O'Rielly: No Harm, No Need for Net Neutrality Rules

Says he knows Sec. 706, and challenges FCC, court on assumed broad authority
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Republican FCC Commissioner Michael O'Rielly suggests neither the old or new network neutrality rules are necessary since their is no problem that those rules presume need solving. He also said.

O'Rielly worked on Sec. 706 of the 1996 Telecommunications Act, which FCC Chairman Tom Wheeler is using to buttress his new network neutrality draft rules, on the advice of a Federal Court, and told a C-SPAN Communicators audience that he disagrees with both Wheeler and the court that the section gives the FCC that authority. "That is a big hurdle for me to get past," he said.

He also said the talk has been about prospective harms but  that there aren't actually any instances of harm today.

O'Rielly said that broadband providers are providing a "good experience" and complying with "simple principles they think meet the needs of consumers." He said he did not want to regulate what "may happen" in the future.

Cable ops for the most part have pledged to abide by the principles underlying the FCC's old rules, which they did not oppose, and Wheeler's effort to restore them using more solid legal authority, though that support is conditional on the details of the new rules, which Wheeler is proposing in a May 15 public meeting.

O'Rielly said the IPS's he has talked to have said they don't block or discriminate and have no intention to do so. "They want to provide a good experience to consumers," he said.

O'Rielly said he was worried about the unintended consequence of the broad 706 authority the court appears to have interpreted was there for the FCC to use. He said that includes using it against Google and other edge providers.

Congress should be the one to resolve the authority issue, he said--the court threw out the old Open Internet order (Actually the anti-blocking and anti-unreasonable discrimination portions, while leaving enhanced transparency alone). "There is a question of congressional intent in terms of Sec. 706 in my viewpoint, and I think this is something where Congress could provide us very clear rules for the road and what our role should be in imposing network neutrality rules."

He was asked for examples of how the FCC might use its broad authority to go after edge providers.

O'Rielly pointed to IP trials and cybersecurity where he said the FCC has used Sec. 706, and fears it can go in "almost any direction" with that broad authority." He said the Congress did not anticipate that the FCC would have a lot of authority over cybersecurity, and he was concerned about Wheeler statements that he would be getting "very aggressive" on the issue. "The question is does it lead to regulation," which O'Rielly says he only sees coming from interpretation of Sec. 706.

He said he wanted to keep his eyes and ears open to legitimate harms consumers are experiencing with their Internet service, he wants to be told about them. But he said now the FCC was regulating by guessing what might happen.

O'Rielly would not comment on the Comcast/Time Warner Cable merger review, but did say, generally, he wanted it to be expeditious, and limited to the "four corners" of the deal. "I am leery of remedies and conditions unrelated to the merger itself."

The commissioner said that whether or not the broadband marketplace is competitive depends on how it is defined. If it is just wireline, he said, perhaps it is limited. But he said he thought the market was "much more dynamic," and includes wireless broadband.

O'Rielly said he did not support spectrum caps or aggregation limits, variants of which are part of Wheeler's proposed incentive auction framework. He said from his former post on the Hill he has watched the FCC "try to manipulate the auctions for a particular purpose." He said he believed in the auction process as a way to make sure that the license gets to the most efficient use possible.

He said he would meauser the auction by whether it was fair to everyone, broadcasters--both those who participate and those who decide not to--whether it released wireless spectrum to consumers, and did it meet the statutory obligations and raise money for the American people for the asset being sold.

One of chairman Wheeler's "very aggressive" efforts he endorses is FCC reform. He says that there is room to improve the FCC process, and the chairman's effort has been moving forward "fairly fruitfully." One proposed legislative FCC reform is allowing more than two commissioners to meet outside of public meetings, so long as no official business is done, there is a commissioner from each party present and minutes are taken. O'Rielly said he would leave that to Congress, but added: "In my time, have I been worried that that was a problem, perhaps not. I don't know that it is a problem today."

O'Rielly did not take an opportunity to criticize the chairman. He said when they disagree, they disagree respectfully, "and then move on."

One of those respectful disagreements was over media ownership. Wheeler scrapped the somewhat deregulatory resolution of the FCC's media ownership rule review by his predecessor and did not loosen newspaper-TV crossownership rules, former Chairman Julius Genachowski had proposed. He also combined the 2010 quadrennial reg review into the 20104.

O'Rielly said the FCC was ignoring the statue, ignoring congressional direction, and missing a congressional deadline.

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