Former FCC Chair Tom Wheeler Says the Internet Needs Regulation

It was hard not to fear the worst when President Barack Obama appointed Tom Wheeler as chair of the Federal Communications Commission in 2013. Wheeler was the CEO of the wireless industry group CTIA from 1992 to 2004, and the CEO of the National Cable Television Association from 1979 to 1984. As the agency drafted its net neutrality rules, comedian John Oliver famously compared putting Wheeler in charge of the FCC to hiring a dingo to babysit your kids.

But Wheeler wasn’t a dingo. On his watch, the FCC passed the Open Internet Order that established net neutrality and reclassified broadband internet providers as “common carriers” similar to landline and cellular phone providers. Maybe that shouldn’t have been so surprising. Wheeler had spent time during the 1980s as CEO of a tech startup called NABU, which offered an AOL-like home computer networking service that used cable television lines. That experience helped him understand the importance of open networks, he explained in a WIRED op-ed in 2015.

But his views weren’t shaped by experience alone. Wheeler’s term as FCC chair interrupted his work on a book on the history of network technology and how those networks help and hinder innovation. Wheeler wasn’t able to finish the book until after he left the FCC in 2017. From Gutenberg to Google: The History of Our Future finally arrived this month. WIRED spoke with Wheeler about his work and what the history of information technologies tells us about how to regulate today’s information giants like AT&T, Comcast, Google, and Facebook.

WIRED: You write about three eras of information networks: the invention of the printing press in the 15th century, then the emergence of railroad and telegraph networks in the industrial era, and finally the rise of the modern digital information era. What sets our era apart from the previous eras?

Tom Wheeler: I started writing the book before I became chairman of the FCC and had to put it aside while I was chairman. If it had been published before it would have been all about the power of distributed networks. Now it’s about how networks have led to non-physical centralization of economic activity.

Traditionally networks have always been a centralizing force. The hub of the network used to be where the rail lines went together or where the phone calls were switched. The railroad went to a point where the boxcars were switched to another line; at that point economic activity developed. The telephone went to a central switch that then transferred it to another line and economic activity gathered around that central switching point. Now the hub of the network has been moved out so the ultimate hub is the individual, and the individual is making a choice to access information which itself is non-physically centralized. It used to be the physical network that was centralizing, now it’s something that rides the physical network that is centralizing.

Amazon has 500 private label products. Did you know that? 500 private label products. They watch everything that is selling. They say “Well, hey, all these batteries are selling, I’m going to have an Amazon battery and that’s the one that I’m going to promote.” All of that traces back to their control of information that they were able to use.

Data is the new capital asset of the 21st century. Amazon has more of the decisive capital assets than Walmart does. The asset is not what you have on your shelves. The asset is not the stores and the parking lots that you have. The asset is the information you have about your customers that allows you to target them for content and allows you then to develop content that you know will be attractive to them, whether it’s [the Amazon Prime video series] Bosch or batteries.

WIRED: The FCC approved the Open Internet Order while you were chair, which imposed net neutrality as a check on the centralizing power of broadband networks. But it only covers the carriers, not the platforms. Do we need net neutrality for platforms too?

TW: I think the regulators need to think of the totality of the digital economic environment. When I was chairman of the FCC we could only deal with the networks because that was as far as our statute went. There are two basic concepts that I think are universal to both networks and platforms and that we need regulations to protect.

One is the duty to deal. You talked about net neutrality, the requirement that essential networks have nondiscriminatory access. The first electronic network was the telegraph. In 1860, Congress passed a law that imposed net neutrality on the telegraph saying they couldn’t pick and choose who they were going to put on, they had to provide first-come first-served nondiscriminatory access. The necessity for that concept hasn’t changed as a result of the fact that we’ve moved from the dots and dashes of the telegraph to analog waveforms of the telephone to the ones and zeros of the internet.

Similarly, there needs to be anti-bottleneck openness in the platforms that use the network. What happens now is that you have the platforms that aggregate all kinds of information about you and me and hoard it and are able to gain dominance in the marketplace by controlling access to that information. Just as there ought to be open access to the networks there ought to be open access to that information. I’m not saying for free, but this is an idea that goes back hundreds of years. When we were coming out of the Dark Ages, English common law developed the concept that the guy who was running the ferry across the river had to provide transportation for everybody, nondiscriminatory. The guy running the tavern or inn along the roadway had to provide shelter and food for everybody. Not for free, but he had to provide it a nondiscriminatory basis. Those kinds of concepts still work today.

The other is the duty to care. As the provider of a service to you, I have the responsibility to anticipate and mitigate harms that my service might cause. This is particularly true when you think of the platform and all your private information that they are collecting. How do you keep that from having harmful effects? I talk in the book about how in the early days of the railroad when the steam engine went across farmland it spewed hot cinders that set fires to hayracks and barns and houses. The concept of negligence came into law based on this to duty of care: “Ok you know it’s spewing cinders, what are you doing to mitigate that?” The answer was to have the railroads put a screen across to catch the cinders.

When you’re dealing with companies whose asset is the collection of your personal information, there is a similar duty of care: What have those companies done to make sure, to anticipate and mitigate against the harmful effects of what they’re doing? Those are the kind of rules we need to have going forward in the digital era. Unfortunately what happens today is that the networks and platforms are making their own rules, and those are designed to advantage them. Where does the public interest get a seat at the table? That has to be in the form of new rules. That’s what we were trying to do with net neutrality, that’s what we were trying to do with the privacy rules we passed and Congress repealed. That’s what we have to have in order to get some sort of equilibrium in the digital era.

WIRED: Are you arguing that certain platforms ought to be common carriers?

TW: Nope, nope. But I am arguing that they have a duty to deal. The term common carrier is widely applied to many things, but no I don’t think they are common carriers. I just think they have a responsibility not to hoard their product and to make it available.

When we moved from agrarian mercantilism into the industrial age everybody woke up and realized that the rules that worked in a mercantile society did not work in an industrial society. So we got antitrust laws, consumer protection laws, worker protection laws, clean food, etc. Now we see ourselves in an information era where the rules of the industrial era are also proving insufficient, and so we need to have the same kind of new thinking about establishing rules for new challenges as we did 150 years ago at the beginning of the industrial area.

WIRED: But a lot of old thinking still seems useful. You mentioned English common law, but I’ve seen references that place the notion of a common carrier back to ancient Rome. It seems like there are universal concepts hat can be applied.

TW: Right. There are these enduring structures, the duty to deal, the duty to care. But the question is how do you apply those ensuring concepts in a new reality. The carriers have successfully sold the bill of goods that says “digital makes everything different.” No, it doesn’t, but they’ve successfully sold that concept. The platform companies have successfully sold the concept that they can have this non-physical centralization and still avoid the industrial antitrust, anti-centralization kinds of concepts. What I’m saying is we need to take those concepts and make sure they apply in the new era.

WIRED: Should there be a single set of rules for networks and platforms, or are they different enough to require a different set of laws and enforcers: the FTC for platforms and the FCC for networks?

TW: What we need is a holistic approach that says “we’re going to address all levels” but probably also says “we’re going to have expectations on what is going to be accomplished rather than who is doing it.” For instance, when you’ve got a company like AT&T that is both in the network and the content, you need to look at each of those activities using common concepts. You may have to have special applications of those concepts.

WIRED: Do we need a new regulatory regime for this? The FTC and FCC might not have the right structures. Do we need a new regulatory body or do we have to have those regulatory bodies shaken up in some way?

TW: I think we have to address whether bolting on digital-era expectations to a structure created in an industrial era with industrial expectations is in fact possible. For instance, the FTC, the Federal Trade Commission, has jurisdiction over unfair or deceptive acts and practices for the entire economy. That means that how your shirt is labeled for the use of bleach is something the FTC has jurisdiction over as well as, since the repeal of the Open Internet rules, jurisdiction over how your carrier behaves with regards to providing open access. You have to ask yourself the question, can you shoehorn digital concepts into an industrial agency. I think that’s one of the debates we’ll have upcoming.

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