Wheeler’s success as FCC chair hinges on his enthusiasm for intervention

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So far, so collegial at the FCC, commissioners Pai and Rosenworcel at CES.

Chairman Tom Wheeler’s intention of enforcing a “network compact” via the FCC’s Internet neutrality rule – the open Internet order – won’t go down well with republican-appointed commissioners, but his idea of case by case review might.

“The open internet order was a solution in search of a problem”, said commissioner Ajit Pai at CES yesterday. “The FCC lacks the authority to promulgate the rule”.

The question of whether the FCC has the authority will be answered soon by a federal appeals court. Commissioner Michael O’Rielly said the court should say no, based on his experience, as a congressional aide, writing the law that the rule is based on.

The network compact idea is still vague, perhaps by design. At its core are consumers expectations of their service providers. As Wheeler explained it yesterday at CES, the FCC would play a continuing role as a mediator, ruling whether or not the actions that carriers take meet those expectations. He shied away from the idea of setting specific rules, which stifle innovation in his view.

The first test of that approach could be AT&T’s plan – called sponsored data – to let content providers pay for the bandwidth their subscribers use. Pai thinks that commission action, if any, should be based on the specifics of the plan. “The FCC should not be in the business of declaring a priori a given business model out of bounds”, he said.

It’s not clear how actively Wheeler intends to involve the FCC in managing customer/carrier relationships. If he takes an energetic approach, expect splits to develop. But if he prefers to intervene sparingly, he’ll very likely have the support of the full commission.

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