FCC Chairman Makes It Official: Will Seek Title II Regulation of the Internet

Tom Wheeler - P 2013
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Tom Wheeler has sided with the president, going against the wishes of the cable industry.

In an article he authored for Wired magazine's website, FCC Chairman Tom Wheeler on Wednesday revealed his plans to use Title II of the Communications Act to regulate both wired and wireless Internet to “settle the net neutrality question.”

“I am submitting to my colleagues the strongest open internet protections ever proposed by the FCC,” writes Wheeler. “These enforceable, bright-line rules will ban paid prioritization, and the blocking and throttling of lawful content and services. I propose to fully apply — for the first time ever — those bright-line rules to mobile broadband. My proposal assures the rights of internet users to go where they want, when they want, and the rights of innovators to introduce new products without asking anyone’s permission.”

Wheeler plans to circulate the proposal to the five FCC commissioners and other “stakeholders,” those with a direct interest in the proposal, beginning this week. An FCC vote is planned on the proposed rules on Feb. 26. 

The decision to use Title II goes against the wishes of the major cable TV and telephone companies who provide most of the broadband service in the U.S. They would have preferred another path that would not place as many regulatory rules on them.

“Broadband network operators have an understandable motivation to manage their network to maximize their business interests,” admits Wheeler. “But their actions may not always be optimal for network users. The Congress gave the FCC broad authority to update its rules to reflect changes in technology and marketplace behavior in a way that protects consumers. Over the years, the Commission has used this authority to the public’s great benefit.”

The trade group the National Cable and Telecommunications Association, speaking for cable operators, has already blasted the idea of using this regulatory approach, which it says runs counter to the freedom that has helped the web thrive: “Instead of continuing this path of tremendous success, some want to radically change course and are urging the government to force a heavy-handed regulatory model on the Internet — called Title II — and to run it like a public utility. They want to impose laws written in the 1930s on the most innovative and important technology of today and our future. They want to give the government the power to impose new rules, levy new fees and require permission to innovate. Under Title II, consumers would be on the hook for an astonishing $11 billion in new fees according to the Progressive Policy Institute.”

President Obama and others who have argued for an Internet where broadband providers are merely there to deliver a common carrier service, without the right to determine who can use the web and how, will applaud the decision, which is expected to have the support of the three Democrats on the commission but not the two Republicans.

“I believe the FCC should reclassify consumer broadband service under Title II of the Telecommunications Act — while at the same time forbearing from rate regulation and other provisions less relevant to broadband services,” the president said this past November. “This is a basic acknowledgment of the services ISPs provide to American homes and businesses, and the straightforward obligations necessary to ensure the network works for everyone — not just one or two companies.”

As Wheeler notes, the debate over net neutrality has attracted a record number of comments — over 4 million — from individuals and business.

“To preserve incentives for broadband operators to invest in their networks,” writes Wheeler, “my proposal will modernize Title II, tailoring it for the 21st century, in order to provide returns necessary to construct competitive networks. For example, there will be no rate regulation, no tariffs, no last-mile unbundling. Over the last 21 years, the wireless industry has invested almost $300 billion under similar rules, proving that modernized Title II regulation can encourage investment and competition.”

A previous attempt to regulate the web using a less regulatory approach was shot down by the U.S. Court of Appeals after Verizon sued to stop the implementation. The new rules are likely to attract court challenges as well.

“Let’s not abandon the virtuous cycle that is helping build faster networks for one that promises greater government control,” said the NCTA in its opposition, “higher prices and stalled investment. Let’s choose a future that embraces progress, not expensive regulations.”

“The internet must be fast, fair and open,” concludes Wheeler. “That is the message I’ve heard from consumers and innovators across this nation. That is the principle that has enabled the internet to become an unprecedented platform for innovation and human expression. And that is the lesson I learned heading a tech startup at the dawn of the internet age. The proposal I present to the commission will ensure the internet remains open, now and in the future, for all Americans.”