Terming Title II, which attempted to establish a foundation for net neutrality, nothing more than a political maneuver, Trump-appointed FCC chairman Ajit Pai claimed the agency was never interested in Title II until Obama’s White House released a video via YouTube urging it to do so. “The FCC was not moving towards Title II regulation before the White House announcement,” he said. “No, it was dragged kicking and screaming onto that path.”
In a paper titled “Myths vs. Facts,” the commission outlines its new stance on net neutrality, and why our perceptions of Title II are supposedly wrong. Leading with “the Internet was free and open prior to the FCC adopting Title II regulations in 2015,” it goes on to outline how Title II has led to less competition, investment and parity in the world of Internet Service Providers (ISP). It also says Title II was bad for privacy:
Title II put Americans’ online privacy at risk by stripping the Federal Trade Commission of its jurisdiction over broadband providers’ privacy and date security practices. Ending Title II will restore the FTC’s authority and return to a tried-and-true approach that successfully protected consumers’ privacy prior to 2015. It will put our nation’s most experienced and expert privacy agency back on the broadband beat.
It’s worth noting that in a time of “repeal and replace,” the FCC is simply asking that Title II be repealed. There is no new plan to correct the current course; it just wants to dial everything back and return to a “light-touch regulatory framework” method of governance.
The FCC is Starting a Fight
At its May meeting, the FCC will vote on a “Notice of Proposed Rulemaking,” which is the first step in this process. If the commission votes favorably, as expected, it will then entertain public input.
The public is already making itself heard. In a joint open letter, more than 800 “startups, innovators, investors, and entrepreneurial support organizations from all 50 states” told the FCC how rebuking Title II actually would harm innovation, and could lead to many smaller entities closing up shop.
In cooperation with 170 organizations, the ACLU took direct umbrage with the FCC’s new “facts,” detailing specifically how Title II helps competition, innovation, free speech and equality of access to the Internet. It cites a 2016 report noting that ISP revenue and capital expenditures were up under Title II.
— DuckDuckGo (@duckduckgo) April 27, 2017
In his farewell speech, Pai’s predecessor Tom Wheeler laid the groundwork for resistance. He said any proposal for net neutrality had to have an agency with the full authority to protect consumers, rules that can evolve to meet the needs of a changing technological landscape, and consistent guidelines so ISPs know their boundaries. “Passing legislation or adopting regulations without these key provisions and calling it net neutrality would be false advertising,” Wheeler said.
Looking back to the time Pai wants to return us to, we see exactly why Title II exists. ISPs lied about what unlimited data was, throttled Netflix because it was able to prioritize services they owned, and misled everyone about that throttling. They employed arbitrary data caps and argued they weren’t public utilities, even while benefitting from being classified as such.
The FCC’s rollback plan also peels away the “Internet Conduct Standard.” This allows the FCC to govern zero-rated services, the current gray area that providers like T-Mobile call home. It’s where that company’s Binge On service lives, which allows it to prioritize music and video services that won’t count against a customer’s data cap. Pai argues this is a feature, not a bug:
The FCC used the Internet conduct standard to launch a wide-ranging investigation of free-data programs. Under these programs, wireless companies offer their customers the ability to stream music, video, and the like free from any data limits. They are very popular among consumers, particularly lower-income Americans. But no—the prior FCC had met the enemy, and it was consumers getting something for free from their wireless providers. Following the presidential election, we terminated this investigation before the FCC was able to take any formal action. But we shouldn’t leave the Internet conduct standard on the books for a future Commission to make mischief.
Pai, perhaps along with the rest of the FCC (we’ll find out after the aforementioned vote), feels woefully out of touch. If you need the TL;DR version, he thinks companies will self-regulate with the user’s best interest in mind. The FCC is ignoring the fact that, when ISPs had the chance to do just that under “light-touch” regulation, they sometimes acted nefariously.
It may seem innocuous, but citing a 2016 study noting Title II had no tangible adverse effect may have been the ACLU’s way of drawing a legal line in the sand. As pointed out by Wired, the Administrative Procedure Act prevents agencies like the FCC from flip-flopping when political parties gain or cede control in government. Because of that, Pai may not have a leg to stand on when it comes time to actually pull the plug on Title II, because the ACLU will almost certainly lead the resistance into court.
Pai will play this out, though. We don’t know the end result, but his end-game is almost definitely harmful to consumers while benefitting business. Title II exists for good reasons that just don’t seem to resonate with Pai and his colleagues.