FCC Goes Back to Square One on Net Neutrality

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Federal Communications Commission Chairman Tom Wheeler either is a shrewd inside player who sought to use a trial balloon to assess the fault lines in the battle over net neutrality or a bumbler who grossly misjudged the reaction to a fundamental change in how broadband is administered. Or, as often is the case in such circumstances, he is somewhere in the middle.

Last month, Wheeler’s FCC ignited a firestorm by proposing a plan in which it would be possible to buy higher speed access to the last mile into consumers’ homes. The reaction was fierce, with a wide variety of constituents, including businesses and two of the five FCC commissioners, exhibiting various levels of antipathy.

On Sunday, WSJ.com reported that Wheeler backed off, though to what extent is unclear. Indeed, it seems that the commission is reverting to an exploratory position, in which two of the three major options that existed after the United States Court of Appeals for the District of Columba essentially threw out the rules still are very much on the table.

The commission still can work toward the “paid prioritization” approach that raised such a ruckus during the past few weeks or reclassify broadband in a way that gives the commission a higher level of control and allows it to maintain the net neutrality status quo. The only option that appears to be permanently off the table is appealing the decision. Legal experts seem to agree that an appeal is a non-starter.

The bottom line is that the FCC seems no closer to a resolution than it was the day the decision was handed down. It’s a bit of a mess, and one of the FCC’s own making. A decade ago, it decided to treat the Internet as a relatively lightly regulated information service instead of a telecommunications service. Since then, of course, the Internet has become the major communications platform for most Americans. The riddle Wheeler faces is how to preserve the ethos of the Internet while adjusting to its new commercial realities. The net neutrality issue is summed up nicely by Time.com:

The Internet has become a new public utility, many Net-neutrality advocates argue, and should be treated as such. The nation’s largest cable and phone companies fiercely oppose that idea — fearing greater regulation — and are mobilizing their lobbyists and allies on Capitol Hill to push back.

How difficult a needle is this to thread? Consider this passage from Engadget:

Detailed in a report by the Wall Street Journal, the (heavily criticized) general approach with the ability to sell faster delivery for some web content will be the same, but according to an unnamed official, will include language to make sure the FCC would have to make sure any deal doesn’t put nonpaying companies at an unfair disadvantage.

In short, it seems that it is an impossible task. How can faster delivery be available without putting those who opt not to buy it at risk? Obviously, I was wrong when I suggested that the trial balloon was met by grudging acceptance of the inevitable demise of the traditional form of net neutrality. Not only has there been no acceptance, but the resistance has coalesced. If anything, the fate of net neutrality is a bigger issue today than it was when the court acted in January.