Since taking over the FCC earlier this year, commission chairman Ajit Pai has released the text of most proposals a month before they’re voted on. This is done in the name of transparency, so the public knows what the commission is up to. But it’s also done so that the commission can begin receiving comments and factor them in to the revised version of each proposal that it ends up voting on.
This is the same process that happened with the commission’s proposal to kill the 2015 net neutrality rules. An initial draft was published last month, and yesterday we got to see the revised draft that ended up being voted on. In between, there were plenty of comments made for the FCC to look at: 2.6 million as of today. (Though tens of thousands appear to be fake.)
But if the commission began taking them into account, it isn’t very clear. We were only able to spot a handful of changes in the main text of the proposal, and many of them seem to be the commission blowing its own horn.
In a few locations, the commission added information related to a net neutrality court decision that came down on May 1st — after the publication of its first draft. That sounds logical on the surface, since the court upheld the Title II classification for internet providers, but the proposal only briefly brings that up. Instead, it pulls in bits of dissenting opinions from two different judges on the case.
In the first instance, the commission includes an excerpt from a judge’s dissent arguing that the Title II classification is illegal:
Indeed, as Judge Brown of the DC Circuit recently noted, “[b]y incorporating [the] FCC’s distinction between ‘enhanced service’ and ‘basic service’ into the statutory scheme, and by placing internet access on the ‘enhanced service’ side, Congress prohibited the FCC from construing the ‘offering’ of ‘telecommunications service’ to be the ‘information service’ of internet access.”
In the second instance, the updated proposal includes a dissent from the same court saying that net neutrality rules could violate internet providers’ First Amendment rights, unless those internet providers are regional monopolies (which is generally the case):
[A]t least one judge on the DC Circuit believes that the commission’s current “net neutrality rule violates the First Amendment to the US Constitution ... [because] the First Amendment bars the government from restricting the editorial discretion of internet service providers, absent a showing that an internet service provider possesses market power in a relevant geographic market.”
These excerpts are mostly meant to lend credence to Pai’s argument that Title II isn’t a legally sound classification for internet providers. Though that issue isn’t fully decided — it never hit the Supreme Court — it’s been upheld so far.
The biggest addition to this version of the proposal is a new paragraph pointing out a legal curiosity: that ISPs may be able to avoid Title II classification entirely by electing to provide a “curated internet experience.” (Imagine a service that just let you access sports sites.)
“Given that an ISP can avoid Title II classification simply by blocking enough content, are the purported benefits of the existing rules more illusory than they initially appear?” the commission now asks.
It’s a relevant, albeit leading, question. But the argument mostly seems to be in there to make Title II look less useful.
There are a few other small changes here and there. The commission no longer “tentatively concludes” that mobile internet service is not a commercial mobile service (a designation that makes it eligible to be overseen by Title II), the commission now “believe[s]” that to be the case. And when discussing returning privacy regulation to the Federal Trade Commission, this version of the proposal adds that the FCC is trying “to respect the jurisdictional lines drawn by Congress.”
The commission also seems to have caught an error. In the original version of the proposal, it wrote that “since these rules were formally codified in 2010, no formal complaints have been filed under them.” That’s now been updated to “only one formal complaint has been filed,” to reflect a July 2016 complaint.
But what may matter most are the new questions the updated proposal asks, however few additions there are. In this version, the commission asks for comment on how much leeway it has to define terms related to mobile internet services. And in a related addition, it asks for help defining what would make a mobile internet service eligible for Title II regulations, potentially making that line in the sand harder to reach.
The commission also takes a step back to ask how its jurisdiction will be affected by stripping away the Title II designation of internet providers. And this proposal very slightly expands provisions of the 2015 net neutrality order that the commission might keep — that is, should it decide to hang on to anything at all. Should that happen, the commission now proposes hanging on to definitions and provisions meant to avoid impacting “ISPs’ rights or obligations with respect to other laws or safety and security considerations.” It’s not much, but it shows a touch more consideration toward the possibility of keeping some rules on the books.
And that’s basically it. There are also several new pages in the proposal’s appendix, but those are mostly statements and dissents that the commissioners issued during the vote last week.
For the most part, these changes don’t actually seem to do much. They expand and firm up the commission’s argument against Title II, and they pose a few very open-ended questions that, like the rest of this proposal, could result in much tougher or much weaker rules — very likely the latter, given the tone of this proposal.
The FCC is supposed to take the public’s comments into account when making its proposals. But if it changed anything in response to the influx of pro-net neutrality comments received so far, it isn’t at all evident here.
That’s not a huge surprise. Since the moment the first draft proposal was released, FCC staffers tried to mitigate the influence of what they knew would be hundreds of thousands, if not millions, of comments being filed in support of net neutrality.
“The comments process does not function as the equivalent of a public opinion survey or poll, and what matters if the quality of the argumentation presented, the facts that are entered into the record, the legal arguments that are placed into the record,” one senior FCC official said during a call with reporters last month. “It's not a counting procedure where you decide which side has placed more comments into the record and that side wins. That is not the way the Administrative Procedure Act works."
Another senior official added, “We cannot make a decision just based on the number or volume of comments in any particular direction. It has to be based on reasoned decision making and applying the facts."
So it’s pretty expected that not a lot has changed yet. The FCC knows the legal arguments already. And, more than likely, the commission is just searching for the best phrasing to make sure it gets what it wants.