Wheeler: Title II Is Actually Act III of Agency's Broadband Play

Comes After 25-Mbps Definition, Muni Networks Support
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Federal Communications Commission chairman Tom Wheeler took his pitch for Title II-based network-neutrality rules to a Silicon Flatirons Center conference Monday (Feb. 9), but said it was only Act II in the FCC's "historic" triumvirate of broadband decisions.

In closing remarks at the Digital Broadband Migration: First Principles for a Twenty First Century Innovation Policy seminar, he said Act I was the FCC's decision to make 25 Mbps downstream the new definition of high-speed when it comes to whether the commission finds advanced telecom is being deployed to all Americans in a reasonable and timely fashion (http://www.multichannel.com/news/technology/fcc-ups-sec-706-broadband-speed-25-mbps/387426)--the sec. 706 mandate that the chairman had planned to use to underpin net neutrality rules before pivoting--either in tandem, or before, or under pressure from, the White House, depending on whom you ask.

Act II will be the (widely expected) Feb. 26 decision to grant petitions by the cities of Chattanooga and Wilson, N.C., to preempt state laws limiting their build outs of broadband networks.

"To be clear, my proposed ruling on these two petitions for pre-emption is an adjudicatory matter," said Wheeler.. "While it provides precedent for how the Commission would view similar restrictions, its direct effect is limited to the two petitioning communities, and its direct bearing is limited to the specifics of the two cases and the two state laws. Having said that, it sends a clear message and provides precedent for how the Commission would view similar restrictions. The message is that community broadband is an important option for expanding broadband deployment, and states should not be “erecting barriers to infrastructure investment.” 

Wheeler said those were all part of the plan to insure broadband nets were fast, fair and open and ISP's did not stand in the way of those goals.

"[W]e know from the history of previous networks that both human nature and economic opportunism act to encourage network owners to become gatekeepers that prioritize their interests above the interests of their users," he said. Wheeler cited a Verizon lawyers oral argument in its challenge of previous rules. In addition to talking about his troubles as an executve with NABU network, arguing that his service was hundreds of times faster than AOL but AOL operated on the open phone system while his was on the "closed" cable system. He also suggested MTV and CNN challenges gaining initial carriage supported his "gatekeeper" network theory.

"When Verizon was asked in open court if they wanted to restrict access through special commercial terms, their counsel replied, “I am authorized to state by my client today that but for these rules we would be exploring those commercial arrangements,” Wheeler said, prefacing the point with saying he wanted to get it out "before the ISP surrogates rush into hyperdrive pointing out how Pandora, HuffPo and others were able to get access."

Wheeler defended the "evolution" of his policy toward Title II, which has been criticized as getting too much of a shove from the White House. He said the FCC has the flexibility to evolve its rules to jee pace with new technology and markets, which was why he suggested he had shifted in that direction. 

"Originally, I believed that the FCC could assure Internet openness through the application of a “commercial reasonableness” test to determine appropriate behavior of ISPs. After listening to countless consumers and innovators, however, I became concerned that the relatively untested “commercially reasonable” standard might be subsequently interpreted to mean what was reasonable for the ISP’s commercial arrangements. That, of course, would be the wrong conclusion. It was a possibility that was unacceptable." He was echoing his explanation in a Wired.com op ed last week announcing Title II. 

Wheeler highlighted his proposal to assert jurisdiction over interconnections so that transit providers, or content delivery nets, or edge providers supplying content--Netflix, Amazon, etc.--could file a complaint about their rates or their treatment and decide whether their treatment has been "just and reasonable." ISPs do not have a similar complaint process if they think the other side of those interconnections are the holdup, however, according to an FCC official speaking on background (the network neutrality order has been circulated to other commissioners and outlined, but has not been released publicly).

The FCC will have expanded authority over online privacy, and Wheeler signaled it would use it. "[C]onsumers need to be able to trust that their personal information will be treated securely and fairly when they share it with ISPs and send it across the networks, or they won’t do it.  Requiring ISPs to protect the personal data of their customers is a critical component of the broadband future. And Section 222 of our statute [one of the Title II sections the FCC is not forbearing from] provides us with the authority to do just that," he said. "Just recently, the Commission took action against a telecommunications carrier who put its customers’ sensitive personal information on Internet webpages. No encryption. Not even a password. Anyone could run a Google search and, presto, the personal information would appear.  We will not hesitate to take further action to protect consumers’ broadband privacy."

According to an attendee, Wheeler's audience was mostly industry players, law students and academics. Some industry chatter afterwards focused on the chairman’s justification and authority to take his sweeping, historic, steps. But they did not get to ask the chairman directly. There was no Q&A, and the chairman was off the stage before the clapping had stopped.

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