New FCC chair Ajit Pai has been clear that he intends to take a “weed whacker” to net neutrality regulations, but he’s been very reluctant to open up about how exactly he’s going to go about slicing them to bits. Last week, several outlets reported that Pai is finally gearing up for the fight, but no matter how badly Mr. Weed Whacker wants to dismantle net neutrality, he’s got quite a battle ahead of him.
Net neutrality is the principle that internet service providers should provide equal access to all lawful content on the internet, meaning no blocking sites and no speeding up or slowing down traffic to certain sites depending on whether they’re a competitor or not, for example. That isn’t just an abstract threat: Comcast really did slow down traffic to Netflix a few years ago until Netflix paid the company to restore full speeds. Unsurprisingly, rules protecting net neutrality have been opposed by internet service providers (ISPs) and their trade groups, and supported by websites like Netflix and Google and their trade groups. Generally, ISPs have argued net neutrality rules “stifle innovation” and force them to increase costs. Net neutrality’s supporters, meanwhile, argue that net neutrality is necessary to preserve the open and democratic character of the internet, and warn that without strong net neutrality rules, “ISPs can prevent users from visiting some websites,” or “even redirect users from one website to a competing website.”
The basic principles of net neutrality were enshrined in law by Obama’s FCC in 2015 when it issued the Open Internet Order. There are two basic bits to this. First, the order reclassified broadband providers as “common carriers” under Title II of the Telecommunications Act, which took them out of Federal Trade Commission (FTC) jurisdiction and put them under the FCC’s purview. Common carriers are services that carry traffic “without discrimination or interference, like telephone service.” (This is why you often hear that the order classified ISPs as utilities. That description isn’t quite accurate, but it is basically right.) Second, the order established “bright line” rules about things internet providers couldn’t do, such as paid prioritization or blocking for certain websites.
According to Reuters, Pai’s plan would involve overturning the classification of broadband providers as “common carriers” under Title II of the Communications Act, which would return regulatory oversight of ISPs to the FTC. Pai also hopes to get ISPs to sign a voluntary agreement not to abuse their their control over your internet in the absence of net neutrality regulations.
Unfortunately, Pai hasn’t deigned to tell the ol’ regular public, or really anyone who isn’t a lobbyist, many details about the plan yet. It was reportedly outlined in a meeting with telecom trade groups last week, but none of those groups have filed anything with the FCC about what was discussed. From what’s been reported, it seems the strategy resembles one outlined by broadband industry-and-Koch-brothers-funded think tank TechFreedom in November, when its president told PC World that the industry would likely promote a voluntary agreement plan promising no blocking of traffic, with FTC, not FCC, enforcement. Uncanny!
Even if ISPs signed onto a voluntary agreement, putting ISPs under FTC jurisdiction would essentially mean that nothing could be done to stop abuses until they’ve already happened. The FTC enforces rules through court cases against violators, while the FCC seeks to stop abuses through preventative rules. And any enforcement would probably happen years after abuses come to light—the FTC’s case against Vizio for spying on customers’ viewing habits in 2014, for example, was settled in February of this year. The Democratic commissioner on the FTC, Terrell McSweeny, told Ars Technica this week that the FTC would struggle to enforce net neutrality principles because it’s “not a very big agency,” and “can’t act on every single complaint.”
And a voluntary agreement with ISPs, as you might imagine, would lack teeth. Josh Stager, Policy Counsel at the Open Technology Institute, told Gizmodo the idea of such a voluntary agreement was a “joke” and a “bait-and-switch.” If ISPs violated their voluntary promises, customers would lack real recourse—not just because so few Americans have a choice of broadband provider, but because most broadband contracts include a mandatory arbitration clause, which makes it “virtually impossible” to participate in class action lawsuits against ISPs. Kate Forcsey, Government Affairs Associate Counsel at Public Knowledge, told Gizmodo that this kind of agreement is tantamount to parents telling children there will be a bedtime, “but you get to choose when that bedtime is” and “we’re not going to check if you actually go to bed when you say you will.”
Despite having a solid 2-1 majority on the FCC in his favor and the backing of the immensely powerful ISP lobby, Pai will still have a tough time getting this done. Rolling back the Title II classification would likely require a rulemaking proceeding, which involves enduring lengthy comment period—when the Open Internet Order was under consideration in 2015, the agency was flooded with a record 3.7 million comments, the overwhelming majority of which supported net neutrality regulations. If that happens again, Pai could legally ignore all those comments, but it would make it politically harder for him and for net neutrality’s opponents to steam ahead. Gigi Sohn, a former counsel to ex-FCC chairman Tom Wheeler, told Gizmodo that “all hell is going to break loose” if Pai does open up the rollback to a full proceeding of the commission, comments and all. As she told the Wall Street Journal last week, protests over rolling back net neutrality could be even bigger than the fight over SOPA-PIPA, a widely-hated anti-piracy bill that died due to public outcry in 2012.
Another hurdle for Pai is Chevron vs. NRDC, a relatively obscure court case, which established a principle known as “Chevron deference.” That means courts will generally defer to an agency’s interpretation of a vague statute—in this case, the FCC’s interpretation of the Telecommunications Act, when it reclassified internet providers as common carriers.
That means for Pai to overturn net neutrality through FCC rulemaking, and for that rule to stand up in court after an inevitable challenge by proponents, he’ll need a good argument for why the FCC was wrong in 2015 to reclassify broadband, or to show that market conditions have changed enough to warrant reclassification. Open Technology’s Stager said that’ll be a tough argument to make, because “realistically, nothing about the nature of broadband service has changed in the past two years. Practically speaking, the only change is that we have a new administration.” Having a new president isn’t enough to make that argument. Sohn told Gizmodo that she thinks a Title II reversal only has about a 25 percent chance of success if it comes to a court case.
Not exactly. After all, why would Pai go with such a risky strategy? Why waste time and political capital on an unpopular rule that’s likely to be overturned? Pai is a smart man; surely he knows this? That’s why some—including Stager, former FCC counselor Sohn, and telecom sources who spoke to Bloomberg in February—suggest that Pai’s plan might actually be a ploy to pressure Democrats into compromising on net neutrality legislation in Congress.
There’s been chatter for a while—particularly from Commerce Committee chair and Republican senator John Thune—about passing a bill through Congress to “codify” net neutrality principles with new legislation. In January, Thune hinted at pressuring Democrats, saying, “the threat of a new Republican-led FCC nullifying the rules could help bring Democrats to the negotiating table.” At least one Senate Democrat, Sen. Bill Nelson of Florida, has already said he supports a bipartisan legislative fix.
It’s a smart play for opponents of net neutrality. Having a Republican majority in both houses means it’s very likely that any law would be much more favorable to ISPs than the 2015 FCC order was. Most people who advocate for new legislation about net neutrality legislation are opponents, like TechFreedom, which once said net neutrality regulation was “probably illegal.” That should tell you a lot about whether legislation is likely to favor ISPs or consumers.
But there’s hope for net neutrality advocates. For a start, it’s clear Pai knows that net neutrality is a politically touchy issue, and that supporters are well-organized and very, very loud. That’s why he has always said he supports net neutrality, just not Title II, which, coincidentally, is the exact position of the main ISP lobby group: Back in 2015, when the rules were passed, the Internet and Television Association (NCTA) said its decision to appeal the rules actually had “nothing to do with net neutrality.” Pai was on the FCC when those 3.7 million comments poured in; he knows that it’ll be a hard sell. Pai may even have ambitions to run for political office, according to Stager, and he knows that being “the face of Comcast and AT&T” isn’t the best way to start down that road.
You’d be forgiven for being terrified about what’s going to happen to net neutrality after the the bill overturning ISP privacy rules passed so quickly; most Americans had no idea it was even being debated until it was already too late. Those rules were overturned using the Congressional Review Act, meaning the bill didn’t have to be debated in committee and only had to get 50 votes to pass. But a net neutrality bill can’t be done through this fast-tracked method, because the CRA only applies to rules enacted in the last six months of an administration; they can’t just take it out and shoot it in the yard at 4am. The longer it’s debated, the more time there is for advocacy groups to rally public opinion and action against the bill. If we’re lucky, Democrats might just figure that out.