FCC Set to Approve Net Neutrality Transparency Waiver Over Clyburn Objections
The FCC is set to approve at its meeting Thursday, on a 2-1 vote, an extension of the small-carrier waiver of the enhanced transparency requirements in the 2015 net neutrality order, FCC officials told us. Meanwhile, in a nearly six-minute interview on CNBC Wednesday, FCC Chairman Ajit Pai declined to say how quickly the FCC would move to undo parts of the open internet order, particularly the reclassification of broadband as a common carrier service.
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Pai circulated an order in January waiving the transparency requirement for five years and extending it to businesses with fewer than 250,000 subscribers rather than the previous 100,000 (see 1701270058). But it has been hung up at the FCC ever since, FCC officials told us, with Democratic Commissioner Mignon Clyburn refusing to vote on the draft order. By putting it on the agenda for the commissioners’ meeting, Pai forces a vote, officials said. Other FCC chairmen have operated similarly to force action.
With five commissioners at the FCC, under agency rules, a deadline is triggered when an item gets three votes, FCC officials said. With just three commissioners, a single FCC commissioner could otherwise keep an item on circulation indefinitely. When a chairman puts an item on the agenda for an open meeting, the "holdout" vote is forced.
Pai was asked directly about the timing of a new FCC net neutrality order, in the CNBC Squawk on the Street interview. “That’s one of the things we’re discussing, but I think the end goal is to preserve the free and open internet that we had for two decades,” Pai said. The pre-net neutrality order framework “served the American public very well,” he said. “That’s a framework I hope we’ll be able to return to on a bipartisan basis in the future.”
Pai said he couldn’t provide a time frame for FCC action. “What I can tell you is we’re studying the issue very carefully,” he said. “We’re speaking to members of Congress who might have an interest in this as well.” The FCC needs to return to “light-touch” regulation of the internet, Pai said. "My own view is that the internet should be run by technologists and engineers and business people, not by lawyers and bureaucrats here in the nation's capital," he said.
Pai also said he hopes to see broadband included in any infrastructure bill approved by Congress. “What Americans really want is better, faster, cheaper internet access,” he said.
Pai should be credited for at least mentioning the price of broadband service, something he "typically ignores,” Free Press Policy Director Matt Wood told us. “His digital empowerment plan ignores price too. He seems to favor giving money to ISPs for networks they're already building, and pretending that this will solve the affordability problems plaguing internet users today, as he busily undercuts Lifeline and any measure designed to help people get over the digital divide.”
Wood slammed Pai on the thrust of his comments. “It's hard to fathom Pai's confused but consistent fakery on what he calls the pre-net neutrality order framework,” Wood said. The internet functioned “well enough under the patchwork principles and rules that the FCC put together in the wake of the [George W.] Bush FCC's wrongheaded classification decisions. But as Pai may have heard, those principles were overturned in court based on lawsuits brought by Comcast and the chairman's former employers at Verizon.” Reclassifying broadband as a Communications Act Title II service “was the right idea all along, and it remains so today,” Wood said.
Reclassification is a bigger concern than most of the net neutrality rules themselves, said Richard Bennett, free market blogger and network architect. “Title II moved privacy regulations from the FTC to the FCC, enabling the FCC to distort the market for targeted advertising," he said. Congress will use the Congressional Review Act to void the ISP privacy order and after that “we’re likely to see greater interest in putting net neutrality on fair legal ground,” Bennett said. “The status quo is concentrating the internet advertising market and thereby limiting the internet’s growth.”
Pai “is wisely focused on the consensus end goal of preserving the free and open Internet and returning the means of how to achieve that important end goal to the last bipartisan FCC framework that was specifically focused on protecting consumers’ freedom to competitively access the legal content, apps, and device, of their choice, subject to reasonable network management,” said Scott Cleland, chairman of NetCompetition. “Pai gets that a free and open internet is where consumers are in charge, not the FCC.”
Before net neutrality emerged as a “religious issue for those on the far left,” there was general agreement that ISPs should be lightly regulated and that this was consistent with an “open internet,” said Free State Foundation President Randolph May. Democratic FCC Chairman William Kennard said famously in 1999 that “he didn’t want to pick up the ‘whole morass’ of public utility regulation and ‘dump it wholesale on the cable pipe,’” May emailed. “He was referring to Title II regulation. Chairman Pai is right to want to return to a light regulation regime that allows room for experimentation and differentiation of services and features by ISP competitors. That’s the way consumers are best served.” But May also predicted Pai will have a tough time getting bipartisan agreement. “I’m pretty sure that Chairman Pai isn't going to accept the current heavy-handed regulatory regime just for the sake of FCC unanimity,” May said.