Walden: Wheeler Still Signaled Light Touch Regs in Nov.-Dec.

House Communications Subcommittee Chairman Greg Walden (R-Ore.) says that he has trouble believing FCC chairman Tom Wheeler when he says he was already moving toward Title II by the time the President announced his support for that approach to new network neutrality rules.

"The FCC Certainly changed their view, or at least Tom Wheeler did, on where he was headed once the President sort of tripped him up," Walden told C-SPAN's Communicators series in an interview.

He was asked by co-interviewer Lynn Stanton whether that meant he didn't give credence to the chairman's explanation that he was thinking about Title II last summer and that it was a result of the conclusion that they could not reach the kind of network neutrality protections they wanted without it.

"I am having trouble believing that because of conversations I had with the chairman this fall where he was still in 'light touch,' and then I read he had this ... epiphany on the Eastern Shore in July or August. If he did, it was not what I was led to believe where he was headed in November when I met with him, and December." The President urged the FCC to adopt Title II based rules in a video posted on the Internet Nov. 10.

Wheeler was in Barcelona at a conference and unavailable for comment, according to a spokesperson. But asked if he trusted the FCC to forbear from applying some of the Title II regs, Walden said he thought the FCC would try, but that it was possible the D.C. court could uphold Title II, but not how the FCC chose to forbear from the many parts it planned not to apply — rate regs, unbundling, Universal Service Fund fees and more. "They are now under full Title II regulation because the court says 'you didn't do proper process to forbear."

Walden says he is also worried about the open-ended nature of potential Washington energy to regulate. "This commission on its maiden voyage out on this Titanic of a regulation may get out into the open sea and everybody's feeling good. But at some point, another commission could say "I'm going to go tougher. And you think about the pressure that is going to come from the trial bar because now you are opening up pricing to just and reasonable standards and class action lawsuits."

"Unfortunate," "disappointing," "unnecessary" and "a big win for the communications bar" are how Walden described the FCC's Feb. 26 vote to reclassify Internet access service as a telecommunications service subject to common carrier regulations.

Walden backed a legislative solution that he argues would have been a better way — it would have made clear that the FCC could not use Title II to regulate ISPs, but Walden says it would protect a neutral 'net and would "provide legal certainty for investors." He says clarifying the FCC's legal authority is Congress' job and it should do it.

No Democrats have signed on to the bill given that the President has strongly supported Title II and that the bill contains language limiting the FCC's Sec. 706 authority to regulate advanced telecommunications, which they argue would unacceptably weaken its authority.

Walden said he was for making sure that companies could not block, throttle or "engage in paid prioritization" advantage themselves over their competitors.

He say there had been no market failure or individual problems, but said the bill would essentially take the FCC's 201 Open Internet order, which most ISP's supported (primarily as a lesser burden than the Title II nuclear option) and provide the protections many were seeking "and make that all legal and lawful tomorrow."

He did point out that the Republicans did not try to "jam the bill through and mark it up."

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.