FCC Chief Outlines Case-By-Case Net-Neutrality Enforcement

Open-Internet advocates want the agency to take bolder action.

Tom Wheeler (National Journal)

Federal Communications Commission Chairman Tom Wheeler hinted on Tuesday that he has no immediate plans to formally reinstate his agency's net-neutrality regulations.

Instead, Wheeler touted the benefits of waiting for abuses to occur and then cracking down on a case-by-case basis. The FCC chief said he favors addressing problems "in a dynamic rather than a static way."

"Case-by-case is a dynamic approach rather than 'Well, everybody's got to go through the eye of this needle,'" Wheeler said in a discussion at the State of the Net conference in Washington.

The D.C. Circuit Court of Appeals struck down the FCC's net-neutrality regulations earlier this month. The rules required Internet service providers to treat all Web traffic equally. Supporters of the rules fear that Internet providers could soon begin slowing down or blocking websites that fail to pay special fees.

These advocates argue that protecting the Internet as an open platform where all sites are treated equally is the best way to promote innovation and competition.

But the court agreed with Verizon's lawsuit, concluding that the rules inappropriately treated Internet providers as "common carriers" — which the agency is barred from doing. Wheeler, however, noted that the court upheld a broad FCC authority to regulate the Internet.

The FCC could use that broad authority to punish Internet providers that engage in flagrant net-neutrality violations, Wheeler suggested. The agency can bring actions with the goal of promoting broadband deployment, protecting consumers, or ensuring competition, for example.

But any FCC enforcement action over net neutrality would almost certainly face immediate legal challenges. It's unclear what principles the FCC could enforce through ad hoc actions that it couldn't enforce through formal regulations.

Net-neutrality advocates are urging the FCC to take a bolder move to save the rules. They want the agency to reclassify broadband Internet as a "telecommunications service." Under the Communications Act, the FCC has sweeping powers to regulate telecommunications services, including as common carriers.

Reclassifying broadband would put the rules on firmer legal ground but would prompt a massive fight with congressional Republicans that could derail Wheeler's other priorities.

At the conference, the FCC chairman also indicated he has no problem with cellular carriers discriminating between different kinds of sites and services. Although the FCC's net-neutrality rules largely exempted wireless traffic, Wheeler's comments likely dismay open-Internet advocates who thought the original rules should have been stronger.

"[The net-neutrality order] clearly allows and encourages in fact this kind of thing," Wheeler said of wireless discrimination. "We believe that markets should be innovative. And at the same point in time, we are not reticent to say, 'Excuse me, that's anticompetitive. Excuse me, that's self-dealing. Excuse me, this a consumer abuse.' "

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