FCC Vote Approving Net Neutrality Rulemaking Not Guaranteed, Industry Observers Say
FCC Chairman Tom Wheeler could face an uphill fight just to get three votes for the net neutrality rulemaking notice he circulated Thursday for a vote at the FCC’s May 15 meeting, industry officials said. The proposed rules faced significant backlash after they were unveiled last week, with public interest groups raising concerns that the commission was offering a watered-down version of the 2010 rules (CD April 25 p1). The big sticking point has been that the draft rules would allow fast lane deals between ISPs and content providers as long as their agreement is deemed reasonable by the FCC (CD April 28 p2).
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One sign of the blowback: Sunday’s New York Times carried a color comic showing a grinning Wheeler piling dirt on the grave of a freshly deceased net neutrality (http://nyti.ms/S2umTl). The gravestone reads: “It was fun while it lasted.” “The Republicans will probably vote against it,” said a former top FCC staffer. “The question is: Do the two Democrats support Wheeler on it?”
Industry officials said Wheeler’s best hope is that the commission’s two other Democrats, Mignon Clyburn and Jessica Rosenworcel, will vote for the NPRM since it’s only a proposal. Several sources pointed out that Rosenworcel last year voted to approve an NPRM asking questions about voice calls on airplanes while saying she was unlikely to vote for final rules (http://fcc.us/1j9zyhy). Commissioners Ajit Pai and Mike O'Rielly are likely no votes, industry officials and FCC officials say.
"I imagine that Commissioners Pai and O'Rielly will never vote for any open Internet proposal,” said Matt Wood, policy director at Free Press. “Commissioners Clyburn and Rosenworcel, on the other hand, simply cannot vote for the chairman’s current proposal unless they're ready to bless Internet discrimination.”
Timothy Wu, professor of law at Columbia University, said Rosenworcel in particular is likely to have reservations. Rosenworcel “holds the seat of her old boss, Michael Copps, and it is unimaginable that he'd ever have agreed to an Internet fast lane for the purpose of enriching broadband providers,” Wu said.
Public interest lawyer Andrew Schwartzman said Wheeler likely did not anticipate the size of the firestorm that greeted the net neutrality proposal. “I am quite sure that the chairman did not anticipate the intensity of the blowback he has received,” Schwartzman said. “Commissioners Rosenworcel and Clyburn are understandably -- and properly -- predisposed to support the chairman on a big item, but the public reaction certainly gives them more room to negotiate."
The two FCC Democrats will face lots of pressure not to vote to launch the rulemaking, said Kevin Werbach, professor at the University of Pennsylvania’s Wharton School and a former member of the Obama administration’s FCC transition team. “Wheeler can count to three, and I don’t think he would have circulated an NPRM that has a poor shot of going through the commission,” he said. “On the other hand, Rosenworcel in particular will be under intense pressure not to vote for something the netroots have labeled ‘killing net neutrality.’ The question for the other two Democrats is whether this proposal is worse than no action at all. ... I see little chance the chairman will change course and propose reclassification under Title II, unless conditions change significantly.”
If the two Democrats decide to put off net neutrality rules that decision comes with risks, Werbach said. “Without FCC rules, there are no restrictions on things like paid prioritization today,” he said. “I suspect they will hold out for changes to strengthen the protections, and perhaps keep open the door to reclassification more explicitly, but ultimately vote for the item."
"There was definitely a groundswell of opposition to the details that leaked last week,” said Boston College Law School Professor Daniel Lyons. “But to a large extent, those details should not have come as a surprise. The chairman’s hands are tied to a large extent by the Verizon decision, which said any rules should allow for individualized negotiations and agreements subject to a rule of commercial reasonableness. Something like the reported proposal is probably inevitable unless the commission goes the Title II route, which I think would be more difficult to pass. Also, it’s worth noting that it’s just an NPRM at this stage -- the commission is soliciting feedback, not creating binding obligations."
"I worry that much of the alarm circulating in broader circles is fueled by a basic misunderstanding of what the chairman is attempting to do, a misunderstanding I expect the commissioners do not share,” said Doug Brake, telecom policy analyst at the Information Technology & Innovation Foundation. “Of course the commission isn’t totally insulated from politics, and perhaps it shouldn’t be, but what is the value of an independent, expert agency if it folds to popular misconceptions without even putting its ideas out for comment? I would hope the commissioners rally around the chairman for what appears to be a very reasonable proposal."
A net neutrality proponent said how the commissioners will vote is not completely clear. “I think a lot will depend on how strong the proposed protections are, what questions are asked and whether Title II is treated by the NPRM as a real option,” the lawyer said. “Rosenworcel and Clyburn are in a good position to push the envelope on questions relating to paid prioritization, but I think they will be reluctant to undercut the chairman at this stage with a flat out no. ... Bottom line, I think Clyburn and Rosenworcel will push for a path away from paid prioritization rather than a no vote if allowing paid prioritization is an option.”