Democrats on the Federal Communications Commission are taking issue with chairman Ajit Pai's announcement last week that the agency would clarify edge providers' Section 230 immunity from civil liability over third-party content, as the White House has asked. Pai also said he has been assured by commission lawyers that it has the authority to do so.

That came during a public meeting Tuesday (Oct. 27) in statements on the FCC's defense of its network-neutrality deregulation order.

Democrats pointed out that the FCC had cited Section 230 of the 1996 Communications Decency Act in defending its elimination of net neutrality regulations and its adoption of an "information services" definition for internet access that squared better with Section 230's grant of immunity that allowed the marketplace more freedom.

Section 230 allows social media sites to host third-party speech without being subject to legal action based on the content that is posted or what they do with it.

Senior Democrat Jessica Rosenworcel pointed out that Section 230 had been in the news lately as "we all grapple with the frustrations of social media."

Related: FCC Will Clarify Section 230

Some of those include Republican legislators claiming censorship of conservative speech, Democrats claiming promotion of hate speech and the facilitation of election interference, and President Donald Trump's claim that Big Tech is out to un-elect him.

But Rosenworcel said the FCC was trying to have it both ways in upholding its net dereg and pursuing its Section 230 clarification. 

“Three years ago, the FCC insisted that Section 230’s references to a competitive, free market for the internet compelled this agency to roll back net neutrality," which she called "bunk" then and now. "But now the agency’s approach to Section 230 is even more confounding. Because following a push from the Administration, the FCC has reversed course. It now insists that this provision of the law compels the agency to regulate certain speech online. In the end, it’s not just the hypocrisy that disappoints, or the intellectual contortions required to make sense of this. It’s the dishonesty. It can’t be that the FCC points to Section 230 to disavow authority over broadband but then uses the same law to insist it can turn around and serve as the President’s speech police."

Fellow Democratic commissioner Geoffrey Starks echoed that sentiment.

"I’m struck by the majority’s inconsistency in affirming the RIF Order even as the Chairman has announced his plan to circulate a rulemaking on Section 230,” Starks said in his meeting statement on the RIF item, from which he dissented. “After all, in the RIF Order the majority pointed to Section 230 as evidence of Congress’s intent that broadband should receive a 'free market approach' as an information service.

“It’s absurdly ironic that some of net neutrality’s strongest opponents now argue that the commission should interpret Section 230 to control the speech of private companies,” Starks added. “These pieces don’t fit together. You can’t pretend to have a light-touch regulatory framework when you’re proposing to regulate online content with a heavy hand. This ideological about-face shows that the imminent Section 230 rulemaking is more about pleasing the President than making good policy."

Pai has explained his decision to proceed with a Section 230 rulemaking this way: “Throughout my tenure at the Federal Communications Commission, I have favored regulatory parity, transparency, and free expression. Social media companies have a First Amendment right to free speech. But they do not have a First Amendment right to a special immunity denied to other media outlets, such as newspapers and broadcasters.”

A feisty FCC Chairman Ajit Pai spent several paragraphs of his blog on the Oct. 27 public meeting agenda making the case for why he was right to deregulate internet access and critics were wrong.

He was commenting on the plan to vote on the FCC's response to a federal appeals court demand that the FCC better explain how its Restoring Internet Freedom order affects various constituencies.

Related: FCC to Vote on Net Neutrality Remand Item

Billing the agenda as Halloween treats, he called the criticism of the Restoring Internet Freedom's elimination of rules against blocking, throttling and paid prioritization a "trick" played by "numerous Washington politicians, far-left special-interest groups, Hollywood stars, and Silicon Valley tech giants."

Referring to the arguments made by some net neutrality rule advocates, Pai dismissed them. "The American people were told that they would get the internet one word at a time. They were told that they would have to pay $5 per tweet. They were told that it would be the end of the internet as we know it. It was frightening stuff to be sure, but it was utter nonsense," he wrote.

Related: Court Upholds Most of FCC ISP Dereg

He said the FCC had ignored those "falsehoods" and the "ruckus" they created, which included death threats, a bomb threat, and harassment. The result, he argued, and ISPs have argued as well, is that network investment hit levels not seen in a decade while remaining "free and open."

He praised ISPs for their performance during the pandemic, saying they have not had to do what networks in some other countries have done, including asking streaming services like Netflix and YouTube to down convert from HD to SD.

Computer companies are telling a California District Court that it should deny an effort by the Trump Administration to block California's tough new net neutrality law from going into effect.

The law was passed after the FCC's Restoring Internet Freedom (RIF) order scrapped its net neutrality rules banning blocking, throttling and paid prioritization.

In an amicus brief filed this week, the Open Technology Institute told the court that telecom companies have "a long history of violating net neutrality and haven't performed well during the COVID-19 pandemic."

The FCC's RIF deregulation of internet access included a preemption of state regs that conflicted with that decision. But California passed its own tough net neutrality rules anyway to fill what it saw as a regulatory void.

The government is seeking a preliminary injunction to block California from being able to enforce the law. OTI said that injunction should be rejected.

ACA Connects and other ISP organizations have filed similar motions to put the California law on hold.

The California law was passed in 2018, but its implementation was stayed pending the ultimate legal determination on the FCC's RIF order--federal appeals court upheld the majority of the decision exactly one year ago (Oct. 1, 2019).--as well as various motions in the California district court.

WASHINGTON — The Federal Communications Commission has made its rather ponderous case (in more than 200 pages) for rolling back network neutrality regulations and turning over its enforcement to the Federal Trade Commission.

Its language in the “Restoring Internet Freedom Order” includes this case-by-case enforcement by other agencies of perceived non-neutral actions. It also covers all of the internet ecosystem — including the Googles and Facebooks and Twitters or the world — and suggests this approach is preferable to “thou shalt not” mandates on internet service providers alone. That way, it does not nip “new innovative business arrangements” in the bud and allows the “ever-evolving internet ecosystem” to, well, ever evolve.

Democrats were not buying into that, and instead collected enough supporters, including one moderate Republican in Sen. Susan Collins of Maine, to force a vote on nullifying the rollback of the FCC’s Title II-based internet rules (see Rules). That is a long shot, but one also aimed at picking off more Republicans at midterm election time, given the importance of the net neutrality issue among millennials.

The order defines just what ISPs will have to disclose under enhanced rules that still manage to reduce the reporting requirements in the 2015 order. The following practices listed are not barred by FCC rules, but are ones the FTC or the Justice Department could decide were anticompetitive or unfair.

• Blocking: “Any practice (other than reasonable network management elsewhere disclosed) that blocks or otherwise prevents end-user access to lawful content, applications, service, or non-harmful devices, including a description of what is blocked.”

• Throttling: “Any practice (other than reasonable network management elsewhere disclosed) that degrades or impairs access to lawful internet traffic on the basis of content, application, service, user or use of a non-harmful device, including a description of what is throttled.”

• Affiliated Prioritization: “Any practice that directly or indirectly favors some traffic over other traffic, including through use of techniques such as traffic shaping, prioritization or resource reservation, to benefit an affiliate, including identification of the affiliate.”

• Paid Prioritization: “Any practice that directly or indirectly favors some traffic over other traffic, including through use of techniques such as traffic shaping, prioritization or resource reservation, in exchange for consideration, monetary or otherwise.”

• Congestion Management: “Descriptions of congestion management practices, if any. These descriptions should include the types of traffic subject to the practices; the purposes served by the practices; the practices’ effects on end users’ experience; criteria used in practices, such as indicators of congestion that trigger a practice, including any usage limits triggering the practice, and the typical frequency of congestion; usage limits and the consequences of exceeding them; and references to engineering standards, where appropriate.”

• Application-Specific Behavior: “Whether and why the ISP blocks or rate-controls specific protocols or protocol ports, modifies protocol fields in ways not prescribed by the protocol standard, or otherwise inhibits or favors certain applications or classes of applications.”

• Device Attachment Rules: “Any restrictions on the types of devices and any approval procedures for devices to connect to the network.”

• Security: “Any practices used to ensure end-user security or security of the network, including types of triggering conditions that cause a mechanism to be invoked (but excluding information that could reasonably be used to circumvent network security).”

The order points out that it relies on other agencies’ enforcement of lawbreakers.

It looks as though some network neutrality commenters are inadvertently fighting the last war, or at least commenting on it.

The third-busiest Federal Communications Commission docket in the past 30 days is “Protecting and Promoting the Open Internet” (docket number 14-28), which is actually the docket for the recently overturned 2015 rules adopted under former Democratic chair Tom Wheeler.

The docket for current Republican chair Ajit Pai’s rules rollback proceeding, dubbed “Restoring Internet Freedom,” is 17-108, and it is the busiest docket over the same period, with 863,000 comments. The docket would likely have even more activity were it not for the fact that some of the comments clearly meant for the recent rollback were filed under the old 14-28, instead, because that was the docket number to which commenters directed their filings.

Related: GOP FCC KOs Title II

Some of the 14-28 entries have both docket numbers, so show up in both dockets. Both of them are officially closed, though the FCC keeps accepting filings anyway, a case of leaving the barn door open after the horse has fled.

An FCC spokesperson confirmed that the filings with both docket numbers show up in both, and said he believed that was not the case for any of the recent filings to 14-28, which were clearly addressing the net neutrality rollback, though he had not confirmed that at press time.

Related: Net Neutrality Bill Is Longest of Long Shots

The Wire spot checked a couple of the 14-28- targeted comments clearly meant for 17-108 — “The FCC’s decision to abandon Net Neutrality is terrible,” for example — and they did not show up in the latter docket.

Looking to make the net-neutrality docket easier to review by outside parties, the FCC has put some "zip" into the search process.

The agency has made all Restoring Internet Freedom comments filed as of Nov. 3 -- more than 22 million of them -- available in compressed, downloadable files. 

The comments have been organized, in batches of 10,000, into JSON files that are aggregated into three zipped archives:

https://data.fcc.gov/comments/17-108/ECFS_17-108_1.zip

https://data.fcc.gov/comments/17-108/ECFS_17-108_2.zip

https://data.fcc.gov/comments/17-108/ECFS_17-108_3.zip

The FCC is encouraging the public to use those files in "exploring the docket" and to "ensure that they have a complete set of filings."

FCC chair Ajit Pai is widely expected to circulate an order rolling back Title II classification of internet access and reviewing the current Open Internet order this month for a vote next month. It is that proposal that drew the 22 million-plus comments.

The FCC closed the comment period Aug. 30, but continued to accept comments anyway -- per custom -- and the comments continued to flood in.

Technically, only those before the Aug. 30 deadline are considered part of the record the FCC has to consider in making its decision.

FCC spokespeople were not immediately available for comment on the new archive.

On the Senate Floor Thursday (May 18), Sen. Brian Schatz (D-Hawaii) said he expected the FCC to have 2-3 million comments in the net neutrality (Restoring Internet Freedom) docket by week's end.

He was right.

The FCC voted Thursday (May 18) to start rolling back Title II. By Friday morning, the docket showed 2,174,196 comments, though some unknown number of those were duplicates (a thousand or so, for example, were the identical pro-Title II comment from a "Yoni Schwartz," who made it into the "top 10 filing names").

Back when Title II was imposed, the FCC received more than 4 million comments, but Title II fan and network neutrality advocate Sen. Ed Markey (D-Mass.) has said to expect that total to be minuscule compared with this time around, and Schatz was clearly looking for the flood as well.

The comment total can go both down and up as the FCC weeds out duplicates.

It is not unusual for dockets to contain duplicate filings, form letters, and not bot-driven floods on one-side or another, but the FCC also said last week it was the subject of a DDoS attack that affected the filing of comments--activist groups are skeptical.

Asked what the FCC was doing about net neutrality comments issues and improving the site, Pai said following Thursday's meeting that FCC IT people were on it.

"Our top priority is to insure the web site remains accessible to the public and our IT professionals are hard on the case making sure that that is so," the chairman said.