Tom Wheeler Hints at Coming Legal Efforts to Save Net Neutrality

Tom Wheeler Getty H 2016
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In a counterfactual world where Hillary Clinton wins the election, the Federal Communications Commission goes after AT&T for "zero-rating" DirecTV Now. What's more, the agency uses the fact that Time Warner has licenses for the operation of satellites to force AT&T to submit its proposed $85 billion merger, and then leans on the telecom giant to accept as a condition for approval that it will no longer exempt the consumption of its owned content from consumers' data caps.

Of course, Donald Trump won the presidency, and a new Republican-dominated FCC has signaled its intention to roll back the decision to classify internet service as a utility under Title II of the Telecommunications Act, or at least back away from strong net neutrality rules.

On Thursday, Trump met with top executives at AT&T. Perhaps that overshadowed another meeting happening in Washington, D.C. Namely, two of the company's top lobbyists, Robert Quinn and Joan Marsh, met with the chief of staff for Ajit Pai, a favorite to succeed Tom Wheeler as the next FCC chairman. According to a filing with the agency, the meeting focused on the status of open proceedings including "open internet" (otherwise known as net neutrality) as the FCC prepares for transition to a new administration.

Today, Wheeler gave his last speech as FCC chairman, offering a robust defense of net neutrality at the Aspen Institute and knocking AT&T and Verizon for allegedly forcing consumers to pay data charges for competitors.

"Those who build and operate networks have both the incentive and the ability to use the power of the network to benefit themselves, even if doing so harms their own customers and the greater public interest," Wheeler told the audience.

He also signaled some of the battles ahead. If the FCC chooses to cancel regulations, it first would have to go through a rule-making process with a period for open comment. Or Congress could attempt to stomp out the regulation with an update of the Telecommunications Act. Whatever the route, Wheeler seemed to suggest there could be lawsuits challenging any changes.

"The recent D.C. Circuit decision was a strong and resounding affirmation of the FCC’s authority, as well as the soundness of its decision based on the record," said Wheeler, referring to what happened in June 2016. "If there is a reversal of the Open Internet rule, it will have a high hurdle to vault to prove to the same court why its 2016 decision was wrong."

Who would be bringing the case to the D.C. Circuit Court of Appeals? Netflix? Google? Some other digital content distributor? Wheeler didn't go that far.