FCC Boss Now Making The Case For Reclassification, Rather Than Against It

from the well,-duh dept

It's been all but confirmed for the past couple of months that Tom Wheeler was going to put forth new FCC net neutrality rules that include reclassifying broadband under Title II. While he had been moving forward with his split the baby hybrid approach, President Obama's surprising clear support for Title II shifted the debate. At this point, nearly everyone expects the plans, to be released soon and voted on at the end of February, to include reclassification with forbearance. Yesterday at CES, Wheeler was interviewed by CEA boss Gary Shapiro, and while he didn't come out and directly say it, it was quite clear that he's going for Title II reclassification. You can see the 48-minute video if you want to catch the whole thing.

In it, Wheeler makes two key points that he (and others) have avoided making over the past year. First, a "commercially reasonable" approach doesn't actually do much for the public. As we discussed all the way back in April, the "commercially reasonable" standard is a recipe for disaster, allowing for broadband companies to put in place nasty anti-consumer practices, focusing on adding tollbooths and limiting online services. For the first time, Wheeler was pretty explicit about the problems of this standard, that he had supported earlier:
It became obvious that commercially reasonable could be interpreted as what is reasonable for the ISPs, not what is reasonable for consumers or innovators. And that's the wrong question and the wrong answer because the issue here is how do we make sure that consumers and innovators have open access to networks. That led us to a more robust investigation of the well established concept of just and reasonable, which is a Title II concept. And as I said, Title II has always been something that was on the table. So last summer we began investigating various approaches using title II as a way to get to just and reasonable because it has the best protections.
The second key point that Wheeler made, which he hadn't been making in the past (and had actually argued almost the opposite), was that there's no real evidence that Title II kills innovation. During meetings with tech companies in the past, Wheeler had said that he was worried about Title II hurting broadband investment, but it appears that he's finally realized this isn't true.

The key here (again, as we've pointed out in the past) is that Wheeler realized that mobile phone service has always been regulated under Title II and there continues to be tremendous investment in that space. In fact, Wheeler notes that the recent spectrum auction activity pretty clearly proved the point that Title II doesn't scare off investment:
After the president said what he said about Title II, we still had a record bidding for spectrum from ISPs...
Oh, and also, he pointed out that the mobile phone space has appropriate forbearance, ripping to shreds the argument that forbearance is impossible and that Title II will lead to tariffs and other burdensome regulations. As he noted, he was actually the lobbyist on the mobile side that negotiated such a deal, so he knows it works:
“It just so happens that 20 years ago I was the guy that negotiated on behalf of the wireless industry to establish Section 332," Wheeler said.

“Section 332 says that wireless should be regulated under Title II as a common carrier, except that the FCC is instructed to forbear from onerous provisions and inappropriate provisions of Title II, except for section 201 and 202, which is just and reasonable, and Section 208, which is consumer protection," he added.

[....] ”So I say to myself, 'ok there is a way to do Title II right, and sure there are many ways to do Title II that would thwart investment, but there are other ways to do Title II,'” Wheeler told Shapiro on stage. “We ought to take a look at how that fits together with consumer protection.”

Wheeler urged listeners to look at the wireless industry under Title II to see how the FCC might enforce it. “There is no need to file tariffs, there is no need to file all these informational activities,” Wheeler said. “The problem we had at that time [in the 90’s] was the wireless industry was having to go before state commissions to change rates.” Having the FCC approve all rate changes, Wheeler seemed to imply, is not what he wants.
These are all points that people have raised before... but which have been mostly ignored in statements by Wheeler until now. In fact, for those who immediately condemned Wheeler's past as an industry lobbyist, he seems to have effectively flipped the script. He's now using that past and his experiences to show that he knows damn well that the FCC can do Title II with appropriate forbearance in a way that works fine for the industry, because he was the one who negotiated it that way for the mobile industry years ago.

Again, there's nothing too surprising in the effective acknowledgement that Wheeler is finally aboard the Title II bandwagon, but what's good to see is not just his support for Title II, but the fact that he's demolishing the ridiculous and misleading complaints the big broadband players have been making against Title II and for the old Section 706 approach. That is, it doesn't look like Wheeler is cautiously stepping into Title II, but rather that he's fully onboard and is ready to defend the argument in a way that sticks.

Big broadband is going to howl and protest, but the reality is that their arguments never made much sense in the first place -- and now Tom Wheeler is making that clear as well.

Filed Under: fcc, net neutrality, open internet, reclassification, spectrum, title ii, tom wheeler, wireless


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  • icon
    That One Guy (profile), 8 Jan 2015 @ 3:42pm

    'Big broadband is going to howl and protest...'

    I think you underestimate them. Their response to this is likely to be far, far more than just 'howl and protest', and is likely to involving a heavy amount of pressure put on their employees in Congress to 'fix' the problem before Wheeler can get around to it.

    Always remember, a cornered animal is far from harmless, and in fact just gets more dangerous most of the time.

    reply to this | link to this | view in chronology ]

    • icon
      Dave Cortright (profile), 8 Jan 2015 @ 4:57pm

      Re: 'Big broadband is going to howl and protest...'

      And sites like TechDirt will continue to provide an healthy, ongoing application of sunlight to disinfect such chicanery. Do not underestimate the influence that the people and the press exerted here to cause such a dramatic 180° from Wheeler.

      reply to this | link to this | view in chronology ]

    • icon
      Mason Wheeler (profile), 8 Jan 2015 @ 5:32pm

      Re: 'Big broadband is going to howl and protest...'

      Always remember, a cornered animal is far from harmless, and in fact just gets more dangerous most of the time.

      That's usually the point where you shoot the animal in question...

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Jan 2015 @ 9:12pm

      Re: 'Big broadband is going to howl and protest...'

      Short of a rider being inserted in a 'guaranteed to be renewed' piece of legislation at midnight, good luck with that. Congress is useless at accomplishing anything else. That is just within one branch, not to mention both the House and Senate agreeing and passing similar legislation. Nothing to worry about, at least until a new president is elected.

      reply to this | link to this | view in chronology ]

      • icon
        R.H. (profile), 8 Jan 2015 @ 9:49pm

        Re: Re: 'Big broadband is going to howl and protest...'

        Since both houses of our Legislative branch are actually controlled by a single party now, they may actually start passing some actual legislation. I will probably be in disagreement with much of said legislation but, things will start coming out of there again. Whether or not this legislation gets signed by the President to become law on the other hand...I have the feeling that the next two years will be much like Bush's final two years. Let the veto party begin.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 9 Jan 2015 @ 5:00am

          Re: Re: Re: 'Big broadband is going to howl and protest...'

          What legislation? The FCC is not waiting for Congressional approval nor does it need same.

          Or maybe you were not addressing the topic at hand ... in that case, I doubt the 114th congress will get anything done. They have publicly stated their long term strategy is obstructionism and ultimately to shut down the government, until they get what they want ... on a silver plater.

          Funny how Mitch now takes credit for the economic recovery that he and the GOP fought so hard to stop.

          reply to this | link to this | view in chronology ]

  • identicon
    Applesauce, 8 Jan 2015 @ 4:11pm

    The reason it took so long

    The reason it took the FCC so long to come around to embracing neutrality is that it took them a while to construct a big enough and sufficiently hidden loophole for their corporate masters to drive thru.
    We'll find out about this later.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Jan 2015 @ 4:15pm

      Re: The reason it took so long

      pretty much!

      Obama did say some fancy words... let see what % of it was window dressing versus the structure.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Jan 2015 @ 4:15pm

    Good news indeed. Frankly, I'm surprised the FCC isn't caving to the telcom industry's demands. Perhaps some other industry, such as video streaming industry, offered Mr. Wheeler a comparable or better job position than the telcom industry offered.

    I suppose it's possible he's really concerned about consumers. But after seeing Meredith Attwell Baker go sprinting off from the FCC to go work at Comcast after approving the Comcast/NBC Universal merger. I'm still skeptical.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Jan 2015 @ 5:46pm

    I've learned long ago what words come out of Washington aren't something you can bank on. You'll go broke doing that.

    When all the dust settles, look at what is done as the real reason for action. What is talked about more times than not is just a smoke screen to try to get buy in. It is the deed, not the talk that makes the measure.

    reply to this | link to this | view in chronology ]

  • identicon
    Beech, 8 Jan 2015 @ 7:01pm

    I am conflicted

    "It became obvious that commercially reasonable could be interpreted as what is reasonable for the ISPs, not what is reasonable for consumers or innovators."

    Well no shit, Sherlock, that's why its called COMMERCIALLY reasonable, not PUBLICLY reasonable. Or INNOVATIVELY reasonable.

    That said, I'm really liking what I'm hearing from Wheeler. He took on net neutrality, his initial opinions were formed by what the lobbyists told him, he's apparently done some research and is a big enough man to change his mind. Kudos.

    On the other hand, maybe these statements are his way of staring straight into the eyes of the ISPs, coughing, and sliding out an insufficiently greased palm.

    So, these statements represent a huge step in the right direction, but the devil is still VERY much in the details. Maybe the ISPs have figured out a way to screw the public over even harder with Title II + bad forbearance. It ain't over 'til the fat lady sings, as the saying goes.

    reply to this | link to this | view in chronology ]

    • identicon
      Fumbalina, 8 Jan 2015 @ 8:56pm

      Re: I am conflicted

      The isps are potentially going to lose their grip on the Internet and suddenly become dumb pipes, which is what 99.999% of the people want and expected them to be.They are going to fight this with everything they have, it is the difference between making billions a month to millions a month.

      I just hope that if wheeler does another 180 that Obama demands an investigation and uses this as an example of why congress must above all else change lobbying laws, it would be nice to see him go out in a few years with something for the people and a punishing blow to congress for not doing their job.
      And remember he is not beholding to anyone these last few years, yes he will find it difficult but what president has not found it difficult to do the right thing for the people and the country when so much depends on money.And yes he has the added issue of a racist republican party . But Obama is from Chicago, he and his friends know how to play the game and play it dirty if necessary.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Jan 2015 @ 5:08am

      Re: I am conflicted

      Commercially reasonable ... in a competitive market.

      However, as we all know, the ISP market is not competitive. In many locals it is a monopoly and therefore subject to government regulation like any other utility.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Jan 2015 @ 7:09pm

    The question we all want to know...

    Is he a dingo?

    John Oliver challenged him to prove he is not a dingo. Is he a dingo, not a dingo, or a dingo who has slipped on some baby-sitter's clothing for a bit?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Jan 2015 @ 11:39pm

      Re: The question we all want to know...

      He might be a duck.

      But that said, Wheeler's surprised me. He's been fairly consistent on what needs doing and why. Which isn't something I quite suspected of him when he first became FCC Chair.

      reply to this | link to this | view in chronology ]


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