FCC’s Wheeler launches one last pitch for net neutrality

Outgoing FCC Chairman Tom Wheeler has sent a letter to several Senators in what appears to be a last-gasp effort to save net neutrality policies.

Wheeler’s tenure as the head of the FCC has been partly defined by a long-standing battle with industry giants and Republican Commissioners over the role of net neutrality in the US telco and technology industry. While there are arguments for and against the concept, Wheeler’s legacy is seemingly under threat as a Republican dominant FCC looks to dismantle the current pro-net neutrality stance of the agency.

In what could turn out to be one of his final swings as the FCC Chairman, the letter accuses both AT&T and Verizon of flouting net neutrality rules, as well as using the dominant positions to create products which compromise fair competition. The letter has been written to supporting Senators as a final rally call to continue Wheeler’s net neutrality work following his departure from the FCC, though how effective it will be remains to be seen.

The letter also includes a report which has been built by the Wireless Telecommunications Bureau staff, which highlights why the AT&T and Verizon zero-rating programs are counter-productive from a competition perspective, while T-Mobile’s is fine. Wheeler would appear to be throwing as much information at the problem as possible in an effort to find champions to continue his crusade against the majority led Republican FCC.

For the most part, Wheeler has been fighting an uphill battle to implement net neutrality in the country, partly due to the fierce internal and external opposition to the rules, as well as his own failings to concisely impose rules.

In terms of the opposition, the main players in the telco industry have been lobbying hard to rally obstruction in the political arena, which it firmly found in Republican Commissioners Ajit Pai and Michael O’Rielly, both of whom aggressively opposed net neutrality at every turn. Even now, Pai is standing as firm as ever, even though this letter is unlikely to have any material impact. Following Wheeler’s comments, Pai released his own statement:

“It is disappointing that the FCC’s current leadership has yet again chosen to spend its last days in office the same way it spent the last few years – cutting corners on process, keeping fellow Commissioners in the dark, and pursuing partisan, political agendas that only harm investment and innovation.

“This report, which I only saw after the FCC released the document, does not reflect the views of the majority of Commissioners. Fortunately, I am confident that this latest regulatory spasm will not have any impact on the Commission’s policymaking or enforcement activities following next week’s inauguration.”

While the opposition to net neutrality from Republican Commissioners and political heavy weights would not have helped the situation, Wheeler and co. have caused many problems for themselves. A typical example of this can be found in the letter itself.

“The Commission adopted a case-by-case approach for evaluating zero-rating offerings and sponsored data arrangements because it most appropriately suited the realities of the broadband marketplace,” Wheeler writes in the letter.

In some walks of life, a case-by-case approach can prove to be effective, but this is not necessarily one of them. In a perfect world, legislation and regulation is written in black and white language; it’s definite and definitive. Realistically there will always be room for interpretation, this is just the realities of life, but adopting a whole-hearted case-by-case basis for evaluation of net neutrality was not the right approach.

It left too much room for interpretation, too many grey areas, too much uncertainty and too many alternative routes. Such a wide-berth gave too much room for appeals and wiggle room, as can be seen by the way the saga played out over the last 12-18 months.

Aside from a last of clarity and definitive rules, the pondering of the FCC has also created problems. For those who have flirted with the net neutrality line, and for those who apparently crossed it, there was little punishment. The FCC and net neutrality enforcers could be likened to toothless wolves. There was a lot of circling, stalking, glaring and howling, but the bite never came.

In both the AT&T and Verizon examples of net neutrality violations, letters were sent and fines discussed but no money has changed hands to date. These are conversations which have been going on for at least 12 months, and in a separate case the FCC threatened AT&T with a $100 million fine following data throttling accusations. Once again, no money has changed hands.

The legacy of net neutrality will remain to a degree, mainly because certain rules have been passed and appeals dismissed. These rules will remain, though it is likely a Republican FCC will look to dismantle the rest of Wheeler’s legacy. The opposition Wheeler has faced can partly be blamed for the net neutrality saga, though a lack of definition and conviction from FCC rule makers and enforcers essentially undermined the whole concept.

Wheeler will always be remembered for one of the most controversial and heavily contested periods in the FCC’s history, though his net neutrality legacy is likely to be lost in the history books.