Oh, It's On: FCC Boss Formally Throws Support Behind Title II Net Neutrality Rules

from the devil-in-the-details dept

Wed, Feb 4th 2015 11:20am — Karl Bode

FCC boss Tom Wheeler today confirmed weeks of media leaks by proclaiming he will, in fact, be pushing for Title II based net neutrality rules to be voted on at the agency's meeting on February 26. In an editorial over at Wired, the FCC boss proclaims that the agency's new rules will be the "strongest open internet protections ever proposed by the FCC." Given the FCC's history, this isn't saying much; in fact it's kind of like saying you're the best triathlete in a late-stage cancer hospice ward. Fortunately Wheeler also notes that, unlike the FCC's previous rules, these new rules will apply to wired and wireless networks alike.

You'll recall that, originally, Wheeler had been tinkering with the idea of "hybrid" net neutrality rules that left consumer broadband lines classified as is, but reclassified connections between ISPs and edge providers like Netflix under Title II. Most net neutrality advocates weren't impressed by the idea, noting that relying on the "commercial reasonableness" portion of the Telecom Act would only serve incumbent ISPs. Wheeler, prompted in part by the President's sudden surprise November support for Title II, appears to have realized this:

"Originally, I believed that the FCC could assure internet openness through a determination of “commercial reasonableness” under Section 706 of the Telecommunications Act of 1996. While a recent court decision seemed to draw a roadmap for using this approach, I became concerned that this relatively new concept might, down the road, be interpreted to mean what is reasonable for commercial interests, not consumers."

Wheeler proceeds to once again shoot down the broadband industry narrative that Title II is an industry investment killer, while insisting he has no intention to use Title II to impose broader price controls or force a return to local loop unbundling (aka open access):

"All of this can be accomplished while encouraging investment in broadband networks. To preserve incentives for broadband operators to invest in their networks, 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."

While Twitter neutrality supporters quickly had a collective nerdgasm, it's worth reiterating that hard details are scarce, and this is just the beginning of another, very long chapter in the decade-old neutrality conversation. An FCC fact sheet offered up to the media this afternoon notes that the new rules will ban "paid prioritization," unfair throttling and blocking, while giving ISPs broad leeway to engage in "reasonable network management." As previous leaks suggested, the rules will also create a new grievance process to handle interconnection-related complaints and "take appropriate action if necessary," but what this precisely entails remains unclear.

Unmentioned by the FCC or Wheeler is the other major front on the net neutrality debate: usage caps or the "creative" ways carriers are using caps to violate neutrality (see: AT&T sponsored data or T-Mobile's Music Freedom). As always, the devil is going to be in the details, and the tougher wing of the consumer advocate community is going to be annoyed that the agency plans to steer clear of using Title II to apply downward pricing pressure or to crack open last mile networks to open access competition. Others will have questions regarding just how large of a loophole the MPAA has managed to carve out for itself in regards to the rules only applying to "lawful content."

None of this is to rain too hard on neutrality supporters parade. The fact that a former cable and wireless industry lobbyist has shrugged off industry input to head down the most contentious (but ultimately best available) path for consumers is nothing short of miraculous, and is, in large part, thanks to unprecedented grass roots activism. But there's a long road ahead of semantics, partisan hyperbole and legal wrangling that can undo all of these good intentions in the blink of an eye. If Wheeler's final rules contain too many loopholes, get beaten back by ISP lawsuit, or get gutted after an administration shift, net neutrality supporters can very quickly find themselves right back where they started if a full court press isn't maintained.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: fcc, net neutrality, title ii, tom wheeler

33 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Violynne (profile), 4 Feb 2015 @ 11:10am

I loved his reasoning for going against the ISPs. He was in competition with AOL in years gone by and failed because he didn't have open access to cable while AOL used phone lines.

What really pisses me off is that he had the opportunity at his other positions to rectify this, but chose not to. Perhaps he couldn't?

At any rate, the old expression is still apt: better late than never.

Though, it'll be years before we see any benefit from this decision.
[ link to this | view in thread ]
Baron von Robber, 4 Feb 2015 @ 11:28am

"I fear all we have done is to awaken a sleeping giant and fill him with a terrible resolve."
[ link to this | view in thread ]
John Fenderson (profile), 4 Feb 2015 @ 11:29am

Similar rules, huh?
Over the last 21 years, the wireless industry has invested almost $300 billion under similar rules

If the FCC is considering rules that are similar to what the wireless industry has been under, then this is essentially an admission from Wheeler that the FCC doesn't intend to do anything that is actually effective.
[ link to this | view in thread ]
Anonymous Coward, 4 Feb 2015 @ 11:42am

I never thought I'd see a ex-industry lobbyist fighting to protect the American public. It's like I'm living in the twilight zone.
[ link to this | view in thread ]
TMC, 4 Feb 2015 @ 11:47am

Competition. Right
He isn't unbundling last-mile. He isn't regulating rates. There will be no new competition.

This... appears to do very little from a consumer standpoint. Big win for Netflix, completely neutral for any Netflix user.

This wouldn't be so god damn annoying if he hadn't made a statement about his 1980s company that competed unsuccessfully with AOL largely because telephone lines were subject to old Title II and his cable-based service was not. He invoked the equivalent of unbundling last-mile to explain a law that would not unbundle last-mile. What. The. Shit.
[ link to this | view in thread ]
VideoSavant, 4 Feb 2015 @ 11:50am

Saps
Anyone who believes that government regulation is going to make the Internet more affordable, or fairer, or more user-friendly is a complete sap.

How blind do you have to be not to see that government is only interested in making government bigger, more powerful and better positioned for future shakedowns?

Thank you, master. May I have another?
[ link to this | view in thread ]
Baron von Robber, 4 Feb 2015 @ 11:59am

Re: Saps
Yea, you dummies! Just look at other countries that have regulated the Internet as a utilities. They have multiple ISPs to choose from, higher speeds and lower prices in their regulated states!

Suckers!

Wait a tick........
[ link to this | view in thread ]
Mr. Oizo, 4 Feb 2015 @ 12:22pm

Greatest sentence so far on techdrirt
"Given the FCC's history, this isn't saying much; in fact it's kind of like saying you're the best triathlete in a late-stage cancer hospice ward."

ROTFL

The second best sentence on Techdirt so far was dark helmet explaining that his eyes would turn around and stab his brain because of the nonsense it was producing.
[ link to this | view in thread ]
Anonymous Coward, 4 Feb 2015 @ 12:55pm

Re: Re: Saps
Ah; but other countries don't have _US_ government. They have government that's accountable to the electorate!
[ link to this | view in thread ]
jameshogg (profile), 4 Feb 2015 @ 1:14pm

Public opinion having a tiny influence on corporate regulation?

Google's obviously to blame.

Grab your pitch forks here:

------E

------E

------E

------E

------E
[ link to this | view in thread ]
Anonymous Coward, 4 Feb 2015 @ 1:40pm

I would be very careful in approving Tom Wheeler's proposals at this stage. This is not the first time bait and switch could be in play. If you want to do something the easiest way to do it is with the public on your side. As was said in the article, the devil is in the details.

I fail to see why Mr. Wheeler has not put the last mile unbundling in the package. One of the huge give-a-ways to telcoms, paid for courtesy of the taxpayers. It's also been one of the huge blockade builders to prevent competition. Considering that both Verizon and AT&T are wanting to disconnect from it as far as maintenance and continuation goes. Neither want to continue DSL service as they would rather shift everyone to wireless with caps.

This sounds great but closer look at it, there is a lot of holes in this proposal without the rest of the details that doesn't look as good.
[ link to this | view in thread ]
Keroberos (profile), 4 Feb 2015 @ 1:56pm

/tinfoil hat on

What concerns me about all this is the timing. Obama's had 6 years to do something but waits until near the end to do anything, and all the FCC commissioners were appointed by Obama.

Hmmmm....is someone pushing for a lucrative post government career in the telecommunications industry?

/tinfoil hat off
[ link to this | view in thread ]
Spencer (profile), 4 Feb 2015 @ 2:23pm

Re:
Umm, former presidents never really take jobs after they leave offices. Most start a charity or something.
[ link to this | view in thread ]
Spencer (profile), 4 Feb 2015 @ 2:23pm

Re:
Because as much as we wished otherwise, Wheeler will have to defend whatever he proposes in court. I imagine he's keeping that in mind when crafting these rules.
[ link to this | view in thread ]
Anonymous Coward, 4 Feb 2015 @ 2:27pm

Re: Re:
miss sarcasm much?
[ link to this | view in thread ]
JBDragon (profile), 4 Feb 2015 @ 3:52pm

Re: Re:
Clinton has been making millions going out and doing speeches!!! Carter I'm kind of up in the air in. He's been great for Habitat for Humanity over the years, but then he gets stupid with North Korea!!! He was the worse president ever in modern times, well until Obama took his place. How he ever got a second term? Well other then the fact we ended up with yet another RINO for the republican pick.
[ link to this | view in thread ]
Rapnel (profile), 4 Feb 2015 @ 4:23pm

Re: Saps
I came across similar big-government vitriol where I'd read Wheeler's remarks. Your fear of a huge boogey-man government is already here. Ever heard of the list of undeclared wars? Are you aware of the prison population? Those are things your taxes pay for. Are you aware of the large tax money awards that these large providers have taken? Do you know what a utility even is? Common carrier? Broadcast Service? Now if you folks would kindly be so vociferous about the very real, very large and very powerful entities within the already too big government then I'd be obliged. Perhaps stop being afraid that someone is going to take something from you that they haven't earned because it's already happening and you seem to have nary a clue. I do admire the collective enthusiasm though but do hope that future focus groups can better evaluate their respective positions with regards to reality.
[ link to this | view in thread ]
dre evil, 4 Feb 2015 @ 4:42pm

going ebout
[ link to this | view in thread ]
Anonymous Coward, 4 Feb 2015 @ 9:26pm

Nice to see I am not the only one who wonders if this is a smoke screen and will have no impact whatsoever.

This administration is well known for claiming this and really doing that, then hiding behind secret interpretations of what they impose.
[ link to this | view in thread ]
AJ, 5 Feb 2015 @ 4:12am

Re: Re: Saps
When the U.S. government gets involved, you can guarantee it's going to be over regulated, selectively enforced, unfairly balanced, riddled with loopholes, completely monitored, and massively inefficient.

When big business gets involved your can guarantee it's going to be overpriced, disingenuous, false marketed, over sell under provide, politician bribing, damn the humanity, and as money grubbing as it can get.

I think we need a third option here! I'm not liking either one of those!
[ link to this | view in thread ]
Pragmatic, 5 Feb 2015 @ 6:02am

Re: Re: Re: Saps
Me neither. But what are we doing to CONTINUOUSLY keep the government accountable?

Bitching and whining about them ain't the same thing.

Ditto for big business.

Making and keeping them accountable (which is what regulations are supposed to be for) would actually solve the problem.
[ link to this | view in thread ]
Baron von Robber, 5 Feb 2015 @ 6:45am

Re: Re: Re: Saps
I'm all ears about the 3rd option. I see other countries that treat their Internet like a utility (gas, electric, sewage, etc) and their rates a lower, speeds faster and cable company fuckery.

3rd option, go.
[ link to this | view in thread ]
Baron von Robber, 5 Feb 2015 @ 6:49am

Re: Re: Re: Re: Saps
appendum: and cable company fuckery doesn't exist like it does here.
[ link to this | view in thread ]
posterman, 5 Feb 2015 @ 7:04am

Re:
The use of new technologies has increased significantly in our time. I still want to share the new development http://www.favewallpapers.com/62829-design-tech-idea-digital-form-style-color-music-laevsky-art-form -creative.html
[ link to this | view in thread ]
John Fenderson (profile), 5 Feb 2015 @ 7:40am

Re: Saps
"Thank you, master. May I have another?"

Look at it this way: if your argument is correct, then we're simply choosing who is going to our master, an unaccountable corporation or a (barely) accountable public agency? Sure, it's choosing the lesser of two evils, but I know which one I consider the lesser in this case, and it's not the ones who are totally unaccountable.
[ link to this | view in thread ]
Anonymous Coward, 5 Feb 2015 @ 8:03am

It's good to see that he is now talking the talk, but I will wait until I see it signed into law.
[ link to this | view in thread ]
Dan G Difino, 5 Feb 2015 @ 8:18am

Net (anything rules) Any Change Is Not Good
Anything anyone does to change anything is only going to end up costing consumers (in the end) and making more lawyers rich-er.
[ link to this | view in thread ]
John Fenderson (profile), 5 Feb 2015 @ 9:22am

Re: Re: Re:
"He was the worse president ever in modern times"

Not by a longshot. He was a largely ineffective president, but did little harm -- unlike a number of other presidents in modern times.
[ link to this | view in thread ]
GEMont (profile), 5 Feb 2015 @ 11:54am

Title 2 Good 2 B True
I can hardly wait to see the half dozen slick loopholes that will make this whole thing work completely the opposite to what it is supposed to.

There is no way they're allowing anything to get in the way of taking over the internet, so this has gotta be a trojan horse, filled with Legacy Industry and Telecom Execs.

This should be truly interesting, but ultimately disgusting.

---
[ link to this | view in thread ]
M, 5 Feb 2015 @ 12:53pm

Devil in the details. I've heard both Wheeler and Obama say "unfettered legal content".

And that is the rub. Who is going to police what is considered "Legal". And How.

Most disturbingly, i suspect this is going to give them precedent to censor.
[ link to this | view in thread ]
GEMont (profile), 6 Feb 2015 @ 1:57pm

Re:
Now that would be totally in character and would indeed be the sort of "rabbit-up-my-sleeve" sleight of hand I would expect from all of this.

I'll bet 10 Cyber Bucks that this will indeed be the REAL purpose and the REAL result of the new legislation.

Censorship is the life blood of fascism.
Followed closely by disinformation, legalized exploitation, slavery and war.

---
[ link to this | view in thread ]
GEMont (profile), 6 Feb 2015 @ 4:24pm

Re:
I'd wait till the feces and shit meet before counting them chickens. There do be a goodly chance that this is just another ruse to introduce another piece of "fuck you John Q. Public" legislation for the Big Players' benefit.

Hey. I'm hoping the man will actually do the right thing too ye know, its just that doing the right is by its very nature, not the kinda thing that promotes careers or gets one a lucrative retirement position in a legacy industry wall street office.

I expect this will end very badly for the public and for the internet and for the future.

But that's just me - hopefully.

---
[ link to this | view in thread ]
VideoSavant, 7 Feb 2015 @ 5:08pm

Re: Re: Saps
And where do you see accountability in government? I think the problem here is that you see government as some abstract, benign organization of last resort that can cure all ills as long as you're prepared to throw more and more money at it.

On the other hand:

* I see a government that can't build a website, despite a 3-year timeline and more than a billion dollars in funding.

* I see a government that assures me that this new health care law is really no big deal, it's not going to impact me directly, and furthermore the head of that government repeatedly assures me that that if I like my current doctor and current insurance, I will be able to keep my doctor and my current plan.

* I see a government where federal employees collectively owe more than $3 billion in unpaid taxes, including a few thousand at the IRS who were also paid millions of dollars in bonuses and extra vacation days by agency managers.

* I see a government where in the rare instances where employees are disciplined or fired, some of those same employees are rewarded with raises, bonuses, and in some cases, rehired after criminal acts, including criminal fraud.

* In a nutshell, I see a government with unchecked power, no accountability and no discernible standards for either performance or integrity.

I could go on and on, and I'd be happy to cite specific examples with links...but..."look at it this way"...I think throwing up our hands and surrendering to a corrupt and power-hungry government is cosmically foolish.

In fact, it's 100 percent sapworthy.
[ link to this | view in thread ]