As expected, the FCC yesterday acted to eliminate net neutrality, or, as the agency’s press release puts it, “…to restore Internet freedom.” The move brought immediate blowback. Dissenting Commissioner Jessica Rosenworcel stated, “Net neutrality is Internet freedom. I support that freedom. I dissent from this rash decision to roll back net neutrality rules. I dissent from the corrupt process that has brought us to this point. And I dissent from the contempt this agency has shown our citizens in pursuing this path today. This decision puts the Federal Communications Commission on the wrong side of history, the wrong side of the law, and the wrong side of the American public.” (See updates at the end of this post.)
Commissioner Mignon Clyburn also dissented from what she calls “…this fiercely-spun, legally-lightweight, consumer-harming, corporate-enabling Destroying Internet Freedom Order.” She states, “I dissent, because I am among the millions who [are] outraged. Outraged, because the FCC pulls its own teeth, abdicating responsibility to protect the nation’s broadband consumers. Why are we witnessing such an unprecedented groundswell of public support for keeping the 2015 net neutrality protections in place? Because the public can plainly see that a soon-to-be-toothless FCC is handing the keys to the Internet—the Internet, one of the most remarkable, empowering, enabling inventions of our lifetime—over to a handful of multibillion dollar corporations. And if past is prologue, those very same broadband Internet service providers that the majority says you should trust to do right by you will put profits and shareholder returns above what is best for you.”
“Today’s decision from the Federal Communications Commission to end net neutrality is disappointing and harmful,” says Facebook chief operating officer Sheryl Sandberg, as quoted in The Wall Street Journal. “An open Internet is critical for new ideas and economic opportunity—and Internet providers shouldn’t be able to decide what people can see online or charge more for certain websites.”
FCC Chairman Ajit Pai makes the case for the FCC’s action in what Hamza Shaban at The Washington Post describes as “…an eccentric video…” with Pai “…dressed as Santa, wielding a lightsaber, and clutching a fidget spinner to defend his contentious move to repeal net neutrality and mock the criticism against it.” You can see the video here.
The FCC’s action will restore the classification of broadband Internet service as an “information service” under Title I of the Communications Act and will reinstate the classification of mobile broadband Internet access service as a private mobile service. It will require that ISPs disclose information about blocking, throttling, paid prioritization, and affiliated prioritization.
It also will delegate broadband protection authority to the Federal Trade Commission, ostensibly enabling the FTC “…to apply its extensive expertise to provide uniform online protections against unfair, deceptive, and anticompetitive practices.” In response, former FCC chairman Tom Wheeler says this move achieves a longtime goal of telecom companies. At Brookings, he writes, “Strategically, it is a brilliant sleight of hand since the FTC has no rulemaking authority and no telecommunications expertise, yet the companies and the policymakers who support them can trot out the line that the FTC will protect consumers.”
Apart from the minutia about which government commissions may or may not protect consumers, Nick Frisch, an Asian studies doctoral candidate at Yale, invites you to taste a future without net neutrality by trying to browse the web in Beijing. In The New York Times, he writes, “China’s Internet, provided through telecom giants aligned with the Communist Party, is a digital dystopia, filtered by the vast censorship network known as China’s Great Firewall. Some sights load with soul-withering slowness, or not at all. Others appear instantly. Content vanishes without warning or explanation.”
Frisch cautions that the FCC’s action will “…empower foreign entities with substantial market-making power, like the Chinese government, to meddle in American discourse on a scale dwarfing Russia’s recent cyber-chicanery. Worse, abolishing net neutrality gives American corporations the means, motive, and opportunity to become accomplices in selling out our freedom of speech.”
There is reasonable debate about the advisability of various Internet regulatory approaches. As I reported earlier, Virginia Tech Professor Jeff Reed, who has served as an advisor to federal organizations and commercial organizations such as AT&T and Samsung, writes that “…net neutrality rules are written for yesterday’s Internet, not today or even tomorrow’s Internet.” He contends that the Internet is evolving into many facets with different requirements. In particular, he writes, “…with the advent of 5G there will be new competition to provide high-speed data services.”
That’s very likely to be true, but competition at the consumer end is currently slim to nonexistent. It might have been advisable for the FCC to defer yesterday’s action until 5G rolls out.
In any event, the battle over net neutrality will continue. For example, Washington State Attorney General Bob Ferguson yesterday announced his intention to file a legal challenge to the FCC’s decision and that he expects to be joined by attorneys general across the country. He cites a record of success against Trump administration officials “…because they often fail to follow the law when taking executive action. There is a strong legal argument that with this action, the federal government violated the Administrative Procedure Act—again.”
He continues, “Allowing Internet service providers to discriminate based on content undermines a free and open Internet. Today’s action will seriously harm consumers, innovation, and small businesses.”
Updates
Update, 12/15/17: Slate has more on “States that are planning to sue to protect net neutrality.”
Update, 1/5/18: The FCC on January 4 released the final version of its net neutrality repeal order. Ars Technica quotes Rosenworcel as saying, “In this document, the American public can see for themselves the damage done by this agency to Internet openness. Going forward, our broadband providers will have the power to block websites, throttle services, and censor online content. This is not right.”
Clyburn commented in a tweet that it took her “…almost 6,000 words to detail all that is wrong with this action.”
In addition, The Wall Street Journal reports that Pai has canceled an appearance at the upcoming CES 2018 because of death threats.
