Analysis: Tom Wheeler's FCC Legacy

Competition, consumers and conflict

FCC chairman Tom Wheeler—who announced he is exiting the commission Jan. 20, when the new administration takes over—came to the commission with lobbyist baggage that made public interest groups nervous and industry players hopeful.

But it turned out that Wheeler used that experience as former head of the National Cable & Telecommunications Association and CTIA as a partial shield from lobbyist entreaties, suggesting to them that as a former lobbyist, he knew where they were coming from and why, according to some who ran that gauntlet.

"I have been on the other side," he said at his last meeting. "Making demands that benefit a specific constituency is easy, as is attacking those that make those decisions." He talked about how the definition of public interest is malleable when it comes to protecting self-interest, which is why he defined it as the common good."

Ultimately, Wheeler had a clear sense of his mission, which was to make sure that broadband—the transformative technology of this century—was available to all—which he combined with a distrust of the marketplace.

Related: D.C. Reacts to Wheeler Exit From FCC

Wheeler is a famed student of history, which includes the struggles to get electricity to the farm wives still beating clothes on rocks well into the last century. Some can fault—and many in the industry do—how he chose to accomplish his task, but it is hard to argue against trying to get broadband to everyone.

ISPs argue that is what they are trying to do and that the best way for the FCC to help is to provide regulatory certainty, preferably in a climate conducive to investment and innovation. They took issue with the FCC's continued suggestion that broadband was not being deployed in a reasonable and timely manner and using that to justify new regs.

Wheeler signaled from day one that he viewed the FCC as a consumer-focused agency and that they, not industry, were his constituency. But again, media companies argue that they serve consumers too and could serve them better freed from some of the regs Wheeler imposed or refused to un-impose.

He also made it clear that he viewed edge providers like Google and Facebook, as creative forces for good in need of protecting against Internet Service Providers and their monopoly conduit into the home.

Related: FCC Speeds Reverse Auction for Stage Four

While he used Sec. 706 of the Communications Act—the mandate to promote advanced communications to all—to justify internet-related moves to advance broadband buildout and deployments, he consistently held that did not extend to edge providers, though Google and Facebook now dwarf individual ISPs and their user data collection and marketing continues unabated by regs Wheeler applied to ISPs.

Wheeler made many friends in the public interest community with his championing of broadband subsidies, his eventual push for reclassification of ISPs as common carriers under Title II, and his refusal to loosen broadcast media ownership regs, even tightening them in the case of joint sales agreements.

But his management style created friction with Republican commissioners and some legislators on both sides of the aisle.

Some legislators saw his tone in hearings as dismissive, and there were tensions with some other Democratic commissioners, over the set-top box revamp with Jessica Rosenworcel and lifeline reform with Mignon Clyburn.

Related: FCC Transition Team Meets With Wheeler

How effective Wheeler's chairmanship is/was will also be shaped by what comes after.

The new Title II-based net neutrality rules and the broadcast incentive auction are the two largest undertakings under the Wheeler FCC.

Republicans are likely to reverse the Title II classification and that will have a domino effect on the FCC's vote to adopt new broadband privacy regs, which are tied to the FCC's Title II authority.

Wheeler inherited the spectrum auction, but its framework and outline were developed on his watch. So far, wireless bidders have not ponied up anywhere near broadcasters' spectrum asks, so as the FCC drops its spectrum-clearing target, just how successful the auction will be in freeing up all that spectrum wireless carriers seemed so eager to get hold of remains an open question.

There is one theory that by opening up, and signaling it was opening up, so much high-band spectrum before the auction, particularly for unlicensed use that does not require companies to pay for it, the FCC may have decreased the demand in the auction.

Broadcasters had reason to celebrate recently when Wheeler chose not to expand the definition of bad faith retransmission negotiations to include blackouts and bulk negotiations or mandate arbitration of disputes. But they could never convince him to loosen local ownership regs.

The FCC scored a big court victory with Title II, with a D.C. appeals court handing them a complete, though a potentially Pyrrhic victory if Republicans deliver on their threats. But it suffered a number of defeats, including on prison phone rates and notably the attempt to preempt state laws limiting municipal broadband buildouts.

Michael Powell drew some unwanted attention as FCC chair during the Janet Jackson reveal, but Wheeler arguably became the most identifiable FCC chairman name since Newt Minow when his initial plan not to reclassify ISPs under Title II drew the ire and humor of HBO's John Oliver, who, citing his former lobbying credentials, likened him to a dingo guarding babies.

Public interest groups ultimately hailed him as guarding the internet, while ISPs would argue he was guarding the edge at their expense.

"I don't question Chairman Wheeler's motives in taking the actions that he did, but I do question his judgment," said Free State Foundation president Randolph May. "At a time when rapid technological change is driving increasing competition and consumer choice, Wheeler almost always defaulted to the most pro-regulatory position rather than the less regulatory, market-oriented one. The default presumption should have been the other way around."