FCC Chairman Believes New Rules Can Survive Legal Challenge

Tom Wheeler - H - 2015
Associated Press

Tom Wheeler brushes aside allegations he was unduly influenced by President Obama, as he faces a flood of reactions, much of it negative

Amid a flood of reactions for and against new net neutrality rules he has worked toward for months, FCC chairman Tom Wheeler said at a press conference shortly after the vote that he is confident that the action on Thursday will stand up to the inevitable legal challenges; and he also denied allegations he and the commission were improperly influenced by President Barack Obama.

Wheeler said that he doesn’t believe a federal court will issue an order to at least temporarily block implementation of the new rules because of lawsuits. He said that is because there are really three key elements to the rules – banning throttling, banning paid prioritization fast lanes and banning blocking of content – all of which even his opponents have to agree are a good idea. For that reason, added Wheeler, he has “great confidence” the new regulations will stand up to any court test.

“The Open Internet Order,” Wheeler said during the FCC meeting, “reclassifies broadband Internet access as a ‘telecommunications service’ under Title II of the Communications Act while simultaneously foregoing utility-style, burdensome regulation that would harm investment. This modernized Title II will ensure the FCC can rely on the strongest legal foundation to preserve and protect an open Internet.”

“Allow me to emphasize that word ‘modernized,’” said Wheeler. “We have heard endless repetition of the talking point that ‘Title II is old-style, 1930’s monopoly regulation.’ It’s a good sound bite, but it is misleading when used to describe the modernized version of Title II in this Order.”

When asked about Obama’s comments in November which appear to have provided a blueprint for the action taken Thursday, Wheeler said the president has been on record for a long time in favor of net neutrality. “President’s always communicate their opinions to the FCC,” added Wheeler. “That’s nothing new. We are the expert agency. We are the agency that has to take the concept and say, ‘I’m for an open internet’ and say what is the best way to implement that, based on the record. That’s what we did ... We produced a set of rules that are stronger and more expansive than even what the president said.”

“I’m quote comfortable,” added Wheeler, “we made this decision with independence and wisdom and based on the record.”

While Wheeler may be confident about the new regulations based on the use of Title II of the 1996 Telecommunications Act, and other sources, opponents of the measure were equally confident that this was a wrong-headed decision that will not hold up either in the courts or because Congress will act to over-turn them.

Broadband for America honorary co-chairs John Sununu and Harold Ford Jr. said, "The FCC's decision to impose obsolete telephone-era regulations on the high-speed Internet is one giant step backwards for America's broadband networks and everyone who depends upon them.  These 'Title II' rules go far beyond protecting the Open Internet, launching a costly and destructive era of government micromanagement that will discourage private investment in new networks and slow down the breakneck innovation that is the soul of the Internet today.”

The non-profit conservative group Tech Freedom called on Congress to act: "Those cheering for ‘net neutrality’ have been the victims of a colossal bait-and-switch,” said the group’s president Berin Szoka. “A legislative deal on net neutrality itself has always been within reach. But then, actually resolving the debate has never been the goal of those who’ve poured more than $200 million into what became the campaign for Title II. Their real goal has always been maximizing the FCC’s powers.  And along the way, they discovered how to milk ‘net neutrality’  to build what’s become the Tea Party of the Left. Their main goal is simply to keep the outrage alive so they can continue building their mailing lists, raising money, and alienating Republicans from their natural allies in Silicon Valley.”

The American Cable Association President, which represents small cable operators and broadband providers, complained that their members were not exempted from the new rules.

ACA CEO Matthew M. Polka said, “The FCC ignores uncontested data in the record demonstrating that imposing Title II regulation on small and mid-sized ISPs beyond the three ‘bright line’ Net Neutrality rules will impose burdens without benefit to an open Internet.  As a result of this ‘unreasoned’ action, the FCC inflicts upon small and mid-sized ISPs unwarranted and irreparably harmful common carrier rules that have nothing to do with ensuring Net Neutrality.”

“From statements at today’s FCC public meeting,” added Polka, “it appears that the FCC Chairman’s proposed Order has been changed to provide a temporary exemption from enhanced transparency rules for some small ISPs and that small ISPs will be shielded from having to defend their practices against federal class action lawsuits.  While ACA appreciates this, it provides virtually no solace for smaller ISPs that will be swept under by a tsunami of new and totally alien regulatory requirements contained in the final order.“

Charter Communications issued a statement that the new regulations will raise costs for consumers: "Charter supports net neutrality because our subscribers expect nothing less than a free and open Internet. This means that Charter does not block, slow down or prioritize Internet traffic. However, the rules adopted today will add fees to customer bills, create regulatory uncertainty and lead to years of litigation that, together, will slow the progress and development of faster broadband for our subscribers."

Comcast, which needs the FCC to approve its acquisition of Time Warner Cable, had a mixed reaction. David L. Cohen, executive vp and chief diversity officer, said in a statement that while they agree with the goals, “Unfortunately, the FCC also decided to reclassify broadband as a telecommunications service under Title II of the Communications Act of 1934.  We are disappointed the Commission chose this route, which is certain to lead to years of litigation and regulatory uncertainty and may greatly harm investment and innovation, when the use of Section 706 alone would have provided a much more certain and legally sustainable path. 

 “While we don’t agree that using Title II is necessary,” added Cohen, “we are encouraged that the Commission has apparently forborne from numerous statutory provisions and cumbersome regulations, which will alleviate some of the most troubling aspects of using Title II.  But we have not yet read the Order as adopted by the Commission, and we are concerned with what some have reported as incomplete legal forbearance in important areas. “

“After today,” concluded Cohen, “the only "certainty" in the Open Internet space is that we all face inevitable litigation and years of regulatory uncertainty challenging an Order that puts in place rules that most of us agree with.  We believe that the best way to avoid this would be for Congress to act.”

Wheeler did get support from the Writers Guild of America, among others. In a statement, the WGA said: it has “supported net neutrality from the beginning and applauds today’s vote by the Federal Communications Commission to reclassify the Internet under Title II of the Communications Act. As a union of creative professionals, over the years we have mobilized our members to ask the Federal Communications Commission to embody the principles of net neutrality in solid policy language and meaningful, enforceable rules. We joined millions of Americans who took action to protect an open Internet. What has been accomplished today will prevent powerful media and technology giants from treating the Internet like a private toll road, with the speediest lanes reserved for those with the deepest pockets.”

UPDATE: 2/26 2:55 PM - The Producer's Guild came out in support Thursday as well. PGA‎ co-presidents, Gary Lucchesi and Lori McCreary said in a statement: "The Producers Guild of America applauds the FCC's recently announced regulations supporting net neutrality. We believe that the FCC's approach is realistic and provides producers of creative content with a powerful affirmation that internet distribution channels will remain equally and fairly accessible to all services, voices, and perspectives."

Los Angeles Mayor Eric Garcetti said in a statement: ""We fought for this decision because an open internet is essential for equal access to the economy of the future, especially in the creative, technology and communications sectors, which are so critical to L.A.'s middle class. My office will continue to work with the FCC and state Public Utilities Commission in addition to mobile operators and broadband providers to deliver the best possible services to Angelenos. These new rules give us clarity and allow us to pursue an aggressive strategy in giving Angelenos the fast and affordable Internet service they deserve."