FCC Chair: Strong Net-Neutrality Rules Are Coming, and Soon


(Rob Pegoraro/Yahoo Tech)

LAS VEGAS — The net-neutrality rules that looked dead in the spring are only weeks away.

That’s the download from an onstage interview here at CES, where Federal Communications Commission Chairman Tom Wheeler said the FCC will write rules banning your Internet provider from blocking or slowing sites you use, or from charging content providers for faster delivery of their content over the connection you already pay for.

And that will happen soon: Wheeler told his interviewer, Consumer Electronics Association President Gary Shapiro, that the commission plans to circulate the rules Feb. 5 and vote on them Feb. 26.

“I was an investor,” Wheeler said in a response of sorts to the common critique that he used to be the top lobbyist for the cable industry and then the big wireless carriers. “I have seen up close and personal the effects of networks being closed to innovation.”

Two other FCC commissioners agree with Wheeler on this point, enough for a majority vote at the agency with the congressionally granted job of writing telecom regulations in the U.S., so the outcome shouldn’t involve much suspense. But it would represent a fairly epic turnaround from nine months ago.

Net neutrality’s nightmare scenario
Back then, the Wheeler-led FCC — having lost a court case that gutted the legal framework of already-weak net-neutrality regulations — prepared to serve its thinnest gruel yet, rules that would let Internet providers charge sites, services, and apps “commercially reasonable” rates for priority delivery. Think of a video service being asked to pay up to ensure that its shows don’t stutter. 

That’s a long way from the traditional common-carrier notion of net neutrality: that your Internet provider should take your traffic as it comes, and not exploit it as an opportunity to bill sites, services, or apps at the other end of the connection.

You may see that described as “treating Internet providers like utilities,” but that’s not fair: I’ve yet to meet a net-neutrality advocate who wants to make Verizon or Comcast get FCC approval to build new data centers or increase its rates. Nor is net neutrality an absolute: Its advocates don’t mind seeing spam get sent down the bit bucket.

Net neutrality is, however, the general rule governing voice phone service in the United States — when people talk about “Title II” regulation, they’re referring to that part of the Telecommunications Act. It’s also how broadband services operated until a series of FCC decisions from 2002 on switched to treating ISPs not as Title II “telecommunications services” but as a less-regulated category of “information services.”

Wheeler’s vague proposal last April was widely slammed by everybody from customer advocates to late-night comic John Oliver, who compared having an ex-cable and wireless lobbyist write net-neutrality rules to hiring a dingo to babysit your kid.

(Wheeler’s reply when Shapiro asked about his reaction to that: “Honest to God, I didn’t know what a dingo was. Believe me, I’ve learned.”)

After millions of pro net-neutrality comments hit the FCC, President Obama said right after the November elections that he’d changed his mind and wanted the FCC to return to treating Internet providers like common carriers.

What changed Wheeler’s mind
But it wasn’t clear that Wheeler would go along with the guy who appointed him. It now is.

Wheeler said that was always an option and emerged as the only one when the FCC realized that its proposed “commercially reasonable” test wouldn’t work. “It became obvious that ‘commercially reasonable’ could be interpreted as what is reasonable for the ISPs, not what is reasonable for the consumers and innovators.” 

An alternative “just and reasonable” test would work better, but Wheeler said that meant the FCC would have to rewind its post-2002 changes to ISP regulation and return to treating them as common carriers.

The sky didn’t fall after Obama’s net-neutrality statement, Wheeler said: “We’ve still had record bidding for spectrum from ISPs and continued announcements about new gigabit plans.” He added that while big ISPs may say they hate Obama’s idea, smaller ones told the FCC they liked it.

Wheeler didn’t go into detail about how these new rules would work beyond declaring that they would be “the gold standard.” But he suggested they’d function like the simplified common-carrier rules for wireless voice service, which set aside old provisions that could demand FCC filings for each new rate. “Under that, for the last 20 years, the wireless industry has been monumentally successful.”

Wheeler also didn’t talk about the massive and sustained campaign to get the FCC to change its mind. But I don’t see how else this oil tanker got turned around (as telecom-policy vet Kevin Werbach put it in a tweet). So if you sent the FCC a note imploring it to protect net neutrality, you might as well take a bow.

Email Rob at rob@robpegoraro.com; follow him on Twitter at @robpegoraro.