Wheeler: ISPs Can't Be Allowed to Make 'Net Rules

Former FCC chair Tom Wheeler tells Congress that the policies "crystallized" in his 2015 Open Internet order should be the touchstone of any congressional effort to secure a free and open internet, given that it reflected the "accumulated wisdom of both Anglo Saxon common law and Congressional deliberations."

That is according to his written testimony for Thursdays (Feb. 7) net neutrality hearing in the House Communications Subcommittee, which is a historical tour of sorts through the history of telecom starting with the 1860 Pacific Telegraph Act--Wheeler is an amateur historian with a new book out, From Gutenberg to Google, that spans even more of that history.

The hearing will feature two former FCC chairs on opposite sides of the issue, with the current head of NCTA, Michael Powell, also testifying.

Given that the Open Internet order is based on classifying ISPs as Title II services subject to mandatory access conditions, if that is the starting point of legislation, it likely can't be the end point if Republicans in control of the Senate are expected to buy in.

Wheeler himself was considering not using Title I to underpin his 2015 order before changing course, some argue with the encouragement of the President Barack Obama, who came out strongly in favor of Title II.

Related: NCTA's Powell: Time to Sever Net Neutrality's Endless Loop

As he did when he was chairman, Wheeler argues that it is wrong to "conflate the activities of a network with the content carried on that network."

Wheeler made clear as chairman he considered ISPs the snakes in the virtuous internet garden of content providers because ISPs were the access choke point given what he said was a lack of choice among providers.

"Just because an ISP carries content, however, does not mean it should be regulated as though it is a content company," he says. "That’s like saying that the road leading to Macy’s should be regulated like Macy’s. To paraphrase Justice Scalia on this topic, the delivery of a pizza is a different activity than the making of a pizza and the two should not be conflated."

That "pizza" reference is to iconic analogy in Scalia's dissent from the Brand X Supreme Court decision upholding the FCC's then classification of ISPs as an information service.

And as to the FCC's decision under current chairman Ajit Pai to reverse the 2015 Open Internet Order, eliminating Wheeler's rules against blocking, throttling and paid prioritization and reclassify ISPs as information services under Title I, essentially deeding regulatory authority of access and privacy violations to the Federal Trade Commission, Wheeler says that is a big problem. 

"Let me be clear, the operators of America’s digital networks are not bad actors [he once represented both wired and wireless ISPs as head of CTIA and NCTA, but they preside over the most powerful and pervasive platform in the history of the planet. Occupying such a crucial position, they cannot simply be allowed to make rules to serve their own interests."

Not surprisingly, Wheeler put that in historical context, too. "Had the telecommunications networks of the early internet era been able to exercise the powers now given to ISPs by the current FCC they would have been able to ban modems, except the ones they owned. They would have been able to determine which computers could talk to other computers. We hear much about how 'permission-less innovation' created the current cornucopia of the internet–had it not been for the telephone network being a common carrier, there would have been no permission-less innovation in the early internet as terms and conditions would have been set by the network," he said.

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.