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FCC's Wheeler: Commission Must Be Able To Insure Openness of Broadband Nets

Outlines view of FCC oversight of broadband nets, including insuring access as well as nondiscrimination 1/09/2014 2:55 PM Eastern

FCC Chairman Tom Wheeler took his defense of the FCC's Open Internet order to Silicon Valley Thursday (Jan. 9), where he was pretty much preaching to the choir. He said it was the government's role to intervene when necessary to insure openness and access to networks, wired and wireless

According to the prepared text of a policy speech at the Computer History Museum in Mountain View, Calif., Wheeler tells his audience that it is "essential in the public interest of our country that the government, and by government I mean the FCC, have the power to oversee the broadband networks and to intervene to forestall their exploitation by unacceptable acts."

That comes as the a federal appeals court in D.C. is expected any time to rule on a challenge to the FCC's Open Internet order, and the FCC has to ponder what its next move will be if that order is invalidated or remanded back for repair.

"No one in the Valley needs to be convinced of the importance for innovation and overall societal welfare of our broadband networks," he said. "Keeping them open for any and all lawful uses is a major policy imperative."

Wheeler said there were three keys to openness, including case-by-case analysis of possible violations and insuring people can get "to" the network (deployment and availability) as well as getting "on" the network (nondiscriminatory access):

"First, I support the Commission’s Open Internet decision, which has helped preserve the Internet as an open platform for innovation and expression, and has increased certainty and predictability in the marketplace.

"Second, I support common law-like approaches to discerning the difference between appropriate and inappropriate broadband network conduct.  In other words, the very general principles found in the Open Internet Order should be reduced to justiciable practices on the basis of facts arising from specific circumstances.

"Third, the pursuit of legitimate private gain may not be sufficient to meet the national interest in the creation of robust broadband networks in all parts of America. That is not a failing of business, but it is, I think, a responsibility of government to assure that open access not only means getting on the network, but also getting to the network."

While he was on the subject of case-specific approaches, he weighed in on AT&T's announced plan to allow businesses and others to pay for their users broadband capacity and insure they do not exceed any usage limits--somewhat like an 800 number for broadband data service.

He pointed out that the Open Internet rules did not prevent such mobile broadband arrangements--the order applies primarily to fixed service.

"AT&T announced a mobile service offering that enables subscribing firms to cover the airtime costs of accessing their content," he said. "Based in part on the premise that consumers have more choices for mobile wireless service than for fixed, the Open Internet Order did not discourage this type of two-sided market for mobile uses. It also made clear, however, that the Commission would monitor these types of development carefully."

Wheeler made clear he was going to fulfill that monitoring requirement and step in if need be.  

"This seems to me to be the right approach. It may well be that the kind of offering AT&T has announced enables increased competition and increased efficiency—both things that benefit consumers.  It is not the sort of thing that should be prohibited out of hand.  But, again, history instructs us that not all new proposals have been benign.  There has to be some ability on the part of government to oversee, to assess, and, if warranted, to intervene."

He told his audience they should think of his remarks as the "start of a dialogue."

September