Nice! Wheeler steps up with real proposal for net neutrality

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FCC Chairman Tom Wheeler on Wednesday unveiled his plans for mandating real network neutrality and preventing ISPs from discriminating against traffic on their pipes in an opinion piece in Wired. While much of the plan was leaked to the press earlier in the week, and the tenor of his network neutrality arguments had been shifting for months, it’s worth looking at how far Wheeler has come.

Net Neutrality Timeline
2004 February – Then-FCC Chairman Michael Powell delivers a speech outlining four Internet Freedoms.
2005 February – Telephone company Madison River creates one of the first cases of ISP discrimination after blocking Vonage VoIP IP traffic. The FCC makes it stop blocking traffic a month later.
2005 August – The FCC details a set of four Open Internet Principles, but stops short of issuing regulation.
2006 March – Congress tries to pass one of many network neutrality bills, but ultimately the laws do not pass.
2007 October – Comcast is accused of forging packets to block P2P files on its network. The FCC launches an investigation.
2008 February – The FCC is “not impressed” by Comcast’s argument that the company was simply controlling traffic. The FCC advocates open and transparent network management practices.
2008 July – Comcast files a new, non-discriminatory network plan with the FCC.
2008 August – The FCC tells Comcast to stop its network management practices by the end of the year, but fails to make a formal ruling on net neutrality — preferring to evaluate problems on a case-by-case basis. Comcast announces its intent to appeal a month later.
2009 August – A year later, Comcast appeals the FCC’s decision, arguing that the commission doesn’t have the authority to impose net neutrality principles in the absence of a public hearing or federal law.
2009 September – Then-FCC Chairman Julius Genachowski creates a formal framework for net neutrality. The framework includes six principles applying to both wired and wireless networks.
2010 April – The U.S. Court of Appeals rules that the FCC did not have the authority to censure Comcast’s network, creating a major hurdle for Genachowski’s to implement net neutrality rules.
2010 May – The FCC lays out a new plan to regulate broadband while tiptoeing around the court’s decision.
2010 August – Google and Verizon strike their own agreement to make network neutrality enforceable on wireline networks, but not wireless.
2010 December 21 – The FCC pushes ahead with net neutrality and issues the Open Internet Order, drawing fire from the right and the left.
2011 November – The Open Internet rules officially go into effect, blocking wired broadband telcos from blocking or prioritizing traffic.
2012 July – Verizon files a 116-page lawsuit to appeal network neutrality regulations. MetroPCS eventually joins it in the fight.
2012 August – AT&T is accused of blocking FaceTime on its cellular network for certain customers. The company eventually backs down in November and begins to roll out FaceTime to customers on its cell networks.
2013 September – The FCC finds itself back in court in response to Verizon’s challenge to its Open Internet rules. The case calls into question not only the FCC’s rules, but also the commission’s ability to regulate them.
2014 January – The D.C. Court of Appeals overturns the FCC’s “net neutrality” rules in an almost complete win for Verizon. The court rules that the FCC does have the authority to implement network neutrality rules, but says it applied a standard to ISPs that the commission wasn’t able to legally impose.
2014 February – FCC Chairman Tom Wheeler announces that the commission will not appeal the D.C. Court’s decision, but instead look for new ways to stop “blocking” and “discrimination”.
2014 April – After the FCC’s plans to allow prioritization of traffic emerge, the media and internet begin a campaign to get FCC Chairman Tom Wheeler to reconsider his planned net neutrality fix.
2014 May – The FCC votes 3-2 to approve a framework of net neutrality rules that continue to favor the creation of an internet fast lane while exploring reclassifying it under Title II.
2014 July – Companies from Reddit to Netflix, which submitted a 28-page statement in support of Title II, file comments with the FCC on proposed prioritization of traffic during a public comment period.
2014 November – President Barack Obama comes out with a strong statement on net neutrality that calls for the FCC to implement Title II rules and to apply to wireless networks. Obama advocates for no blocking, no throttling, no paid prioritization and increased transparency between consumers and ISPs.
2015 January – FCC Chairman Tom Wheeler sets a Feb. 26 vote date, while hinting at CES that he’s likely to go the route of Title II when he presents his proposal.

Hell, it’s important to look at how far the country has come. But first we need the main points of the plan, which were not detailed in the Wired op-ed but should be released later today and appear to be focused on making sure both wireless and wireline broadband will follow the same rules. If you are just tuning in, the regulatory oomph will come from reclassifying broadband as a transport service, not as an information service under Title II of the 1996 Telecommunication Act. This means that ISPs will have to abide by common carrier obligations. But not all of them.

In the Wired op-ed, Wheeler writes:

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.

Congress wisely gave the FCC the power to update its rules to keep pace with innovation. Under that authority my proposal includes a general conduct rule that can be used to stop new and novel threats to the internet.

Wheeler is warning Congress that he has this power (and it’s doubtful that Congress could get it together to take that away) and that all the ISP talk about how regulating broadband will harm investment is a sham. He’s also setting the FCC up to be flexible in the future, which depending on how that rule is written could be helpful or just a bunch of talk aimed at pleasing people. We shall wait and see.

But for the moment, let’s remember that this is a huge step. Back in 2005 when Chairman Michael Powell proposed the Open Internet Principles of transparency and non-discrimination, they were just that, principles — something to strive for. But after an ISP in Wisconsin was caught blocking VoIP calls that interfered with its lucrative landline business and Comcast was caught blocking legal BitTorrent streams, it became clear that ISPs viewed certain types of IP content as threats to their business models.

And when FCC Chairman Kevin Martin, who was more of a friend to the Bells than a staunch supporter of the consumer, censured Comcast for its behavior, the debate over how to ensure ISPs didn’t abuse their power bubbled up into a real debate over how to handle network neutrality. But even then, the idea of regulating ISPs under Title II was not a topic that people would bring up. It was far easier to talk about and then go through a grueling debate to try to enshrine those original Open Internet Principles into some type of new regulation, than go to Title II.

That would be insane and a political non-starter. So then-Chairman Julius Genachowski decided to make net neutrality his big fight. He began holding hearings and talking up freedom, glory and the sanctity of the internet — but he ultimately caved before the ISPs and Google and gave us a watered-down version of net neutrality that split wireline and wireless and ultimately ended up failing in court — ironically, thanks to the lawsuit that Comcast had filed against the FCC after Kevin Martin censured it for blocking BitTorrent.

But while Genachowski was backing down, talk of Title II was bubbling up. After the courts had threatened the FCC’s authority in the Comcast ruling, people began looking for bigger guns to bring to the fight, and Title II was a nuclear bomb. When Genachowski’s weak net neutrality compromise was gutted by the courts and Wheeler was left to pick up the mess, his initial play was to patch it up and move on to his real agenda. But the activist and consumer interest was so high that he couldn’t.

So Wheeler, who has proven himself a man with far more integrity than the last commissioner, has taken up the job of sifting through the history of the internet, listened to the players and recognized that if we want to continue with the internet we have and expect it to behave the same way in the future, then we really do need network neutrality — real network neutrality. And the only way to get it appears to be to pull out that nuclear bomb. So he’s doing it.

That takes a lot of guts and a keen understanding of the U.S. market. I may not agree with everything in this proposal, but after almost a decade of covering broadband, I know that this proposal will change things. It won’t be the end of the world for ISPs, although it may cause a little short-term pain for some. It should be neutral for larger tech companies, which already have plenty of other advantages thanks to network effects. Smaller companies should benefit. And most importantly, it will be good for the consumer, who is, after all, who the government is there to protect.