Overturning Net Neutrality Rules Won't Be Slam Dunk, Wheeler Says
A defiant Tom Wheeler defended the policies developed under his chairmanship Friday and said the newly reconstituted FCC may find it difficult to quickly undo the net neutrality order and reclassification of broadband under Title II of the Communications Act. Wheeler, who leaves office Jan. 20, spoke at the Aspen Institute in what he had said will be his last major speech while chairman. Some industry officials have questioned the impact of a major policy address by a departing chairman (see 1701120062).
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“We are at a fork in that road,” Wheeler said. “One path leads forward. The other leads back to relitigating solutions that are demonstrably working.” He took a swing at the next FCC -- with a Republican majority likely led by Commissioner Ajit Pai, at least on an acting basis. “All the press reports seem to indicate that the new commission will choose an ideologically based course,” he said. Pai declined to comment.
The 2015 net neutrality rules are working, and in the year after the order was adopted, “venture investment in internet-specific businesses was up 35 percent,” Wheeler said. “Open markets invite innovation.” The FCC later posted Wheeler’s speech.
Reports are that when AT&T CEO Randall Stephenson met with President-elect Donald Trump Thursday (see 1701120040) Stephenson said the company was the leading capital investor in the U.S. for the past five years, Wheeler said. “This, of course, includes the two years since adoption of the open internet rules.”
Wheeler said the next FCC won’t easily be able to overturn the 2015 order. The U.S. Court of Appeals for the D.C. Circuit’s decision affirming the order “was a strong and resounding affirmation of the FCC’s authority as well as the soundness of its decision based on the record,” Wheeler said. “If there is a reversal of the open internet rule, it will have a high hurdle to vault to prove to the same court why its 2016 decision was wrong.” Wheeler conceded that Congress doesn’t face the same procedural hurdles.
The Wireless Bureau’s report on zero rated services points to ongoing concerns (see 1701110070), Wheeler said. “As everything goes into the cloud, the ability to access the cloud free of gatekeepers is essential,” he said. “If ISPs get to choose which applications and clouds work better than others in terms of access speed and latency, then they will control the future. We have already seen how AT&T and Verizon have favored their own video services by zero rating their product while forcing consumers to pay data charges for competitors.”
Wheeler will join the Aspen Institute as a senior fellow after he leaves the FCC, said a Friday news release. He's the sixth consecutive chairman to do so, the institute said.
NetCompetition Chairman Scott Cleland said it’s time for the Congress to take on net neutrality. “The prospect of FCC policy flipping and flopping potentially every four or eight years, over who is regulated like a utility and who is not -- is good for almost no one,” Cleland told us. “Hopefully, a bipartisan Congress can settle in law the FCC’s most contentious, fulcrum policy/political issues that only Congress is designed to resolve in a lasting way.”
Free State Foundation President Randolph May agreed with Wheeler that the FCC is at a fork in the road. “I disagree with his characterization regarding the proper way forward,” May told us. “It is a bit disingenuous of him to characterize the positions with which he disagrees as ‘ideologically based,’ while presuming that his positions have not been ideologically based. There is no getting around the fact that philosophical, or ideological, perspectives influence the decisions of the commission, and there is nothing wrong with this.” Wheeler took some positive steps as chairman, but “for the most part, his ideological default position has been to rely on FCC intervention rather than market-based solutions, even in the face of competitive markets and increased consumer choice,” May said. “The new commission needs to take a fork in the road leading in a new direction."
Wheeler “reminded everyone why regulations that ensure open and nondiscriminatory communication networks have been a boon to both the economy and democracy dating back to the telegraph,” said Michael Calabrese, director of the Wireless Future Program at New America. “I’m sure that defenders of network neutrality will be echoing his argument that an ideologically driven rush to repeal open internet rules is belied by the fact that ISP investment, revenues, profits and stock valuations are all up despite constraints on their ability to engage in anti-competitive behavior.”
NTIA Administrator Larry Strickling also focused on his agency’s legacy Friday, highlighting the progress federal agencies are making toward increased connectivity and commitments agencies made as part of their work with the administration’s Broadband Opportunity Council.
“We are pleased to report that the 25 participating agencies have made considerable progress toward completing their commitments,” Strickling said in a blog post. “These actions further the goals of modernizing federal programs to expand program support for broadband investments; empowering communities with tools and resources to attract broadband investment and promote meaningful use; promoting increased broadband deployment and competition through expanded access to federal assets; and improving data collection, analysis, and research on broadband.”
The report cites the Department of Housing and Urban Development’s improved guidance on when Home Investment Partnerships Program, Housing Trust Fund and Community Development Block Grant recipients can use program funds for broadband installation and delivery. The Treasury Department, meanwhile, clarified that broadband infrastructure and related activities are eligible for the New Market Tax Credit Program and Community Reinvestment, the report said.