TAP Scholars Explain the Importance of FCC Chairman Wheeler’s Net Neutrality Proposal

By TAP Staff Blogger

Posted on February 6, 2015


This week, Federal Communications Commission Chairman Tom Wheeler released his proposal for ensuring network neutrality. In an op-ed he wrote for Wired, Chairman Wheeler said he is proposing “new rules to preserve the internet as an open platform for innovation and free expression.”

Network neutrality, also called ‘net neutrality’, refers to the idea that Internet service providers should treat all web traffic equally, without giving priority access to certain sites, content providers or content, applications, or devices.

Chairman Wheeler says, “My proposal assures the rights of Internet users to go where they want, when they want, and the rights of innovators to introduce new products without asking anyone’s permission.”

A Wall Street Journal article explains the key point in Chairman Wheeler’s proposal:

The proposed rules would change broadband Internet access from a lightly regulated information service to a more strictly overseen telecommunications service. The FCC would use that new authority to ban broadband providers from blocking, slowing down or speeding up specific websites in exchange for payment.
(“FCC Chairman Proposes Utility-Like Regulation for Broadband Internet,” The Wall Street Journal, February 4, 2015)

Proposal to Reclassify the Internet as a Telecommunications Service

Columbia law professor Tim Wu – the man credited with coining the term “net neutrality” – explains the importance of Chairman Wheeler’s proposal to regulate the Internet under Title II of the Communications Act. (The following quotes are from “In Net-Neutrality Push, FCC Chief Will Seek Utility-Like Rules for Net,” The Seattle Times, February 3, 2015.)

Tim Wu, a professor at Columbia Law School, sees the strong rules the FCC is moving toward as a way to safeguard the norm of equal treatment of content on the Internet, rather than viewing them as a threat.

“And the norm — no fast lanes — has worked awfully well,” said Wu.

“The reality,” he added, “is that we’ve seen startups in San Francisco, New York and across the country build new businesses on the Internet.”

What Opposition Does Chairman Wheeler’s Proposal Face?

Northwestern law professor James Speta outlines a few of the challenges Chairman Wheeler can expect to see in response to his network neutrality proposal. (The following quotes are from “Net Neutrality Fight Likely Headed Back to Court,” The Wall Street Journal, February 5, 2015.)

“It is virtually inevitable that some or many of the carriers will challenge the rules.” That said, should the five-member FCC vote to adopt Mr. Wheeler’s plan, companies like Verizon and AT&T could still be expected to make a case in court that the agency overstepped its authority, James B. Speta said.

Those companies, Mr. Speta said, could claim that the FCC rules fail to meet the technical requirements of a telecommunications carrier under the Telecommunications Act. Such an argument rests on the idea that the Internet is more complex than a “dumb pipe” connection between two users — like a telephone network — and thus fall outside the scope of common-carrier regulation.

Mr. Speta said broadband carriers could also mount a broader policy attack against net neutrality. The argument would be that the FCC is making a radical change lacking the evidence that Internet carriers are exploiting their market power or that the Internet access marketplace isn’t competitive enough.

Professor Kevin Werbach, a former FCC counsel and currently an associate professor at the Wharton School of the University of Pennsylvania, outlines the actions he expects to see from the Republican Congress and Internet service providers (ISPs). (The following quotes are from a CBS News story, “Obamacare for the Internet? GOP Evolves on Net Neutrality,” February 5, 2015.)

"The center of gravity in the net neutrality debate has shifted very dramatically in the past year," Kevin Werbach told CBS News.

The GOP legislation, he said, "is a recognition of how the environment has changed. There is no chance of legislation forbidding net neutrality rules or authorizing certain types of discrimination... The extraordinary intensity of the support for net neutrality rules is something that Congress has to take into account."

Werbach told CBS that the ISPs know they'll face some kind of net neutrality rules soon enough and are more concerned about future FCC rules.

"There is ultimately a longer game here than net neutrality, which is what authority the FCC has into the future over broadband services," he said. "From an industry standpoint, ultimately they are probably more concerned from getting out from under FCC oversight than they are about authorization to engage in hypothetical discrimination."

Find more information about network neutrality on TAP’s Net Neutrality issue page.