April 28, 2017; The Hill
Remember the blissful days of 2015? Back then, the Federal Communications Commission declared that broadband Internet service was a telecom service under Title II of the Communications Act and enacted measures to ensure an open Internet not throttled or manipulated based on content or provider. At that time, Ajit Pai was one of the members of the Commission and dead-set against such moves, which fall under the common moniker of “net neutrality.” Now, Pai heads up the FCC under the Trump Administration, and he’s moving to undo all that was done under Tom Wheeler’s reign and supported through several appellate decisions in the years that followed.
At the next FCC meeting on May 18th, Pai wants to take action. He’s issued a notice of proposed rulemaking that lays out the following measures:
- Propose to reinstate the information service classification of broadband Internet access service and return to the light-touch regulatory framework first established on a bipartisan basis during the Clinton Administration.
- Propose to reinstate the determination that mobile broadband Internet access service is not a commercial mobile service and in conjunction revisit the elements of the Title II Order that modified or reinterpreted key terms in section 332 of the Communications Act and our implementing rules.
- Propose to return authority to the Federal Trade Commission to police the privacy practices of Internet service providers.
- Propose to eliminate the vague Internet conduct standard.
- Seek comment on whether to keep, modify, or eliminate the bright-line rules set forth in the Title II Order.
- Propose to re-evaluate the Commission’s enforcement regime to analyze whether ex ante regulatory intervention in the market is necessary.
- Propose to conduct a cost-benefit analysis as part of this proceeding.
The FCC plans to release an official proposal on Thursday. If approved, that would start a 90-day period of public comment and response that would lead to a final order that the Commission could vote on. The release of the initial proposal is a move toward transparency, but senior FCC officials have emphasized that this isn’t a public opinion poll.
Pai has said he supports the basic tenets of net neutrality, but not the means of implementation. However, as Politico writes, there’s no clear path to maintaining that ethos once this decision is undone.
It’s unclear how Pai will be able to preserve the FCC’s net neutrality role without grounding its rules in the regulatory structure, approved two years ago, that treats ISPs like telephone-style utilities, subjecting them to tighter oversight. The FCC lost a court battle over a previous version of the rules that did not employ that structure, but the D.C. Circuit Court of Appeals upheld the 2015 order last June in a 2-1 decision.
Pai initially floated an idea to seek voluntary commitments from internet providers to adhere to net neutrality principles, under the purview of the FTC, but that concept appears to have fallen by the wayside amid a backlash from net neutrality activists. Even Pai’s fellow GOP commissioner, Michael O’Rielly, who’s no fan of the current rules, expressed some skepticism about obtaining voluntary commitments from private companies.
At this early stage, those who wish to step up and fight for net neutrality can make their public comments known at the FCC page and contribute to organizations like Fight for the Future. There’s even a crowdfunding effort set up to wage the second battle in this ongoing conflict—although this time, the tidal waves of funding seem to have slowed to a trickle.—Jason Schneiderman