Net Neutrality Begins Swing Back to Deregulation
Chairman Pai Pushes FCC to Restore Internet Freedom
Since Ajit Pai became Chairman of the FCC, everyone knew that it was only a matter of time before he began to dismantle former Chairman Wheeler’s Title II stronghold over Broadband Internet Access Service (BIAS). Net neutrality now enters its roughly 13th year of contention, if you start counting at former Chairman Powell’s Network Freedom principles of 2004. This moment in net neutrality history is pivotal because Chairman Pai’s proposed rule changes may revert back to something akin to those original policy statements, and scrap the more heavy-handed rules that were a fan favorite for Democrats who considered President Obama’s 2014 political intervention in the rulemaking process a great victory for consumers.
Now that Chairman Pai has the party line on his side and the shrunken commission is still two members short, it appears as though Pai will have little problem undoing the Title II Order and returning BIAS to an “information service.” The challenges will come from the public, who have already submitted millions of comments opposing the Restore Internet Freedom proposals; from Commissioner Clyburn, who calls the Notice of Proposed Rulemaking (NPRM) the “Destroying Internet Freedom NPRM;” and from Democratic members of Congress who do not have much power at the moment. There also is pressure to hold off on adopting rules until Congress has had a chance to revisit the Telecommunications Act or pass legislation specifically on net neutrality.
Nevertheless, Pai presented his Restore Internet Freedom NPRM, which was approved 2-1 at the FCC’s May Open Meeting. The important thing to note here, is that this is just an NPRM. There aren’t any rules yet, BIAS is not reclassified as an information service yet, and nobody has “restored” or “destroyed” any internet freedom with the vote on this NPRM. The FCC released the draft NPRM to the public in late April, giving the public a chance to review and comment vociferously, especially at the prompting of late night talk show hosts, activist groups, and Democratic members of Congress.
The NPRM serves as an inquiry for all facets of net neutrality, and seeks to propose some significant changes, including:
- Revert BIAS back to an “information service” as first established during the Clinton administration, removing the Title II framework established under Obama
- Reinstate that mobile BIAS is not a commercial mobile service, and revisit the mobile broadband implications of the Title II Order
- Return authority over the privacy practices of ISPs to the Federal Trade Commission
- Inquire about allowing BIAS providers to opt to remain on Title II
- Eliminate the vague “Internet conduct standard”
- Seek comment on the “bright-line rules” of net neutrality
- Evaluate the enforcement regime
- Conduct a cost-benefit analysis, which was noticeably missing in Title II Order
Chairman Pai holds firm to the belief that the internet was not broken in 2015, and has never been broken to the extent that heavy-handed utility-style regulations were warranted. Notably, Pai explained that many small ISPs have commented and sent letters explaining how regulating ISPs under Title II has hurt their business-these small ISPs mainly consisted of fixed wireless service providers and non-profit municipal ISPs. Rate-of-return affiliate ISPs are used to Title II and did not have much of an adjustment to make when BIAS was classified Title II, but undoing the Title II Order could pave the way for alleviating burdensome requirements for small ISPs of all types.
Comment dates have not been set for the Restoring Internet Freedom NPRM, but JSI will monitor the proceeding. If you have any questions about net neutrality, please contact one of our experts by clicking the button below.