In our last blog we discussed the fact that the FCC and its Chairman Tom Wheeler are putting on a show designed to demonstrate to politicians and the public how hard the Commission is working to protect the “open” Internet. The “show” was necessitated by the public panning the Commission’s broadband Internet access proposal received, and is symbolic of the quandary the Commission finds itself: Either adopt a reclassification of broadband Internet access that would clearly thrust the industry into chaos, or proceed with a smarter plan that would allow preferential treatment for some commercially reasonable Internet traffic but would be endlessly attacked.

The Commission’s response to its dilemma has not been promising. It recently began a new proceeding to update the state of broadband deployment without completing the previous similar proceeding. In addition, it announced that it will hold two new all-day Internet workshops, which will accomplish nothing more than provide the public even more opportunities to repeat their fact-free demands for “net neutrality.” 

These Commission actions, while in no way helping to solve the Internet regulation problem, at least cause no harm. On the other hand, Chairman Wheeler’s recent attacks on the network management practices of the largest Internet service providers (ISPs) have already escalated and have the potential to spin the industry into further uncertainty

As we noted in our August 8^th blog, the Chairman sent a letter to Verizon sharply criticizing the company’s announcement that beginning in three months, it would manage traffic for the heaviest users of its unlimited mobile plan at times of peak congestion. Verizon responded rationally that it was simply exercising reasonable network management as permitted by the Commission’s rules. And as the carrier reasonably added, all carriers must conduct such network management to ensure quality service for all subscribers on their networks. 

This response did not satisfy Chairman Wheeler. On August 8^th, Mr. Wheeler dismissed Verizon’s explanation of its network management practices for its mobile customers, and announced that the Commission was questioning other mobile carriers’ network management policies as well. According to a Reuters report, Mr. Wheeler told reporters that “all the kids do it” is not a reasonable defense of the practice. The Chairman said he is asking all large U.S. wireless carriers to explain how they decide when to slow download speeds for some customers. According to Mr. Wheeler:

My concern in this instance—and it’s not just with Verizon, by the way we’ve written to all the carriers—is that it is moving from a technology and engineering issue to the business issues ... such as choosing between different subscribers based on your economic relationship with them.

Not letting a plumb opportunity such as this go to waste, consumer advocacy group Public Knowledge added fuel to the Internet fire by sending letters to AT&T, Sprint, T-Mobile and Verizon on August 6^th, accusing them of violating the FCC’s Internet transparency rule. Public Knowledge stated:

Sprint and Verizon violate the transparency rule by failing to meaningfully disclose which subscribers will be eligible for throttling. AT&T, Sprint, and Verizon violate the transparency rule by failing to disclose which areas of the network are congested, thus subject to throttling. T-Mobile violates the transparency rule by preventing throttled subscribers from determining the actual network speed available to them.

Public Knowledge plans on following up these letters by filing a formal complaint with the FCC against these carriers on August 18th.  This would almost certainly require the Commission to begin a formal proceeding designed to examine the network management practices of the entire industry.

Maybe you believe such an examination is warranted, since the network practices of all carriers are certainly fair game for criticism. And there is certainly a time and place for such an examination. However even a cursory review of the Commission’s previous Internet proceedings since 2010 finds that the Commission has repeatedly accepted the need for carriers to have the flexibility to effectively manage their networks. Chairman Wheeler knows this of course, but apparently feels he must continue his “I love Internet regulation” show for public consumption. The danger is that opportunists such as Public Knowledge will use the Commission’s actions to further delay the final resolution of Internet regulation, especially if they believe they are losing the reclassification battle. 

When the Commission finally issues an order in its Internet regulation proceeding, Public Knowledge, along with every other disgruntled person or entity will have the opportunity to appeal the decision to the Commission and the courts. Why slow the process now with even more proceedings?  Continued regulatory uncertainty helps no one, least of all the consumers that Public Knowledge claims to represent.

By Andrew Regitsky, President, Regitsky & Associates