Tom Wheeler: FCC Looks to Act as "Referee" to Insure Open Internet

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FCC chairman Tom Wheeler

The FCC chairman also intends to have the agency overrule laws passed by Tennessee and North Carolina to allow local communities to offer competitive broadband services.

Tom Wheeler has laid out an overview of his plans to keep the Internet open and free.

In a speech on Monday at the Silicon Flatirons Center in Boulder, Colorado, the FCC chairman defended his controversial decision to apply Title II of the communications act to insure the internet remains open for traffic, commerce and innovation.

Wheeler said the FCC will act like “a referee” to enforce “basic ground rules” so if there is any action that “hurts consumers, competition or innovation, the FCC will have the authority to throw the flag.”

Wheeler also said he plans to ask for an FCC vote that would overrule at least two state laws to allow cities to provide broadband services in competition to commercial providers who have a virtual monopoly. The cities are Chattanooga, Tennessee and Wilson, North Carolina.

“When the people,” said Wheeler, “through their elected local officials, take action to expand access to high-speed broadband and offer competitive choices, their will should not be thwarted.”

Wheeler added that in 19 states, “community broadband efforts have been blocked by restrictive state laws – laws often passed due to heavy lobbying support by incumbent broadband providers.”

He said the FCC has the right to over-rule the state laws because this is an “adjudicatory matter.”

He said he will ask for a vote by the FCC on Feb. 26 that will apply only to the two communities who have filed petitions with the commission. He added that states should not “be erecting barriers to infrastructure investment.”

On the matter of Net Neutrality, where his plans are now the subject of a Congressional inquiry into how the Title II plans were formulated, Wheeler did not address his critics or the investigation but did lay out how he came to his own decision to use Title II.

“Originally,” said Wheeler, “I believed that the FCC could assure internet openness through the application of a ‘commercial reasonableness’ test to determine appropriate behavior of ISPs (Internet Service Providers like cable companies).”

“After listening to countless consumers and innovators,” continued Wheeler, “however I became concerned that the relatively untested ‘commercially reasonable’ standard might be subsequently interpreted t mean what was reasonable for the ISPs commercial arrangements. That, of course, would be the wrong conclusion. It was a possibility that was unacceptable.”

Wheeler said he not only plans to use a modified form of Title II – absent the rate regulation that applied to telecommunication utilities in the past – but also intends to incorporate “the significant powers in Section 706,” a reference to another section of the communications act that was the basis for an earlier plan to regulate the Internet that was thrown out by a federal appeals court after a suit by Verizon. It is section 706 that he is talking about when he mentions “commercial reasonableness.”

Wheeler said the use of 706 would not be “a substitute,” but rather it will be “a second tool.”

“This one-two punch,” said Wheeler, “is the FCC using all of the tools in its toolbox to protect innovators and consumers.”

He also explained why he is including wireless as well as wired services in the new approach: “For the first time, open internet protections would apply equally to both wired and wireless networks. Wireless networks account for 55 percent of Internet usage. For those to whom much is given, much is also expected – especially including an open network.”

Wheeler restated his ultimate goals – to "ban paid prioritization, blocking and throttling” and to stop “last mile tactics that harm consumers and edge providers by unreasonably interfering or disadvantaging their use of these broadband connections.”

Wheeler also defended the recent action by the FCC that increased the standard for the speed that needs to be available nationwide from broadband providers to 25 Mbps, up from the old standard of 4 Mbps.

“The press described this as a decision about speed,” said Wheeler, “such as the speed to download a video. That is true, but while this new standard reflects today’s realities, it is also an invitation to the innovation that is enabled by increased throughput.”

“Increasing the standard for broadband to 25 Mbps also clarifies one of the biggest challenges facing our broadband future: the lack of meaningful competition. It’s bad enough that 17 percent of Americans have no access to 25-megabit service. But at those speeds, about 75 percent of U.S. households can choose from one one provider.”

“Where there is no choice,” continued Wheeler, “the market cannot work. American families need to be able to shop for affordable prices and faster speeds. The Commission is committed to removing barriers to broadband investment and competition.”

“To fully realize the promise of that future,” concluded Wheeler, “broadband must be fast, fair and open. This is bigger than the internet we know today, ‘it is for a vast future also.’”