FCC Could Be Headed for December Vote on Net Neutrality Rules
While no firm decision has been made, the FCC could take up final net neutrality rules as early as its December meeting, industry and agency officials said. The FCC is scheduled to meet Dec. 11, which means Chairman Tom Wheeler has until at least Nov. 20 to decide.
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The FCC approved the original rules Dec. 21, 2010 (see 1012220102). Former Chairman Julius Genachowski delayed that meeting six days to provide more time for the agency to complete its work on the order, approved 3-2 over Republican dissents (see 1011240075).
Wheeler wants to get on with other issues and voting in December would be in keeping with his character, said Public Knowledge Senior Vice President Harold Feld. “He knows this isn't going to get easier and it isn't going to go away,” Feld said of Wheeler. “He is champing at the bit to get this off his plate and go back to the issues he wanted to do before the D.C. Circuit decision tossed this back in his lap. From a legal perspective, there isn't a lot more to argue about. He's got a full record. And the Republicans are going to hate him no matter what he does, so even if the Senate flips it's a null factor.”
Former FCC officials said Genachowski faced a similar political dynamic as could be faced by Wheeler. In the mid-term elections that year, control of the House swung from Democratic to Republican control, while this year Republicans could take the Senate, giving Republicans control of both chambers of Congress, the former staffers said. In January, the U.S. Court of Appeals for the D.C. Circuit struck down most of the 2010 rules (see 1401150046).
Wheeler has made clear he plans to move quickly on the order, said Tom Navin of Wiley Rein, former chief of the Wireline Bureau. “It is certainly possible but it points to a less complicated order” given the short timeframe, Navin said. Free Press Policy Director Matt Wood said a December vote is "plausible."
TechFreedom President Berin Szoka said a December vote would not be a surprise, but seems less likely because of the complexity of the issues raised. Szoka said Wheeler has three options. He could “scramble” to get an order ready for a vote in December or push a vote until January or later, he said. The third option is voting on an order that’s really still being written, he said: “That could mean the order wouldn't come out for months. All that would be issued in December is a press release describing the order and the commissioners' statements.”
“If it turns out that Chairman Wheeler intends to bring the item up in December, and if he still prefers adoption of the 'commercial reasonableness' standard set forth in the notice, then I hope he and his top staff begin to articulate why that approach is preferable to Title II or some patched together 'hybrid' alternative,” said Free State Foundation President Randolph May. Articulating the reasoning behind that decision is critical, May said: “There really is no reason for Mr. Wheeler to rush to do anything” since there is no evidence consumers are being harmed absent rules.
Meanwhile, three key FCC officials released a blog post Monday on the FCC’s roundtables on net neutrality. “At each one of these roundtables -- totaling over 20 hours -- panelists with diverse viewpoints dove into many of the thorniest issues in this proceeding, responding to questions from the public, FCC moderators, and the Chairman,” they said. “We listened and we learned.” The blog post was by General Counsel Jon Sallet, Wireline Bureau Chief Julie Veach and Wireless Bureau Chief Roger Sherman.
A legal roundtable offered “considerable debate about the rainbow of legal options on which the Commission could base its Open Internet rules,” they said. The mobile roundtable “raised issues of technology -- for example some recent filings discuss the technical similarities and differences of mobile and fixed broadband, including what constitutes reasonable network management for mobile providers,” they said. An important question is how the FCC “could interpret the statutory definition of Commercial Mobile Service -- the only mobile service subject to Title II regulation -- to apply to a mobile broadband service that may not use the North American Numbering Plan,” they said. The three officials called paid prioritization “a central issue: how best can the Commission prevent harm to the virtuous circle of innovation, consumer demand, and broadband deployment, which unites the interests of consumers, edge providers, and other stakeholders?”