FCC Chairman: I’d Rather Give In To Verizon’s Definition Of Net Neutrality Than Fight

With every word he writes, recently installed FCC Chairman Tom Wheeler shows he has little interest or belief in net neutrality as most consumers understand it. In another flimsy attempt at defending his position on “fast lanes” — i.e., allowing Internet service providers to charge more to content companies seeking priority access to end-users — Wheeler contends that consumers should do what Verizon and other telecoms want because well, it could take a while to do it correctly.

“The idea of net neutrality (or the Open Internet) has been discussed for a decade with no lasting results,” writes Wheeler in a lengthy blog post. “Today Internet Openness is being decided on an ad hoc basis by big companies. Further delay will only exacerbate this problem.”

Once again, Wheeler completely glosses over the fact that the only reason a federal appeals court gutted the previous neutrality rules was because a shortsighted FCC never thought to categorize Internet service providers as vital communications infrastructure. As numerous supporters of a true net neutrality have repeatedly pointed out, reclassifying ISPs would likely mean the FCC could reinstate the old rules (and possibly more stringent ones) and survive a legal challenge.

But Wheeler doesn’t want to take that chance because he’d rather allow clever lawyers for the telecom industry to dictate the direction of net neutrality than use the clever (but less well-paid) lawyers at the FCC to figure out a solution that doesn’t undercut the entire notion of an open Internet.

He once again points to this so-called “blueprint” that the appeals court laid out in its opinion as a way to “create Open Internet rules that would stick,” without regard to whether or not those rules result in an Internet that is open.

Lawyers for the telecom industry do not look at a court’s ruling and say, “Well, there you go… That’s the final word, I guess. Thank garsh I have this fancy laws degree!” Had Verizon been defeated at the appeals court level, it most certainly would have submitted one heck of a petition to the U.S. Supreme Court — an option that Wheeler did not pursue.

You’d think that, given his previous experience CEO of the Cellular Telecommunications & Internet Association and president of the National Cable Television Association, Wheeler would have some insight at how to beat the telecoms at their own game. But instead he’s fine with letting Verizon win, so long as it results him checking “Do net neutrality thingy” off his to-do list.

“I am concerned that acting in a manner that ignores the Verizon court’s guidance, or opening an entirely new approach, invites delay that could tack on multiple more years before there are Open Internet rules in place,” explains Wheeler, who says his proposal is “an enforceable rule,” which he believes is more important than “continuing the debate over our legal authority that has so far produced nothing of permanence for the Internet.”

Does he not realize that this isn’t giving your kid a dang Ritz cracker to shut him up until you eat dinner at Grandma’s house? These are binding regulations that will be used to set important precedents during a crucial stage in the development of the Internet.

Wheeler’s defense does begin to show some cracks, which is a positive sign — and an indicator that concerned consumers should continue to write the FCC to let them know their feelings.

He writes that if his proposal “turns out to be insufficient or if we observe anyone taking advantage of the rule,” he “won’t hesitate” to reclassify ISPs as infrastructure… which only raises the question of why he hesitates to do that now, before the feces hits the fan.

Again, he explains, it’s a matter of being expedient. The FCC can’t use that delight roadmap from the court.

On the specific issues of fast lanes, Wheeler once more accuses consumers of overreacting and not trusting that a governmental agency run by a former frontman for both the cable and wireless industries has their back.

To show just how awesome his FCC will be at keeping fast lanes from turning standard Internet connections into mud roads in order to squeeze the most money from online content companies, Wheeler outlines the various ways in which the agency will police fast lanes.

Let’s take these on a point-by-point basis…
“Something that harms consumers is not commercially reasonable. For instance, degrading service in order to create a new ‘fast lane’ would be shut down.”

That’s good to hear, but this statement doesn’t differentiate between degrading service and passive-aggressively not improving service. We don’t expect the Verizons and Comcasts of the world to slow down the current level of service; we just expect they will largely maintain the status quo while charging a premium for even mildly improved access.

“Something that harms competition is not commercially reasonable. For instance, degrading overall service so as to force consumers and content companies to a higher priced tier would be shut down.”

Again, this statement fails because it doesn’t take into account that a failure to improve service is a de facto degradation.

“Providing exclusive, prioritized service to an affiliate is not commercially reasonable. For instance, a broadband provider that also owns a sports network should not be able to give a commercial advantage to that network over another competitive sports network wishing to reach viewers over the Internet.”

That sounds nice, Mr. Wheeler, but this doesn’t seem to require the ISP to provide the same level of service or access; merely that it not make that better service exclusive. So if Cable Company X (which is also an ISP) owns an online sports channel that it gives priority access to, Company X need only offer priority access to competing networks; it doesn’t say Company X can’t charge a premium fee for that access.

“Something that curbs the free exercise of speech and civic engagement is not commercially reasonable. For instance, if the creators of new Internet content or services had to seek permission from ISPs or pay special fees to be seen online such action should be shut down.”

This is really just a restatement of one of the few remaining principles of net neutrality — that ISPs can’t block legal content. What it doesn’t deal with is the increased cost for entry into a market because of fast lane fees.

Say there are three streaming video companies competing — two established services with millions of paying subscribers, and one startup that is showing promise but is still leaning heavily on venture capital funding while gaining its audience. If ISPs start charging fast lane fees, the two established businesses can pay while the startup can not. The quality of its service begins to look poor in comparison to the others and it can’t gain subscribers. Additionally the other two companies increase their rates to offset the cost of the fees; they also no longer have to worry about being undercut by a low-cost competitor.

This isn’t blocking legal content or curbing the free exercise of speech, but it is an example of how fast lanes can limit consumer options and result in decreased competition and higher prices.

On this last issue, Wheeler makes more promises that are reactive instead of proactive.

“If we get to a situation where arrival of the ‘next Google’ or the ‘next Amazon’ is being delayed or deterred, we will act as necessary using the full panoply of our authority,” he writes, again ignoring the fact that he can preempt that concern by not allowing fast lanes in the first place and simply reclassifying ISPs.

Perhaps Wheeler is indeed an idealist and truly believes that ISPs will continue to innovate and improve their networks for everyone at their current rate, and that they will only use fast lane access in the most extreme cases — and never in a discriminatory, anti-competitive, anti-consumer manner.

But the fact that he repeatedly makes statements about not hesitating to reclassify ISPs if necessary seems to indicate that he doesn’t really believe these things; it’s just faster and easier for now to pretend he does.

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