Update: FCC Will Recraft Open Internet Order

FCC Chair Tom Wheeler said Thursday he intends to take the court up on its invitation to find new legal underpinnings for its Open Internet order. Talking about media diversity, he suggested that broadcasting was less critical than ever before to insuring diversity of voices.

Wheeler was not around when the FCC came up with its original legal arguments for the Open Internet order, which a federal appeals court this week found wanting, but he is a strong proponent of network neutrality protections.

At a Minority Media & Telecommunications Council Media and social Justice conference Thursday in Washington, Wheeler's first event appearance—the chairman also noted the many statements from ISPs that they would not block or degrade traffic regardless of the court decision. He said he would take them at their word, calling it the right thing to do.

"Using our authority we will readdress the concepts in the Open Internet order, as the court invited," he said, to encourage growth and innovation and enforce against abuse." He said he had noted "with great interest" ISP pledges to continue to honor the open Internet order's remanded concepts—no blocking or discrimination. "That is the right and responsible thing to do," he said, "and we take them up on their commitment."

Wheeler has said all options are on the table, including appealing the court decision—and reclassifying Internet Access as a Title II service as well as using Title I authority under the Telecommunications Act mandate to insure universal access, power the court affirmed the FCC could use.

On the subject of diversity, Wheeler said that the Supreme Court had made it "very difficult for the government to take direct steps to create advantages on a specific group basis. But it has not removed the twin goals of diversity of voices and diversity in ownership." He said the challenge is how the FCC went after those goals.

He said the focus should be on "new network realities," rather that "refighting the struggles of the past." He called it "outrageous" that there is "no minority ownership of television stations in America."

But he said that is a technology—broadcasting distribution—less critical to diverse voices than ever before. He cited Netflix and YouTube distribution, or Bob Johnson, who he pointed out did not need facilities to launch BET.

Wheeler said the opportunities are to be had in the "fourth network revolution," which is broadband.

"What we have learned from previous network revolutions is that change is hard, new networks are disruptive forces, that incumbents will oppose the change in a bid for self-preservation, but that by embracing change, you can produce successful results. That is the new network opportunity. That is what makes the open Internet so damn important," he said.

He said the reason why broadcast ownership was important "in the past" was "that it gave access to a highly controlled medium. We will not let that kind of control take over the Internet. Period."

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.