FCC Chairman Tom Wheeler Pledges Open Internet in Face of Criticism

Federal Communication Commission Chairman Tom Wheeler vigorously defended his new Open Internet proposal during a speech on Wednesday, following a tsunami of criticism from advocates of “net neutrality,” the principle that consumers should have equal access to content available on the Internet.

Appearing at the annual meeting of the National Cable and Telecommunications Association, the cable industry lobbying group that he once led as president and CEO, Wheeler declared that “reports that we are gutting the Open Internet rules are incorrect.”

Wheeler said that his priority is to quickly craft new net neutrality rules that will withstand legal challenges. The FCC’s Internet governance policies have been in limbo since a federal court struck down most of the agency’s 2010 Open Internet order in January.

That order enshrined net neutrality rules requiring Internet service providers to be transparent about how they handle network congestion, prohibiting them from blocking traffic such as Skype or Netflix on wired networks, and barring them from discriminating against such services by putting them into an Internet “slow lane” in order to benefit their own competing services.

“If you read some of the press accounts about what we propose to do, those of you who oppose net neutrality might feel like a celebration was in order,” Wheeler told the cable executives gathered for the conference. “Reports that we are gutting the Open Internet rules are incorrect. I am here to say ‘wait a minute.’ Put away the party hats.”

Wheeler’s proposed plan would restore the FCC’s ability to prohibit broadband companies like Comcast, AT&T and Verizon from blocking or degrading Internet services for users. (Comcast agreed to be bound by the now-defunct Open Internet order until 2018 as part of its purchase of NBC Universal, and says it will apply that agreement to its proposed purchase of Time Warner Cable.)

“The Internet will remain like it is today, an open pathway,” Wheeler wrote in a FCC blog post ahead of his speech. “If a broadband provider (ISP) acts in a manner that keeps users from effectively taking advantage of that pathway then it should be a violation of the Open Internet rules.”

The most controversial aspect of Wheeler’s proposal would allow broadband providers to strike special deals with Internet companies like Netflix or Skype for preferential treatment in the “last mile” to consumers’ homes, as long as they acted in a “commercially reasonable manner subject to review on a case-by-case basis.” Such deals are different from the paid peering interconnection agreements that Netflix has recently signed with Comcast and Verizon, which would not be covered by the new rules.

Critics of these special deals charge that they would allow for Internet “fast lanes” and create a system where deep-pocketed Internet companies, also known as “edge providers,” that can afford to pay for prioritized service would have an unfair advantage over smaller companies. Such a system could stifle innovation on the Internet, critics warn, and potentially hamper the development of the next Google, Netflix or Skype.

Such criticism “misses the point,” Wheeler wrote. “The proposed rule is built to ensure that everyone has access to an Internet that is sufficiently robust to enable consumers to access the content, services and applications they demand, as well as an Internet that offers innovators and edge providers the ability to offer new products and services.”

In his blog post, Wheeler reiterated that he is not proposing that the FCC reclassify broadband as a telecommunications service under the common carrier provisions of Title II of the Communications Act. Net neutrality advocates have long urged such reclassification, which would give the FCC broad authority over the broadband companies, but would also spark a bitter battle with industry lobbyists and their allies on Capitol Hill.

Wheeler said that Title II reclassification remains an option, but that wasn’t enough for some critics. “Tom Wheeler still doesn’t get it,” says Craig Aaron, president and CEO of D.C.-based advocacy group Free Press, which has long championed net neutrality. “Encouraging discrimination and calling it Net Neutrality is ridiculous.” Wheeler should “exercise the FCC’s clear authority, and reclassify Internet service providers as common carriers. It’s the most sensible and courageous approach.”

Much of the criticism of Wheeler’s approach has centered on what would constitute a “commercially reasonable” prioritization deal between a broadband provider and an Internet content company. In his blog post, Wheeler outlined what, exactly, he considered commercially unreasonable. Degrading service in order to create a new “fast lane” would qualify as such. So would degrading overall service so as to force consumers and content companies to a higher priced tier, or prioritizing service to an affiliate.

Prohibitions against such actions would ensure the Internet remained an open pathway, Wheeler wrote. “If broadband providers would seek to use the commercially reasonable test as justification of activities in which users can’t effectively use that pathway, or the capabilities of it are degraded, I suggest they save their breath since such conduct would be a violation of the Open Internet rules we propose.”

“If anyone acts to degrade the service for all for the benefit of a few, I intend to use every available power to stop it,” Wheeler continued. “If we get to a situation where arrival of the ‘next Google’ or the ‘next Amazon’ is being delayed or deterred, we will act as necessary using the full panoply of our authority.” He added that he will not “hesitate to use Title II if warranted.”

Despite Wheeler’s assurances, it’s unlikely that many net neutrality advocates will be satisfied with any FCC action that falls short of prompt Title II reclassification. More than 36,000 people have signed a White House petition calling for “complete neutrality in our communication channels,” and Reddit co-founder Alexis Ohanian has raised $9,665 to fund a billboard in Washington, D.C. declaring “Keep the internet free & open for all!”