A Tale of Two Commissioners
Obama’s first FCC chair seemed like the perfect advocate for the Internet. But the former cable lobbyist who followed him got something done.
What a difference six years makes. A crucial federal agency that once seemed powerless is now empowered. I am talking about the Federal Communications Commission, which has emerged from a period of vacillation into a body that makes decisions and backs them up.
And though there are multiple factors that made this happen, ultimately, this is a tale of two commissioners. One seemed the perfect advocate for strong regulation of Internet access to the benefit of consumers, an entrepreneur and tech executive who had the President’s ear (they even played basketball together!). And the other was regarded with suspicion among the open-Internet crowd — because he was once the chief lobbyist for the cable industry.
Guess which one stood up for the public.
Let me take you back to the fall of 2009. The first Obama administration, touted as the first truly tech-savvy White House, was just finding its sea legs, and hopes were still running high. In September of that year, then-FCC Chairman Julius Genachowski made a stirring speech at the Brookings Institution asserting that the agency would adopt rules protecting the open Internet from discriminatory actions of carriers. Up to that point, it had been relying on a flimsy 2005 “Internet Policy Statement” that had never been formally adopted by the commission and was published the same year the Bush-era FCC had removed all the rules covering high-speed Internet access. Now the new administration was saying firmly that it planned to protect the Internet from the depredations of the carriers. There was cheering on the sidelines.
But then the legal framework supporting the idea of an open Internet became a dicey issue for Team Obama.
Essentially, a time bomb had exploded, planted during the previous administration. Back in 2008 , Team Bush, led by then-FCC Chairman Kevin Martin, had gone after Comcast for throttling BitTorrent. Martin did not want to claim that high-speed Internet access should be considered a regulated service. So he relied on that dicey 2005 policy statement as the legal hook for his insistence that that Comcast promise to adopt a protocol-agnostic method of network management.
Comcast could have let matters stand but was irritated by the FCC’s assertion that the Commission had anything to say about its network management practices — after all, the Commission had deregulated high-speed Internet access back in 2005. So it sued, and in April 2010 it won. The DC Circuit said that the deregulatory structure in place for high-speed Internet access was inconsistent with the FCC’s assertion of authority. In other words, the FCC was trying to have it both ways: make rules about a service that it had said was not classified as a “Title II” common carrier.
This threw Team Obama into a tizzy. The FCC clearly felt reclassifying high-speed Internet access as a Title II service would trigger World War III —unleashing the awesome lobbying weapons of the big telecom and cable powers against the agency. So… they dithered. The carriers put the pressure on, prompting a long list of legislators to assail the FCC for daring to act like a regulator.
At the center was Chairman Genachowski, who although thoroughly well-intentioned became the Hamlet of Internet access regulation. He changed his mind several times, or appeared to — it was hard to tell— and after a long hot summer of lobbying in 2010, the Commission agreed with Comcast and the others that they wouldn’t be classified as common carriers. In a “once more with feeling” move, the FCC said in December 2010 that it would adopt rules but wouldn’t support them within a Title II structure.
Then, in January 2011, the Genachowski FCC approved the Comcast-NBCU merger, saying that the concessions Comcast had made supported the idea that the deal was in the public interest. The deal by itself? Not so good for the public, the FCC conceded. But there were benefits — like the Internet Essentials program—that were bound to be great.
Contrast all that — the painfulness, the drawn-out waffling, the ultimate disappointment, the soft deal-making, the speechmaking that turned out to be without legal support — to what has happened so far in 2015 at the FCC, under Tom Wheeler, who formerly served as President of the National Cable & Telecommunications Association and CEO of the Cellular Telecommunications & Internet Association. In other words, the cable and carrier’s man.
But wait. Although the same lobbying sledgehammers are being wielded by Comcast, Verizon, AT&T, and Time Warner Cable, and the same pressure is being felt from the Hill, Tom Wheeler’s FCC isn’t backing away from its basic role. Wheeler has embraced the same “Title II” that Genachowski gestured toward and then ran from, and so his FCC now has something to say about high-speed Internet access. Wheeler’s FCC has taken on state laws that keep local municipalities from making decisions about their own fiber networks — a bold and consequential move.
I happened to be in DC the morning that Comcast’s proposed merger with Time Warner Cable was blocked by Wheeler’s FCC, and I heard from a couple of people that Comcast was genuinely surprised by that decision. That’s a big change.
These days, the FCC seems like a no-bones-about-it regulator. Its Enforcement Bureau is taking on everything from hotel blocking of WiFi to unfair billing practices. It’s making advances in spectrum sharing, Internet access for schools and libraries, rural infrastructure, and a host of other crucial issues.
What accounts for this difference between 2009 and 2015? Part of the answer is that President Obama is in his second term and his administration is looking for executive actions that can move the needle for the country; the FCC, although an independent agency, can read the President’s speeches like everyone else, sense the change in the wind, and act accordingly.
But a major reason for the transformation is the role being played by Tom Wheeler. Because he knows these industries well from his decades of experience, Wheeler’s nomination in May 2013 was greeted with dismay by many people in the public interest community. But it turns out that knowing what’s going on can be a plus.
And character makes a big difference: once he decides he’s ready to move, Wheeler is the happy warrior. He is strong, he speaks with conviction, he cheers on his staff, and he follows up his speeches with action. Most importantly, he genuinely cares — he can get pretty sappy on the subject — about the consequences of telecommunications policy decisions for the country.
So let’s pause for a second in the wash of words about the future of Internet access in the U.S. All is not perfect, and many will still be disappointed — still feel as if the agency is acting like Lucy with the football — by what the FCC does in the months to come. But things are far better than they were.
And a lot of this is due to a chairman who confounded expectations, to the good.