Tom Wheeler, the new chairman of the Federal Communications Commission (FCC), released a statement yesterday signaling the agency’s way forward on net neutrality – or whatever the government can come up with to take its place.
It’s possible to feel a touch of sympathy for Wheeler. He is somewhat like a replacement taking over for the manager of a floundering baseball team. It’s not that the FCC in general is failing, but that its handling of net neutrality has reduced the agency’s influence. It did this by fundamentally miscategorizing broadband. The problem, which was long known to folks who follow the issue, exploded last month when the Federal Circuit Court for Washington, DC, eviscerated the rules based on that mischaracterization.
Wheeler’s statement highlighted the portions of the ruling that essentially validate the FCC’s overall right to control the Internet. The most important piece of news from the posting is that the FCC won’t appeal the decision. That was thought likely, according to GigaOm:
The decision to forgo an appeal is not surprising since the appeals court ruling was considered to be legally sound; in the decision, the DC Appeals Court pointed that the FCC had failed to invoke the proper legal authority when it applied the so-called “Open Internet Authority” to broadband providers.
Wheeler, in the statement, did set some guideposts – by necessity, rather vague – that the FCC will follow in setting new rules:
Thus, we will consider (1) setting an enforceable legal standard that provides guidance and predictability to edge providers, consumers, and broadband providers alike; (2) evaluating on a case-by-case basis whether that standard is met; and (3) identifying key behaviors by broadband providers that the Commission would view with particular skepticism.
Three important points must be considered going forward. The first is that Wheeler and the FCC clearly did the right thing in not appealing the decision. Vanity can get in the way, and it was entirely possible that the agency would throw good money after bad in what most legal folks think would be a quixotic quest to reinstate the current rules. In short, the FCC rightly acknowledged that it messed up.
The second point is that it will be exceedingly difficult to please Congress in the current environment. Perhaps setting rules doesn’t technically require Congressional approval. A move by Democrats to temporarily reinstate the rules is not likely to succeed, insiders say. Clearly, however, instituting new rules will be much easier with its tacit cooperation.
The third issue perhaps is the most important. The court decision was handed down roughly a month before Comcast announced its intention of acquiring Time Warner Cable. How things will play out is, of course, impossible to know. It is safe to say, however, that the fate of net neutrality – or, more broadly, the ability of service providers to control the flow of data – will be deeply linked to the handling of the combination of the two giants.