Nice! Wheeler steps up with real proposal for net neutrality

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.

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.