The FCC chair's Internet pivot
Tom Wheeler was feeling the heat. It was August and the head of the Federal Communications Commission was sitting on the deck of his familyâs vacation home on Marylandâs Eastern Shore. Sweat dripped onto the paperwork before him. For months, the tall, bespectacled Wheeler had been consumed by an arcane but important debate over how to regulate the companies that provide access to the Internet. Story Continued Below Wheeler, a former lobbyist for the cable and cellphone industries, had taken over the agency without any burning desire to rewrite the rules already in place, but a federal court decision had thrown the issue in his lap. Now, as he fumbled toward a solution, an array of liberal groups that had long wanted a much stronger federal hand complained that Wheeler might be too cozy with his former bosses to act forcefully on behalf of consumers. Perspiring on his vacation that wasnât really a vacation, Wheeler was coming â quietly â to the conclusion that he was going to have to turn on the industries that launched his career in Washington. On Thursday, Wheeler is expected to present to the commission a set of rules that would treat broadband providers like utilities, effectively denying them the right to charge companies a premium for faster access to consumers and holding them accountable for any attempt to secretly impede the flow of data. When the commission finally approves them â a vote is scheduled for late February â it will mark the most significant rewrite of the rules of the road for the Internet in more than a dozen years and affect the competitive playing field for generations to come. Wheeler did not speak officially for this report. But interviews with FCC officials, industry executives and representatives of public interest groups reveal the origins of his dramatic pivot on this issue: an intense and relatively brief grass-roots lobbying campaign that targeted two people â him and President Barack Obama. âWe [knew] that Tom Wheeler was going to make the decision on this,â said Craig Aaron, president and CEO of Free Press, a liberal public interest group. âHe was the guy with the most influence over the details, and the question becomes who has the most influence over him, and that is President Obama.â â¢ â¢ â¢ When he nominated Wheeler for the FCC job, Obama called him âthe Bo Jackson of telecom.â Wheeler had earned the nickname for his experience as a veteran lobbyist but also as a venture capitalist in the industry. But Wheeler saw himself as more than just a double-threat. He made it clear to Obama, whom he had campaigned hard for in 2008, that he wanted a shot at leading an agency that had earned a reputation for inaction. Wheelerâs tenure was barely two months old, however, when a federal appeals court in D.C. issued a decision in January 2014 that would force the FCC to revisit an issue that had been percolating largely outside the publicâs view for more than a decade. The decision overturned a set of rules written in 2010 that attempted to prevent Internet service providers from blocking or degrading content that flows over the Internet. While the court ruled that the commission has the power to regulate the Internet, it told the FCC that it could not impose rules that treat a broadband company like a utility unless it defined them as a âcommon carrierâ â a term of art that has a long history of preventing discrimination in everything from railroads to telephone companies. Wheeler initially attempted to write new rules that avoided the common carrier distinction. Wary of sparking opposition from huge companies like Verizon and Comcast, Wheelerâs original proposal gave broadband providers the right to strike pay-for-play deals for faster access to consumers, as long as such agreements were âcommercially reasonable.â Wheeler saw that reasonableness test as a high bar â a filter that would still ban the kinds of practices that net neutrality advocates were most worried about. But many â liberals, tech activists and Silicon Valley companies among them â saw things quite differently. Free Press called Wheelerâs proposal âan insult.â Tech companies from Google to Kickstarter called the rules âa grave threatâ to the Web. Wheeler found little public support from his fellow Democrats. When the chairman met with members of the House telecommunications subcommittee over Chinese food at Hunan Dynasty, just blocks from the Capitol, they implored him to give himself more flexibility. Give a nod to reclassifying broadband like a utility in your preliminary proposal, they urged him. In seeking public comment, Wheeler included questions about whether the agency should regulate broadband that way. But his initial proposal, which left the door open to so-called Internet fast lanes, remained his preferred option. Then John Oliver unleashed the dogs of wonk comedy war. â¢ â¢ â¢ It was a Sunday night in June when Oliver devoted 13 minutes of his show on HBO to explaining an issue that had already prompted protesters to camp outside the FCC offices (a first in the annals of the agency). He lampooned Wheelerâs past as a cable industry leader and suggested that his pro-industry rules were the broadband equivalent of âa dingo guarding a baby.â The clip went viral (it has been viewed on YouTube almost 8 million times). Free Press rented a Jumbotron and at one point put it across the street from the FCCâs headquarters on 12th Street. The screen played testimonials on net neutrality and Oliverâs takedown. A broad coalition of progressive groups â including Public Knowledge, Consumers Union, the New America Foundationâs Open Technology Institute, Demand Progress, Fight for the Future, Engine Advocacy, CREDO Action and the National Hispanic Media Coalition â capitalized on the sudden burst of attention to mobilize opposition. Emails by the hundreds of thousands began to hit the FCCâs inbox. Wheeler, meanwhile, hit the road in an attempt to turn the tide. He visited with tech companies and venture capitalists in Silicon Valley and New York, where he was told his rules would give broadband companies too much control over the success of fledgling tech firms. âIt was pretty clear that he kind of had his mind made up and wasnât really on our side,â Paul Sieminski, general counsel at Automattic, which runs the popular WordPress.com platform, said of one of Wheelerâs meetings in California. Wheeler was adamant that treating broadband companies like classic utilities would create political problems and would hamstring him as he wrestled with future policy issues involving the telecom industry. But the barrage of public comment, most of which was insistent on regulating broadband companies as strictly as possible, did not abate. By mid-July, the FCC had received so many missives the website sputtered. By August, as he sweated through his working vacation, Wheeler was contemplating a hybrid proposal that he hoped would satisfy both sides. By September, a record number of comments had come in, surpassing the outrage after the 2004 Super Bowl, when Janet Jackson gave the halftime audience too much of a show. Eventually about 4 million comments flooded into the FCC. In October, Wheelerâs hybrid proposal leaked out. In essence he wanted to impose the utility rules on only part of the Internet ecosystem â a suggestion first floated by Mozilla, maker of the Firefox Web browser. But on a Friday afternoon, 50 lawyers from civil society groups and tech companies came to a consensus that they could not back Wheelerâs plan. By trying to please both sides, Wheeler succeeded in pleasing neither. Turned out the man who hired him wasnât wild about it either. â¢ â¢ â¢ Monday, Nov. 10, didnât start out well for Wheeler. Protesters from one of the more radical pro-net neutrality groups had blocked the driveway of his home in Georgetown. That same day, the president released a statement and video in which he came out squarely in favor of regulating the broadband companies like utilities. Obama had always been a proponent of net neutrality (Open Internet planks had been nailed into the Democratsâ platform in 2008 and 2012, after all), but he had never uttered the words Title II, the federal rule that gives the FCC direct authority over telecommunications services. Wheeler, who had a weekâs worth of meetings scheduled at which he had intended to sell his hybrid plan, was knocked on his heels. At a meeting with public interest advocates and representatives from the likes of Tumblr, Etsy and Google, Wheeler appeared frazzled but professional, attendees said. At one point he told a meeting of wireless executives that there was no sunlight between him and the president on the issue. By the end of the week, it was clear to attendees that he was turning away from his hybrid plan. In the weeks since, Wheelerâs evolution to utility-style regulation has solidified. The telecom industryâs claim that Title II rules would hamper investment in new networks took a hit when Verizonâs CFO said in December that the move would ânot influence the way we invest.â Verizon backed off that statement, but Sprint largely agreed when it said it would invest in wireless data networks regardless of how the FCC regulated the industry. But it was clear Obamaâs comments had been a major force in shaping the FCC rules â a fact Wheeler couldnât help but joke about at the Federal Communications Bar Associationâs swanky, year-end dinner. âI would like to thank the Mozilla Foundation for the first draft of my remarks tonight,â the chairman said, âand President Obama for his edits.â