Wheeler Promises FCC Will Be ‘Nimble’ as Technology Evolves
Chairman Tom Wheeler plans to be very active as FCC head, seeking a multistakeholder process but taking action as the record and the public interest demands, he told a Silicon Flatirons conference Monday. The day before his 100th day as chairman, Wheeler lambasted the categories of the Communications Act -- such as common carriage, broadcasting, and cable -- which he said are facing a “growing obsolescence” as previously separate communications services converge.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
The agency will exercise regulatory discretion “to interpret the Communications Act to meet contemporary circumstances,” Wheeler said. “We will be judged by our responses, whether active or passive. I prefer active.” Wheeler also said he plans to outline a new net neutrality strategy this week. The agency lost in court on net neutrality rules last month, and stakeholders have been commenting to the House Commerce Committee as it gears up to look at a 1996 Telecom Act rewrite. (See separate report in this issue.)
"Titles II, III, and VI once addressed distinct activities in terms of production and consumption. While there may continue to be a viable distinction on the consumer, or demand, side, it certainly is no longer true on the production, or supply side,” he said. “Internet speed means that even a new Telecommunications Act will be out of date the moment it is signed,” he said. “The only way to deal with this reality is to have an expert agency capable of being as nimble as the innovators redefining technology and redrawing the marketplace. We will behave that way today, and any new act must preserve that nimbleness going forward."
As the expert agency, the FCC has the legal right to use its policy judgment to construe the Communications Act “in accordance with contemporary reality,” Wheeler said. “In the event that the commission is thwarted in its ability to apply its expert policy judgment then, in light of the new, ever-changing technology landscape, I believe the best and ultimate outcome would be Congress’ significant modification of the Communications Act.” Diverging from his prepared remarks (http://fcc.us/1fapb7s), Wheeler said: “To be clear, we are not yet at that predicate.” In any case, since a rewrite would take several years, the FCC “can’t just kick the can down the road,” Wheeler said. “We have an obligation to act now."
Wheeler plans to outline a new net neutrality strategy “in the coming days,” he said. He reiterated that, in his view, the agency has jurisdiction over the Internet. “That we have authority” over broadband networks “is well-settled,” he said. “What remains open is not jurisdiction, but rather the best path to securing the public interest.” The net neutrality decision by the U.S. Court of Appeals for the D.C. Circuit “specifically included that the commission was justified in concluding that an open Internet would further the interest of broadband deployment,” Wheeler said. “So the preservation of an open Internet is within the FCC’s authority."
Wheeler declined to tip his hand on what exactly the FCC plans to do on net neutrality. Asked by an audience member which way Wheeler’s symbolic regulatory see-saw is tipping on net neutrality, Wheeler laughed. “You win the prize for creativity, but not for getting the answer,” he said. It’s unclear how closely Wheeler will consult with Congress for guidance on how to proceed. During his confirmation process, Wheeler said he would ask Congress for direction before revamping the network neutrality rules. But Wheeler told The New York Times Friday that he was under no obligation to do so: “What I said was if the Open Internet Order was thrown out by the court, of course I would talk to Congress. But the Open Internet Order was not thrown out by the court,” he said, according to The Times (http://nyti.ms/1nqE220). “In fact, the court affirmed our authority."
FTC General Counsel Jonathan Nuechterlein said that although the D.C. Circuit struck down the rules, he doesn’t think there will be much of an effect on Internet openness. The FCC net neutrality order was “already a codification of existing norms,” said Nuechterlein on a panel earlier Monday. He praised the multistakeholder process for being more effective at producing “optimal” outcomes where underlying economics are changing rapidly. But in some contexts, he said, such a process wouldn’t take place at all unless the FCC stepped in and said it was going to codify rules. Although multistakeholder processes aren’t always perfect, they are “often better than the alternative,” which are either top-down mandates or no government-led process at all, said Nuechterlein.
Wheeler clarified a comment he made at the State of the Net conference in late January on peering. Peering is interconnection by “a new name,” Wheeler said then (CD Jan 29 p1). Asked by an audience member to expand on that remark, Wheeler said: “The concept of an open Internet is access to free, open unfettered access to the network. There is also the question of then how the Internet -- which is nothing more than ... a multiple series of different networks that have to interconnect using a common protocol -- how those interconnections occur. And that has been lumped into the ‘open Internet’ kind of issues, but I don’t think it really is. I think it’s back to one of the core principles about interconnection. We use a new Internet $3.50 word called ‘peering,’ but it’s the same concept of how do you hook things together,” Wheeler said.