from the devil-in-the-details dept
You'll recall that, originally, Wheeler had been tinkering with the idea of "hybrid" net neutrality rules that left consumer broadband lines classified as is, but reclassified connections between ISPs and edge providers like Netflix under Title II. Most net neutrality advocates weren't impressed by the idea, noting that relying on the "commercial reasonableness" portion of the Telecom Act would only serve incumbent ISPs. Wheeler, prompted in part by the President's sudden surprise November support for Title II, appears to have realized this:
"Originally, I believed that the FCC could assure internet openness through a determination of “commercial reasonableness” under Section 706 of the Telecommunications Act of 1996. While a recent court decision seemed to draw a roadmap for using this approach, I became concerned that this relatively new concept might, down the road, be interpreted to mean what is reasonable for commercial interests, not consumers."Wheeler proceeds to once again shoot down the broadband industry narrative that Title II is an industry investment killer, while insisting he has no intention to use Title II to impose broader price controls or force a return to local loop unbundling (aka open access):
"All of this can be accomplished while encouraging investment in broadband networks. To preserve incentives for broadband operators to invest in their networks, my proposal will modernize Title II, tailoring it for the 21st century, in order to provide returns necessary to construct competitive networks. For example, there will be no rate regulation, no tariffs, no last-mile unbundling. Over the last 21 years, the wireless industry has invested almost $300 billion under similar rules, proving that modernized Title II regulation can encourage investment and competition."While Twitter neutrality supporters quickly had a collective nerdgasm, it's worth reiterating that hard details are scarce, and this is just the beginning of another, very long chapter in the decade-old neutrality conversation. An FCC fact sheet offered up to the media this afternoon notes that the new rules will ban "paid prioritization," unfair throttling and blocking, while giving ISPs broad leeway to engage in "reasonable network management." As previous leaks suggested, the rules will also create a new grievance process to handle interconnection-related complaints and "take appropriate action if necessary," but what this precisely entails remains unclear.
Unmentioned by the FCC or Wheeler is the other major front on the net neutrality debate: usage caps or the "creative" ways carriers are using caps to violate neutrality (see: AT&T sponsored data or T-Mobile's Music Freedom). As always, the devil is going to be in the details, and the tougher wing of the consumer advocate community is going to be annoyed that the agency plans to steer clear of using Title II to apply downward pricing pressure or to crack open last mile networks to open access competition. Others will have questions regarding just how large of a loophole the MPAA has managed to carve out for itself in regards to the rules only applying to "lawful content."
None of this is to rain too hard on neutrality supporters parade. The fact that a former cable and wireless industry lobbyist has shrugged off industry input to head down the most contentious (but ultimately best available) path for consumers is nothing short of miraculous, and is, in large part, thanks to unprecedented grass roots activism. But there's a long road ahead of semantics, partisan hyperbole and legal wrangling that can undo all of these good intentions in the blink of an eye. If Wheeler's final rules contain too many loopholes, get beaten back by ISP lawsuit, or get gutted after an administration shift, net neutrality supporters can very quickly find themselves right back where they started if a full court press isn't maintained.