Today FCC Chairman Ajit Pai will unveil his plan to undo the 2015 network neutrality rules, which proscribe Internet Service Providers( ISPs) like Comcast, AT& T and Charter from favoring or discriminating against any online applications, content and services. And while Pai claims he wants to preserve an open Internet , nobody should be fooled. Pai has been a long-time rivals of net neutrality and that isnt going to change. Whatever street he takes will harm consumers and innovators and benefit multibillion dollar cable and Internet companies
Recent have said that Pai will first propose that the FCC reverse its decision to classify ISPs as essential telecommunication services under Title II of the Communications Act of 1934. That decision devoted the FCC the legal grounding it needed to adopt strong rules prohibiting discrimination and paid prioritization.
Reversing the Title II classification will likely be coupled with a proposal to repeal the current rules. But what will replace them? Few expect Pai to answer that question tomorrow. I realize three options , none of which will ensure an open Internet free of gatekeepers.
Two weeks ago, the press was that Pai would recommend that the 2015 rules be replaced with voluntary commitments by ISPs that they would build part of their terms of service. Those commitments would then be enforced by the Federal Trade Commission.
This would amount to a revolutionary abdication of the FCCs responsibility to protect consumers and competition. While Pais Republican predecessors, Michael Powell and Kevin Martin, didnt favor rules, they believed the FCC had a role to play in overseeing the broadband market, including ensuring non-discriminatory access to the Internet. Chairman Martin even ruled against Comcast when it blocked attempts to download lawful content on peer-to-peer networks( this decision was overturned by a federal court ). Coupled with the classification reversal, Pais plan would leave the FCC the panel of experts bureau tasked with overseeing communications networks without any role when it comes to the most important network in history. This would leave the FCC powerless to prohibit fraudulent billing, price gouging and practises that violate consumers privacy.
Second, , Pais plan wont project. ISPs can and do change their terms of service at any time; these commitments wouldnt bind new ISPs, and Pai wont be able to extract commitments from each of several hundreds of small-scale rural ISPs that exist. In addition, because the FTC is merely an enforcement agency and cant make rules, aid will be selective and will occur only after consumers and innovators are harmed.
Pai could instead move forward with weaker rules grounded in weaker legal authority. Reclassifying broadband ISPs as unregulated information services under Title I of the Communications Act would prevent the adoption of rules that flatly prohibit discrimination or paid prioritization.
The only Title I-based rules who are able to pass muster in the courts would have to permit discrimination, paid prioritization and individual the talks between online companies and ISPs. In that vein, Pai has floated the idea that ISPs could be prohibited from engaging in harmful paid prioritization. Call those rules what you crave, but “they il be” not real net neutrality.
Imagine if you own a small start-up and you have to negotiate with Comcast for cab. How could you afford it? Who would invest in you? Its precisely that fear that resulted over 800 start-ups, entrepreneurs and investors in all 50 the countries to asking Pai to save the current rules.
Finally, Pai could reclassify ISPs, repeal the rules and replace them with NOTHING. Last week his Republican colleague Commissioner Mike ORielly he imagines the voluntary commitment suggestion likely wont project and that he imagines rules are unnecessary. So Pai may not have 2 votes for even the most minimal protections.
The bottom line
The battle over net neutrality has raged on for over 15 years. Eventually, after three tries, a federal court preserved the current rules, which are wildly popular. Now the Trump FCC am willing to take them away and replace them( or not) with something that will fall far short of real net neutrality and will lead to many more years of uncertainty and litigation.
As has become commonplace for this FCC, the winners in Pais plan will be Comcast, AT& T, Charter and Verizon, the companies you pay handsomely for Internet access. These companies have few if any challengers, have become increasingly consolidated over the past five years, and are seeking to grow even larger. Do you want to control your Internet experience, or is it you people want huge ISPs to control it like your cable operator controls your cable service? Because the rules make you control, and Pais plan will hand that control to ISPs.
The good news is that weve assured what happens when Americans oppose efforts to remove hard-won protections. The successful mutiny against the Affordable Care Act repeal is the most recent example. The Trump FCCs great efforts to dismantle net neutrality will be a long, depicted out battle over many months and well need your participation throughout. You can start today to with Pais plan, both to the FCC and as important, to your representatives in Congress.
Gigi Sohn is an Open Society Foundations Fellow and a Mozilla Fellow. She served as Counselor to FCC Chairman Tom Wheeler from November 2013 to December 2016. More on Gigi can be found here.