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NCTA Gets Hit by ‘Chair’

WASHINGTON — The Cable Show in Los Angeles last week was hardly a welcome-home celebration for former National Cable & Telecommunications Association chief Tom Wheeler.

In fact, Wheeler explicitly told attendees to take off the party hats, though he should have warned them to duck their heads, too.

The network neutrality-embattled Federal Communications Commission chairman used his keynote speech last Wednesday (April 30) as a public platform to deliver a message to Internet-service providers — the Open Internet rules are not being gutted, just buttressed with better legal underpinnings, and paid prioritization would still be a tough ask.

The venue may have been The Cable Show, but it was also a message to the Open-Internet activists who have pilloried him over his draft of network-neutrality rules, circulated last week.

PROGRESSIVE IRE

It was not enough to appease his strongest critics. The Progressive Change Campaign Committee, founded by former MoveOn organizer Adam Green, said Wheeler should move on if he didn’t get tougher on net neutrality, pointing out that while a candidate in 2007, President Obama promised only to name commissioners who would support an Open Internet.

That drew the following from a White House spokesperson, according to Progressive Change: “The FCC chairman has said that his goal is to preserve an open Internet and that he has all the tools he needs to do it. We have been clear from the start that we support that goal and will be closely following these developments as the FCC launches its proceeding.”

Attendees at the NCTA’s annual event could hardly avoid following the issue, as Wheeler put it in their face from the outset.

The thrust of his speech, when he wasn’t jabbing cable operators as looming threats to Internet openness, was that the FCC is not likely to bless paid prioritization if its impact is to disadvantage edge providers. “If someone acts to divide the Internet between ‘haves’ and ‘have nots,’ we will use every power at our disposal to stop it,” including classifying Internet access as a Title II telecommunications service, Wheeler said.

Reclassification would be the so-called nuclear threat of applying some form of common-carrier mandatoryaccess regulations to Internet access. Also in the threatmore- like-a-promise department, the chairman said the FCC would step in to preempt state laws on municipal broadband to boost competition.

Wheeler said that because cable has become the principle provider of broadband, he needed to spell out some expectations behind the new rules. Those include the commission’s judgment that without those rules, “broadband providers represent a threat to Internet openness,” he said, quoting from the U.S. Appeals Court for the D.C. Circuit’s decision in Verizon v. FCC, “and could act in ways that would ultimately inhibit the speed and extent of future broadband deployment.”

He seemed to be suggesting that, absent new rules, cable ops were preparing to block and degrade, though he suggested later that was not the case.

Following the speech, NCTA CEO Michael Powell took issue with the suggestion cable was a threat. He pointed out that the industry had not opposed the old rules and would be a constructive partner in the new ones. Wheeler countered that he had “no doubt of that,” though cable ops could be forgiven for missing that part of his message. That tough talk may have been as much directed to his public-advocacy audience as the one in the hall.

One criticism of allowing for paid priority is that, while such services as Netflix and Amazon could pay for faster video traffic, startups might not be similarly situated. Wheeler addressed that criticism, at least implicitly.

“In the 30 years since I last stood on this stage [as NCTA president], I have built new technology-based companies as an entrepreneur and helped other companies grow as a venture capitalist,” he said. “Now, as chairman of the FCC, I do not intend to allow innovation to be strangled by the manipulation of the most important network of our time, the Internet.”

‘REASONABLE’ DISCRIMINATION

While the old rules disallowed unreasonable discrimination, the new rules would allow discrimination based on a commercially reasonable standard. The FCC suggested in the old rules that paid priority probably would not pass muster as reasonable, and under the new “commercially reasonable” standard for case-by-case analysis of discrimination, Wheeler signaled last week it would be a high bar as well.

Wheeler said flatly, “We will not allow some companies to force Internet users into a slow lane so that others with special privileges can have superior service.” That left some rhetorical room for permitting some to get priority service, though he had clearly indicated that could be an uphill climb in some cases.

Wheeler said the bottom line on the rules is that “the Internet will remain an open pathway. If users can’t effectively use the pathway, then the conduct will be a violation of the Open-Internet rules.”

The devilish detail will be how the FCC defines “effectively use,” which is where the “commercially reasonable” discrimination case-by-case standard will be crucial.