Wheeler's common carrier plan for broadband doesn't necessarily mean predictable rules

8 January 2015 by Steve Blum
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Honest, I meant to do this all along.

Common carrier regulation of broadband infrastructure and the Internet access services that ride on it appears all but certain at this point. Yesterday, FCC chairman Tom Wheeler told a CES audience that new network neutrality rules will be circulated privately at the FCC on 5 February 2015, and voted on by the full commission at its meeting on the 26th. You can bet it’ll be a party line vote in favor of his plan.

Originally, Wheeler proposed judging ISP policies and practices against a vague standard of whether it’s “commercially reasonable”, on a case by case basis. He wanted to do it by applying the section of U.S. telecoms law that broadband currently falls under, using language endorsed last year by a federal appeals court, when it tossed out the FCC’s 2010 net neutrality rules. Effectively, ISPs could do whatever they wanted and anyone who objected would have to complain to the FCC, which would referee the dispute. It’s an approach that would give a huge advantage to whoever has the most lawyers and lobbyists, and swings the heaviest bag of campaign cash.

It’s also an approach that drew heavy criticism, not least from CPUC commissioner Catherine Sandoval. Then last month, president Barack Obama pulled the rug out from under Wheeler, saying he wanted to shift broadband to Title II of federal telecoms law – which, among other things uses a “just and reasonable” standard – and regulate it as a common carrier, like telephone service.

Wheeler’s new approach is to go with the relatively light variety of common carrier regulation that applies to mobile phone service, but keep a large enough grey area to keep his fellow Beltway bandits gainfully employed.

“You first want to make sure innovators and consumers have open access to the networks”, he said. Then, “you want to make sure you create an incentive for the ISPs to invest and build better networks”.

“There’s a way to do Title II right that says that many parts of Title II are inappropriate and would thwart investment, but a model has been set in the wireless business that’s had billions of dollars of investment”, Wheeler said.

The right way seems to involve staying away from – forbearing, as the jargon goes – regulating rates or service offerings, and instead focusing on specific practices that wouldn’t be allowed.

“We’re going to propose rules that say no blocking, no throttling…all that list of issues. And that there is a yardstick against which behavior should be measured, and that yardstick is just and reasonable”, he declared. But the door to case by case review of ISP business practices remains open. Wheeler wouldn’t rule out, for example, allowing ISPs to assign different priorities to different kinds of Internet traffic.

“There are instances where priority makes a whole lot of sense”, he said. “There are many other instances where you can buy your way into a better position because you have deep pockets or whatever. We’d be looking askance at that”.

Looking askance is not the same as banning particular practices, or otherwise setting hard rules of the road, which Wheeler is still loath to do. Absent a major leak, we won’t know what it really means until the FCC meets in February.