Public posturing is a lousy way to evaluate new Internet rules, but it’s all the FCC allows

by Steve Blum • , , ,

Vague outlines are little help, just give us the full picture.

If you assume for the moment that both (democrat-appointed) FCC chair Tom Wheeler and (republican-appointed) commissioner Ajit Pai are speaking the literally truth when they characterise what the current plan to bring the Internet under common carrier utility rules actually says, then the shape of what’s in the still-secret document starts to emerge.

Wheeler gave a speech to a tech group in Colorado on Monday. In it, He reiterated his core sales pitch…

We will forgo sections of Title II [the common carrier section of federal telecoms law] that pose a meaningful threat to network investment. That means no rate regulation. No unbundling. No tariffs or new taxes.

Yesterday, Pai expanded on the criticism he levelled last week, releasing a more nuanced attack on the plan…

Following a transition period, the plan contemplates adding assorted regulatory taxes to Americans’ broadband bills, including fees to support the multi-billion-dollar Universal Service Fund and the Telecommunications Relay Service Fund…

All rates charged by broadband providers will be subject to FCC regulation. Specifically, they must be “just and reasonable” pursuant to section 201 of the Communications Act. The plan does not forbear from any aspect of this statutory provision.

The logical overlap of the these two positions is that the FCC will be voting on, and almost certainly approving, new Internet rules that focus on a few specific practices – no blocking, throttling or paid prioritisation, for example – while leaving the door open to more aggressive intervention if it sees something it doesn’t like. As Wheeler puts it

The proposal also looks forward into the broadband future to assure there are basic ground rules and a referee on the field to enforce them. In general, if an action hurts consumers, competition, or innovation, the FCC will have the authority to throw the flag.

Taking both statements at face value, Wheeler is right that the impact will be limited, which is not the same thing saying it will be minor or good or bad. And Pai is right that the regulatory structure will be in place to expand those limits at the FCC’s pleasure. Likewise, that doesn’t necessarily mean major changes will come or guarantee great harm or benefits.

Reading tea leaves is frustrating. The only useful thing the FCC can and should do is release the proposed text as it stands now, and as it might be revised prior to the vote on 26 February 2015. The California Public Utilities Commission can do it. The FCC needs to do it too.