The Republican-dominated Federal Communications Commission and its chair, industry-adjacent hack Ajit Pai, have been charging towards a vote to repeal Barack Obama-era net neutrality rules on Thursday that seems all but guaranteed to result in a victory for ISPs. Part of the plan involves cutting a deal with ISPs to have them put net neutrality guarantees in their service agreements and then pass off any enforcement to the Federal Trade Commission, which regulates consumer protection and anti-competitive marketplace behavior.
This plan, as detailed in a draft agreement between the two agencies on Monday, is nonsensical bullshit designed to give thin cover to the immensely unpopular decision to abandon the open internet rules. What it essentially does is set up a system in which ISPs pay lip service to the idea of net neutrality, though as Reuters noted, those promises will not be enforced by any regulatory authority. Then, as soon as those ISPs inevitably begin abusing their power by changing their terms of service and implementing paid prioritization programs, the FCC and FTC will simply verify that ISPs are technically disclosing the various ways in which they are abusing that power somewhere in those terms of service.
The underlying rationale seems to be that competition will take care of the problem, because surely any ISP that abuses its market power would lose customers. (In other words, the underlying rationale is deeply stupid.)
ISPs are by and large almost cartoonishly evil, failing to deliver good service, and already despised by consumers. Basically, all the agreement does is allow Pai to pass the buck for his plan to let them “regulate themselves” to the FTC, which does not want to be involved in the first place.
Earlier this month, FTC commissioner Terrell McSweeny wrote an editorial in Quartz explicitly saying that the agency “does not have specialized expertise in telecommunications.” McSweeny warned that for millions of American consumers there is little to no telecom competition for the FTC to regulate in the first place. She added that it would be difficult for the agency to detect deceptive or unfair business practices, that it may ultimately lack the jurisdiction or legal authority to challenge either, and that the FTC’s model of after-the-fact enforcement in court “is not a substitute for clear preemptive rules”:
During that time, the dominant ISP could continue to discriminate against its rival, potentially driving it out of business. Even if the FTC were ultimately to prevail, we couldn’t resurrect the dead rival. Nor could we go back in time and undo the harm to consumers or to the competitive evolution of the marketplace. At the end of the day, the dominant ISP might lose the antitrust suit and yet still wind up better off.
McSweeny also noted that she believed there’s a possibility Pai is simply setting up the FTC to be the fall guy when the ISPs begin forcing customers into walled gardens.
This couldn’t possibly be a more obvious ploy to eviscerate the FCC’s enforcement powers at the behest of a powerful lobby that wants to wring every last penny out of consumers’ pockets. But something tells me Pai is still feeling smug about how clever he thinks it is.