Net Neutrality Rules Could Get May Vote by FCC
FCC Chairman Tom Wheeler is considering adding net neutrality to the agenda for the May 15 FCC meeting, creating what could be a truly epic open meeting, industry and FCC officials told us. The FCC is already poised to vote then on service rules for the incentive auction as well as revised spectrum aggregation rules (CD April 21 p1). The next steps on net neutrality for the FCC are likely a notice of proposed rulemaking (NPRM) on revised rules, consistent with U.S. Court of Appeals for the D.C. Circuit’s Jan. 14 decision in Verizon v. FCC.
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The D.C. Circuit’s decision largely rejected the FCC’s net neutrality rules, but clarified that the FCC has broad authority over broadband (CD Jan 16 p1).
"Doing both net neutrality and two major spectrum items might be tactical as a way of forcing other offices to play some defense,” said Paul Gallant of Guggenheim Partners. “But there’s also just the element of the chairman trying to stay ahead of events. If the agency were to get hit with a court remand on USF and a big merger this summer, suddenly it looks pretty sensible to have moved quickly on spectrum and net neutrality."
"It should not come as a surprise that [Wheeler] wants to press forward on net neutrality,” said Robert McDowell, former FCC commissioner and current Hudson Institute visiting fellow. “This is something he has stated time and again is important to his agenda and the president’s agenda."
TechFreedom President Berin Szoka was one of several industry officials who told us Wheeler has been pressing staff hard to finalize proposed net neutrality rules. “Rather than going to an NPRM, they should just start by gathering data,” he said. “They should ask generally why don’t we have more broadband competition. That would be a wonderful topic for an NOI. Then we could talk about legal analysis and preemption. We could talk about whether municipal governments are actually building broadband that works.”
Szoka said some are “obsessed with reclassification” and Wheeler feels political pressure to move forward. “There’s this common talking point out there that somehow it was the [George W.] Bush administration that screwed things up and what we need to do is undo that by reclassifying, undoing what they did,” he said. But it was under Chairman William Kennard and President Bill Clinton that the FCC decided not to impose Title II common carrier rules on broadband. “All that the [Michael] Powell FCC did was just to formalize that,” he said. Wheeler “has a sense that reclassification is not a good idea for all of the reasons that there’s been a bipartisan consensus against it since 1997, but the longer he waits the more complaining he faces,” Szoka said. “I think he feels that it’s better for him to push forward sooner rather than later.”
While not commenting on timing, Free Press Policy Director Matt Wood said his group has made its position clear on net neutrality. “As we've said all along, the only logical step is to restore net neutrality on firm legal footing,” he said. “Under the D.C. Circuit’s decision in January, the FCC simply can’t prevent unreasonable discrimination against Internet users with Section 706,” he said. “In fact, the case said that Section 706 requires ’substantial room’ for discrimination. That would be a disaster for the open Internet. Far from being a distraction for the rest of Chairman Wheeler’s broadband agenda, Title II is the way to maintain the network compact. It’s the only way to protect openness, innovation and free expression online. It’s also the right way to promote competition, interconnection, network reliability, and universal service."
Randolph May, president of the Free State Foundation, questioned why the FCC needs to do anything at all at this point on net neutrality. “With important items before the commission awaiting action, especially the incentive auction in the near-term, it is difficult to understand why Chairman Wheeler would want to do anything with net neutrality right now other than letting Internet providers know that the FCC continues to watch marketplace developments,” May said. “With no obvious marketplace problems, there is no imperative for Wheeler to stir the net neutrality pot right now. It would be a good time for the FCC to exercise some regulatory restraint.” May said he was “especially disturbed” by Wheeler’s proposal to promote municipal broadband. “Wheeler earlier seemed to telegraph that he wants to take some form of action to promote government-owned local networks as ‘competitors’ to private sector providers,” he said. “On both policy and legal grounds this is a poor idea, so I certainly hope he puts that notion aside.”