Today the FCC released a draft order that would effectively repeal landmark Obama-era regulations that ensure internet service providers offer consumers equal access to online content and services.
The 210-page proposal spells the end of net neutrality – the principle that internet providers, or ISPs, should be restricted from blocking or slowing traffic to websites whenever they choose, or from charging customers extra fees to access to high-quality services, such as those streaming 4K content.
The order, if passed on December 14 during the FCC’s open hearing, would effectively abdicate the commission’s authority to regulate ISPs under Title II of the Communications Act, significantly curtailing oversight of broadband access.
Pai, who was appointed FCC chairman by President Donald Trump in January, has characterised his mission to end net neutrality as an effort to restore and improve the internet by dismantling “burdensome and unnecessary regulations” which – despite evidence to the contrary – Pai claims are responsible for deterring innovation and investment in the expansion of broadband infrastructure.
Net neutrality advocates, among them internet giants such as Google and Amazon, say the rules are necessary to prevent ISPs from becoming powerful gatekeepers to the internet. The companies fear that without net neutrality, ISPs may restrict access to services and content, or charging exorbitant fees to companies such as Netflix to ensure faster and more reliable access over their competitors.
Another fear is that internet service providers might begin chopping up the internet the way they have done pay TV television, charging individual fees to access different types of online services: News, entertainment, social media and so on.
Pai has openly criticised concerns over the death of net neutrality as “hysterical prophecies of doom”.
Specifically, his order would return broadband access to its former classification as an information service. The rules approved in 2015 under the Obama administration reclassified broadband access as a “common carrier” under Title II of the Telecommunications Act. This granted the FCC authority to prevent internet providers from entering into agreements that would slow consumer access to some website while speeding up traffic to others.
The order further seeks to “preempt” US state and local governments from enacting regulations that would supersede the federal government, preventing states from crafting their own rules to protect consumers. “Allowing state and local governments to adopt their own separate requirements, which could impose far greater burdens than the federal regulatory regime, could significantly disrupt the balance we strike here,” the order states.
“The hypocrisy is staggering,” writes Gigi Sohn, a former counsel to ex-FCC chairman Tom Wheeler. “When the FCC in 2015 voted to help consumers by pre-empting the laws of two states that prohibit communities from expanding and building their own broadband networks, Pai dissented vociferously. In this case, where the FCC is removing pro-consumer protections, Pai is delighted to preempt the states from ensuring that their citizens are protected from anti-consumer and anti-competitive practices of broadband companies.”
“Our Internet economy is the envy of the world because it is open to all,” FCC Commissioner Jessica Rosenworcel, a Democrat, said in a statement. “This proposal tears at the foundation of that openness. It hands broadband providers the power to decide what voices to amplify, which sites we can visit, what connections we can make, and what communities we create. It throttles access, stalls opportunity, and censors content. It would be a big blunder for a slim majority of the FCC to approve these rules and saddle every Internet user with the cruel consequences.”
The FCC’s current makeup puts net neutrality supporters at a significant disadvantage. The two Republicans on the FCC other than Pai typically support his positions, and they are the majority. When the new rules pass on December 14 – and without significant pressure from Republicans in Congress, it seems likely they will – we can expect to see a flurry of lawsuits that will drag this issue out into court, potentially well into 2019.
A complete version of the draft of Pai’s 210-page order is below.