FCC Chairman Wheeler: Title II Is On The Table

In the final moments of the FCC’s public comment period on its notice of proposed rulemaking (NPRM) concerning net neutrality, there was a spike in input regarding precisely how bad regulating ISPs under Title II of the Communications Act of 1934 would be.

To summarize the corporate response: Oh god, please no. Please.

Contrary to that narrative has been sustained and broad support by digital advocates for use of strong net neutrality regulations under Title II. ISPs, not looking for more regulation than they can avoid, disagree with the principle.

What’s been interesting to note is that among corporate interests, there has been less argument in complete opposition to net neutrality than you might have expected. I’ve seen louder complaints from think-tank types and members of Congress about net neutrality as a concept. But that’s not too surprising: You know where their money comes from.

Today, FCC Chairman Tom Wheeler said something interesting: Title II is still on the table.

Following a visceral reaction to his NPRM, it seems that Wheeler has had less interest in trying to thread a needle that has no eye, aiming to pick up a constituency in the middle that doesn’t precisely exist. His words on broadband are another example of the un-moderating of our Chairman.

On a purely tactical note, it’s obvious that if Wheeler is threatening Title II, ISPs and their corporate dollars may be more amenable to stern net neutrality under Section 706. Perhaps. The profit motive, as they say, is strong with this one. So long as Title II is, as Wheeler said, on the table, the incentive for ISPs to try to land a less distasteful option — using their own calculus, of course — is quite high.

As I wrote earlier this week, there is decent direction among the tech nerds toward Title II. I’ll add that from what I hear, that pressure is not lost on the White House. By not wanting to hose the Internet — by which we mean that the current administration is keen on getting this right — it appears that there is some Executive Branch openness on the matter. We’ll see.

For now, Chairman Wheeler is edifying his former critics and appears to be scaring a group that had perhaps expected him to be in its camp. Special Counsel Gigi Sohn may just be right in the end.

Spine. In Washington. Color me surprised.