Gigi Sohn, top aide to the FCC chairman, tells C-SPAN that Tom Wheeler had been considering a Title II option for new Internet access rules for quite a while, and that the President's endorsement was more like cover for doing what the chairman had already wanted to do, rather than pressure that made him pivot toward it.
But Sohn also points out that Wheeler also listened to the comments of over 4 million people.
The chairman has been catching heat from Republicans for appearing to pivot toward Title II at the same time the President made an online pitch, and for the White House's urgings to an independent agency, the subject of a story by Wall Street Journal reporter Gautham Nagesh.
"The chairman really had been considering Title II as part of a solution for, I would say, four or five months now," she told C-SPAN in an interview for the Communicators series (Nagesh was one of the interviewers).
Sohn is former head of Public Knowledge, which has long advocated for strong network neutrality rules.
She pointed out that under the old open Internet rules, stuck down in 2014, ISPs could not prioritize content without facing potential complaints from public-interest groups and suggested that while even though the ISPs had been on their best behavior, such an avenue was still needed.
Nagesh pointed out that Wheeler had initially said he thought new rules could be reinstated without Title II reclassification and asked how he had gotten to the point where he was now proposing Title II, and for both fixed and mobile broadband--mobile was not previously subject to no blocking rules.
Sohn disputed the characterization that the President's announcement of support for Title II boxed in the chairman of forced his hand. She said that in June the FCC announced an investigation into interconnection practices, which informed his decision to include interconnection in the new rules, when he had initially signaled it was a separate issue.
In August, he asked Verizon about "throttling" unlimited customers. Verizon stopped doing that. She suggested that prompted a wider look at the law and mobile broadband. Mobile voice has been regulated under a light touch Title II for 20 years, she said, and led to $300 million in investment, a talking point--she called them data points--the chairman has also made in explaining his decision to include mobile broadband.
The FCC signaled in the 2010 Open Internet order that while it was applying the same rules to mobile, it reserved the right to change that and would monitor the market accordingly.
She pointed out that the chairman made it clear to CTIA: The Wireless Industry in a speech at its annual meeting in September that he was likely to inlude them this time around.
The point was that there was an evolution. "It's not important where he was. It's important where he is now. And where he is not is that Title II is the securest legal authority. He wants to be the last chairman to go to court, and he wants that court to say 'you are on firm legal ground.'
As to the timing of that evolution, she said it was more like the President's announcement gave the chairman cover for something he was already thinking about doing.
Sohn said she thought Title II would give ISPs some regulatory certainty. "It's not like they don't know how to live under this regime. They know the rules." She said she thinks companies will like that certainty more than they are letting on.
Sohn said she thinks a court will uphold the FCC's Title II decision in court. She argues that people have misinterpreted the 2005 Brand X decision, in which the Supreme Court upheld the FCC's classification of cable modem service as information, not telecom under Title II.
That decision, she said, was not that the FCC had made a great or even best call, but that it was not sufficiently "wacky" to be arbitrary and capricious. "All the Supreme Court did in Brand X was to say the FCC has the discretion to interpret the Communications Act, and even though it is not the best interpretation, as long as it's not wacky, you have to uphold it. And I think that is what is going to happen here." She quickly added, to take some edge off that "just not wacky" analogy, that she though it would be "better" this time around.
Sohn said ISP concerns that the proposal opens the door to rate regulation by a future commission a "scare tactic" by ISP's. She said there has been no rate regulation of a retail service since cable back in 1992. "I think the fear is unfounded."