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REPORT: FCC boss Ajit Pai has plan to undo Obama net-neutrality laws

by Kasha O'Brien (2018-12-12)

FCC chairman Ajit Pai, and former FCC chairman Tom Wheeler. Getty/Chip Somodevilla

Federal Communications Commission chairman Ajit Pai on Tuesday met with multiple telecom industry groups and revealed his initial plans to undo the agencys Obama-era net-neutrality laws, according to multiple reports.

Politicos Margaret McGill and Alex Byers, The Wall Street Journals John McKinnon, and Reuters David Shepardson all cite multiple sources with knowledge of the meeting. The reports say that Pai could make his plans public as soon as late April, though they may come later. The FCCs next open meeting is scheduled for April 20.

According to the reports, Pai said that he wants to maintain the basic principles of the net-neutrality laws - which legally prevent internet providers from blocking, throttling, or prioritizing certain content within their networks for financial gain - but aims to shift enforcement of those policies to the Federal Trade Commission.

Pai reportedly asked groups representing major internet providers to commit to abide by those net-neutrality principles in writing, which he feels will allow the FTC to punish those companies that do not stand by those pledges for deceptive or unfair practices.

Pai and Republican commissioner Michael ORielly currently hold a 2-1 majority at the agency. The FCC normally consists of five commissioners, but President Donald Trump has yet to nominate people for the two open seats.

The FCC did not immediately respond to a request for comment.

The context
The net-neutrality laws passed during the Obama administration, formally known as the 2015 Open Internet Order, were approved in a 3-2 vote along party lines in February 2015, after months of heated debate and public outcries.

Reuters/Kevin Lamarque

The laws classify internet service providers such as Comcast, Verizon, and AT&T as common carriers - i.e., entities that provide a utility service, in this case the internet - under Title II of the Communications Act. In the process, they give the FCC greater authority over what ISPs can and cannot do with the traffic over their networks.

Supporters of the net-neutrality laws say they prevent ISPs from engaging in potentially anticompetitive practices, such as charging certain websites for faster speeds within their networks, that would effectively allow them to play favorites, and possibly give their own services a technical advantage. Internet companies like Google and Netflix, as well as some smaller ISPs, have supported the 2015 order.

Pai voted against the net-neutrality order as a commissioner at the time, saying that the laws were trying to solve a problem that didnt exist. He says that the greater regulatory overhead involved with the Title II classification has prevented ISPs from continually investing in their networks, though that particular point still seems somewhat unclear.

Pai has said previously that he wants to maintain a free and open internet, but he has long disputed the necessity of the Title II rebranding. Moving authority over ISPs practices to FTC would pave the way to reversing that.

That said, its unclear if simply asking ISPs to promise they wont manipulate traffic would allow the FTC to enforce them with Title II still in place. By law, the FTC is forbidden from regulating common carriers, which all ISPs are considered under the 2015 order.

From left: Democratic FCC commissioner Mignon Clyburn, Pai, Republican commissioner Michael O'Rielly. FCC

Complicating matters is an appeals-court decision from last year that ruled that the FTC could not regulate the non-common carrier practices of ISPs. Since ISPs like Verizon and AT&T also offer telephone service, another public utility, they may not be subject to FTC enforcement even if the current net-neutrality laws are undone. Republicans in Congress have said they would introduce legislation to undo the appeals court's decision, however.

Nevertheless, if Pai chooses not to enforce ISPs' practices while they are subject to Title II, it remains to be seen how much regulatory scrutiny they'd legally have to face under his reported plans.

This debate isnt particularly new, as internet providers and many conservatives have called for regulation of ISPs to move to the FTC in recent years. Net-neutrality advocates, meanwhile, argued for years prior to the 2015 order that Title II classification is the only way to legally uphold net-neutrality laws.

Past attempts at similar net-neutrality laws were shot down in court in part because ISPs were considered information service providers at the time under Title I of the Communications Act. Internet providers have challenged the current Title II order in court, but have not succeeded in overturning it.

Any attempted changes to the laws are likely to result in more vocal debate. The FCC said it received nearly 4 million public comments on net-neutrality before the 2015 orders passing.

Either way, the move would be the latest in Pai's and the GOPs ongoing dismantling of Obama-era internet regulations. Earlier this week, Trump formally reversed a set of online-privacy laws that wouldve required ISPs to obtain your permission before sharing your web-browsing data with advertisers.

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