At CES 2015, Tom Wheeler spoke about the current thinking inside the FCC.
It seems that the “commercially reasonable” standard that the Commission would have to draw upon to hang their hats on Section 706 is ambiguous. A mere layman would read it as meaning “reasonable to all parties”; a plausible result of a hypothetical negotiation in which the parties had equal power. Apparently, the FCC’s attorneys were able to torture it into meaning “reasonable to the Broadband ISP”; a plausible result of a hypothetical negotiation of lunch options between a wolf and a sheep. This is one reason why I am not a lawyer.
According to Wheeler, a more robust “just and reasonable” standard would require that the Broadband ISPs would have to be subject to Sections 201 and 202 of the Communications Act, and adequate consumer protections would also require Section 208. And yes, these are sections under the dreaded Title II. The rest of Title II would be excessive. It was not clear to me that the FCC could forbear from all but those three sections, as a matter of law or politics. It now seems that the attorneys think they have enough legal legerdemain do this.
With respect to my big concern with regard to possible over-broad interpretation of “paid priority” and “throttling”: the framework under discussion appears to give the FCC enough wiggle room to decide that, for example, a video transport service offered to all comers is “just and reasonable”. Wheeler also acknowledged that No Paid Prioritization should not be an absolute. So overall, not a bad outcome.
In the meantime, various bills are being hammered out in the House and the Senate to short-circuit the FCC proceedings. A law that gave the FCC authority to deal with blocking, throttling and paid prioritization would provide some certainty. That is, if we can trust this Congress to let the FCC do what they have to, and don’t try to micromanage. I’m not taking bets.
Commission will vote on a Report and Order at their February open meeting.