define exactly what it means. In his blog post, Tom Wheeler tries to quell some of the backlash of some of his statements and previous blogs in a way that placates the masses that are currently angry with the FCC and their proposed rules for open internet standards that would effectively create a “fast lane” for companies that pay for that access to ISPs.
Tom Wheeler states that the idea of net neutrality and/or an open internet has been discussed for a decade without any lasting results and that today the internet’s openness is mostly decided on an ad hoc basis by big companies. He also says that any further delays will only exacerbate the problem. Not just that, but the NPRM (notice of proposed rule making) is seeking input on the best way to protect and promote the open internet. Even though, Wheeler fails to admit or recognize that much of those failures have been as a result of the fact that Congress has failed to pass any legislation and that the FCC has failed to enforce any rules that they have put in place.
He then brings up the Verizon v. FCC court case and how the court laid out a blueprint for how the FCC could use Section 706 of the 1996 Telecommunications Act to create open internet rules that would stick. Tom believes that this court ruling was an invitation to do this and he fully intends to do so, and once again, they ask for comment on this approach in their NPRM. But he fails to say in any way how he will use this invitation to protect the open internet anywhere in his letter or any previous blogs. We literally know nothing about how he proposes to create an open internet using that law and the court’s guidance. Because he believes that creating any laws or rules that ignore the Verizon v FCC court decision will merely result in more years of delays and ultimately would accomplish nothing.
I do not believe we should leave the market unprotected for multiple more years while lawyers for the biggest corporate players tie the FCC’s protections up in court. Notwithstanding this, all regulatory options remain on the table. If the proposal before us now turns out to be insufficient or if we observe anyone taking advantage of the rule, I won’t hesitate to use Title II. However, unlike with Title II, we can use the court’s roadmap to implement Open Internet regulation now rather than endure additional years of litigation and delay.
If you want to read his whole post verbatim, I highly recommend you head on over to the FCC’s official blog to read it, as it is quite lengthy, so we paraphrased a lot of it above.
As for the post itself? Wheeler expressly clarifies what “commercially reasonable” finally means, as they’ve been throwing that term around ever since the whole dust up about the NPRM happened and the whole internet got all up in arms about it. His clarification is a very specific one and establishes a very specific set of tests and examples that won’t pass the “commercially reasonable” test.
Let me be clear, however, as to what I believe is not “commercially reasonable” on the Internet:
- Something that harms consumers is not commercially reasonable. For instance, degrading service in order to create a new “fast lane” would be shut down.
- Something that harms competition is not commercially reasonable. For instance, degrading overall service so as to force consumers and content companies to a higher priced tier would be shut down.
- Providing exclusive, prioritized service to an affiliate is not commercially reasonable. For instance, a broadband provider that also owns a sports network should not be able to give a commercial advantage to that network over another competitive sports network wishing to reach viewers over the Internet.
- Something that curbs the free exercise of speech and civic engagement is not commercially reasonable. For instance, if the creators of new Internet content or services had to seek permission from ISPs or pay special fees to be seen online such action should be shut down.
If you were to go off these four different tests alone, Wheeler’s proposed rules don’t seem as ridiculous, but the truth is that his idea of commercially reasonable doesn’t necessarily mean it’ll be the one that a court will interpret or any future FCC Chairman. Additionally, in the whole of the document, Title II is mentioned four times with a few of those being a mention that they can always go that route if necessary, yet he continues to state it as an option rather than a solution. I’m just not sure why he continually avoids trying to reclassify internet service as a common carrier to protect and regulate consumers. Perhaps, because if he does that, the NSA, CIA, FBI and all other agencies will actually need to get warrants from a judge to intercept communications over the internet. Because as a Title I, or unclassified, they have a lot more freedom to do what they want, and I suspect there’s a lot of internal politics within Washington D.C. that doesn’t want internet service to be reclassified. It is the nuclear option, and I think its the only weapon we’ve got left because the ISPs want to maintain the status quo and keep growing their control.