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Why The Highly Partisan FCC Decision Won’t Last Long

Chairman Pai’s power play proved successful, but the order passed by the commission Thursday is already under threat.

Why The Highly Partisan FCC Decision Won’t Last Long
Federal Communications Commission Chairman Ajit Pai [Photo: Alex Wong/Getty Images]

The Federal Communications Commission voted Thursday to roll back network neutrality rules and reclassify the internet as a Title I “information service.” In doing so the FCC, in one fell swoop, abdicated its own power to make sure the Comcasts and Verizons of the world treat all internet traffic equally.

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The agency’s Republican leader, chairman Ajit Pai, has been on a crusade to roll back the safeguards since he was appointed to his role by Donald Trump. Actually, Pai was a (dissenting) commissioner in 2015 when the FCC–then led by Tom Wheeler–passed the Open Internet Order, classifying the internet as a Title II “telecommunications service” to be regulated something like a public utility. It also gave the FCC full authority to act as net neutrality sheriff.

While everybody agrees the internet should be “neutral” in how it carries content, there are very good arguments for and against the classification of the internet as a Title I information service. In both cases, they bemoan the future “costs” of one regulatory approach or another. The cost of network neutrality breaches that might occur. The cost of innovative companies that might not be born.

But aside from the core policy debate, the way Pai achieved his goal today smells bad. And, I’d argue, it’s not going to hold up in court, or, likely, in the Congress.

For one thing, it wasn’t very democratic. Big regulatory changes are subject to public comment. The law says those comments are to be carefully scrutinized, and that their substance is to inform the actions of the commission. But in this case Pai and the commission seem to have disregarded the overwhelming sentiment in the comments to preserve the network neutrality rules. The comment system itself was plagued with bogus comments and possibly a hack, which the commission seemed to have used as cover for disregarding the millions of legitimate comments.

The FCC’s move today is consistent with the Trump administration’s deregulatory agenda. It also felt capricious–another example of the wildly partisan, winner-takes-all politics of the Donald Trump era. It’s an environment that’s been stewing in Washington since the arrival of Newt Gingrich in the early 1990s, and it’s now infected an FCC that’s long been known for its bipartisan way of doing business.

“FCC chairmen have always followed the mandate in the law that the FCC should act on behalf of the people and act as a steward of the internet,” said Congresswoman Anna Eshoo, a Democrat who represents Silicon Valley. “Michael Powell, a Republican, laid out the four internet freedoms–the freedom to access legal content, the freedom to run apps, the freedom to attach personal devices, and the freedom to obtain service plan information,” Eshoo points out. “Following Powell, Kevin Martin, a Republican, turned the internet freedoms into the ‘four principles’ and added the entitlement to competition to the list.” Martin said the commission would incorporate the principles into all their policymaking, Eshoo explains.

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There was a good reason for bipartisanship at the commission. Nobody wants an FCC whose votes are always 3-2 along party lines (like the one today), which is an FCC that’s vulnerable to being reversed when the political winds change direction.

In the best scenario, Pai’s order will last until a new Democratic administration, and a new Democratic FCC chairman arrive.

More likely, in the nearer term the order will be attacked in court. And there’s good reason to believe a court challenge would be successful. The 2015 Open Internet Order that established net neutrality rules was challenged by the big ISPs and their trade groups in the U.S. Court of Appeals of the District of Columbia in 2015. The court upheld the FCC’s power to impose the net neutrality rules, and, in its majority opinion, supported the idea of regulating the internet as a Title II information service.

Already, Attorney General Eric Schneiderman of New York (who conducted an investigation into fraud in the FCC’s public comment system) has announced plans to lead a multi-state lawsuit to reverse Pai’s order.

Media and consumer groups are already lining up to file suit.

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Pai’s rollback of the Open Internet Order could also trigger Congress to jump in and make law. At least two members of Congress have announced they will introduce measures that would reverse the order.

A couple of days before the vote, Senator John Thune (R-South Dakota) called for Senators from both parties to work with him on a legislative solution. And Republican Senator Mike Coffman of Colorado, after not getting a response to a letter to Ajit Pai, announced he will introduce his own net neutrality bill.

So the rollback of the network neutrality rules, at least on paper, would seem to benefit AT&T, Verizon, Comcast, and Charter, but it must seem to them like an uneasy victory at best. The network neutrality rules are gone but the regulatory situation remains unstable, unpredictable, and ISPs and their investors abhor instability.

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Perhaps the net neutrality issue will prove to be one of those issues that–especially in the current political climate–appointed officials like FCC commissioners won’t be able to decide.

This whole political and regulatory dance we’re witnessing around net neutrality might be the country’s somewhat clumsy way of finding rules that guarantee a free and fair internet, yet don’t regulate the ISPs out of business (selling access to the internet isn’t a hugely profitable business to begin with). Pai’s power play today may come to be seen as just a hiccup in the process.

In a wider sense we may be coming to grips with the internet’s young age and the enormity of its influence in all parts of life. Something that important, perhaps, shouldn’t be left to self-regulation by the ISPs; more of the U.S. may be coming around to the idea that we need rules for the internet codified in law and an FCC empowered to enforce them.

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