Washington — If anyone thought Federal Communications Commission chairman Tom Wheeler would not use the FCC’s Title II authority to regulate broadband rates in the interest of preserving his idea of a free and open Internet, fuggedaboutit, as they say in New York.
Wheeler said the reclassification was not about regulating rates, but he has also made it increasingly clear that what he means is telephone-style rate regulations, which the FCC forbore in the Open Internet order.
He is even willing to have Congress codify that those rate regulations don’t apply and cannot be un-forborne by a future FCC.
But Republicans have been worried that the FCC would use its enforcement authority to crack down on zero-rating plans or other practices that would have the effect of regulating rates. As it turns out, they should have been.
Democrats argue that the FCC can’t forbear away its ability to protect consumers from anticompetitive conduct, and the chairman made it clear to House Democrats that he agreed.
The flashpoint is a Republican-backed bill that would prevent the FCC from regulating rates and would likely including potentially cracking down on zero-rating plans.
Wheeler had signaled he could support a bill that made it clear the FCC could not impose before-the-fact retail rate regulations, which would have the effect of discouraging broadband adoption, a no-no in Wheeler and President Obama’s worlds, but has said he can’t support this bill because of the room to limit regulations on paid prioritization and zero-rating plans that by their nature implicate rates.
Wheeler had also said he would work with Congress on language for a rate-regulation blocking bill, but made clear last week he is only talking about codifying forbearance.
Asked point-blank by bill author Rep. Adam Kinzinger (R-Ill.) at an FCC oversight hearing last week “whether he believed the FCC should have the authority to regulate rates after the fact through enforcement,” even though it chooses not to at the time, Wheeler was ready with a definitive “Yes, sir.”
He said, for instance, that paid prioritization was obviously about rates, and throttling could be about rates.
Not two hours after the hearing ended, committee Republicans put out a release spotlighting Wheeler’s comment.