Chairman Wheeler’s Farewell Message (in Two Parts)

Chairman Wheeler’s Farewell Message (in Two Parts)

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Robbie's Round-Up for the Week of January 14-20, 2017

Kevin Taglang
Kevin Taglang
The greatness of America is not something to be ‘made again,’ but rather something we are continually constructing.
With President Barack Obama’s second term ending on January 20, a number of Administration officials are delivering final addresses capsulizing the advances their departments or agencies led over the last eight years. Last week, Federal Communications Commission Chairman Tom Wheeler offered a two-part farewell highlighting the challenges we face dealing with technology-driven upheaval and cautioning policymakers not to reverse policies that ensure that broadband Internet access service is ubiquitous, competitive, affordable, open, and fair.

The American Legacy

In “Confronting The Challenge Of A New Technological Era Is An American Tradition,” Chairman Wheeler, ever the history buff, offered some perspective on the 2016 election. Although political commentators describe it as a “change election,” Chairman Wheeler notes that much of the electorate was seeking stability in a world where everything seems to be changing.

Chairman Wheeler noted early and often during his tenure that we are in the midst of a technology-driven network revolution, the marriage of computing and connectivity. He compares our current era of change to that of the introduction of Gutenberg’s printing press, railroads, and the telegraph (followed by the telephone, radio and television). “[C]oming to grips with such change was a decades-long struggle. We should expect nothing less this time around,” Wheeler said. “[H]ow we dealt with those tumultuous passages established who we are — yes, the greatness of America. It is not something to be ‘made again,’ but rather something we are continually constructing.”

Chairman Wheeler celebrates the collective action that characterized America’s response to the changes that the railroad and the telegraph brought – the creation of the first federal regulatory agency, the Interstate Commerce Commission; unions and labor laws; fights against anti-immigrant sentiment, anarchists’ terrorism, and political demagogues. “The story of how Americans responded when faced with previous transformational change is the true measure of American greatness. It is the story of fighting back when change is harmful, yet not allowing the frustration with change to turn into a rejection of its benefits. Most importantly, it is the story of new ideas attacking new problems,” Wheeler said. The “good old days” that many are longing for, Wheeler points out, are the result of these new ideas and collective action that gave us universal education, employee rights, and governmental offsets to abusive market power.

“Dealing with change is not a retreat to what America was,” Wheeler concludes, “but the full-throated embrace of the opportunities created for new ideas directed at the new realities.”

The Wheeler Legacy

On January 13, Chairman Wheeler delivered the second part of his farewell message in a speech at the Aspen Institute titled “A Time to Look Forward: Protecting What Americans Now Enjoy.” Harking back to his very first address as Chairman, Wheeler reiterated that the public and their government play a crucial role during periods of transformational change: “The FCC is the public’s representative in this network revolution. We have the responsibility of assuring that innovation and technology advance, while at the same time preserving the basic covenant between networks and those whom they connect.” In a look at all the FCC accomplished during his tenure, Chairman Wheeler again stressed that at the core of these activities was a “Network Compact,” the basic responsibilities network owners have to network users -- access, interconnection, public safety, consumer protection, and national security.

But Chairman Wheeler did not dwell too long on accomplishments; instead he laid out the choice now before policymakers, delivering, perhaps, the most-convincing defense of network neutrality regulation ever offered by a public official. He warned against a path that will mean “re-litigating solutions that are demonstrably working” – broadband providers “operating responsibly at both the edge and the core network under light touch regulation accompanied by a referee on the field to throw the flag when necessary.”

First, Wheeler offered, of course, historical context:

The idea of an open network goes back as far as the ‘first-come-first-served’ traffic management of the telegraph. Telephone networks' common carrier status was an extension of this concept warranted by a behavioral legacy and a demonstrated exercise of monopoly power. And, let’s not forget, it was the open telephone network that delivered the early Internet and allowed America to get online. America’s communications history is one of open networks.

He continued:

[T]he historical facts are clear. Those who build and operate networks have both the incentive and the ability to use the power of the network to benefit themselves even if doing so harms their own customers and the greater public interest. This is not casting aspersions at network operators, it is simply stating an historical fact that reflects basic human nature. It is no different than the human impulse that prompted the imposition of speed limits.

Wheeler stressed that open Internet rules are not just helping consumers, but investors and broadband service providers as well. Network investment is up. Network construction efficiencies are up. Investment in innovative services is up. Broadband service provider revenues – and stock prices - are at record levels.

"No company using the Internet is safe absent the kind of common carrier requirements America has historically expected of its networks."
And, beyond economics, Wheeler pointed out, “the open Internet is the law of the land. Tampering with the rules means taking away protections consumers and the online world enjoy today.” Changing course now would mean removing consumers’ rights.

To ensure the continuation of their rights, Wheeler asked broadband access consumers to be vigilant. “Vigilance requires the FCC or the Congress make the case as to why the American tradition of open networks should be reversed.” Wheeler noted that the law requires a fact-based showing that so much has changed in just two short years that a reversal in FCC rules is justified. If Congress moves to redefine what net neutrality is, Wheeler called for "truth in packaging," saying it must be Comprehensive, Continuing and Consistent:

  • Comprehensive: Limiting the definition of net neutrality to blocking, throttling and paid prioritization is an empty promise if it is not accompanied by the authority to comprehensively protect against the power of broadband gatekeepers, not just some of their conduct.
  • Continuing: We do not know how the Internet will evolve and ISPs will take advantage of new technology. A general conduct rule – which Wheeler analogized to a referee on the field with the ability to throw a flag – captures conduct whether is it new or old, blatant or nuanced with ongoing regulatory oversight and the ability to act, where necessary, to prevent anti-consumer and anti-competitive practices.
  • Consistent: By this, Wheeler means a consistent standard so that everyone - whether an ISP, a consumer, or an edge provider - knows the yardstick that will measure fairness. Since the time of the Interstate Commerce Act in 1887, there has been a consistent standard for judging carriers’ practices: are those practices just, reasonable, and not unreasonably discriminatory? These concepts have 130 years of jurisprudence behind them, and they have evolved to effectively address the incentives that network operators may otherwise have to exploit their position to the detriment of consumers or competition.

“Passing legislation or adopting regulations without these key provisions and calling it net neutrality would be false advertising,” Wheeler said.

Wheeler also cautioned against the FCC acting on its own to changing the classification of broadband Internet access service as a telecommunications service under Title II of the Communications Act. “[R]emoving Title II also removes these fundamental protections,” he said. And these protections, Wheeler made clear, are only going to grow in importance as Internet connectivity is harnessed for productive activity -- machine-learning artificial intelligence, augmented reality, virtual reality, autonomous cars, the Internet of Things (IoT), and cloud computing and storage.

What is significant about these – and so many other next-generation applications – is they don’t happen without network connectivity. They all have developed on the assumption that connectivity will be fast, fair and open – and today that assumption is guaranteed by the Comprehensive, Continuing and Consistent protection of the Open Internet rule. To take those protections away at the request of a handful of ISPs threatens any innovation that requires connectedness and with it the productivity gains, job creation, and international competitiveness required for American economic growth.

Ironically, the biggest broadband providers are also benefitting from net neutrality rules as they create and market Internet-based video delivery systems like AT&T’s DirecTV Now and Verizon’s Go90.
For those who ever claimed net neutrality is a solution looking for a problem, Wheeler pointed to the practices of AT&T and Verizon who have favored their own video services by zero-rating their product while forcing consumers to pay data charges for competitors' product. “ISPs free from open access obligations and behavioral oversight can choke growth and innovation, or, at the least, demand tribute for passing over their network…. If ISPs can decide arbitrarily which IoT devices can be connected, or favor their IoT activity over that of competitors, the bright future dims.”

Conclusion

Americans love the free and open Internet. In fact, millions of people wrote to the FCC in favor of net neutrality rules. With the change in administration and the FCC majority, will the people's will be overturned?

In his first address as Chairman, Tom Wheeler said, “I see myself as the public’s advocate in the midst of an historic revolution.” In the years ahead, citizens should be vigilant and ensure every FCC chairman acts on the public's behalf. At Benton, we'll keep the spotlight on the FCC -- and we'll see you in the Headlines.

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Quick Bits

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Events Calendar for Jan 23-27, 2017
Jan 20 -- 58th Presidential Inauguration, The Joint Congressional Committee on Inaugural Ceremonies
Jan 23 -- State of the Net 2017, Congressional Internet Caucus Advisory Committee
Jan 24 -- Senate Commerce Committee Markup Session
Jan 24 -- Will The Internet Always Be American?, New America
Jan 25 -- Spectrum Management Advisory Committee, NTIA
Jan 27 -- Consumer Advisory Committee, FCC

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