FCC Chairman Tom Wheeler, delivering his final speech on Friday, warned that potential efforts by the incoming Republican majority to rollback the agency’s net neutrality would pose a threat to the openness of the internet.
He said that an effort to repeal the rules, passed in 2015, would be ideologically driven and ignore that the current approach “certainly appears to be working.”
“The open internet is currently the law of the land,” he said. “Tampering with the rules means taking away protections consumers and the online world enjoy today. What some describe as ‘free market economics’ cannot simply mean freeing incumbents of their responsibilities. A hands-off approach to network oversight is more than a shift in direction, it is a decision to remove rights and move backward.”
The FCC’s rules prohibit internet providers from slowing or blocking internet traffic, or of selling better delivery to consumers in what is called “paid prioritization.” To establish a firm legal footing to pass the rules, the FCC reclassified internet service as a common carrier, a regulatory move that was met with fierce opposition from online service providers.
After Wheeler’s departure next week, Republicans will hold a 2-1 majority on the FCC, and the two conservatives on the commission have both signaled their desire to revisit the FCC’s action.
Wheeler said that since the election, he has ” taken refuge” in Abraham Lincoln’s words in his First Inaugural. “While the people retain their virtue, and vigilance, no administration… can very seriously injure the government, in the short space of four years.”
He said that “the first step in such vigilance is to ask those who want to rush to take away existing protections a simple question: Where’s the fire? What has happened since the open internet rules were adopted to justify uprooting the policy? As I said a moment ago, network investment is up, investment in innovative services is up, and ISPs revenues and stock prices are at record levels. So, where’s the fire? Other than the desires of a few ISPs to be free of meaningful oversight, why the sudden rush to undo something that is demonstrably working?”
He said that if the FCC or Congress want to repeal the rules, it was “not a slam dunk.”
“Contrary to what you might have heard, reversing the open internet rules is not a slam dunk,” he said. “The effort to undo an open internet will face the high hurdle, imposed by the Administrative Procedure Act, of a fact-based showing that so much has changed in just two short years that a reversal is justified.
He added, “Let’s remember that the open internet decision came after ten years that saw vast changes in the technology of the internet, as well as in the services it enables. In short, a lot happened leading up to the 2015 decision, and it is hard to make a case that the past two years come even close to that revolutionary period.”
He also noted that the FCC rules have so far survived a court challenge, which he said was a “strong and resounding affirmation of the FCC’s authority as well as the soundness of its decision based on the record. If there is a reversal of the open internet rule, it will have a high hurdle to vault to prove to the same court why its 2016 decision was wrong.”
He also said that congressional efforts to pass net neutrality rules without robust protections for consumers would be “false advertising.”
As he has before, Wheeler pushed back against the argument that the net neutrality rules have slowed corporate investment because of burdensome regulation. He noted that Randall Stephenson, the CEO of AT&T, met with President-elect Donald Trump on Wednesday and reportedly told him that “his company had been the country’s leading investor of capital for each of the last five years. This, of course, includes the two years since adoption of the open internet rules.” He cited a report that showed growth in network investment.
He also said a rollback ” threatens any innovation that requires connectedness.” He said that the FCC’s approach has been to be a “referee on the field” and argued that, despite opponents’ rhetoric, it has been light-touch regulation.
“Those who build and operate networks have both the incentive and the ability to use the power of the network to benefit themselves even if doing so harms their own customers and the greater public interest,” said. “This is not casting aspersions at network operators, it is simply stating an historical fact that reflects basic human nature. It is no different than the human impulse that prompted the imposition of speed limits.”
He also said that competitors to powerful internet providers have an interest in retaining the rules. He cited the AT&T and Verizon’s use of “zero rating,” in which their mobile consumers don’t face data charges for their products yet but “forcing consumers to pay data charges for competitors.”
“Just take that behavior and look how it would affect other 21st century services,” he said.
The FCC earlier this week released a report concluding that the AT&T and Verizon use of zero rating harmed consumers and video competitors.