Most important in his comments is a promise to regulate Internet service as a utility if needed. Wheeler is plain: “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, in his estimation, the recent Verizon case “laid out a blueprint for how the FCC could use Section 706 of the Telecommunications Act of 1996 to create Open Internet rules that would stick.” This matters, as it allows the FCC to move quickly. Wheeler doesn’t want to “leave the market unprotected for multiple more years while lawyers for the biggest corporate players tie the FCC’s protections up in court.”
Going Title II would require that.
Wheeler did not go as far as to state plainly that the idea of “fast lanes” for some content will be banned. The FCC will, according to Wheeler, “look skeptically on special exceptions.”
Here is the rubric by which the FCC would judge actions to be not-ok enough to step in and mix things up with content companies and ISPs:
- 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.
The proof here will be pure pudding. I’m incredibly antsy about any Internet tiering, which is what Wheeler wants to allow. But, at a minimum, if that’s the code of ethics that will be enforced, it’s not too bad of a list.
The FCC is currently taking comment on its proposals.