Three stories about FCC chairman Ajit Pai’s plan to roll back net neutrality dropped over the course of last night into this morning, all containing basically the same information. According to The Wall Street Journal, Multichannel News, and Reuters, Pai:
- Met with major telecom lobbying groups on Tuesday
- Thinks net neutrality is bad and wants to roll back the FCC’s Title II classification that made it happen
- But also plans to have broadband providers stick net neutrality promises in their terms of service agreements
- So that the FTC can enforce those agreements instead of the FCC
If this sounds broadly familiar, it’s because Pai also just pushed the Republicans in Congress to roll back the FCC’s internet privacy rules so that the FTC could handle enforcement, even though the FTC doesn’t have the ability to police ISPs until the Title II reclassification is rolled back. Whatever Ajit Pai is doing, it involves believing that the FTC is incredibly capable and well-staffed. (Meanwhile, teenage Snapchat influencers routinely flout the FTC’s sponsored content rules, but whatever.)
But just conceptually, the idea that Pai will get Comcast and AT&T and Verizon and every tiny little regional ISP to put strong open internet provisions in their terms of service agreements is pure nonsense. First, terms of service agreements change all the time. And people freak out about them, and nothing happens. Do you think the iTunes Terms and Conditions are there to protect you? Facebook’s? Verizon’s? Come on.
So what’s to stop Comcast from making this deal today, and then changing its terms a year from now? (It’s certainly not the presence of meaningful access competition in the marketplace!) How will the FTC track every single ISP’s terms of service language, the differences between them, and enforce any sort of consistent, reasonable policy?
Second, let’s say Pai manages to thread the needle and gets every ISP in the country to agree on the exact same open internet language in their terms of service, and further secures a commitment that the language will remain in their terms in perpetuity. Isn’t that functionally identical to... a law? Shouldn’t we just have... a law? And don’t we already have that law? What specifically is Pai trying to accomplish if he agrees that open internet principles are important?
Isn’t that functionally identical to... a law?
(According to Multichannel News, ISPs are “generally OK with the baseline Open Internet rules of no blocking or degrading or paid prioritization, just not with them being imposed under a Title II common carrier regime that could potentially subject them to rate regulation.” But that is not what Pai has been talking about at all. So is that it? Why won’t he just say it?)
Third, what happens when you start a new ISP? Do you have to abide by an agreement other people made in the past? Probably not, right? What’s to stop Comcast from making this deal, forming a new company, and selling off all its broadband assets to the new entity that isn’t subject to the previous deal? Is Pai just trying to pay lip service to the idea of the open internet while creating a massive set of loopholes through which the broadband industry can lock down the internet entirely?
And these are just the simple questions. If Ajit Pai wants to get rid of net neutrality, he should maybe answer some of them before walking back a law that millions of Americans vocally supported.
Disclosure: Comcast is a minority investor in Vox Media, which owns The Verge.