When the FCC adopted the Open Internet Order (most people call it “net neutrality”) in 2015, then-Commissioner Ajit Pai railed against the idea. Now that he’s FCC Chairman, Pai is already quietly working to roll back those rules.
This is according to the Wall Street Journal, which spoke with some ever-popular “people familiar with the matter.” They claim that Pai met this week with telecom industry trade associations to work out preliminary plans for rolling back net neutrality.
As a refresher, the 2015 Open Internet Order created three bright-line rules:
- Broadband providers may not block access to legal content, applications, services, or non-harmful devices.
- They may not impair or degrade lawful internet traffic on the basis of content, application, services, or any classes thereof.
- They may not favor some internet traffic over other internet traffic in exchange for consideration of any kind — no paid prioritization or fast lanes.
Pai has claimed that since 2015, having the rule in place has harmed investment in broadband deployment, upgrades, and technologies and has hurt the bottom line of the companies that provide it. However, a look at the publicly available financial data for 2016 and 2017 gives no indication that broadband providers have cut back on investment.
Details on the new proposed plan are still vague, but the core idea appears to be sticking to the general principle of non-discrimination in a vague sense while also shifting enforcement authority to the FTC.
That, however, would require basically walking away from the entire rule, and fundamentally restructuring the law again.
As we explained way back in 2014, the old Open Internet Rule lost in court because its legal underpinnings weren’t really very sound. The way that the FCC could create rules with a strong legal foundation was to reclassify broadband services as Title II telecommunications companies, common carriers.
Which brings us back to the FTC: The FTC Act, the law that gives the Commission all its authority, has a specific exemption in it saying that the FTC cannot regulate unfair or deceptive practices when it comes to banks, credit unions, or common carriers — including your phone company and your ISP.
That means that in order to let the FTC take over the job of keeping the ISPs in line, broadband providers would have to be no longer classified as common carriers — which, in turn, means scrapping the entire underpinning that let a strong net neutrality rule be crafted in the first place.
Sources say that Pai wants ISPs to voluntarily commit to open internet principles in writing in their terms of service. Having those written as terms to consumers would give the FTC authority to go after companies that violated their TOS, provided that those companies were not classified as common carriers anymore.
Pai is “inching closer to making his plans public,” the WSJ says, possibly as early as this month, with an eye to voting on it in the Commission’s May or June Open Meetings.
Lawmakers and consumer advocates have already been gearing up to fight back. In Feb., a group of Senators led by Ed Markey (MA) vowed to protect net neutrality.
If the Commission acts to reverse course, Markey said then, the public “will unleash a poltical firestorm [making] 4 million look like a minuscule number of people who care about it.”