NOI for Tom Wheeler – 5 Net Neutrality Questions

by Mike Wendy on September 11, 2014

Since mid-May reports have circulated that FCC Chairman Tom Wheeler is under such immense pressure from the Left to regulate the Internet via FDR-era rules that he’s about to squirt out a diamond from one of his orifices. Consequently, to reduce some of that pressure, especially as the Net Neutrality comment period deadline approaches, he’s gone out of his way to assure the Left that he’s really looking under the hood on the issue to make sure Google, er, consumers don’t get screwed by the “duopoly” broadband providers. And, you know, the resulting rule is going to be bad-ass tough on them.

He wants everyone to know that. Really.

But, lordy, for all his talk of late to clarify what this means, I’m just as confused as ever (maybe that’s the point).   So, I have five questions I’d love to hear Tom Wheeler answer to clear up the messaging mess he’s created.

Dear Chairman Wheeler:

1.  Some groups – like Free Press and EFF – believe that the FCC can “simply” reclassify information services as telecommunications services, thus allowing Title II POTS regulation of broadband providers. They believe further that the Commission can easily forbear from numerous Title II  provisions if it so wishes, thereby minimizing the law’s spread, and thus mooting from a political standpoint its potentially deleterious effect on the entire ecosystem. At the same time, the Commission has seemingly concluded that broadband providers are “terminating monopolies,” with you yourself saying last week that “meaningful competition” does not exist for these services. How, then, can the FCC forbear from any provisions of Title II when forbearance only works where competition exists – competition which you imply is plainly absent for wired broadband providers? Is this forbearance dance a chimera designed to get the FCC into the full metal jacket of Title II?

2.  What limits the FCC from using its 706 or Title II authority to regulate beyond broadband providers, to companies like Google, Facebook, Netflix, or even the average end user? Isn’t that the real aim of Net Neutrality – that is, getting the camel’s nose into the regulatory tent so that the Commission can someday regulate the medium much as it does with radio and TV?

3.  In one breath you praise the competitive zeal of the wireless industry. That the FCC and DoJ helped protect the industry’s competitive well-being by thwarting various mergers. That it’s the envy of the world in terms of technology, innovation and investment. That whole new competitive industries have been born as a result. Yet in another breath you seem to believe that Net Neutrality rules should apply.  So, what is it – is the market competitive, or is it not?  And if it is, how is the full version of Net Neutrality justified for these competitive services?

4.  You say that wireless is an “important pathway to the Internet” for many Americans. That it’s perhaps important enough to impose Net Neutrality rules. That “mobile first” (i.e., mobile trumps fixed broadband) espoused by numerous Internet edge companies is what’s driving the marketplace.  Yet you then decry that mobile broadband is not a “full substitute” to wired broadband. That it’s somehow a lesser technology, and always will be.  But, isn’t the broadband market just one market – one not arbitrarily broken into “better” and “lesser” technologies? Doesn’t consumer choice indicate as much?  If so, shouldn’t that take you out of the job of regulating because all these flavors of broadband abound, clearly revealing that the marketplace is healthy and doesn’t merit Net Neutrality (or other) regulation to serve consumers?

5.  All lawyer wiggle-words aside, isn’t the real trigger for Internet / Net Neutrality regulation something like, “I’m going to regulate whatever I want until SCOTUS or Congress, or both, specifically shut this racket down. Until then, hasta la vista, baby! Come and get me if you can.”? Stated differently, even when the competition you’ve protected or “created” (as in the wireless broadband space) still demands Net Neutrality regulation, isn’t this “standard” no better and arbitrary as “I know it when I see it”?  As you noted last week, “The work of the Commission to implement this Agenda will never be done.” I’ll say.  Beholden to no check on authority, doesn’t this more nearly approach tyranny than adherence to the rule of law / due process?

 Chairman Wheeler, thank you for your prompt attention to these important questions. Comments are due September 15; Reply Comments due September 21.

Sincerely, Mike Wendy – MediaFreedom

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