On Wednesday, FCC Chairman Tom Wheeler informed an audience at the Consumer Electronics Show (CES) in Las Vegas that he intends to circulate a draft order to the FCC’s commissioners on February 5 prescribing a limited Title II approach to net neutrality that ensures “no blocking, no throttling, and no paid prioritization.” Wheeler’s remarks came during a questionandanswer session with Consumer Electronics Association CEO Gary Shapiro at which Wheeler confirmed FCC plans to vote on the proposed rules on February 12.
At the Q&A, Wheeler discussed his philosophical approach to the draft rules but declined to provide specific details on what the draft order will contain. According to Wheeler, the regulatory approach to be taken in the draft order reflects an evolution in the FCC’s Open Internet policy, pursuant to which the FCC previously assessed ISP network management and access by standards of “commercial reasonableness.”
As the FCC developed its roadmap to revising the open Internet rules in compliance with last year’s D.C. Circuit Court order, Wheeler said, “it became obvious that ‘commercially reasonable’ could be interpreted as what’s reasonable for the ISPs and not what’s reasonable for the consumer and the innovators.” Wheeler thus confirmed that the draft rules would go beyond “commercial reasonableness,” and would instead measure ISP behavior against the “just and reasonable” standard typically applied to public utilities and to common carriers under Title II.
Notwithstanding the FCC’s plan to apply the more stringent regulatory standard to ISPs,Wheeler said the FCC would pursue a lighter approach to Title II in which the agency would forbear from applying Title II requirements “that are inappropriate and [wrong] for investments.” Toward that end,Wheeler said he would fall back on what he learned during his previous tenure as former head of wireless association CTIA. During that time CTIA lobbied successfully for FCC rules that regulate the wireless industry under Section 322 of Title II, but exempt wireless operators from common carrier and rate regulation. Declaring that the FCC’s goal is “to ensure that innovators and consumers have open access to networks” while ensuring there is “sufficient incentive for ISPs to build better networks,” Wheeler proclaimed: “there’s a way to do Title II right.”