The FCC chairman’s subtle new net neutrality proposal

FCC chairman Tom Wheeler’s new pitch for open internet rules is a shrewdly subtle opening gambit in what is certain to be a tricky political process (full statement here). The key moves:

  • He will forgo an appeal of the D.C. Circuit court’s decision in the Verizon case that led to the old rules being thrown out. Those rules were clumsily drafted and badly aimed. By forgoing an appeal, Wheeler can wash his hands of them and start from scratch, giving himself plenty of room to maneuver.
  • He’s opening a new, free-for-all docket to collect public comment on  “Protecting and Promoting the Open Internet,” before initiating a formal rulemaking process. The almost-certain result will be a public record overwhelmingly in favor of strong action by the FCC, giving Wheeler political cover.
  • He’s keeping Title  II reclassification on the table for now, giving himself both a cudgel to use in negotiations with telecom providers and a bargaining chip to trade away in the deal he will inevitably have to cut with them to keep them to keep them from rallying political opposition to the eventual new rules. Reclassification as common carriers under Title II of the Communications Act is what the telecoms fear most.
  • He nods conspicuously to public commitments to openness and transparency that broadband providers have already made, and to the agency’s monitoring of their compliance with those commitments. In Washington-speak, that’s a signal that Wheeler may be open to negotiating voluntary industry standards on neutrality that would be overseen by the FCC in lieu of formal regulations — a move clearly designed to keep the telecoms at the table and talking at least for now. Such an arrangement might also spare the FCC further challenges to its legal authority, which would only tie the whole project up in court again for several years.

Based on the statement issued by the National Cable & Telecommunications Assn. (which Wheeler used to lead), the message was received as intended.

“We look forward to working with Chairman Wheeler and the Commission on ensuring that American consumers will continue to enjoy a fast, robust and open Internet experience,” NCTA said. ” We continue to believe that the values of an open Internet can be preserved, while avoiding a damaging move to heavier regulation.”

Well played so far.