Net Neutrality Repeal Begins

Submitted on April 13, 2017

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Robbie's Round-Up for the Week of April 10-14, 2017

A proposal to move from court-tested rules to voluntary commitments

Last week, news broke that Federal Communications Commission Chairman Ajit Pai has developed plans for a fast-track repeal of the FCC’s Open Internet rules. While the plans have only been shared in meetings with broadband industry lobbyists, network neutrality advocates have been quick to criticize the early reports. The always-transparent Chairman Pai has not revealed the plans to the public, but there’s already speculation that a preliminary vote on the proposal could come as early as the FCC’s May meeting.

What We Know So Far
Reports concerning the conversations between Chairman Pai and trade associations indicate Pai aims to overturn the FCC’s decision to reclassify broadband internet access service as a Title II telecommunications service, and allow broadband providers to voluntarily commit to preserving net neutrality. In theory, these providers would pledge to not:

Block access to legal content, applications, services, or non-harmful devices.
Impair or degrade (also known as throttle) lawful Internet traffic on the basis of content, applications, services, or non-harmful devices.
Favor some lawful Internet traffic over other lawful traffic in exchange for consideration of any kind—in other words, no "fast lanes" or paid prioritization.

With a Title II reversal, enforcement of these commitments would shift to the Federal Trade Commission, which polices companies for deceptive or unfair trade practices.

The plan demonstrates Chairman Pai’s “light-touch” regulatory approach, as it favors industry-devised commitments over public-generated rules. Similar to his view on consumer privacy, Chairman Pai believes the FTC is better suited to protect net neutrality than the FCC.

Critical Responses
While Pai’s proposal is still not public, net neutrality advocates have criticized it based on press reports. FCC Commissioner Mignon Clyburn wrote:

Press reports suggest this administration's approach to net neutrality will simply be to ask for unenforceable commitments instead of looking out for the best interests of competitors and consumers. Given the incentives and abilities of broadband providers to harm Internet openness, all Americans should be extremely concerned. Rest assured, I remain committed to fighting with every tool I have at my disposal to ensure that the open Internet protections adopted by the FCC in 2015 are preserved, and that the Internet remains an open platform for free speech, freedom of expression, and unfettered innovation.

Problems with “Voluntary Commitments”
As Commissioner Clyburn’s statement demonstrates, many were quick to lambaste the idea of relying on voluntary commitments to protect the openness of the Internet. Nilay Patel wrote in The Verge “[T]he idea that Pai will get Comcast and AT&T and Verizon and every tiny little regional [broadband provider] to put strong open internet provisions in their terms of service agreements is pure nonsense.” Jon Brodkin, writing for ars technica, noted two main criticisms of these voluntary commitments:

Even if all broadband providers put the promise into their terms of service agreements, it's not clear what would stop them from removing them later. Terms of service change all the time.
If any new providers enter the market, it is unclear what would compel them to make the same promises. There are hundreds of small rural providers that are unlikely to be covered by this pledge.

Former FCC staffer Gigi Sohn noted in an op-ed for The Verge, “Another name for the Pai Plan might be ‘Just Trust Us.’ Hardly a comforting thought in a market where [broadband providers] face little competition and serve as the sole gatekeeper to the internet.”

FCC vs FTC: Which Agency Is Better Suited?
Under Pai’s proposal, enforcement of the voluntary commitments would be handled by the FTC, rather than the FCC -- a big change. Unlike the FCC, the FTC isn't able to create hard-and-fast rules that providers must follow. It would be a transition from FCC’s ‘rules of the road’ to investigations of individual companies and their practices in response to complaints.

Chris Lewis, Vice President at Public Knowledge, noted, “Replacing clear rules of the road with a voluntary system where broadband providers decide ahead of time what rules they would like to follow and when they can change those rules would unilaterally open the door to massive market abuses, including unreasonably low data caps, inflated prices for some content, and preferring cable/broadband content over smaller, independent competitors."

Senator Edward Markey (D-MA) echoed these sentiments saying, “The only way to protect a free and open internet is with strong net neutrality rules of the road – not voluntary guidelines – that ensure businesses, innovators and families can use the world’s greatest platform for commerce and communications. Chairman Pai’s proposal would put the future of an open and free internet in the hands of big corporations and the powerful few at the expense of consumers.”

FTC Commissioner Terrell McSweeny believes net neutrality enforcement should be left to the FCC. "I think it's important to have the expert regulator that understands the industry, technology, networks etc. be making decisions using its authority," said Commissioner McSweeny. "We are a very hard-working agency, but we’re not a very big agency. The FTC doesn't have a lot of expertise in network engineering. We're not the FCC in that regard." The FTC receives "millions of consumer complaints every year" across all industries under its jurisdiction, and "we can’t act on every single complaint."

The FTC "has enforcement authority, not rulemaking authority," then-FCC Chairman Tom Wheeler said in January. "They can say, 'we think this is an unfair and deceptive act or practice,' but they can't say, 'here’s how networks have to operate so they're fast, fair, and open.’"

Edge Providers Voice Their Concerns
On April 11, Chairman Pai’s office met with the Internet Association, a trade group whose members include Amazon, Facebook, Google, Microsoft, and Twitter. Internet Associated CEO Michael Beckerman attended the meeting and told Chairman Pai he should keep the existing net neutrality rules. "IA continues its vigorous support of the FCC’s OI [Open Internet] Order, which is a vital component of the free and open Internet," Beckerman wrote in an ex parte filing that summarized the meeting. He continued:

The Internet industry is uniform in its belief that net neutrality preserves the consumer experience, competition, and innovation online. In other words, existing net neutrality rules should be enforced and kept intact. The OI Order is working well and has been upheld by a DC Circuit panel. Further, IA preliminary economic research suggests that the OI Order did not have a negative impact on broadband Internet access service (BIAS) investment.

Chairman Pai said in February that he believes "in a free and open internet and the only question is what regulatory framework best secures that." Does Chairman Pai genuinely believe that voluntary commitments will work best to ensure a free and open internet?

Next Steps
The public debate over network neutrality goes back at least to 2004, when then-FCC Chairman Michael Powell, a Republican, identified four Internet freedoms. FCC Chairmen Kevin Martin (R), Julius Genachowski (D), and Tom Wheeler (D) have all tried to ensure these freedoms. Time and time again, the American people have demonstrated that they want the freedom to decide where to go and what do with their internet connection -- and not be limited by their broadband provider. Only Chairman Wheeler’s Open Internet rules -- the ones currently in place -- have survived challenges in the courts. Chairman Pai would be wise to explain how it could possibly be in the public’s interest to scrap these rules in favor of providers' voluntary commitments and handing net neutrality enforcement over to the FTC.

Chairman Pai could unveil his proposal as early as late April, which would mean an initial vote at the FCC’s May or June meeting. For the latest developments on the ongoing battle over net neutrality, be sure to follow along in Headlines.

Quick Bits
FBI obtained FISA warrant to monitor Trump adviser Carter Page (Washington Post)
Republican Reps Urge FCC to Continue Protecting Privacy (Broadcasting&Cable)
USAC Announces that Qualifying Rural Health Care Program Applicants Will Not Receive Full Funding (Benton Summary)

Weekend Reads (resist tl;dr)
Americans have mixed views on policies encouraging broadband adoption (Pew Research Center)
Disabled Americans are less likely to use technology (Pew Research Center)
A Policymaker’s Guide to Rural Broadband Infrastructure (ITIF)
Smartphones can deliver vital public services (Brookings)