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FCC headman Wheeler calls for an 'open internet' – but what the %$#@! does he mean?

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Analysis Just how "open" is US Federal Communications Commission chairman Tom Wheeler's "open internet"? To paraphrase ex-President Bill Clinton's famous weasel words, "It depends upon what the mean of 'open' is."

On Thursday morning, Wheeler put to a commission vote a Notice of Proposed Rulemaking (NPRM) "to preserve and protect the open internet," as he put it – a new set of regulations that are now open for comment – and ferocious lobbying – that will culminate in a final ruling this summer.

The proposal was approved by the commission on a party-line vote, with Wheeler and his two Democratic allies, Mignon Clyburn and Jessica Rosenworcel, voting yes, and the two Republican members, Ajit Pai and Michael O'Rielly, voting no.

Despite saying that "nothing in this proposal ... authorizes paid prioritization," the extent of the ability for ISPs to do just that is still unclear, and will not be clarified until the end of the comment period beginning today. Wheeler specifically asked for comments on whether third-party companies, apps, and content providers should be allowed to pay for increased-bandwidth "fast lanes" – a pay-to-play ploy that the NPRM in its pre-comment form allows.

The NPRM is not yet publicly available, but may be released on Thursday after the final "i's" are dotted and "t's" are crossed. The Reg will keep refreshing the FCC's search page, awaiting its arrival.

"Personally," Wheeler said at the commission's Thursday-morning meeting during which the NPRM was introduced, "I don't like the idea that the internet could be divided into haves and have-nots, and I will work to see that that does not happen. In this item we have specifically asked whether and how to prevent the kind of paid prioritization that could result in fast lanes."

Paid prioritization, of course, is exactly what mega-ISPs such as Comcast are fighting to achieve. Also on their wish list, it has been reported, is the ability to prioritize their own content over that of third-parties.

Wheeler acknowledged that the FCC has had its challenges in this net-neutrality battle before – specifically in the courts, which struck down one FCC ruling that Comcast couldn't throttle BitTorrent and other P2P traffic, and another that Verizon and others had to treat all internet traffic equally.

"Today we take another step in what has been a decade-long effort to preserve and protect the open internet," he said on Thursday, noting that "Unfortunately those previous efforts were blocked twice."

If he wasn't merely being politically disingenuous, Wheeler gave a hint as to the middle ground he'd prefer when he said, "If the network operator slowed the speed below that which the consumer bought it would be commercially unreasonable and therefore prohibited." This consumer-centric view would still allow ISPs to offer "fast lanes" as long as consumers get the speeds that they paid for.

"When a consumer purchases specified network capacity from an Internet provider, he or she is buying open capacity, not capacity a network provider can prioritize for their own purposes," he reasoned.

"There is one internet," Wheeler said. "It must be fast. It must be robust. And it must be open." Notice that he did not say, "It must be a level playing field."

Wheeler was clearer about ISPs actually blocking content that competed with their own content, or services with which they possibly disagreed on political, moral, or religious grounds, citing two currently recognized FCC powers. "If a network operator blocked access to lawful content," he said, "it would violate our no-blocking rule and be commercially unreasonable, and therefore be doubly prohibited."

Wheeler presented himself as a man fighting the good fight. "If someone acts to divide the internet between haves and have-nots," he said, "we will use every power to stop it. I will take no backseat to anyone that priviliging some network users in the manner that squeezes out smaller voices is unacceptable."

To accomplish that goal, he raised the spectre of the nuclear option: reclassifying ISPs as essentially "common carriers" as a telephone companies. "Today we have proposed how to stop that from happening," he said, "including consideration of the applicability of Title II" of the Telecommunications Act of 1996 to reclassify broadband as a telecommunications service, making it subject to stronger regulations.

That seems unlikely, and doing so would be fairly certain to drag the FCC back into federal court another time – if they're not headed there already, no matter what Thursday's NPRM morphs into by the end of its comment period. ®

Bootnote

Wheeler acknowledged the protestors camped outside the FCC headquarters with a bit of romantic visualization. "Thank you to those who feel so strongly about this – they've been living in tents outside the building," he said. "One can only conclude that the Founding Fathers must be looking down and smiling at how the republic they created has been carrying out the ideals they established."

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