The agonising wait is finally over. Today, United States FCC Chairman Ajit Pai announced his plan to dismantle net neutrality. During a speech in Washington, DC at the conservative nonprofit Freedomworks, Pai outlined his plan to roll back the 2015 Open Internet Order. The order established the principles of the open internet in US law, reclassifying internet service providers (ISPs) as “common carriers” under Title II of the Telecommunications Act; it also banned them from violating certain “bright line” rules, like blocking or prioritising traffic to certain websites.
Pai at today’s speech. Getty.
Pai said today he intends to introduce a Notice of Proposed Rule Making (NPRM) at the FCC’s May 18 open meeting. The NPRM will have three elements: Reclassifying ISPs under Title I instead of Title II, eliminating the Internet Conduct Standard, and “seeking input” on the bright line rules on blocking and prioritisation. It’s telling that Pai didn’t go into much detail about that last element — it involves the rules that most clearly prevent the worst abuses by ISPs, such as throttling traffic to their competitors or those who don’t pay more for their service. (Pai said he will release the full details tomorrow.)
The move was strongly opposed by net neutrality proponents, including the Internet Association, which represents websites and internet companies like Facebook and Google. “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 group said. A collection of 800 startups and organisations, including Y Combinator, also published a letter today opposing the rollback. And Democratic senator Ed Markey said on a conference call today that he was “ready for this fight to come”.
In a statement, the Internet and Television Association, which represents ISPs said:
Reversing the classification of internet services will not change the commitment of cable ISPs to provide an open internet experience for our customers. We do not block, throttle or otherwise interfere with consumers’ desire to go where they want on the internet. A more modern regulatory framework will not change our commitment to such practices. But consumers are best served by policies that encourage ongoing investment and innovation especially as technology changes, as network demands increase, and as we focus on closing the digital divide in every community across America.
Of course, saying we “do not block, throttle, or otherwise interfere” with traffic doesn’t provide much comfort when they’re pushing getting rid of the rules that prevent them from doing exactly that.
But back to Pai, whose speech today, besides drawing the ire of net neutrality proponents, was just a tiny bit weird. He attacked the advocacy group Free Press, one of net neutrality’s strongest supporters, and complained of a “larger movement” against “free speech”, criticising “efforts to banish those who express unpopular views online”. (He didn’t specify who — Nazis? Milo Yiannopolous? Bill Kristol?) Pai even name-checked the Drudge Report, saying, “members of the Federal Election Commission seek to restrict political speech and regulate online platforms like the Drudge Report.”
It’s also interesting that Pai chose Freedomworks, a deeply crappy but well-funded conservative organisation that fights unions and described the Affordable Care Act as the “Hindenberg of healthcare reform“, as the venue to announce this grand scheme. Pai has generally avoided emphasising his conservatism, instead trying to appear concerned about the “digital divide“. At the event, your intrepid and unusually-well-dressed Gizmodo reporter spotted attendees whose name badges identified them as employees of the Charles Koch Institute and ALEC.
dang ajit pai just name dropped the drudge report everything is fine that's normal
— Thorin Klosowski (@kingthor) April 26, 2017
Pai also turned some critics’ arguments on their head in a way that defied logic. He argued that net neutrality “accentuates digital redlining” — the practice of ISPs not building out their infrastructure to poorer areas — because it supposedly harms their investment. (Free Press was stationed outside the event handing out flyers showing the increasing capital expenditures of ISPs over the past few years, including a 26 per cent increase by Comcast.)
Pai’s approach differs slightly from the initial reports of his plan in that it focuses less on reassigning oversight of ISPs back to the Federal Trade Commission. That would have been a disaster — the FTC enforces its rules through bringing cases against violators, rather than issuing rules that prevent violations in the first place.
But keeping ISPs under FCC control unfortunately doesn’t mean the plan is any good — the overhaul of the Title II reclassification, for example, would be a disaster. Title II is the statute that allows the FCC to regulate ISPs as “common carriers,” meaning they can impose stricter standards about the service they provide. Pai said today, and has said previously, that he supports open internet principles, but not using Title II to enforce them.
But without a new law passed by Congress, Title II is really the only way that the FCC can enforce net neutrality principles. By classifying broadband service as a “common carrier” under Title II, the FCC can require much more of them — like, for example, that they have to provide service to everyone equally. When the FCC tried to introduce net neutrality regulations without reclassifying broadband providers, it was rejected by a US appeals court, which said the FCC didn’t have the authority to regulate ISPs without reclassifying them as Title II common carriers.
However, if Pai wants to enact a rule that will survive a legal challenge, he’ll have to show it isn’t an “arbitrary and capricious” reversal of policy, under the Administrative Procedure Act.
Or, as we outlined previously, it’s possible that Pai’s move to open rulemaking is intended to pressure Democrats on the Hill into making a bad deal on new net neutrality-related legislation. If the threat of a rule change does bring Democrats to the bargaining table, that too is unlikely to result in strong regulation. Any deal that can pass a Republican majority in both houses and Trump in the White House would likely be favourable to ISPs and Philip Berenbroick, senior policy counsel at Public Knowledge, told Gizmodo that “a bad deal legislatively is the worst outcome here.”
A possible approach that Pai will take to show what’s changed enough to justify this reversal? Saying that investment in broadband infrastructure has decreased since the 2015 order. That, too, might be an uphill battle, because as much as ISPs warned the order would impact them at the time, they’re also touting their investment in fibre deployment. Comcast, for example, told investors in it Q4 2016 earnings call that the company would “increase our investment in network capacity as well as our investment in line extensions to reach more customers” in the next year.
Matt Wood, policy director at the internet advocacy group Free Press, told Gizmodo the ISPs “have a very different line on Wall Street than they have on K Street” — they whine to regulators that the red tape is crushing their ability to flourish, but tell investors that they’re investing billions in infrastructure.
Today is, as Pai said, the beginning, and not the end of this conversation. Advocacy groups will likely mount a huge campaign to push public comments at the FCC (which can be done here), and ISPs and their allies will do the same. If you care about preserving the open internet, you’d better get ready to fight for it.