In an interview with Variety, hours after he gave a speech at the Aspen Institute defending the FCC’s net neutrality rules, Wheeler said that moves to undo some of the actions taken in recent years will face public scrutiny.
“The idea of taking things away that American consumers and American companies enjoy today is not the easiest thing in the world,” Wheeler said. “And there are processes in the Administrative Procedure Act that they have to follow in order to do this, and they have to withstand court scrutiny. That is easier said than done.”
After his tenure ends on Jan. 20, the incoming administration will immediately enjoy a 2-1 majority on the commission. Republican commissioners Ajit Pai and Michael O’Rielly have already said that they would like to revisit the net neutrality rules. Pai gave a speech in December where he said that he would like to take a “weed whacker” to rules that he says have held up investment in the marketplace.
But much will depend on who President-elect Donald Trump selects as the next chair — whether that is one of the current commissioners or someone else.
Wheeler said that, after his departure, he will continue to speak out on issues like net neutrality.
“I am kind of hard to keep quiet,” Wheeler told Variety.
After taking a trip to Baja California and then Europe for the month of February, Wheeler said that he will join the Aspen Institute as a senior fellow, a position he said allows him to “kind of figure out what happens next.”
In his speech on Friday, he devoted much of his time to net neutrality, and cited press reports that a Republican-led commission, with an initial 2-1 majority, will pursue an “ideologically based course.”
Wheeler said that while he doesn’t “envision myself as leading a crusade” if moves are made to roll back net neutrality and other issues, “I have opinions on things and I will speak out. I am looking at what the future holds.”
Wheeler joined the FCC in 2013 and was met with some skepticism from public interest groups given that he had previously led trade associations for the cable industry and wireless firms.
But he ended up at odds with many industry lobbyists on a number of issues. By far the most contentious was the reclassification of internet service as a common carrier, a regulatory maneuver that allowed the agency to pursue a robust set of net neutrality rules. They ban internet providers from blocking or throttling content, or from selling speedier access to the consumers.
A turning point in the net neutrality debate came in June 2014, when John Oliver used his HBO show “Last Week Tonight” to spotlight the issue. At the time, Wheeler had proposed an initial set of rules that stopped short of reclassification, and Oliver, seeing that approach as insufficient, went after Wheeler’s previous experience with the cable lobby. Oliver said that it was like “the equivalent of needing a babysitter and hiring a dingo.”
Wheeler came to praise what Oliver did. Oliver’s segment helped spur a flood of public comments to the FCC — near 4 million, setting a record.
“Well, I became a cult figure,” Wheeler said. “Actually, it helped raise the visibility of the whole thing. And it certainly created a strange sensation for me where suddenly the head of this small agency was [well] known.”
President Obama came out in favor of reclassification in November 2014, and Wheeler publicly announced his support for the alternate approach the following January. Internet providers, in challenging the rules in court, have argued that the FCC didn’t follow proper procedure in changing course, but the D.C. Circuit upheld the rules in a decision last summer.
Wheeler continues to push back against the argument that the net neutrality rules would turn broadband growth, noting that investment is at a high level, almost two years since the rules were passed. “The reason you invest is in order to get a good return, and by golly, right now, broadband delivers a good return. Just look at the stock market,” he said.
Among the issues that disappointed him was the failure to pass new rules governing cable set-top boxes, which he says “might have been the most difficult battle.” A final version of the proposal would have required that cable operators provide apps of their programming lineups as a consumer alternative to the rental of set-top boxes. The proposal was sidelined in September after opposition mounted from even some Democrats on Capitol Hill and Wheeler failed to secure a third vote from Commissioner Jessica Rosenworcel to enable it to pass.
Although FCC officials tried to convince studios that the move would actually help content companies, the MPAA and even some of the talent guilds opposed it.
“I think this was a classic situation where people wanted it, but ‘Cablewood’ didn’t, and they were better at organizing the political forces,” Wheeler said. “There is an incestuous self-dependence between the cable companies and Hollywood, and they scratched each other’s back on this.”
Wheeler also targeted state laws that prohibited cities from offering their own internet service, as a competitor to privately-owned broadband. But the FCC’s approach was sidelined in the courts.
Still, Wheeler believes that the FCC’s action helped, in that no states have since passed restrictions on publicly owned internet service, and cities are still looking at it as an alternative.
“That holds the potential to create new competition, even though the regulation didn’t stand up to judicial review,” he said.
This week, the FCC also issued a report in which it concluded that AT&T and Verizon may be violating net neutrality with their offering of video services that don’t count against mobile data caps. Such “zero ratings” have been the focus of concern among public interest groups, who fear that it will be a way for a company like AT&T to favor its own content on DirecTV while leaving competing video providers at a disadvantage.
But it’s also doubtful that the incoming Republican majority, if it is determined to rollback regulations, will take action on the FCC’s report.
Does Wheeler wish he had taken action sooner?
He said that the agency acted “in the appropriate manner” on the issue. “We tried to go through due process, and we were just working on what was the stepwise logical progression through all of this. It just happened that it came to a head post election,” he said.
During his tenure, Republican commissioners complained that they were being shut out of the rule making process. Wheeler has challenged that contention. At a Senate hearing in March, he and Pai clashed over the issue of whether net neutrality rules have stifled internet growth, with Wheeler pointing to a 13% jump in fiber investment. Pay called the rule a failure and offered to obtain sworn declarations from providers that they have slowed their spending.
Wheeler said that one thing he learned early on in his tenure is “that no matter what you do, you are going to make somebody mad, so you better get a thick skin quickly. I realized that pretty quickly.”
Having come from industry, Wheeler said that as chairman he came to a realization that, in meeting with lobbying and other groups, “everyone comes in here and talks about how their self-interest is synonymous with the public interest.”
He added, “And you know, I used to do the same thing. My ‘aha’ moment was that the public interest was a pretty malleable concept. The public interest is determined by the old adage, ‘Where you stand depends on where you sit.’ And so, what I have tried to do is say, ‘OK, we need another standard.’ And I kept saying to myself, ‘What is it that is in the common good, as differentiated from the public interest?’ Because the common good is how you can serve the good of the most people the best way.”
His proudest accomplishment that got little attention, he said, were actions on improving access to technology for people with disabilities. “We have had a whole series of decisions and actions on disability issues,” he said.
Asked what advice he would give to his successor, Wheeler again gave a warning of what will be ahead if the next FCC seeks to reverse many of the actions of the previous one. He said that person should enjoy the experience, but also be mindful of the Administrative Procedure Act.
“You can oppose decisions based on ideology, but the law requires that you make decisions based on the facts in the record,” he said.