Is Wheeler's FCC Legacy Now in Doubt?

Today's news that the United States Court of Appeals for the Sixth Circuit has reversed an FCC order that sought to protect municipal fiber deployments from state interference is just the latest indication that Tom Wheeler may not be leaving the mark on telecom policy that was expected, even a few months ago. (See Sohn: Wheeler's FCC Not Slowing Down .)

The court reversed a Federal Communications Commission (FCC) order that preempted state laws prohibiting or limiting municipal broadband projects in Tennessee and North Carolina. It was a move cheered by those who see muni broadband efforts as the last best resort to carrier indifference but opposed by telcos; the cable industry; and those opposing a heavy federal regulatory hand, including the National Association of Regulatory Utility Commissioners.

NARUC was among those cheering today when the FCC order was overturned, having deemed the order unconstitutional and a violation of state rights to regulate.

Wheeler's response was characteristically feisty. In a statement, he said the court's ruling would "halt the promise of jobs, investment and opportunity that community broadband has provided in Tennessee and North Carolina."

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The FCC chair got a dig in at incumbent providers who often are able to wield power at the state level by virtue of contributors to lawmakers there, saying communities that want better broadband "should not be thwarted by the political power of those who, by protecting their monopoly, have failed to deliver acceptable service at an acceptable price."

Wheeler's statements are true to the two driving forces of his chairmanship: the belief that more and better broadband is critical for the US and the thinking that competition is what will achieve that goal.

As the Wall Street Journal noted recently, Wheeler is now facing a bit of an uphill battle to bring other major agenda items to a vote before the end of the year, including the open TV set-top rules and an effort to reform how incumbents resell their last-mile access for business data services. Those latter two issues, in particular, are key to Wheeler's competition agenda. (See Wheeler Fights Back in Set-Top Battle, FCC Poised to Re-Regulate Wholesale Access and FCC's Wheeler: We'll Move Fast on Biz Service Regulations.)

As veteran industry analyst Gary Arlen noted in this Broadcasting & Cable article, most of the four dozen comments on the proposed business data service changes were overwhelmingly condemning of what the agency is trying to do.

That doesn't make it wrong, and whether or not Wheeler can successfully race the election-year clock is not necessarily an indictment of what he is trying to do.

One thing that can be said is that he has been upfront in announcing his agenda and sticking to it, and he has been willing to meet with and publicly address a wide swath of industry groups and organizations, even those that are strongly opposing his policies. (See Wheeler to Cable: Suck It Up.)

I suspect Wheeler will still be noted as someone who shook up the Washington establishment and wasn't afraid to take on large incumbents on big issues such as net neutrality. His FCC did get the ball rolling on 5G spectrum as well. (See Ready, Set, Go! FCC Votes for First 5G Spectrum.)

And while noting the headwinds Wheeler now faces, it's probably too early to count him out on other remaining agenda items, since they are core to the corny cheer he leads at many public appearances: "Competition, competition, competition." (See Wheeler: FCC Will Protect Competition in All-IP Era.)

— Carol Wilson, Editor-at-Large, Light Reading

Joseph68aa 8/11/2016 | 1:51:53 PM
Opinin I totally agree wit you. Federal Communications Commission is not truly enought in my opinion.
mendyk 8/11/2016 | 12:39:16 PM
Re: Net neutrality still a landmark The irony is that net neutrality might be as big a damper on business as the state laws that Wheeler wants to circumvent.
cnwedit 8/11/2016 | 12:24:32 PM
Re: Net neutrality still a landmark Mari, I would agree. And Dennis, you are spot on -  that was a question from the beginning. 

I also think it's more than a bit ironic that Wheeler faced massive opposition from those who thought he was too much of an insider - having come from the NCTA and CTIA - to take on the telecom players. 

He has been more willing than most of his predecessors to do that. At the same time, he has seen things in a much more black-and-white way than I would have thought, given he has to be more familiar with the nuances of the business than most. 
msilbey 8/11/2016 | 12:21:55 PM
Net neutrality still a landmark I'm betting Wheeler's win on net neutrality will still be the dominant narrative of his legacy. Especially given the massive opposition. 
mendyk 8/11/2016 | 11:57:55 AM
Re: Reach exceeds grasp It does seem pretty straightforward, which makes you wonder why Wheeler and the FCC lawyers thought this had any chance of passing legal scrutiny.
cnwedit 8/11/2016 | 11:55:47 AM
Re: Reach exceeds grasp I wonder that myself. The court ruling makes it seem very open and shut, which might be discouraging to an appeal. 

mendyk 8/11/2016 | 11:50:26 AM
Reach exceeds grasp The court ruling is not about broadband policy but the lines of demarcation between federal and state powers. I wonder if this one heads up the chain to the Supreme Court.
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