WASHINGTON, December 7, 2017 — Tom Wheeler, the Federal Communications Commission chairman under President Obama, wasn’t coy in expressing his feelings about his replacement’s “abomination” of a plan to gut the open internet rules he put in place two-and-a-half years ago.
“This is the culmination of a grand plan which started back in 2013,” Wheeler said Wednesday during a press conference with Sen. Ed Markey, D-Massachusetts, Rep. Anna Eshoo, D-California, and former FCC General Counsel Jonathan Sallet.
That plan — exemplified in the rules proposed by current FCC Chairman Ajit Pai—would see the Commission renounce authority over common carriers that it exercised in the decades since the agency was created by the Communications Act of 1934.
Pai plan effectively eliminates all open internet rules
Under Pai’s proposal, the FCC would effectively eliminate all open internet rules, with the exception of a transparency requirement initially put in place in 2010.
In addition to overturning rules put in place by his two Democratic predecessors, the proposal would also effectively overturn the “Internet Policy Statement” unanimously implemented by the FCC under former Chairman Kevin Martin, who served under President George W. Bush.
Martin attempted to enforce the “Internet Policy Statement” in a 2008 lawsuit against Comcast involving the throttling of peer-to-peer application BitTorrent. The FCC said that the throttling took place outside of the policy statement’s “reasonable network management” exception.
The D.C. Circuit Court of Appeals overturned that action in 2010, paving the way for the first round of open internet regulations, by then-FCC Chairman Julius Genachowski.
Under the new deregulatory approach that Pai and the Republicans at the agency appear poised to adopt on December 14, internet providers would be able to prioritize traffic for a fee, or prioritize traffic of affiliated companies, so long as they disclose those practices.
But the FCC passes the responsibility for enforcing these disclosure requirements to the Federal Trade Commission.
The FCC proposal would continue to preempt state internet regulations
States looking to step into the regulatory void would also find themselves out of luck under the Pai proposal, as the FCC would continuing to preempt any state law or regulation imposing common carrier requirements on Internet providers.
Even regulations governing internet providers that operate entirely within one state would be subject to this preemption, senior FCC officials said, because the Internet the provider is connection to is a nationwide network.
And where the current rules assert FCC authority to regulate internet providers based on the FCC’s authority to regulate communications networks, Pai would instead ask the Federal Trade Commission and Justice Department use a combination of antitrust law and consumer protection requirements to prevent consumer abused by internet service providers.
Former top FCC attorney slams commission for abdicating responsibility
Former FCC general counsel Jonathan Sallet noted this abdication of responsibility and predicted that a court would not allow the FCC to pick and choose which parts of the law to enforce.
“The draft order seems to say that the FCC is no longer interested in exercising its responsibilities as an expert agency,” he said. “I do not believe a court of appeals will uphold this order.”
Wheeler agreed, telling reporters that “[T]he abomination of next week’s action is not just the repeal of the existing open internet rules. It is how they’re doing it.”
“They’re vacating the field, they’re walking away from the responsibility that the FCC has had since 1934 to oversee networks,” he said.
Wheeler called the draft order — which has been championed by Pai, a former attorney for Verizon Communications — “a classic example of regulatory capture,” where “the regulatory agency bends to the wishes of those they are supposed to oversee.”
Sen. Markey and Rep. Eshoo call Pai’s proposal an ‘honor system’ and a ‘ruse’
Markey said that “absolutely nothing” would replace the FCC’s authority to protect consumers when Pai vacates the field after his new rules take effect, leaving some kind of bizarre “honor system” in place.
“Broadband providers get exactly what they want,” he said. ”Americans just do not want that to happen.”
Eshoo called the idea that Congress should step in and replace the FCC rules with legislation a “ruse” and a distraction.
“They don’t want the FCC to be the cop on the beat, they say they are for net neutrality except when you spell it out and codify it,” she said. ”They’ve moved away from it. They don’t believe in net neutrality, they don’t want it.”
Markey noted that when the current rules were challenged in court, he and Eshoo led the effort to submit an amicus brief on behalf of Congress in support of the rules, and that they would be doing it again because they and other network neutrality advocates plan on taking the FCC to court to keep them from abdicating their responsibilities.
“It’s a very vulnerable decision that they’re about to make, and I think we have a very good chance of prevailing in court,” he said.