FCC chief: Critics ‘flat out wrong’

Federal Communications Commission (FCC) Chairman Tom Wheeler is pushing back aggressively against charges that his proposal for Internet “fast lanes” abandons net neutrality.

{mosads}”There are reports that the FCC is gutting the Open Internet rule. They are flat out wrong,” he said in a statement.

Wheeler has put forward new net neutrality rules that would replace the ones struck down by a federal court earlier this year. The rules had kept Internet providers like Verizon and Comcast from blocking or slowing access to certain websites.

Wheeler’s proposal — which will be considered by the agency at its meeting on May 15 — would allow Internet providers to charge content companies like Netflix more for “fast lanes” that could better serve subscribers. 

Public interest groups have denounced the plan, arguing it allows Internet providers to pick winners and losers in the marketplace.

Wheeler defended his proposal in a blog post Thursday, arguing the rules will ensure that consumers are protected.  

“To be very direct, the proposal would establish that behavior harmful to consumers or competition by limiting the openness of the Internet will not be permitted,” Wheeler wrote.

In its attempt to reinstate the agency’s prohibition on blocking websites, Wheeler’s proposal would consider a baseline access level that Internet providers must give to content companies. 

Internet providers could require content companies to pay for access above that baseline level, which net neutrality advocates say could create an unfair tiered system of “fast lanes” for deep-pocketed content companies.

Any agreements between Internet providers and content companies for boosted access to subscribers would have to be “commercially reasonable” under Wheeler’s proposal.

Wheeler said the agency “will establish a high bar” for what is “commercially reasonable.” The official said the agency will consider “very specific factors” such as whether arrangements are anticompetitive, negatively impact consumers, limit free speech online and are conducted in good faith.

The FCC official pointed to a 2011 order from the agency regarding traffic prioritization for wireless companies, which he said provides a “pretty clear roadmap.”

In his blog post, Wheeler responded to complaints from net neutrality advocates that the new rules could increase costs for content companies, which could then be passed on to users.

“The allegation that it will result in anti-competitive price increases for consumers is also unfounded,” he wrote.

“That is exactly what the ‘commercially unreasonable’ test will protect against: harm to competition and consumers stemming from abusive market activity.” 

The agency official declined to comment on what other types of behavior would violate that yet-to-be-defined commercially reasonable standard.

But prioritized connection for an Internet-enabled heart monitor could be the kind of traffic discrimination that will not be considered commercially unreasonable by the agency, the official said.

“We want to have a broad public debate,” he said. “We think the commission is better off hearing from lots of people before it makes those decisions.” 

Wheeler said his proposal also looks to designate certain behaviors as “flatly illegal.”

In addition to investigating complaints it receives about unreasonable deals, the FCC will also actively monitor the marketplace to ensure Internet providers’ deals with content companies are commercially reasonable.

The official also pointed to the rule’s transparency provision — the one part of the original rules upheld by the federal court, which require Internet providers to provide information about how they manage Internet traffic — as a mechanism to ensure reasonable practices.

“As practices become known, people will become empowered” and can protest unfair practices, he said.

Wheeler and the official stressed that some traffic discrimination would be allowed under any of the options in front of the agency.

If the agency were to reclassify Internet providers to regulate them like the more phone companies — an option pushed by many net neutrality advocates, and one that is still on the table for the agency — the Internet providers would be banned from “unjust and unreasonable discrimination.” 

The agency official said Wheeler views his proposal as the fastest way to reestablish protections for consumers online. 

“We can’t wait any longer,” he said, calling Wheeler’s plan “the quickest path to victory.”

— This story was first posted at 7:55 a.m. and has been udpated.