Pai Urges Wheeler to Delay Vote on Net Neutrality Rules

With a small group of protesters camping outside at the FCC, Republican Commissioner Ajit Pai put out a statement Thursday urging FCC Chairman Tom Wheeler to delay the May 15 vote on a net neutrality NPRM. Democratic Commissioner Jessica Rosenworcel on Wednesday also asked Wheeler to delay a vote (CD May 8 p23). An FCC spokesman said Wednesday the vote will take place as planned. “I have grave concerns about the Chairman’s proposal on Internet regulation and do not believe that it should be considered at the Commission’s May meeting,” Pai said (http://bit.ly/RrMzJh). “Instead, I believe that the Commission should focus for the next week on getting the rules for the incentive auction right."

"Chairman Wheeler fully supports a robust public debate on how best to protect the Open Internet, which is why he intends to put forward his proposals for public comment next week,” the FCC spokesman said in an email. “Moving forward will allow the American people to review and comment on the proposed plan without delay, and bring us one step closer to putting rules on the books to protect consumers and entrepreneurs online."

The FCC said Thursday the public will have until 11:59 p.m. EDT Wednesday to comment on the net neutrality NPRM. Normally, the FCC bars comment on any item starting one week before the meeting. “Strict enforcement of the Sunshine Period prohibition on comment would place an unnecessarily restrictive burden on the public, who should have full opportunity to express their views,” the FCC said in the notice (http://fcc.us/1jlv0Wf). The notice keeps the usual restrictions on the TV incentive auction and spectrum aggregation orders also slated for a vote at the meeting.

A former FCC legal adviser who represents media clients said part of the reason for the protests and upheaval at the FCC is that unlike his predecessor Julius Genachowski, Wheeler did not socialize the proposed rules with a wide range of interest groups before seeking a vote. “What the chairman is proposing is not fundamentally different from what Chairman Genachowski proposed, but the vitriol is 10 times what it was,” the lawyer said. In October 2009, the FCC sought comment on its original net neutrality rules, partly overturned by a court in January in the Verizon v. FCC decision. The rules were eventually approved 14 months later.

Timothy Wu, professor of law at Columbia University, said Wheeler is headed in the wrong direction. “I can understand the chairman’s interest in getting this over with, but the problem is that he’s gone too far down the wrong road with the [Section] 706 stuff,” said Wu. “The public won’t tolerate a ’slow lane’ proposal, and it isn’t clear that 706 has the juice to do the job. Best to reboot and take the easier road, which is Title II with forbearance. If the FCC takes [a] careful look at the case law, they'll see it’s a much cleaner route."

"How willing are Democratic commissioners going to be to cross the chairman?” asked Christopher Yoo, law professor at the University of Pennsylvania. “That’s extraordinarily rare and it would be surprising if they did. But if any issue would get them to do it, it would be network neutrality.” Speaking out against Wheeler’s proposal is “an interesting gamble,” Yoo said. If Wheeler’s net neutrality proposal doesn’t get enough support to get off the ground, he might “just bury that initiative and never bring it forward,” Yoo said. “It’s not clear that network neutrality proponents might not be better off taking ‘commercial reasonableness’ as a standard” for pay-for-priority deals, “and then working with the commission to enforce it in a way that would achieve their goals,” he said. Title II reclassification remains unlikely, said Yoo. “It would occupy the entirety of the rest of this administration, and it would distract the commission from the issues of the IP transition and spectrum reform."

"It’s pretty rare for the commissioners of the same party to step out and say publicly that ‘we don’t think we should proceed right now on this path,'” said Matt Wood, policy director at Free Press. “I think the pressure is working.” As for future efforts on reclassification, Wood noted Commissioner Mignon Clyburn’s blog post cited her past statements on Title II and said she would be open to exploring the possibility. “What we're hearing from people, both in D.C. and out, is they want real net neutrality, not a compromised version based on a twice-failed legal theory,” Wood said.

"The increased public interest that Commissioner Rosenworcel cites is a reason to move forward on the proposal sooner rather than later,” said Boston College Law School Professor Daniel Lyons. “Next week’s vote would not enact binding rules. Rather, it would put forth a proposal and invite public comment. Public debate is already occurring, though few outside the commission have actually seen the chairman’s proposal. Releasing the NPRM and soliciting agency comments would help focus the debate and provide a concrete forum for productive discussion of the issues most relevant to the FCC.”

Doug Brake, telecom policy analyst at the Information Technology & Innovation Foundation, said he sees no reason for Wheeler to delay a vote. Brake predicted rules could be in place by the end of the year. “The sooner we can get this proposal out in the light of day, the sooner we can have a real debate on the specifics of a case-by-case approach under 706,” he said. “I doubt another month of abstract arguments over ‘fast-lanes’ will do anyone any good.” Wheeler likely has the votes he needs for approval, Brake said. “Getting the NPRM out will give us a much better sense of how the commission views the scope of its authority under 706, potentially alleviating concerns on both sides of the aisle,” he said.

Delaying a vote likely would accomplish little, said Randolph May, president of the Free State Foundation. “If you assume for the sake of argument that, at some point, the FCC is going to try again to adopt some form of new neutrality rules, then I wish Chairman Wheeler at least would stand up to the more rabid net neutrality advocates and make clear that, as far as he is concerned, the Title II classification route is off the table -- that he is sticking with his ‘commercial reasonableness’ proposal,” May said. “In his public utterances, rather than defending his proposal to adopt a ‘commercial reasonableness’ standard, Wheeler seems more intent on threatening ISPs with even more stringent regulation. By doing this, he is just going further down the road with a foreseeable bad ending, whether through another defeat in court or through poor policy that leads to a stultified and investment-deprived broadband Internet infrastructure, or both."

"I can appreciate that the chairman has the difficult task of satisfying his Democratic colleagues while also erecting a set of rules that would pass muster on the third try before an appellate court,” said Pennsylvania State University law professor Robert Frieden. “Chairman Wheeler can’t expect the two Republican commissioners to vote in favor of any initiative.” With Comcast pushing for “unprecedented market concentration, now is not the time to ignore the possibility of consumer pushback as occurred in response to the [Stop Online Piracy Act] legislation,” Frieden said.

"I think some in the Twittersphere are overhyping what Rosenworcel is doing,” said Berin Szoka, president of TechFreedom, by email. “Reclassification has never been a viable option. It’s hard to see Rosenworcel actually, at the end of the day, insisting on reclassification. I don’t think there’s any reason to think she and even Clyburn won’t ultimately vote for the Section 706 approach proposed by Chairman Wheeler. I think these two Commissioners are simply trying to make the order sound tougher and to score political points with the Net Roots.” That said, Rosenworcel and Pai are both right to seek delay, Szoka said. “The Commission has its hands full this month.” TechFreedom “would have preferred that the FCC issue an NOI first to frame the NPRM -- precisely because there’s so much debate over what approach the FCC should take."

"It’s difficult to prejudge the issues that may arise in the context of a rulemaking, but a number of the substantive policy and legal issues have been discussed for quite some time,” said David Honig, president of the Minority Media and Telecommunications Council. “It’s the chairman’s prerogative to set the agenda, and I fully expect Tom Wheeler to make a thoughtful and considered decision as to when the rulemaking should commence."

"There’s a long history of FCC chairs blowing off procedural concerns, which never made sense to me,” said a former FCC legal adviser who represents wireless carriers and other clients. “Any FCC chair, or any agency chair, for that matter, ought to respect and go to great lengths to accommodate any colleague’s request for a delay. There’s simply no downside.” An NAB spokesman expressed support for Rosenworcel and Pai’s suggestion to delay the vote on the net neutrality NPRM, given the complexity of the incentive auction item that’s before them next week.

Eshoo Would Also Support Delay

The FCC should delay consideration of the net neutrality NPRM past the May 15 meeting, said House Communications Subcommittee ranking member Anna Eshoo, D-Calif., Wednesday during a Google Hangout discussion. Eshoo described outcry over what many consider an FCC proposal allowing Internet fast lanes: “This has been like a prairie fire in terms of telephone calls, emails, communications from constituents.” The proposal may leave the Internet “balkanized” and with consumers “picking up the tab for faster lanes,” Eshoo said. Reclassification of broadband under Communications Act Title II, as net neutrality advocates demand to permit legally stronger protections, “should be examined,” Eshoo added. “That’s something I think the FCC should take up, examine, pull it apart, put it back together, and see what they can come up with on that.”

Robert McDowell, a former Republican FCC commissioner and a Hudson Institute fellow, emphasized the legal complication the FCC faces in juggling the authority of Section 706 rather than Title II. There’s no guarantee the FCC “could survive” on appeal trying to reclassify broadband, he said during the Google Hangout. McDowell urged people to remember that an NPRM is a first step intended to solicit comment. Eshoo said FCC Commissioner Jessica Rosenworcel suggested “there be a delay in the vote because there are literally hundreds of thousands of people who have weighed in across the country,” calling it a “very good point.”

Commissioners need to “absorb” all input, so they are “fully apprised” of the country’s mood, Eshoo said. “There’s reason to be concerned.” Eshoo agreed “that date should be postponed so you can really have a broad-view lens and a really vigorous discussion of everything that can be put on the table,” considering the vast input the agency has received, which would be next to impossible to do in the “handful” of days leading up to May 15, she said. The proposal would allow commercially reasonable paid prioritization deals, but “there’s room for a great deal of mischief,” Eshoo cautioned, suggesting there would be a “plethora of lawsuits,” with parties saying they are treated differently. “It sounds tidy, but I don’t think it’s going to work that way,” she said.,