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Wheeler's Parting Advice on Title II

Mari Silbey
12/15/2016
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With only two items on the official agenda, the final FCC open meeting of the year was dedicated almost entirely to thank yous and farewells. It marked the last time that the current set of five Commissioners will address the public together.

Commissioner Jessica Rosenworcel will step down from office at the end of this year, and Chairman Tom Wheeler announced this morning that he'll leave the agency on January 20. (See Wheeler to Leave FCC Next Month.)

The end of an era - From left to right, Commissioners Ajit Pai, Mignon Clyburn, Tom Wheeler, Jessica Rosenworcel and Michael O'Rielly
The end of an era From left to right, Commissioners Ajit Pai, Mignon Clyburn, Tom Wheeler, Jessica Rosenworcel and Michael O'Rielly

However, despite the emphasis on goodbyes, today's meeting, and a press conference with Chairman Wheeler afterwards, also provided a forum for some parting advice.

In particular, Wheeler offered his thoughts on the future of the Open Internet Order -- which dictates net neutrality rules, and which defined Internet service providers as common carriers under Title II of the Communications Act -- and Wheeler answered the question of why he thought it wasn't possible at the time of the order's passing to come to a bipartisan consensus over how the Internet should be governed.

Many industry observers have suggested that the Title II decision may be reversed after Republicans come to power in January.

On the future of the Title II order, Wheeler first addressed one of the key arguments opponents make about why the ruling is bad for business; namely that it discourages further investment in broadband build-outs. While saying there is no shortage of people willing to frame the numbers to support their own opinions, Wheeler noted that observers should be looking at "investment decision numbers as they are reported to the FCC and to shareholders in which all of the major ISPs are talking about increasing investments."

And, Wheeler pointed out, there's a reason broadband investment is still on an upswing.

"The reason why you make an investment in high-speed broadband is because the margins in high-speed broadband are very good, and I think that will continue and I think that the activities of the companies show that to be the case."

Wheeler also responded to implied criticism that by passing the Open Internet Order along party lines, the Federal Communications Commission (FCC) made the ruling vulnerable to future repeal. First he asserted, "A majority is a majority." He then added, "It's hard to reach a compromise with people who say no at the outset," suggesting that a bipartisan ruling was never going to be a possibility.


For more fixed broadband market coverage and insights, check out our dedicated Gigabit/Broadband content channel here on Light Reading.


Opinions differ over how easily future government leadership could overturn the Title II decision. While Republicans will very soon gain control of the FCC, the White House and both legislative houses of Congress, the Open Internet Order does gain some protection from the judicial system, which upheld the ruling in June. (See FCC Wins Key Net Neutrality Ruling.)

"The court had a rather decisive decision on both the authority and the rationale on the record," Wheeler emphasized, and he suggested that it would be hard to show that the facts have changed dramatically since the ruling was passed.

Wheeler may be being overly optimistic about the judicial protection, but given the more than 4 million public comments submitted to the FCC when the Open Internet Order was under consideration, there's likely to be a serious fight if and when the government does try to roll back the decision.

On a somewhat lighter note, Wheeler graciously expressed his appreciation at today's meeting for the chance to convene with members of the press on a monthly basis, noting that even if the questioning has at times been combative, the dialogue is still important.

"Press conferences force the principal to be ready to answer to the American public," said Wheeler, perhaps trying to draw a line of contrast between himself and President-elect Donald Trump. And he added his thanks to journalists for "keeping me on my toes."

— Mari Silbey, Senior Editor, Cable/Video, Light Reading

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