As expected, the Federal Communications Commission voted 2-1 this morning to move forward with Chairman Ajit Pai’s plan to roll back “net neutrality” rules that currently prevent internet service providers from having any say in what you see or do online.
Today’s vote is just the first major step in what will likely be a lengthy process involving at least one public commenting period, input from affected parties, and months of writing up a final version of the new regulation.
The FCC’s public commenting system has already been slammed with responses by people concerned with the rollback plan, including hundreds of thousands of anti-neutrality comments that are identical and appear to use names of individuals whose identities were collected in unrelated data breaches.
What the FCC voted on this morning is Chairman Pai’s proposal, which explicitly calls for undoing the Commission’s 2015 decision to reclassify broadband internet access (including wireless) as a Title II piece of vital telecommunications infrastructure.
Supporters of Pai’s proposal, like Verizon, have argued that removing Title II oversight does not equate to “killing” net neutrality, but they are glossing over both what else Pai proposes in the regulation and the ramifications of undoing Title II.
See, in addition to calling for the end of Title II, Pai’s proposal asks whether the FCC should consider dropping or revising its “bright line” rules for net neutrality.
These are the rules that prevent internet service providers from blocking or slowing down your access to certain websites or online services. So Comcast, which is losing pay-TV customers to Netflix and other streaming services, can’t try to make the competition less attractive by slowing down your video stream. Similarly, the rules also bar ISPs from prioritizing access to sites. Thus, Comcast — a large stakeholder in Hulu — can’t give its users super-fast access specifically to that streaming service.
Here’s the big problem: Even if Pai, et al, decide to keep these rules, without Title II they can’t enforce them. That’s not just theorizing. In 2014, a federal court threw out the 2010 version of the net neutrality rules because the Commission lacked legal authority to tell ISPs what to do with data. In making that ruling, the court told the FCC that the only way it could enact and enforce these neutrality rules would be to reclassify broadband as Title II.
Thus, it’s effectively irrelevant where Pai’s proposal comes down on the neutrality rules. If the FCC ultimately reverses the Title II classification, those rules would be pointless and unenforceable.
Industry lobbyists and some providers now claim to support the concept of the neutrality rules, saying they just don’t want the Title II classification. This is like saying “I will obey the speed limits if you take away police officers’ ability to give me a ticket when I don’t obey them.”
In spite of their statements on corporate blogs or Twitter posts, no company has been willing to put . The fact that cable and wireless companies aren’t willing to actually commit to rules they claim to support tells you all you need to know about their actual feelings.
Commissioner Mignon Clyburn, the sole vote against today’s “Restoring Internet Freedom” Notice of Proposed Rulemaking (NPRM), said before the vote that the proposal should be renamed the “Destroying Internet Freedom” NPRM.
“It contains a hollow theory of trickle-down internet economics, suggesting that if we just remove enough regulations from your broadband provider, they will automatically improve your service, pass along discounts from those speculative savings, deploy more infrastructure with haste, and treat edge providers fairly,” said Clyburn. “It contains ideological interpretive whiplash, boldly proposing to gut the very same consumer and competition protections, that have been twice-upheld by the courts.”
Clyburn took big issue with industry lobbyists’ claim — often repeated by Pai without any apparent analysis of his own — that net neutrality has harmed broadband investment.
“I have yet to see a credible analysis that suggests that broadband provider capital expenditures have declined as a result of our 2015 Open Internet Order,” said Clyburn. “But of course, that does not keep those dead set on dismantling open internet protections as we know them from repeating the same tired, unproven talking points.”
While telecom lobbyists repeatedly make this claim of harm to investment, Clyburn points out that none of the ISPs will actually tell investors that they are investing less because of neutrality.
As for the argument that broadband should no longer be classified as a Title II “telecommunications service,” but as the more lightly regulated “information service,” the Commissioner countered, “Just what are consumers purchasing, when they sign-up for broadband, if not the ability to transmit and receive?”
In his remarks before today’s vote, Chairman Pai questioned the need for the neutrality rules.
“The Internet wasn’t broken in 2015. We were not living in a digital dystopia,” he explained. “Nonetheless, the FCC that year succumbed to pressure from the White House and changed course. Even though the FCC couldn’t find any evidence of market failure, it turned its back on almost two decades of success… These utility-style regulations, known as ‘Title II,’ were and are like the proverbial sledgehammer being wielded against the flea—except that here, there was no flea.”
Pai also repeatedly called for a return to Clinton-era light-touch regulation of broadband. However, as Jon Brodkin recently pointed out for Ars Technica, an actual return to those late-’90s rules would require a heavier regulatory hand, not lighter.
The Chair did pledge to be more transparent than previous FCC Chairs about this rulemaking process, noting that his proposal has been available online for several weeks.
“On my watch, any order that we may adopt in this proceeding will also be made widely available well before a vote is called,” said Pai. “You may agree or disagree with what the FCC is doing, but you have and will be able to see what it is we’re doing and why.”
In response to today’s vote, our colleagues at Consumers Union — who have long supported the neutrality rules — expressed their disappointment.
“Protecting net neutrality means preserving the internet as it was designed — a free, open platform for all that has spurred tremendous competition and innovation,” said Jonathan Schwantes, senior policy counsel for Consumers Union. “Eliminating the Open Internet Order takes away the internet’s level playing field and would allow a select few corporations to choose winners and losers, preventing consumers from accessing the content that they want, when they want it.”
Before this morning’s hearing, former FCC Commissioner Michael Copps, addressed pro-neutrality demonstrators outside FCC headquarters.
“I’ve never heard such a bunch of spurious arguments, distorted history, and just plain rubbish as Chairman Pai and his big industry allies have put forth to sustain their totally untenable argument against an open internet,” said Copps, now a special advisor to Common Cause. “The majority at the Commission has invited a few telecom giants to design and control our communications future and relegates consumers and innovators to passive recipients of what the big boys deign to provide us. This is exactly the opposite of how the internet was supposed to function, with citizens empowered to frequent the sites and services of their choice – not subject to corporate censorship or slow lanes.”