Pai Seen Possibly Moving Up Vote on Title II Net Neutrality, After Confirmation Vote

Observers said media ownership appears to be on a faster track than net neutrality. Commissioners meet Nov. 16 and then almost a month later on Dec. 14. The FCC didn't comment.

Free Press Policy Director Matt Wood is among those who said they heard a rumor last week that Pai would circulate an item Tuesday for the Oct. 24 commissioners’ meeting. "If they continue rushing this, the FCC is unlikely to improve on the slapdash and amateurish work they did in the May NPRM,” Wood said. “The only goal in the chairman's office is to tear down these common-sense protections as fast as possible, laws, facts, and proper process be damned.”

“It’s going to be sooner rather than later,” said Lawrence Spiwak, president of the Phoenix Center. November is a difficult month because of the Thanksgiving holiday, he said. “I have no doubt their overall legal theory probably was worked out months ago,” Spiwak said. The FCC is likely still wrestling with some questions, he said. “What is the bounds of your jurisdiction? What do you want to do? How much authority do you want to take over Title I carriers? … Are you going to have some rules, or not? Under what legal theory?” TechFreedom President Berin Szoka said he wouldn't be surprised by a November vote.

“An accelerated timetable would be consistent with Chairman Pai's desire to move past the net neutrality issue and focus instead on narrowing the rural broadband divide,” said Daniel Lyons, Boston College law professor. “While sooner is better than later, if it takes another month or two to write a solid, reasoned order, then take the time,” said Randolph May, president of the Free State Foundation. “I expect that's the chairman's view, too."

Gigi Sohn, former aide to ex-Chairman Tom Wheeler, said November now seems possible. “Particularly now that the broadband industry has gone to the Supreme Court on the 2015 rules, what’s the rush?” Sohn asked. Procedural issues still need to be addressed, she said. “The world is not falling apart,” she said. “If they jam something through, it’s likely to be sloppy in both process and substance and that’s better for folks who want to challenge the [new] rules.”

The FCC "road to a Title II reversal is now relatively clear, most likely in December," emailed analyst Craig Moffett of MoffettNathanson. "The spotlight will then turn to Congress. As dim as the prospects for anything bi-partisan might seem on ANY topic, there may be room for a narrow agreement that trades enshrinement of the principles of Net Neutrality in return for a permanent prohibition on Title II."

This Year?

Action has long been expected in 2017. The FCC probably will move ahead on net neutrality this year, emailed Paul Glenchur, Hedgeye Potomac Research senior telecom and cable analyst. "If the Chairman is confirmed next week as expected, it certainly makes planning and scheduling of all matters, including contentious ones, more manageable."

The critics' strategy "to tar and feather Pai with the stink of evil" didn't seem to stick, said a broadband industry official: "I assume he will now turn to effectuating his big-ticket items, such as getting rid of Title II” broadband. The official thinks December seems the most likely time for action.

"He's going to get confirmed, and he’s certainly going to ram-rod his agenda through, but there’ll be consequences for Pai’s FCC and the Republicans who back him," said Jeff Chester, executive director of the Center for Digital Democracy. "You’re playing with something different. This is about people's access to the internet. It cuts across political lines." AT&T, Verizon and Comcast are "amassing massive power" to track people's data, "ignoring privacy and consumer protection," Chester said: Pai "is the biggest friend of monopolists that we have seen in the last 10-15 years," and "I think eventually it’s going to get to him."

"We seem to be in the compromise-free zone, an unfamiliar place for tech policy geeks," said consultant David Goodfriend, a former FCC and White House staffer under President Bill Clinton. "Instead of regulatory certainty, business and consumers will have to wait yet again for the D.C. Circuit to rule. That is always a gamble, as the ISPs learned the hard way twice before."

Net Neutrality Notebook

The Supreme Court should address the FCC 2015 order reclassifying broadband as a Title II telecom service even if the current commission returns to a Title I information service classification, said TechFreedom and VoIP "pioneers" Jeff Pulver, Charles Giancarlo and Scott Banister in a cert petition Thursday seeking review of appellate court rulings affirming the order. "Absent any decision by the Court, the regulatory status of broadband providers (and perhaps other Internet companies) will remain subject indefinitely to a game of ping-pong depending on results of elections," they wrote. "This petition focuses on the 'major questions' doctrine and what deference, if any, was owed to the FCC in reviewing its Order."

The World Wide Web Foundation told Pai the U.S. has "been a champion of internet freedom" globally. "Rules to enforce the net neutrality principles (no blocking, no throttling, and no paid prioritization), such as those included in the 2015 Open Internet Order, have become necessary for these markets to continue following the virtuous circle of growth," said a filing in docket 17-108 on the meeting including founder Tim Berners-Lee and CEO Adrian Lovett.

NCTA and USTelecom opposed a motion of the National Hispanic Media Coalition and others asking the commission to put consumer complaint materials -- made available under a Freedom of Information Act request -- into the record of the current open internet proceeding and to seek comment on them (see 1709200033). The trade groups disputed the argument the materials were "directly relevant" to the proceeding.

AT&T called "meritless" Title II proponent arguments "that the Administrative Procedure Act imposes various substantive and procedural obstacles to restoration" of a Title I broadband regime. "Nothing in the APA requires the Commission to (1) identify any post-2015 change in factual circumstances as a basis for restoring a Title I regime, (2) issue a new NPRM to specify the metrics to be used in a cost-benefit analysis of Title II regulation, or (3) stall this proceeding pending a new round of comments on the significance vel non of informal complaints made public in response to FOIA requests," said a company white paper discussed in a meeting with FCC Wireline and Wireless bureau staffers.