T-Mobile: ‘Commercially Reasonable’ Too Vague

WASHINGTON — T-Mobile may have just given harsh critics of the Federal Communications Commission’s proposal for a commercially reasonable discrimination standard for Internet access some ammunition for their push to reclassify Internet access as a Title II telecommunications service.

Wireless firm T-Mobile petitioned the agency for a better definition of commercially reasonable dataroaming agreements. That is the regulatory model that the U.S. Court of Appeals for the D.C. Circuit suggested the FCC could apply to its open Internet rules to justify reinstating the antiunreasonable discrimination standard.

FCC chairman Tom Wheeler has proposed a case-by-case approach to determining what is or isn’t commercially reasonable discrimination in the context of Internet-service providers. For example, it might be commercially reasonable to offer paid priority to some Internet traffic, say, for medical monitoring, while not neccesarily allowing it for access to video.

T-Mobile argues that there need to be more bright lines.

“Despite adoption of the rule, real-world industry experience shows that providers continue to be stymied in their efforts to negotiate data roaming agreements on commercially reasonable terms,” T-Mobile told the FCC.

T-Mobile blamed ambiguities in the standard, “ambiguities that could not have been foreseen at the time, but which have become apparent with experience.”

Marvin Amori, a fellow at the New America Foundation, said in a blog post the petition indicated the FCC’s commercially reasonable standard is a “failure” and would not provide the safeguards for an open Internet that the FCC was asserting.

An FCC spokesperson had no comment.

Third Way’s the Charm?

WASHINGTON — The FCC wants plenty of comment on taking a modified Title II approach to network-neutrality regulations.

Not only has chairman Tom Wheeler kept the Title II docket open, as did his pre decessor Julius Genachowski, but he has asked for comment to “refresh” that docket on the “Third Way” approach that Genachowski kept as a big stick for his talks over compromise rules that were eventually adopted, then thrown out by the courts.

Genachowski suggested there were several options to justifying net-neutrality regulations, including the Third Way, in which the FCC would only impose some Title II common-carrier regulations and forbear others.

Other ways included the light-touch regulations chosen by Genachowski, which the court found were not sufficiently justified, and full-blown Title II reclassification.

The move to seek new comment in that Title II docket was seen as a way to further signal to critics of his Section 706 authority approach to the rules that Title II was really, really still on the table, a point he has been making ever since the flood of criticism over his approach to allowing “commercially reasonable” discrimination.

— John Eggerton

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.