FCC Chairman Ajit Pai today moved to dismantle the net neutrality rules put in place by the previous administration, arguing that the agency under former Chairman Tom Wheeler "decided to abandon successful policies solely because of hypothetical harms and hysterical prophecies of doom."
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Earlier today, Pai circulated a proposal to his fellow commissioners that would reverse a 2015 decision to reclassify broadband as a telecom service rather than an information service, or "Title II" in D.C. speak for its placement in the Communications Act. Title II was intended to give the FCC more legal standing to regulate broadband providers after previous net neutrality rules were struck down by the courts. Thus far, that strategy has worked, but with Republicans now at the helm of the FCC, Title II is not long for this world.
According to Pai, his proposal will also eliminate the future conduct rules that former Chairman Wheeler described as a general standard to prevent ISPs from harming consumers or edge providers like Netflix or Facebook.
"Because the internet is always growing and changing, there must be a known standard by which to determine whether new practices are appropriate or not," Wheeler said two years ago. Today, however, Chairman Pai pointed to March 2015 Senate testimony in which Wheeler said "We don't really know where this is going to go, but the FCC is going to sit there as a referee."
"I've never heard of a better definition of regulatory uncertainty," Pai said.
Pai promised to release the text of his proposal tomorrow; the FCC will vote on it during its May 18 meeting. At that point, it will be open to public comment before a final vote later this year.
What's at Stake?
As a refresher, net neutrality is the concept that everyone should have equal access to the web. Amazon should not be able to pay to have its website load faster than a mom-and-pop e-commerce site, for example. After Comcast was accused of blocking P2P sites, however, the FCC decided to craft rules that would ban ISPs from discriminating based on content. It was okay to slow down your entire network during peak times, for example, but you couldn't block a particular site, like BitTorrent.
The rules approved by the FCC gave the commission the authority to step into disputes about how ISPs managed their networks or initiate their own investigations if they thought ISPs were violating its rules. But detractors—like major ISPs and the GOP—said the FCC had no authority to impose such rules, and that Congress should decide.
Congress could never get its act together to pass legislation, and any bill that passed would have been vetoed by President Obama. So ISPs like Verizon took to the courts and prevailed twice, prompting the FCC to go the Title II route.
At this point, the point of contention is not the concept of net neutrality; major ISPs like Comcast and Spectrum will tell you that they adhere to its basic tenets.
The fight is whether the government—namely the FCC—should regulate the issue. ISPs and the GOP would say no; the market will regulate itself. Democrats and those edge providers say yes; consumers and companies need a place to go and complain if they encounter shady business practices.
Indeed, today USTelecom—a trade group whose members include AT&T and Verizon—said ISPs "support net neutrality, [but] removing restrictive Title II regulations from broadband providers puts consumers, innovators, engineers and entrepreneurs—not the government—back in the broadband driver's seat."
And Comcast, which basically got this whole debate started almost a decade ago, said it "fully support[s] reversal of Title II classification...we continue to strongly support a free and open internet and the preservation of modern, strong, and legally enforceable net neutrality protections. We don't block, throttle, or discriminate against lawful content delivered over the Internet, and we are committed to continuing to manage our business and network with the goal of providing the best possible consumer experience."
Chairman Pai, meanwhile, framed the Title II move as "heavy-handed regulations."
According to Pai, "nothing about the internet was broken in 2015. Nothing about the law had changed. And there wasn't a rash of internet service providers blocking customers from accessing the content, applications, or services of their choice."
Internet groups disagree. The Internet Association—which counts Amazon, Facebook, Google, Microsoft, and Netflix among its members—said in a statement that "the current FCC net neutrality rules are working and these consumer protections should not be changed.
"The existing 2015 Open Internet Order protects consumers from ISPs looking to play gatekeeper or prioritize their own content at the expense of competition online. Rolling back these rules or reducing the legal sustainability of the Order will result in a worse internet for consumers and less innovation online," the organization said.
Chairman Pai said today that the move to Title II "was all about politics." He called President Obama's public support for Title II in late 2014 an "extraordinary" move intended to "energize a dispirted base...after a disappointing 2014 midterm election."
"This was a transparent attempt to compromise the agency's independence. And it worked," according to Pai, who said the FCC was "dragged kicking and screaming onto that [Title II] path.
Obama had long supported net neutrality regulations at that point, and discussions about Title II had been ongoing throughout the year, though no one really thought the FCC would do it. Today, Chairman Pai reminisced about the pre-net neutrality days, when a "light-touch regulatory framework [that was] explicitly approved by the US Supreme Court" was the law of the land. But that fight—known as the Brand X case—was a major battle, as evidenced by the fact that it made its way to the highest court. When the FCC sought to reverse that with Title II, many thought we'd be in for a similar fight.
Ultimately, it will take Congress to settle things. Members have tried over the years, with little success. Now that the GOP controls both houses, it has a better chance than ever to uphold or—more likely—squash net neutrality rules. Until then, we'll likely see this swing back and forth depending on whether a Democratic or Republican administration is in power.