Tom Wheeler‘s legacy is the 2015 Open Internet Order passed by the Federal Communications Commission while he was FCC chairman, imposing network neutrality safeguards on big ISPs like AT&T and Comcast. The order was and is popular with the public, and yet is under serious threat from the current Republican-controlled FCC under Trump-appointed chairman Ajit Pai, a former FCC commissioner and Verizon lobbyist.
In order to impose the net neutrality safeguards–which prevent ISPs from blocking, slowing, or delivering some internet traffic faster than others–a federal court said Wheeler’s FCC would have to reclassify ISPs as “common carriers” under Title II of the 1934 Telecommunication Act. So it did, much to the displeasure of the ISPs.
Emboldened by the deregulatory agendas of both Trump and Pai, the ISPs are now pressing hard to get the FCC to roll back the Open Internet Order. Pai released a preliminary proposal for doing so in April. Lots of voices can now be heard talking about the issue this summer, both inside the Beltway and in Silicon Valley, but not Wheeler’s—until I talked to him on Thursday.
Fast Company: Do you feel Ajit Pai can ignore the millions of pro-net neutrality comments submitted to the commission and just plow forward to roll back the 2015 Open Internet order?
Tom Wheeler: I don’t know. All we can do is look at the actions that we’ve seen so far. And the actions we’ve seen so far indicated that he would like to eliminate Title II, which would have the effect of pulling the teeth on any open internet rules. So I don’t see him changing his mind or being swayed by any new information.
FC: Do you think it will be Congress that eventually decides how the internet is regulated, and the fate of net neutrality principles?
TW: The question is what does Congress do? There is a law on the books right now. So if Congress is going to renege on that, or walk back the safeguards that are in existence and that have been in existence since 2015 then that’s the wrong thing to do. And it seems to me that the people who are championing doing this are the big ISPs–Comcast, AT&T, Verizon, and Charter–and their Republican supporters and are not the people who have historically stood for a fast, fair, and open internet.
FC: Pai likes to say that ISP spending on infrastructure has been chilled by the Open Internet order. Is that a true assessment of what’s happened?
TW: First of all, that assertion is balderdash. That so-called study is highly suspect because it was done by somebody who has never liked the open internet rules, has always taken the position of the ISPs, and during my tenure was exposed for having selectively chosen information to make that same point.
(Fast Company has learned that this information came from Hal Singer, a senior fellow at the George Washington Institute of Public Policy. Singer points us to a fuller study by the USTelecom ISP trade group. The consumer group Free Press worked up its own analysis of the question, and found that ISPs have collectively increased their infrastructure spend by about 5% during the two years after the Open Internet order was passed. Pai, however, has dismissed Free Press as a “spectacularly misnamed Beltway lobbying group.”)
So let’s go to what the ISPs tell their financial regulator. You know there’s an important thing that the ISPs have a lobbying message at the FCC and the Congress that is designed to accomplish their goals of giving them free rein. But then over at the SEC they are under the penalty of law required to tell the truth. How does what they say in their financial filings differ from what they say at the FCC? Well, in their financial filings they say they are spending a constant amount–they say they are spending about 15% of revenue on infrastructure investment. Two days ago, Comcast had their quarterly report and reaffirmed they are spending 15% of revenue on building infrastructure.
So if this is the best thing the Trump FCC can come up with, the impact on infrastructure argument, then they are playing a pretty weak hand.
FC: In another pillar of his argument, Pai seems to say “What’s the problem? Nothing very harmful to network neutrality principles has happened, so why do we need to prescribe these unnecessary safeguards?” What’s your opinion of that?
TW: Well I guess the Trump FCC has decided to put on blinders. So let’s go back to 2005 when Comcast announced that it wasn’t going to allow peer-to-peer video over its network because it interfered with some of the services they wanted to make profits off of. The FCC, which by the way was a Republican FCC at that point, said “No” and sanctioned them. Comcast took [the FCC] to court and the court said ‘Oh no, you can’t take that action against Comcast unless you make Comcast a common carrier.’
That, of course, is at the root of the whole Title II issue. And it had been going on for a dozen years by the time it landed on my desk.
But let’s keep going. AT&T and Verizon refused to carry Google Wallet because they were developing their own mobile payments platform. Verizon refused to allow tethering apps because they wanted to have their own tethering apps that they could charge you $20 a month for.
When Verizon sued the FCC to overturn the [Chairman Julius] Genachowski  open internet rules, the Verizon lawyer said in open court “I am authorized by my client to say yes, we do intend to have fast lanes and slow lanes and the fact that this rule eliminates that hurts my client’s ability to deliver services.”
FC: You were once a lobbyist. You worked for the CTIA and the NCTA at one point. And Ajit Pai is a former lobbyist for Verizon. Does the FCC under Trump, in your opinion, still enjoy a correct level of autonomy and independence from the White House and that whole agenda?
TW: I think you have to let the facts speak for themselves. The fact that the chairman was summoned to talk to the president in the Oval Office and won’t talk about what they talked about … I can assure you Barack Obama never summoned me to his office. You just have to worry about things like that.
But let me go back to your lobbyist point. I was representing the cable industry when the broadcasters and telephone companies were trying to shut it down 40 years ago. I was representing the wireless industry when the wireless industry was fighting the wireline industry to be able to grow and, frankly, take wireline subscribers. I was representing insurgents that were trying to bring competition.
So if the reality is that somewhere between 50% and 75% of all households in America have one or fewer choices for high-speed broadband–defined as 25 megabits per second–and 95% of all households in America have one or fewer choices for 100-mbps service, there is no competition. And when there is no competition, who makes the rules? The rules are made by the monopolists. So the job of the FCC should be to stand up and protect consumers and promote competition and innovation in a non-competitive market.
That’s clearly a difference between the Trump FCC and what we were doing.
FC: I was just home visiting my mother in the rural town where she lives, and she has one choice for internet service and the top download speed is 2.5 mbps.
TW: Wow. It looks like the FCC is standing up for four companies when you really get right down to it. There are four companies who really are the major beneficiaries–Comcast, AT&T, Verizon, and Charter. They provide the vast majority of high speed internet in the country. Four companies. There are a thousand companies who are the early stage innovators, the kind of folks who bring opportunity and create new jobs, who have written a letter to the FCC saying their businesses will be threatened by the elimination of Title II in order to increase the power of the Big Four. That is just an absolutely startling comparison–four companies are going to get bigger and more powerful at the expense of a thousand startups and tens of millions of consumers. That is so out of whack as to be shameful.
The FCC is currently reviewing the comments its collected from individuals and companies during the comment period on its proposal to do away with the Title II classification. It will soon present a more complete policy proposal, then bring it to a vote later this year. We reached out to the FCC, asking for an interview with Ajit Pai to address Wheeler’s comments, but so far have not received an answer.