Even before he released the first summary, Federal Communications Commission Chairman Tom Wheeler has been trying to set the record straight about his Net neutrality proposal. But when the actual language is released this week, critics may still reject Wheeler's interpretation of what the proposed rules would and would not allow.
At issue is what sort of deals the rules would permit Internet service providers to strike with content providers (such as Netflix) and online services (such as Skype). Many of Wheeler's critics believe that his approach would let ISPs prioritize data or speed up some sites' traffic at the expense of others. They base this belief not on the text of Wheeler's proposal, because it hasn't been released yet and seems to still be in flux, but on news reports that have been published since a description of the plan leaked in April.
Wheeler has repeatedly asserted that he isn't backing away from the goals the commission set in 2010 when it adopted its first formal open-Internet rules, most of which were rejected by a federal appeals court this year. Those rules hadn't banned prioritization outright; instead, they'd barred ISPs from discriminating "unreasonably" among content providers, while saying the commission would take a dim view of any attempt to prioritize. Now, Wheeler says, he's simply trying to come up with a way to achieve the 2010 goals that will survive court scrutiny.
On Monday, the Wall Street Journal reported that Wheeler would revise his proposal to clarify that "the FCC will scrutinize the deals to make sure that the broadband providers don't unfairly put nonpaying companies' content at a disadvantage." But then, FCC officials have been saying that all along. They'd also been saying since Day One that the commission would explore whether paid prioritization should be considered unreasonable on its face.
Yet the previous assurances hadn't been enough to satisfy Wheeler's two Democratic colleagues on the commission, raising the possibility that he wouldn't get the three votes needed to start the formal rulemaking process on Thursday (the two Republicans on the panel have voiced doubts about the need for any neutrality rules). So Wheeler had to provide more, and he seems to have done so largely by proposing to pay more attention to a different, more forceful approach to stopping ISPs from improperly playing favorites with data in the last mile.
Wheeler still wants the FCC to use the broad but vague power it has under Section 706 of the Communications Act to set its open Internet rules, which would bar ISPs from blocking or entering "commercially unreasonable" deals with sites and services. In the notice of proposed rulemaking to be issued later this week, however, the FCC will give more prominence to an alternative favored by many Net neutrality advocates: applying Title II of the Communications Act, which has more regulatory power, to broadband providers.
Doing so might require the commission to reclassify broadband as a communications service, reversing a decade-old decision to treat broadband as an information service exempt from Title II's rules. And such a move would trigger a knock-down drag-out fight with Republicans and telco-friendly Democrats in Congress that could endanger the agency's funding, among other possible consequences. Some advocates contend there may be ways to use Title II without reclassifying broadband, but that may not shield the FCC from Capitol Hill's wrath.
To Wheeler's sharpest critics, it's a fight worth having because Section 706 leaves too much room for deals that would harm the Net. In their view, any technique ISPs might use to play favorites would inevitably harm the Internet ecosystem. That's because there's not enough competition in the last mile to keep ISPs from tilting the playing field in ways that reduce the incentives for investment, innovation and disruption.
Those incentives are vital, and a good argument can be made that any form of data prioritization necessarily reduces them, unless the prioritization is provided to entire categories of service (i.e., remote medical diagnostics). A company that buys its way to the front of the queue automatically pushes its competitors further to the rear. Data prioritization isn't the only possible outcome of a Section 706-based approach, however; the FCC could conceivably stop prioritization deals while allowing other approaches that allow sites to pay to make themselves more appealing to consumers -- for example, a deal that would exempt a high-definition video site from an ISP's data caps -- without degrading access to competing offerings.
Nevertheless, using Section 706 necessarily means taking a largely case-by-case approach to protecting the open Internet. And as we've seen over the last decade, different FCC commissioners have different views about what's harmful. A case-by-case approach also offers little defense against ISPs gradually shifting their investment away from conventional broadband services to the new services provided for partners. To advocates of a Title II approach, those risks are just too great to take.
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