FCC Chairman Ajit Pai released his proposal to kill net neutrality today, and while there’s a lot to be unhappy with, it’s hard not to be taken with the brazenness of his argument.
Pai thinks it was a mistake for the FCC to try and stop Comcast from blocking BitTorrent in 2008, thinks all of the regulatory actions the FCC took after that to give itself the authority to prevent blocking were wrong, and wants to go back to the legal framework that allowed Comcast to block BitTorrent. Seriously, it’s all right at the top (it’s long, but read my emphasis in bold):
14. In the 2008 Comcast-BitTorrent Order, the Commission sought to directly enforce federal Internet policy that it drew from various statutory provisions consistent with the Internet Policy Statement, finding certain actions by Comcast “contravene[d] . . . federal policy” by “significantly imped[ing] consumers’ ability to access the content and use the applications of their choice.” In 2010, the U.S. Court of Appeals for the D.C. Circuit rejected the Commission’s action, holding that the Commission had not justified its action as a valid exercise of ancillary authority.
[Bullets 15, 16, and 17 are the history of the FCC first trying to pass rules under Title I, Verizon winning a lawsuit in which the court said the rules would have to be under Title II, and then passing the rules under Title II.]
18. In May 2017, we adopted a Notice of Proposed Rulemaking (Internet Freedom NPRM), in which we proposed to return to the successful light-touch bipartisan framework that promoted a free and open Internet and, for almost twenty years, saw it flourish. Specifically, the Internet Freedom NPRM proposed to reinstate the information service classification of broadband Internet access service. The Internet Freedom NPRM also proposed to reinstate the determination that mobile broadband Internet access service is not a commercial mobile service. To determine how to best honor the Commission’s commitment to restoring the free and open Internet, the Internet Freedom NPRM also proposed to reevaluate the Commission’s existing rules and enforcement regime to analyze whether ex ante regulatory intervention in the market is necessary. Specifically, the Internet Freedom NPRM proposed to eliminate the Internet conduct standard and the non-exhaustive list of factors intended to guide application of that rule. It also sought comment on whether to keep, modify, or eliminate the bright-line conduct and transparency rules.
There are pages and pages of legal argument after this, all of which people will argue about endlessly in the weeks ahead of Pai’s planned December vote, but really, it’s all right there. The FCC couldn’t stop Comcast from blocking BitTorrent in 2008, it changed the rules so it would have that power, and Pai wants to undo that change and give Comcast the power to block internet services like BitTorrent once again. Later, Pai says Comcast blocking BitTorrent could have been challenged under antitrust and consumer protection laws on a case-by-case basis, but fails to say who, exactly, would bring that suit against Comcast and bear the costs. The FTC? Groups of BitTorrent users? And case-by-case rulings mean the precedents don’t have much weight. We had a rule, but Pai is saying we should have more lawsuits instead.
Later in the proposal, Pai says his rules will “significantly reduce the likelihood” ISPs like Comcast will engage in behaviors that harm consumers. Not prevent, mind you, but reduce the chances. Such trust in market forces to work in a broadband market where 51 percent of Americans only have one choice of broadband provider! And if there is harmful behavior? Well, it won’t be so bad because at least we didn’t impose regulatory costs on Comcast and Verizon. Seriously, that’s what it says (emphasis, again, is mine):
Further, the transparency rule we adopt today will require ISPs to clearly disclose such practices and this, coupled with existing consumer protection and antitrust laws, will significantly reduce the likelihood that ISPs will engage in actions that would harm consumers or competition. To the extent that our approach relying on transparency requirements, consumer protection laws, and antitrust laws does not address all concerns, we find that any remaining unaddressed harms are small relative to the costs of implementing more heavyhanded regulation.
That’s not how the internet should work. Call Congress.