'Revolving Door' Between ISPs and FCC Blamed for Net Neutrality Ills

NEWS ANALYSIS: The FCC is backing net neutrality rules based on a "commercially reasonable" sniff test. A report suggests why it's not being firmer.

The Federal Communications Commission's position on net neutrality appears to be wavering, and a revolving door between Internet service providers (ISPs) and the FCC has been suggested as a reason why.

Following an April 23 report from the Wall Street Journal, which reported that the FCC's forthcoming proposal for Internet traffic rules will prevent ISPs from slowing down any Internet traffic but will allow them to charge companies for faster service, FCC Chairman Tom Wheeler posted a response on the FCC blog, asserting that "misinformation" had been circulating.

Wheeler asserted that the most recent draft of the Open Internet Notice of Proposed Rulemaking prevents the blocking of "lawful content," "unreasonable discrimination," and any behavior harmful to consumers or competition. But he didn't deny the crux of the WSJ report: that companies with deep enough pockets will be able to pay for faster service, a policy that would essentially make haves and have-nots of content providers.

"Like so many problems in American government, the policy shift may relate to the pernicious corruption of the revolving door," Vice reported April 25. "The FCC is stocked with staffers who have recently worked for [ISPs] that stand to benefit tremendously from the defeat of net neutrality."

The report, written by Lee Fang, an Investigative Fellow at The Nation Institute, points out several employee crossovers.

Philip Verveer, senior counselor to Wheeler, was among the new appointments Wheeler announced Nov. 4, 2013, shortly after assuming the role of FCC chairman. According to Fang, "A records request reveals that Verveer also worked for Comcast in the last year. In addition, he was retained by two industry groups that have worked to block net neutrality, the Wireless Association (CTIA) and the National Cable and Telecommunications Association."

In February, the FCC hired Matthew DelNero to "focus on issues related to technology transitions and the Open Internet." Fang points out that filings show DelNero has worked as an attorney for TDS Telecom and "lobbied on net neutrality."

Around the same time, Brendan Carr, an attorney who has worked for AT&T, Verizon, CenturyLink and the U.S. Telecom Association, a "trade group that has waged war in Washington against net neutrality since 2006," wrote Fang, was hired by the FCC as an advisor.

Finally, also among Wheeler's November appointments was Daniel Alvarez. Now the legal advisor to Wheeler, Alvarez previously represented Comcast through the firm Willkie Farr & Gallagher, LLP.

In a 2010 letter to the FCC on behalf of Comcast, Alvarez and his colleagues advised, "The Commission should not adopt an absolute ban on 'discrimination.' Many commenters [on FCC policy] recognize that an absolute ban on discrimination would prohibit 'socially beneficial discrimination' and stifle innovation and investment."

More "realistic," they continued, would be a standard that focuses on "'unreasonable and anticompetitive' discrimination," which would give the networks more flexibility to "experiment with technologies and business models."

Wheeler, in his April 24 blog post, backed the idea of a "'commercially unreasonable' test."

In the 2010 letter, Alvarez and his colleagues also cited academic research favoring "edge services," such as the WSJ report pointed to. The research states that prohibiting ISPs from offering "performance enhancements for a fee discourages 'edge' innovation that could take advantage of those very network performance enhancements," said the Comcast letter.

Wheeler, in his blog post, said it's his goal to have "enforceable rules" in place by the end of the year.

Follow Michelle Maisto on Twitter.