Wheeler Promises To Grow a Neutrality Spine if Warranted FCC boss Tom Wheeler keeps penning blog posts aimed at doing damage control after the media roasted the agency leader for flubbing meaningful network neutrality protections in epic fashion. In his latest, Wheeler again complains that everyone concerned about his apparent embrace of certain "pay-to-play" ISP schemes are "misinformed," and that "all options are on the table" when it comes to the new, unfinished rules.

quote: I believe this process will put us on track to have tough, enforceable Open Internet rules on the books in an expeditious manner, ending a decade of uncertainty and litigation. Except that it won't. The old rules had While an ocean of critics argue the former industry lobbyist is effectively looking to codify and protect the kind of "creative" pricing efforts companies like AT&T, Verizon and Comcast have long dreamed of when it comes to manipulating traffic and imposing aggressive and anti-consumer pricing ideas, Wheeler proclaims he's really just a misunderstood champion of the people who is fighting the good fight:Except that it won't. The old rules had an ocean of intentional loopholes and don't cover wireless -- just like the new rules. As many have pointed out , Wheeler's moves actually create more uncertainty as the agency continues to try and use Section 706 of the Communications Act in a way that's not particularly legally defensible. Never worry, notes Wheeler -- if the rules don't work he still claims he "won't hesitate" to reclassify ISPs as common carriers. That's a move that would give the FCC broad, enforceable authority to police bad ISP behavior (something most consumer advocates have wanted since day 1): quote: 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. 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 court’s roadmap to implement Open Internet regulation now rather than endure additional years of litigation and delay. It's not clear if there's anybody left who actually believes Wheeler would consider Title II even under the most extreme circumstance (like Verizon blocking an entire legion of websites, something they'd never do). Wheeler's argument is effectively that everybody (including many legal scholars) complaining about the pitfalls in his approach don't understand what he's doing, and that he'll somehow act quickly and ferociously to protect consumers should the situation warrant. It's not clear if there's anybody left who actually believes Wheeler would consider Title II even under the most extreme circumstance (like Verizon blocking an entire legion of websites, something they'd never do). Wheeler's argument is effectively that everybody (including many legal scholars) complaining about the pitfalls in his approach don't understand what he's doing, and that he'll somehow act quickly and ferociously to protect consumers should the situation warrant. But what exactly could prompt Wheeler to meaningful action? In his blog post, Wheeler proclaims outlines several general examples that could trigger alarms at the FCC: quote: •Something that harms consumers is not commercially reasonable. For instance, degrading service in order to create a new “fast lane” would be shut down. •Something that harms competition is not commercially reasonable. For instance, degrading overall service so as to force consumers and content companies to a higher priced tier would be shut down. •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. •Something that curbs the free exercise of speech and civic engagement is not commercially reasonable. For instance, if the creators of new Internet content or services had to seek permission from ISPs or pay special fees to be seen online, such action should be shut down. There's are all fairly vague examples, and the problem is that these days -- net neutrality violations are significantly more clever, and usually come dressed up as market innovation or There's are all fairly vague examples, and the problem is that these days -- net neutrality violations are significantly more clever, and usually come dressed up as market innovation or security or network integrity efforts . Historically, if the FCC can't simply and cleanly prove without a shadow of a doubt that an ISP is acting anti-competitively, the agency simply doesn't bother doing much of anything (see Verizon Wireless's anti-competitive behavior on any number of issues or AT&T's ability to block legitimate video services as prime examples). What's considered "commercially unreasonable" is also going to be open to immense ambiguous interpretation. Wheeler for example seems perfectly ok with the increasingly ugly interconnection and peering fights arising between Verizon, Comcast, AT&T and Netflix, and has stated these won't be included in the rules. He also seems similarly tone deaf to the potential pitfalls facing wireless courtesy of concepts like AT&T's Sponsored Data, which critics charge will result in deep-pocketed companies (like ESPN) getting a huge leg up on smaller companies that can't afford AT&T's toll to be listed as "cap free" content. Wheeler's comments to date strongly suggest his threshold for what's going to be considered anti-competitive behavior will be stratospherically-high, and as is the case now -- carriers will still be able to get away with anti-competitive behavior provided they're relatively clever about it. While he's still promising he'll be tough, there's still every indication that Wheeler sees most of the incumbent ISP ambitions on pricing, peering and traffic discrimination as the height of miraculous " Wheeler's comments to date strongly suggest his threshold for what's going to be considered anti-competitive behavior will be stratospherically-high, and as is the case now -- carriers will still be able to get away with anti-competitive behavior provided they're relatively clever about it. While he's still promising he'll be tough, there's still every indication that Wheeler sees most of the incumbent ISP ambitions on pricing, peering and traffic discrimination as the height of miraculous " two-sided market " innovation.







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