FCC's Wheeler Says That If These Lame Net Neutrality Rules Don't Work, He'll Implement The Real Rules Next Time
from the oh-really? dept
...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.There is some truth in what he's saying. Basically, the appeals court ruling that rejected the previous rules did lay out a roadmap for rules that would be deemed more acceptable under the current classification, and Wheeler's plans appear to be to do exactly what the court suggested. And, to some extent he's right that this is the fastest way to get some kind of rules in place. But considering that they're even more watered down than the original, with the new "required" language leaving enough loopholes to make them meaningless, it almost seems like why bother. The best we could hope for is that Wheeler is actually trying to use the Ed Felten-like concept of "the best form of net neutrality" being one where there aren't any actual rules, but a constant threat of rules being enforced if the broadband providers stray too far.
But there's a problem there... in that the broadband providers have already started going too far, and they seem to keep pushing the boundaries further and further each time, without the FCC doing anything, (and in ways that don't directly impact those "open internet" rules). Also, while Wheeler is right that going the Title II route would create a legal (and political) shitstorm leading to many years of litigation and delay, the same may be true of his new rules. After all, he's only putting them forth after a four-year legal battle over the old rules.
But the biggest issue is that the FCC still doesn't seem to realize how the broadband providers have been increasingly chipping away at net neutrality anyway, without any pushback at all. As DSL Reports details, the FCC seems to think that all network neutrality violations are big and obvious, when the reality is quite different:
...the problem is that these days -- net neutrality violations are significantly more clever, and usually come dressed up as market innovation or security or network integrity efforts. Historically, if the FCC can't simply and cleanly prove without a shadow of a doubt that an ISP is acting anti-competitively, the agency simply doesn't bother doing much of anything (see Verizon Wireless's anti-competitive behavior on any number of issues or AT&T's ability to block legitimate video services as prime examples).Promising to pull out the Title II gun is talking big for a government agency that has been big on talk, but has little history of action. And thus, it's a threat that doesn't seem to have much weight.
What's considered "commercially unreasonable" is also going to be open to immense ambiguous interpretation. Wheeler for example seems perfectly ok with the increasingly ugly interconnection and peering fights arising between Verizon, Comcast, AT&T and Netflix, and has stated these won't be included in the rules. He also seems similarly tone deaf to the potential pitfalls facing wireless courtesy of concepts like AT&T's Sponsored Data, which critics charge will result in deep-pocketed companies (like ESPN) getting a huge leg up on smaller companies that can't afford AT&T's toll to be listed as "cap free" content.
Wheeler's comments to date strongly suggest his threshold for what's going to be considered anti-competitive behavior will be stratospherically-high, and as is the case now -- carriers will still be able to get away with anti-competitive behavior provided they're relatively clever about it.