Reading Wheeler

FCC chairman Tom Wheeler promised today to outline how he plans to proceed with respect to net neutrality “in the coming days,” but was coy about the details.
Speaking at an event at the University of Colorado Law School in Boulder Wheeler insisted that the recent court decision that vacated the commission’s 2010 Open Internet Order nonetheless affirmed the agency’s authority to establish enforceable rules to preserve internet openness.
“Bigger picture, the FCC has the authority it needs to provide what the public needs — open, competitive, safe, and accessible broadband networks,” he said in his prepared remarks. “What remains open is not jurisdiction, but rather the best path to securing the public interest.”
Over at GigaOM, Stacey Higginbotham is worried Wheeler is going wobbly because he did not address the question of traffic prioritization (for a price) by ISPs, which the now-vacated rules had prohibited, and because he refers to “a transparent, inclusive process” for moving forward, which she thinks might leave the door open for the ISPs to work their will through lobbying.
I was struck by something else though: the spin he put on the 2005 Brand X case, which he called “a critical predicate to today’s regulatory deliberations.”
The Brand X case, of course, grew out of a decision by a very different FCC, under a very different chairman leading a Republican majority to classify cable broadband service as an information service, rather than as a telecommunications service that would be subject to long-established common carrier (i.e. neutrality) rules. Brand X, a small internet access provider, sued the FCC, arguing that broadband providers should be required to open their networks to other service providers, including competitors, just as local phone networks were required to do.
When the case eventually reached the Supreme Court, a conservative majority, in an opinion written by Clarence Thomas, upheld the FCC’s authority to, in effect, not regulate, concluding, as Wheeler noted approvingly, “The questions the Commission resolved in [Brand X] involve a ‘subject matter [that] is technical, complex, and dynamic’…Nothing in the Communications Act…makes unlawful the Commission’s use of its expert policy judgment to resolve these difficult questions.”
I strongly suspect Justice Thomas, to say nothing of former FCC chairman Kevin Martin, would look rather less favorably at the commission now using “its expert policy judgment” to, in effect, reverse the outcome of Brand X. Nor would they likely appreciate being cited as the authority for the FCC’s power to regulate. But I suspect that’s precisely Wheeler’s point.
Maybe he is getting ready to take a dive. But it’s also possible he’s laying the groundwork to defend a decision not to take a dive against the inevitable criticism that the agency has once again overstepped it’s authority. Why, no less authority than Clarence Thomas and a conservative Supreme Court have recognized the FCC’s authority to exert its “expert policy judgment.”