FCC chair Ajit Pai’s plan to repeal net neutrality provisions and reclassify broadband providers from “common carriers” to “information services” is an unprecedented giveaway to big broadband providers and a danger to the internet. The move would mean the FCC would have almost no oversight authority over broadband providers like Comcast, Verizon, and AT&T.
Ryan Singel (@rsingel) is media and strategy fellow at the Center for Internet and Society at Stanford Law School and the CEO/cofounder of Contextly.
For years, those broadband providers have used lawsuits and agency filings to fight FCC oversight and overturn its authority to prevent net neutrality abuses. But never in those companies’ most feverish dreams did they expect an FCC chair would propose to demolish all net neutrality protections and allow ISPs to extract tolls from every business in the country.
Even industry analysts who expected the reclassification of broadband providers from Title II common carriers to Title I information services were stunned. Following Pai’s announcement, independent cable analyst Craig Moffett sent out an email to investors entitled "Shock and Awe and Net Neutrality," writing, “We've known since the election that the FCC would reverse Title II. But we never expected this. Yesterday’s FCC Draft Order on Net Neutrality went much further than we ever could've imagined in not only reversing Title II, but in dismantling virtually all of the important tenets of net neutrality itself.”
If Congress allows Pai’s plan to pass, all that will be left of FCC oversight of broadband providers is a weak disclosure requirement: If Verizon, for example, wants to block content, charge sites to be viewable on its network, or create paid fast lanes, the company will simply have to tell its subscribers in their contract’s fine print. (Broadband providers won’t have to disclose, and the FCC won’t have control over, the sneakier ways they’ve found to mess with the internet.)
Enforcement will be left to the Federal Trade Commission, an agency that’s never enforced open internet rules and has no ability to formulate its own. The FTC won’t even be able to protect consumers against most net neutrality violations after the fact, and nor will it be able to protect consumers against greedy broadband providers.
And violations will come if Pai’s plan passes.
AT&T's Ed Whitacre summarized broadband providers’ true motivations best back in 2005: “Why should they be allowed to use my pipes?," he said. "The internet can't be free in that sense, because we and the cable companies have made an investment and for a Google or Yahoo or Vonage or anybody to expect to use these pipes free is nuts.”
Verizon echoed that sentiment in 2013 when it sued to challenge the 2010 open internet rules. It told a federal court that as an “information service” it had the right to charge online services like Yelp access fees simply to work on its network and should be able block those sites from Verizon subscribers if Yelp didn’t pay. (Verizon won that case, leading to the 2015 order and the reclassification of broadband providers as “common carriers”.)
The 2015 order, replacing the one Verizon had overturned, recognized this as a threat and prohibited ISPs from charging sites and services simply to reach their users. Pai, a former Verizon lawyer, thinks this would be innovative. Now his plan would usher in a radical upending of how the internet has worked in the US since its inception.
Every website could have to pay more to simply be online; prices for online services would likely rise as companies start to pay broadband providers to be in fast lanes, while broadband providers would find even sneakier ways to enact tolls on the internet, free of any agency able to set rules to stop them.
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Startups and their potential investors would no longer have certainty that they could compete against incumbents, as they would need lots of money simply to pay each broadband provider for access or to escape the slow lane.
Today, small and medium-size businesses rely on a myriad online business services for internal communications, sales, and accounting, to name just a few. Slack, Dropbox, Gusto, Quickbooks, and thousands more would have to pay access charges and fast-lane fees, costs they would likely have to pass to their customers.
Non-mainstream media news sources across the political spectrum would no longer be able to afford to compete in the marketplace of ideas. Even churches that now reach their members online with streaming sermons, video libraries, and online video chats, would no longer be protected from blocking or access fees.
Americans understand this and are rightly freaking out.
Since the order was released, they’ve flooded Congress with more than half a million calls, and that’s only counting calls placed through the site BattleForTheNet.com.
The citizen outrage crosses party lines; net neutrality is more popular than both parties combined. A poll this summer found that 77 percent of Americans support the current protections, including 73 percent of Republicans.
This is not surprising. History has shown that internet freedom is the new third rail of US politics.
In 2012, a bipartisan majority of Congress was dead set on passing SOPA, a law ostensibly intended to stop online copyright infringement but which would have threatened huge swaths of the internet. All conventional wisdom said it was a done deal. Then, freedom-loving people of the internet melted representatives' phone lines after a day of online action in January 2012. Even SOPA’s biggest supporters had to concede the internet killed SOPA.
When online bots poisoned the net neutrality comment period, FCC chair Ajit Pai shrugged it off.
In 2014, when the FCC set out to replace the struck-down 2010 net neutrality protections, conventional D.C. wisdom suggested that preserving net neutrality by designating broadband companies as common carriers was politically impossible.
But millions of Americans proved otherwise. When TV host John Oliver pleaded with viewers to contact the FCC in support of net neutrality, they responded at such volume that the agency’s website crashed. That resulted in a win: limited but well-defined FCC net neutrality rules which, for the first time in FCC history, survived court challenges.
Then in March, Congressional Republicans used a little-known legislative tool to repeal FCC rules that required broadband providers to get permission to track their subscribers’ every moves online for advertising purposes.
That vote blew up in their faces when Republicans came back to their districts and held town hall meetings, where the politicians’ arguments that they voted to strike down the rule because it didn’t apply to online companies like Google did little to appease voter anger. That’s already likely to be an issue in the 2018 midterms.
So far senator Susan Collins (R-Maine) is the only Republican member of Congress who has explicitly criticized Pai’s plan and has come out on the side of the internet.
As the appointed head of an independent agency, Pai is technically free to ignore the American public. He’s done just that, saying that he doesn’t care about public sentiment. Pai did nothing when online bots poisoned the net neutrality comment period and posted anti net neutrality submissions using Americans’ names without their permission or knowledge. Instead of taking this corruption of a democratic process seriously, Pai shrugged it off.
And while the FCC held multiple public hearings with participation from experts during previous net neutrality actions in 2008, 2010, and 2015, this time around, Pai didn’t hold a single one.
Voters know Republicans in Congress are the only ones who can stop Pai, and they should keep calling. If enough Republicans tell Pai to stop, he will likely back down. After all, Congressional pressure has stopped the FCC before.
Members of Congress face a choice: They can side with their constituents, who overwhelmingly want them to defend the greatest communication and innovation platform ever invented, or support one of the most blatant anti-consumer corporate giveaways in modern history.
Some lawmakers believe the current FCC protections are the right solution, and others think that Congress should step in with a legislative solution to settle the matter once and for all. But all should agree that Pai’s plan to repeal the protections without a replacement is reckless and unnecessary.
There’s no crisis Pai needs to save us from.
The only crisis looming is the one that Pai’s plan will create for entrepreneurs, free markets, free speech, and for Republican members of Congress running for re-election who didn’t make the choice to stop Pai when they had the chance.
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