Pai Draft Order Seeks Sweeping Reversal of 2015 Title II Net Neutrality Regulation

GOP Commissioners Brendan Carr and Mike O'Rielly praised the move. Democrats Mignon Clyburn and Jessica Rosenworcel slammed it. Republican FTC acting Chairman Maureen Ohlhausen welcomed the announcement and Democratic Commissioner Terrell McSweeny criticized it. Some are eyeing a legislative fix (see 1711210041).

FCC senior staffers detailed the sweeping nature of the plan to undo the 2015 open internet order, to reporters on condition of not being named nor being quoted verbatim. The draft would reverse classification of broadband internet access service as a Title II telecom service that subjected ISPs to common-carrier regulation, returning BIAS to a Title I information service classification and relinquishing IP interconnection jurisdiction, said a staffer, noting there's no Further NPRM. The item would reverse classification of mobile broadband as a commercial mobile radio service and return it to a private mobile service, he said. It also would say state and local laws or rules that conflict with the deregulatory federal policy of treating broadband as an interstate information service would be pre-empted.

The draft would eliminate the three 2015 "bright line" rules that prohibit broadband providers from engaging in blocking, throttling or paid prioritization of internet traffic, and scrap a "vague" internet conduct standard, said the staffer, citing the costs as outweighing the "few" benefits. He said the FCC would conclude Telecom Act Section 706 doesn't give the FCC independent regulatory authority.

The item would modify broadband provider transparency duties, first by returning to 2010 rules and eliminating 2015 enhanced requirements, the staffer said. He said it would add obligations for ISPs to disclose internet blocking, throttling, affiliated provider prioritization and paid prioritization. Another staffer said ISPs would have to disclose any blocking and throttling that's not "reasonable network management" as defined in 2010.

The transparency rules would help the FTC combat any unfair or deceptive practices, said the senior staffers, noting the return from Title II to Title I also would return authority to the FTC to protect broadband privacy. The changes would allow paid prioritization and other practices as long as they're not harmful, while allowing the FTC to target anti-consumer practices, and in combination with DOJ, anti-competitive practices under antitrust law, said one staffer.

Pai made his case in the Wall Street Journal, saying return to "light-touch regulation" would stimulate broadband investment and innovation. He said "anti-market ideologues are going to try to scare the American people" that repealing "utility-style regulation will destroy the internet as we know it." He gave interviews to The Daily Signal, reason.com and Fox Business. He didn't comment to us. When Pai proposed a draft NPRM in April, he did a media blitz in the three weeks before a vote (see 1706020002).

Carr hailed the draft reversal of "the Obama-era FCC’s regulatory overreach." Before the 2015 order, "consumers and innovators alike benefited from a free and open Internet because the FCC abided by a 20-year, bipartisan consensus that the government should not control or heavily regulate Internet access," he said. "I fully support returning to this approach.”

O'Rielly agreed with the thrust while preserving leeway. “The time has come to overturn the market disrupting net neutrality and common carrier regulations that sacrificed decades of precedent and the independence of the agency for political ends while doing nothing to protect actual consumers," he said. He said he looks forward to reviewing the draft "and working together to ensure that the order contains the necessary legal and analytical foundations, including preemption." He co-authored a piece in Roll Call with Sen. Ted Cruz, R-Texas, urging a federal framework to "stop the next internet power grab" by states and localities.

Democrats attacked the draft. FCC Republicans are about to deliver "rotten fruit, stale grains and wilted flowers topped off with a plate full of burnt turkey" for Thanksgiving," Clyburn said of the Restoring Internet Freedom draft. "Their Destroying Internet Freedom Order would dismantle net neutrality as we know it." She called the draft "a giveaway to the nation’s largest communications companies. ... It is not only bad public policy but is legally suspect." She said the draft belongs "in the trash heap."

The majority "wants to wipe out court-tested rules and a decade’s work" in order to favor cable and telcos, Rosenworcel said. "This is ridiculous and offensive to the millions of Americans who use the Internet every day. ... It hands broadband providers the power to decide what voices to amplify, which sites we can visit, what connections we can make .... It would be a big blunder for a slim majority of the FCC to approve these rules." She again sought FCC hearings before a vote.

The FTC's Ohlhausen lauded Pai's move. "The FTC has long applied its competition and consumer protection expertise to network neutrality issues," she said, thanking the FCC for taking into consideration her comments and the FTC staff's. "The FTC stands ready to protect broadband subscribers from anticompetitive, unfair, or deceptive acts and practices just as we protect consumers in the rest of the Internet ecosystem.”

McSweeny was critical. "So many things wrong here, like even if @FCC does this @FTC still won’t have jurisdiction. But even if we did, most discriminatory conduct by ISPs will be perfectly legal," she tweeted. "This won’t hurt tech titans w deep pockets. They can afford to pay all the trolls under the bridge," she added.