Tom Wheeler defends Title II rules, accuses Pai of helping monopolists

Ex-FCC chair: Title II is crucial for net neutrality and consumer protection.

Former Federal Communications Commission Chairman Tom Wheeler spoke out against the FCC's proposed repeal of net neutrality rules this week, saying the repeal will help monopoly broadband providers abuse their dominant position.

There's "a monopoly provider for three-quarters of the homes in America, and no choice," Wheeler said in a forum (video) in Arlington, Virginia Monday hosted by US Rep. Don Beyer (D-Va.). "When you've only got one provider, who makes the rules? The provider makes the rules."

Wheeler was referring to FCC data that shows most Americans live in areas with either one provider of high-speed broadband (at least 25Mbps downstream and 3Mbps upstream) or none at all.

With the FCC's new Republican leadership seeking to overturn net neutrality rules, "the question becomes, will giant companies be able to exploit their monopoly position?" Wheeler said. "Who is going to stand up for consumers? Who is going to stand up for innovation? And who is going to stand up for the most important network for determining our future in the 21st century?"

Title II “smokescreen”

Wheeler was FCC chairman in 2015 when the commission reclassified ISPs as common carriers and imposed net neutrality rules.

ISPs have claimed they don't oppose net neutrality rules—instead, they say they oppose only the FCC invoking Title II of the Communications Act to enforce those rules. Title II was originally created to regulate AT&T's telephone monopoly, but Wheeler says it was the best legal authority the FCC could use to protect net neutrality and consumers.

By focusing the debate on Title II instead of the rules themselves, ISPs and the FCC's Republican majority are trying to distract the public from the rules' real-world effects, he said.

"Using that legal term [Title II] is a smokescreen for not having to discuss no blocking, no throttling, no fast lanes, protecting your privacy, and having a referee on the field," Wheeler said. That's why "those who are trying to overturn the rules talk about it in these terms rather than about what is the effect of Title II," he said.

The FCC used its Title II authority to impose the core net neutrality rules against blocking, throttling, and paid prioritization. Title II was also necessary to impose tough online privacy rules on ISPs and to let the FCC impose a "general conduct standard" to stop anti-consumer behavior that isn't covered by the core rules, Wheeler said.

After a court decision overturning previous net neutrality rules, the FCC could only ban paid fast lanes by using Title II, Wheeler said. The general conduct rule that lets the FCC stop any activity deemed to be harmful to consumers or competitors similarly relies on Title II's requirement that rates and practices must be "just and reasonable."

No one knows what the Internet will be like in a few years, so "there needs to be a referee on the field ready to throw a flag in the future as the Internet evolves," Wheeler said. It's not smart "for a regulator to put things in concrete and not have the ability to look and make judgments as things evolve."

The Wheeler FCC's privacy rules also relied on Title II but were repealed by the Republican-controlled Congress and President Donald Trump.

ISP interference

To counter Pai's claim that net neutrality rules were a solution in search of a problem, Wheeler pointed out several examples of ISPs interfering with Internet services.

In 2005, "Comcast said, 'we're not going to allow any P2P, any peer-to-peer transactions to happen over our network,'" Wheeler said. (The FCC took action against Comcast's throttling of BitTorrent traffic in that instance, and Comcast settled a class-action lawsuit.)

"For years, AT&T and Verizon blocked Google Wallet because they had their own competitive service," Wheeler continued. Verizon also blocked third-party tethering apps until the FCC stepped in, he said. When Verizon sued to overturn the FCC's first version of net neutrality rules, it told the court that the company wanted to charge websites for prioritized access, Wheeler also noted.

The net neutrality repeal is being championed by big ISPs such as Comcast, AT&T, Verizon, and Charter, Wheeler said. Meanwhile, hundreds of entrepreneurs wrote to the FCC to support the preservation of the rules.

"The Trump FCC has announced in no uncertain terms that they intend to repeal the rules that are now in place at the request of these handful of companies," Wheeler said. But the FCC also "got a letter from 800 entrepreneurs, saying, 'you can't do that because you'll threaten our access, our ability to... reach consumers,'" Wheeler said. "We'll have to go and say, 'mother may I' to get on the networks. We won't be able to compete with the big guys who have deep pockets to pay for your fast lanes. 800 [entrepreneurs] vs. four [ISPs."

“We the people have to say no”

Pai defended the proposed net neutrality rollback in a speech last week. "I opposed our decision two years ago to heavily regulate the Internet. There was simply no good reason for doing so. And the evidence now suggests that the FCC made a mistake," Pai said.

Pai cited data showing that broadband providers decreased investment after the net neutrality decision. But another data analysis found an increase in investment, while major ISPs have told investors that the FCC rules did not affect their network deployments, and the cable industry's top lobbying group boasts that US broadband speeds have soared. A group of small ISPs also told Pai this week that the rules did not impose any new barriers to investment and deployment.

Filing comments on the FCC proceeding to roll back net neutrality rules is crucial because those comments could play a role in future lawsuits to reinstate the rules, Wheeler said.

"The votes are there, Republicans control, they’ve announced they’re going to repeal it, and we the people have to say no, and take it to court,” Wheeler said, according to Politico.