Ever since the issue erupted after comedian John Oliver's viral video segment, Federal Communications Commission chairman Tom Wheeler has appeared to play both sides of the Net neutrality debate. Sometimes the former telecom lobbyist seems to side with large Internet service providers (ISPs) and their desire to create Internet “fast lanes” for websites and services that can afford it; other times he caters to tech companies, Net neutrality advocates and the White House, all of whom say the Internet's level playing field must be protected from ISP meddling by reclassifying it as a public utility under Title II of the Telecommunications Act.
But during an onstage interview at the Consumer Electronics Show on Wednesday, Wheeler seemed to lean more toward the latter position. It suggests the FCC's soon-to-be-revealed Net neutrality rules will follow President Barack Obama's suggestion for Title II reclassification, which would have Internet providers regulated more like utilities, such as a gas and electricity — or at least something approximating it.
The interview made clear that Wheeler has been rethinking the FCC's broadly criticized proposal from last year, which would allow ISPs to strike deals with content providers for paid prioritization of Internet traffic, as long as those deals were deemed “commercially reasonable.” He said that after deliberations within the FCC, “it became obvious that ‘commercially reasonable’ could be interpreted as what is reasonable for the ISPs, not what’s reasonable for consumers or innovators. And that's the wrong question and the wrong answer, because the issue here is how do we make sure that consumers and innovators have open access to networks.”
Instead, the standard must be “just and reasonable,” he said.
Wheeler articulated his desire to balance protecting the open Internet with a need to provide incentives to the ISPs investing in telecommunications infrastructure. But he noted that despite larger ISPs complaining that Title II would dis-incentivize them from building out their networks, the record high-stakes bidding on upcoming spectrum auctions — even after Obama declared his support for Title II — suggests otherwise. He also said that while the largest ISPs have objected, smaller local providers have approached him saying they fully support Title II reclassification.
If Wheeler was truly signaling his support for Title II, the CES was an interesting place to do it. The electronics trade show — frequently criticized for its gaudy and absurd corporate pageantry — functions like a giant tech playroom where companies reveal new products and spoon-feed journalists their visions for the future of consumer technology.
It also plays host to some of the biggest names in the industry, including Internet Service Providers like Verizon and Comcast, who have fought vigorously against Net neutrality rules for years. The organization that runs the CES, the Consumer Electronics Association, has also opposed Title II reclassification.
While Wheeler's statements are a strong indicator that the FCC is headed in that direction, he also made clear that the new rules wouldn't block all forms of prioritization. For example, government entities would still be able to get priority access during national emergencies, he said.
So, it's certainly possible that the FCC's new Net neutrality edict will tilt in the direction of Title II classification, but how they choose to implement it will be key.
In January 2014, Verizon convinced a federal appeals court to strike down the FCC's previous Net neutrality rules on the grounds that the FCC didn't actually have the authority to enforce them. That decision causes Net neutrality advocates to worry that any ambiguity in how ISPs are classified under the new regulations might lead to the same result.
Wheeler said the FCC is expected to vote on the proposal early next month, and the new Net neutrality rules will be made public Feb. 26.