FCC's Wheeler gives passionate defense of net neutrality rules

But will it make any difference?

Video Tom Wheeler, chairman of America's comms watchdog the FCC, has given a passionate defense of net neutrality rules in his last public speech – and warned his fellow commissioners not to go backwards by removing them.

He called the rules "rooted in reality, not ideology" – a clear poke at the Republican leadership that will take over control of the federal regulator in little over a week – and argued that the rules protecting neutral internet access should "keep moving forward" rather than "retreat and take things away."

"We are at a fork in the road. One path leads forward. The other leads back to re-litigating solutions that are demonstrably working," he argued.

And in an echo of the same concerns being put forward over repeal of the Affordable Care Act, Wheeler noted that rescinding the Open Internet Order would "take away benefits that Americans now enjoy."

Speaking at the Aspen Institute, Wheeler also warned that Big Telco was not looking out for the average American's interests. "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 hurts their own customers and the greater public interest," he noted.

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When he steps down later this month, the normally five-person FCC will have a 2-1 Republican majority, thanks to Congress refusing to hear the renomination of Jessica Rosenworcel. The two remaining Republicans, Ajit Pai and Michael O'Reilly, have promised to undo the net neutrality rules that they voted against.

Despite having no real ability to prevent them, Wheeler nonetheless warned the remaining commissioners not to "tamper with the rules." He also appeared confident that going backwards was not going to be as easy as some claim.

"Contrary to what you might have heard, reversing the open internet rules is not a slam dunk," he argued. "It will face the high hurdle, imposed by the Administrative Procedure Act, of a fact-based showing that so much has changed in just two short years that a reversal is justified."

He also noted that the rules had already survived a serious legal challenge – something he said was a "strong and resounding affirmation of the FCC's authority as well as the soundness of its decision."

While the FCC majority could simply decide to throw out the Open Internet Order, it is unlikely to do so since it would require a replacement (as with the Affordable Care Act). So far there has not been any sign that such a replacement exists.

More likely is that the Commissioners will simply fail to enforce the rules until a different solution is arrived at. That final solution may come from the FCC – but is likely to take some time – or Congress could draw up a new telecommunications act to accurately reflect the internet era (the last such act was passed in 1996). That is also likely to be a lengthy and complex process.

What Wheeler – and many internet companies – fear is that the Commissioners and the Republican Party will simply scrap the Open Internet Order out of an ideological desire to undo the signature achievements of the Obama Administration as fast as possible.

Wheeler's speech seemed focused on pointing out that that would be a terrible idea. Let's hope Messrs Pai and O'Reilly were listening. ®

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