FCC chairman Ajit Pai has long opposed the commission’s 2015 net neutrality order, but he hasn’t been very explicit on what he plans to do about it. Pai has largely dodged the question with answers like, “We have not made any determinations at this time.” But lately, he’s been dropping hints that he intends to end the Title II classification that was used to apply tough net neutrality rules.
“We need to end the uncertainty and confusion.”
It’s Pai’s statements about tangential issues that offer a clearer look at his plans. And over the past few months, those comments have gotten somewhat more revealing, particularly when they relate to the internet privacy rules that President Trump just spiked.
Last night, in response to Trump killing the privacy order, Pai had this to say:
“The Federal Communications Commission will be working with the Federal Trade Commission to restore the FTC’s authority to police internet service providers’ privacy practices. We need to put America’s most experienced and expert privacy cop back on the beat. And we need to end the uncertainty and confusion that was created in 2015 when the FCC intruded in this space.”
This doesn’t sound like a big deal on the surface, but the legal mechanics involved are significant. For the FTC to take control of privacy oversight again, the FCC would have to reverse the net neutrality order’s use of Title II. That’s because Title II designates internet providers as a class of company known as a “common carrier,” which the FTC is explicitly prohibited from investigating.
Pai says here that he’s working to “restore the FTC’s authority” and put and end to the 2015 changes. So unless Pai has found some legal loophole — and Pai has never been a fan of technicalities — what he’s talking about here is ending the existing net neutrality rules.
“We are on track to returning to that successful approach.”
And he’s made a bunch of other comments that sound a lot like this. Here’s Pai earlier this month, in a joint comment with FTC acting chair Maureen Ohlhausen:
“We still believe that jurisdiction over broadband providers’ privacy and data security practices should be returned to the FTC ... Until that happens, however, we will work together on harmonizing the FCC’s privacy rules for broadband providers with the FTC’s standards for other companies in the digital economy.”
Pai and Ohlhausen’s “until that happens” comment is pretty vague, but it suggests both agency leaders believe the change will happen in the future.
Here’s Pai again from February, saying the commission is moving away from the use of Title II and back to the prior regulatory structure: “We are confident in the decades-long, cross-party consensus on light-touch internet regulation — one that helped America’s digital economy thrive. And we are on track to returning to that successful approach.”
There’ll be a fight if Pai tries to reverse Title II
It’s not clear how Pai would go about reversing the 2015 net neutrality order. As chairman of the FCC, he’s able to propose and even cram through rules that overturn it, though it would be a time-consuming process and prompt months of legal proceedings later on.
He could also be hoping for an assist from Congress, which could cement lighter regulations of internet providers into law. After February’s open FCC meeting, Pai told reporters he’s been speaking with Congress about the best way forward. “We’ve been meeting with members of Congress, both sides of the aisle, to hear their views about the issue,” Pai said. “And so I’ll be taking all the factors into account as we try to come to a decision.”
The FCC didn’t respond to a request for comment.
There’s no clear timeline for whatever Pai is planning, either. While the commission ought to get new privacy rules in place, it’s already been operating for two years without them. And Pai has other priorities, like promoting rural broadband deployment, that could get slowed down amid a reclassification fight. The only thing that feels certain at this point is that Pai wants to see the net neutrality order overturned.