Wheeler Challenges Pai to Submit Net Neutrality Rollback to CRA Test

Former FCC chair Tom Wheeler has challenged the current chair, Ajit Pai, to push for a House vote on the Congressional Review Act (CRA) resolution to nullify Pai's Restoring Internet Freedom order rolling back net-neutrality rules.

That came in an interview for C-SPAN's Communicators series, which was marking the upcoming June 11 end to Wheeler's 2015, Title II-based net-neutrality rules.

Wheeler, who focused his regulatory attention on ISPs as the gatekeepers of the internet, also signaled that had been because of the FCC's limited authority, and that he felt it was time that the "peoples representative" had oversight and made the rules for the edge and access providers.

His answer was essentially an endorsement of the kind of new scrutiny of the edge being advocated by ISPs, Pai and legislators from both parties.

Related: FCC's Carr Says Internet Won't End June 12

"I am a proponent of openness, nondiscrimination and privacy in all venues," Wheeler said. "It just happened that while I was at the FCC, we only had jurisdiction over networks. But there comes a time when we have to say, 'Wait a minute, what are the rules that are going to govern this new environment. And, most important, who's going to make those rules.?'

"Right now, whether you are a platform company, like Google of Facebook, or whether you are networks like AT&T and Comcast, you make the rules," he added. "There ought to be oversight by the people's representatives so that the people's representatives make the rules, not just those who benefit from what those rules might be."

Wheeler was also asked about Facebook's current troubles (Cambridge Analytica, sharing data with Chinese telecoms) and echoed CEO Mark Zuckerberg's general defense that edge providers had built their business based on constant innovation with less introspection on the consequences than might have been appropriate.

"The goal has been to think more about what can be built rather than the consequences and, so, you shouldn't be surprised at the consequences of sucking in as much data and then that data being used in ways that either weren't imagined or weren't discussed," Wheeler said.

Asked whether Congress should ultimately decide the issue of net neutrality, he said that while Republicans in the past had said that should be the case, now they were saying, "Oh, no, no, Congress shouldn't decide."

Wheeler was referring to the CRA resolution that would have restored his Title II-based rules; it narrowly passed in the Senate but likely will not pass in the House. Republicans have, in fact, been calling for legislation to reinstate some of those rules, but not under Title II, but can't reach agreement with Democrats who either want Title II or don't trust the Republicans to negotiate in good faith or fear the result would be overly restrictive of the FCC's power to regulate in the space.

Wheeler essentially called out Pai, saying that if Pai had the courage of his convictions that the reg rollback is right for America--Pai said Thursday (June 7) it would lead to faster, cheaper, better internet with more competition--and would stand up to a CRA vote in the House, then he should "call Speaker Ryan and schedule a vote in the House and let's see what the representatives of the American people say about this."

Wheeler had a very different view of what would happen June 11, when the regs are rolled back. "Major local monopolies will be told it is fair to discriminate," he said. "And we should not be surprised if, not overnight, but over time, we begin to see internet services discriminate in a way that benefits their bottom line, rather than a diversity of choices..."

Wheeler talked about why he backed Title II-based rules, which applied some common carrier regulations to ISPS. He said that back in 2015, he concluded that the only way to get to a "just and reasonable" standard by which to judge ISP conduct was with Title II, a conclusion he said came after considering various options.

Wheeler's initial proposal did not include Title II reclassification, but it morphed at about the same time President Barack Obama went online to call for a Title II-based set of net-neutrality rules, but Wheeler suggested he had his own epiphany.

Wheeler said his Title II "aha moment" came when he lobbied for the cellular industry to be made a common carrier because of the "certainty" that went with it. He said he was hearing ISPs talking about not being made Title II services, and he remembered that certainty argument--made on behalf of some of the same companies now fighting that designation.

When asked whether he was on board with Title II from the outset, Wheeler conceded he had initially proposed that non-Title II approach, but had asked about Title II and ultimately had heard from "consumers and particularly innovators" worried about being able to deliver innovative products if they were discriminated against. He said discrimination was the "key" issue.

He said his position had evolved, for which he was criticized, and that one problem with Washington is the inability to get off fixed positions.

Asked what impact President Obama's Title II position had on him, Wheeler said it came as the FCC was still wrestling with the right approach. But he said that what was different between President Obama and President Trump was that the former was talking about a filing that his administration had made at the FCC saying this is the way to do this.

"He was following administrative procedure and not tweeting or picking up the phone or anything like that," Wheeler said.

The President was simply trying to put the administration position in front of the commission, said Wheeler.

Wheeler said it was "painful" to watch the current FCC undo much of what he had tried to accomplish. He said that stemmed from what he said was Pai's view that what was best for consumers was what was best for companies.

The Wheeler edition of Communicators airs on C-SPAN at 6:30 p.m. ET on Saturday, June 9, and on C-SPAN2 Monday, June 11, at 8 a.m. and 8 p.m.

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.