FCC Chair: Swallow 'commercially reasonable' or I'll sic Title II on you
The FCC's now-regular public reprimand of the press for misinterpreting its ongoing revisions to "Open Internet" regulations as anything less than open reached a new crescendo on Tuesday. Like a camp counselor reminding scouts that sleeping in the rain is still an option for those who would prefer he not regale them with tales of his first dates, FCC Chairman Tom Wheeler wrote at greater length on the Commission's blog than before, saying "the Internet will remain an open pathway" and that ISPs' efforts to degrade service based on content or application "would be shut down."
In his Tuesday post, Wheeler provided further detail about the meaning of the "commercially reasonable" amendment to the FCC's Open Internet regulations, the earlier version of which having been struck down by the D.C. Circuit Court of Appeals in Verizon v. FCC last January.
"Something that harms consumers is not commercially reasonable," wrote Wheeler. "For instance, degrading service in order to create a new 'fast lane' would be shut down."
Of course, smart consumers can do the math here: Perhaps technologies such as deep packet inspection, or DPI, may not be permitted to enable service degradation for applications such as P2P, which ISPs have historically found questionable even though many legitimate VoIP applications use P2P. But let's assume for the sake of argument that all Internet hosts treat all IP packets equally. In such an alternate-universe utopia, we could arbitrarily assign a Quality of Service tag to every packet, and call each QoS a "3."
Maybe degrading some applications to a QoS of "1" would be illegal. But what would stop ISPs from arranging to upgrade every other application to a "5?"
Chairman Wheeler's new details indicate the FCC would prohibit such a QoS upgrade, but only in one instance: "Providing exclusive, prioritized service to an affiliate is not commercially reasonable. For instance, a broadband provider that also owns a sports network should not be able to give a commercial advantage to that network over another competitive sports network wishing to reach viewers over the Internet."
What Wheeler is clearly stopping short of saying is that any means of applying QoS to Internet services is commercially unreasonable, and thus would be prohibited by the revised regulations.
In its January decision, the D.C. Appeals Court declared the FCC lacked the authority to enforce the existing Open Internet order while, at the same time, claiming it wasn't treating Internet service like telephone service--with its common carrier provisions. But the Court was kind enough to present a legal theory for how an order could be enforced--specifically, if it "encourage[d] the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans."
Sounds like a laudable goal. It's also a roadmap for how the FCC could regulate Internet service under Title II of the Telecommunications Act, meaning ISPs would be treated more like common carriers. More than once in Wheeler's Tuesday message he referenced the specter of regulating Internet service providers with the same law that gave us universal service.
"I do not believe we should leave the market unprotected for multiple more years while lawyers for the biggest corporate players tie the FCC's protections up in court," wrote the Chairman. "Notwithstanding this, all regulatory options remain on the table. If the proposal before us now turns out to be insufficient or if we observe anyone taking advantage of the rule, I won't hesitate to use Title II. However, unlike with Title II, we can use the [Appeals] court's roadmap to implement Open Internet regulation now rather than endure additional years of litigation and delay."
The proposed rulemaking remains scheduled for discussion at the next FCC open meeting on May 15. At this rate, we can expect perhaps four more missives from the Chairman before the meeting convenes.
UPDATE 3:45 pm ET 30 April 2014: In a letter responding to Chairman Wheeler's blog post (.PDF) dated April 29, Sen. Al Franken (D - Minn.) cautioned him against any effort to revise the original Open Internet order in such a way as to permit a "fast lane," calling that a "misguided approach."
Playing on some of Wheeler's own choice of words, Sen. Franken wrote, "Struggling to craft a 'commercially reasonable' standard misses the point: Pay-to-play arrangements are inherently discriminatory and anticompetitive, and therefore should be prohibited as a matter of public policy. They increase costs for consumers and give ISPs a disincentive to improve their broadband networks -- undermining the FCC's mission to protect the public interest and strengthen the nation's broadband infrastructure... The FCC should be working to sustain competition and consumer benefits, not creating unnecessary tolls for businesses and consumers."