The controversial and problematic current suggestion for net neutrality — a two-tiered, “fast lane” approach to the rule — was approved in the FCC in May on a 3-2, strict party-line vote. Since then, however, the proposal has gotten seemingly more unpopular by the day. Congress hates it. The internet hates it. Nearly all of the record-smashing 3.7 million comments to the FCC hate it. But the newest, and most meaningful, opposition might have just popped up from an unexpected source: two of the three FCC commissioners who voted for it.
When the FCC approved the rule, FCC chairman Tom Wheeler had support from the two other Democrats on the Commission, Mignon Clyburn and Jessica Rosenworcel. This week, though, both have given remarks indicating that they don’t think the prosed rule is the right fit, as Ars Technica reports.
In a brief speech (PDF) she gave at a Congressional forum, commissioner Rosenworcel outright trashed the idea of fast lanes, saying, “We cannot have a two-tiered Internet with fast lanes that speed the traffic of the privileged and leave the rest of us lagging behind.” She added, “I am pleased that Chairman Wheeler has recently acknowledged that all options, including Title II, are on the table,” and alluded to the fact that 3.7 million comments from the public (the vast majority of which denounce a two-tiered approach and call for Title II classification) need to be carefully considered as part of the proceeding.
Commissioner Clyburn, speaking at the same event, spoke to the need for mobile data plans to be held to the same neutrality standard as wired broadband. She pointed out that a high percentage of low-income Americans use only mobile devices for internet access, rather than home computers. “Given these trends,” said Clyburn, “I will be focusing my review on how different proposals will impact the consumer’s experience. What is the impact on a consumer whose mobile broadband may be her only access to broadband? If we have lower standards for mobile, will providers make clear that the experience may be different?”
This is not the first time Clyburn or Rosenworcel have worried publicly about preserving net neutrality. Clyburn specifically supported classifying broadband connections under Title II back in 2010, but the FCC backed away from that reclassification effort and instead went with the more vague Open Internet Rule that a federal court was able to toss out early this year.
This year, during the run-up to the May meeting where Wheeler’s two-tiered proposal was approved, both Rosenworcel and Clyburn expressed worries about the rule. Very literally: “I have real concerns about FCC Chairman Wheeler’s proposal on network neutrality,” Rosenworcel said, seven days before voting for it anyway.
Although it’s clear that none of the four FCC commissioners are entirely on board with chairman Wheeler’s plan, Clyburn’s and Rosenworcel’s objections are substantially, drastically different than those of the two remaining Commission members, Ajit Pai and Michael O’Rielly. The former pair are both in favor of passing some kind of rule, preferably one that bans paid prioritization outright. They object to the current proposal on the grounds that it doesn’t go far enough to protect the public interest.
Pai and O’Rielly, however, are strongly against putting any kind of regulation in place. Both believe that the FCC does not have the authority or scope to regulate internet connections in any of the ways a net neutrality proposal would intend. In fact, commissioners Pai and O’Rielly both prefer the FCC to take a hands-off, non-interventionist stance at basically all times, as Pai’s chief of staff made clear in a speech (PDF) about municipal broadband this summer.
That means that when push comes to shove, for any kind of rule at all to pass Wheeler will once again need commissioners Clyburn and Rosenworcel on board.
Wheeler himself remains the last true wild card at the FCC, as far as net neutrality goes. Although he proposed the terrible two-tiered rule to begin with, in recent weeks he’s appeared not particularly wedded to it. Last week he told a Congressional committee that Title II regulation is “very much on the table,” adding, “I will assure you that Title II is very much a topic of conversation and on the table and something that’s we’ve specially asked for comment on.”
In recent weeks, Wheeler has also become significantly more vocal speaking up in favor of increasing the minimum threshold of broadband speed, increasing competition in broadband networks, and using the FCC’s authority to override state laws that block the expansion of municipal broadband. All three stances are more consumer-friendly than the current status quo, and all are deeply uphill political battles for Wheeler in the current high-money, bitterly partisan Washington environment.
The FCC is continuing to process the tidal wave of public comments that came on on net neutrality before last Monday’s deadline. They are also continuing to host a series of roundtable discussions about the policy, technological, and economic implications of an open internet rule (or the lack thereof). The next roundtable will take place on October 2. And since 2014 is an election year, the collective attention span of D.C. has shifted off of the several major dockets currently before the FCC and back to the states, where everyone in Congress is away campaigning.
That means any new rule proposals, or any revisions to the current proposal, are still many weeks, if not months, into the future.