The FCC and Chairman Tom Wheeler are on a mission! They must continually demonstrate (seemingly on a daily basis) that they take the regulation of broadband Internet access very seriously. This mission is a direct result of the Commission’s failure to successfully convince the public of the adequacy of its “Open Internet” proposal. 

This proposal, which includes the continued regulation of broadband Internet access as a Title I information service while allowing so-called “fast-lanes” as part of commercially reasonable agreements, has been widely discredited by a coalition of consumer advocates, politicians and the credulous public. Never mind that while this proposal is not perfect, it is far better than the chaos that would result from reclassifying broadband as a telecommunications service. Such a reclassification would harm broadband investment and lead to years of litigation and uncertainty while still permitting fast lanes, since under Title II, reasonable discrimination is considered lawful.

Chairman Wheeler knows his proposal is superior to reclassification, but if he is to continue to pursue it, he must continually find ways to demonstrate to the public that even without reclassification, the FCC is committed to regulating the Internet. That is why on July 23, the Commissionissued an Enforcement Advisory putting Internet Service Providers (ISPs) on notice that their service practices must be transparent to customers (see our July 28 blog), even though this has been the law since 2010.

Next, on July 30, the Chairman picked a fight with Verizon,sending it a letter criticizing the company’s June 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 that it was simply exercising reasonable network management as permitted by the Commission’s rules. Moreover, as Verizon noted, all carriers must conduct such network management to ensure quality service for all subscribers on its network.  Of course the Chairman knows that carriers must manage their limited network capacity and that such network management is lawful. This appears to simply be another case of Mr. Wheeler trying to demonstrate to the public that they need not worry since he is on the job.

Now the FCC has begun yet another highly public effort to demonstrate that it nothing is as important to it as Internet regulation. On August 5, the Commission released its Tenth Notice of Inquiry examining nationwide broadband deployment in Docket 14-126. Industry comments due on September 4. According to the Commission:

With this Inquiry, we start anew by analyzing current data and seeking information that will enable the Commission to conduct an updated analysis for purposes of its next report. In particular, we seek comment on the benchmarks we should use to define “advanced telecommunications capability,” explore whether we should establish separate benchmarks for fixed and mobile services, which data we should rely on in measuring broadband, whether and how we should take into account differences in broadband deployment, particularly between urban areas versus non-urban and Tribal areas, and other issues. We seek comment on whether we should modify the 4 megabits per second (Mbps) download and 1 Mbps upload (4 Mbps/1 Mbps) speed benchmark we have relied on in the past reports. We also seek comment on whether we should consider latency and data usage allowances as additional core characteristics of advanced telecommunications capability. We seek comment on how to address mobile and satellite services data in our section 706 report and on ways to improve the evaluation of mobile and satellite services data. We also seek comment on whether we should establish separate benchmarks for fixed and mobile services, and under what circumstances mobile services may itself satisfy the definition of advanced telecommunications capability and therefore serve as a functional equivalent for fixed broadband that satisfies the definition.

On its face, no one can accuse the Commission of beginning this Inquiry for publicity, since Section 706 of the 1996 Telecommunications Act requires the FCC to report annually on “whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely fashion.”  However, the timing is certainly suspect. In 2012 the Commission began its Ninth Inquiry into broadband progress but, to this date, never released an order or report. Why now two years later begin another, and for what purpose? The suspicion here is that this is yet another attempt by the Commission to ensure its Internet regulatory actions remain highly visible.

From the prospective of those of us who oppose reclassification, it may be a positive sign that the Commission continues trying to demonstrate that it is serious about keeping the Internet open and fair to all. For if it decided to simply reclassify broadband, it would have no need to continue taking these highly public efforts. However, no one should be fooled. All of these recent FCC actions are symbolic. They will do little to effectively police the Internet and more to solidify the FCC as the “bad Internet cop” on the beat for the public.

By Andrew Regitsky, President, Regitsky & Associates