Pai Circulates Order Unwinding Title II

FCC Chairman Ajit Pai has followed through on his promise to roll back Title II classification of internet access providers. That means they will no longer be considered common carriers subject to mandatory access requirements.

Pai has circulated an item to the other commissioners in advance of a planned Dec. 14 vote. He is expected to have the votes to pass it over strong Democratic opposition.

The item's circulation before the Thanksiving holiday was one of the worst kept secrets in Washington over the past few days as critics of the rollback prepared statements and planned protests.

The chairman voted against the 2015 Open Internet order as a commissioner and signaled early on that the Title II classification was one of the regulatory weeds he planned to whack.

“Today, I have shared with my colleagues a draft order that would abandon this failed approach and return to the longstanding consensus that served consumers well for decades," said Pai. "Under my proposal, the federal government will stop micromanaging the Internet. Instead, the FCC would simply require Internet service providers to be transparent about their practices so that consumers can buy the service plan that’s best for them and entrepreneurs and other small businesses can have the technical information they need to innovate.

“Additionally, as a result of my proposal, the Federal Trade Commission will once again be able to police ISPs, protect consumers, and promote competition, just as it did before 2015. Notably, my proposal will put the federal government’s most experienced privacy cop, the FTC, back on the beat to protect consumers’ online privacy.

Related: Diller: Net Neutrality is Essentially Unassailable

In proposing the rollback in an NPRM last May, the FCC Republican majority said the goal was to "promote broadband deployment to rural consumers and infrastructure investment throughout our nation, to brighten the future of innovation both within networks and at their edge, and to close the digital divide."

It remains to be seen how strongly the Google's and Facebooks and Twitters push to reinstate rules given that there has been talk on Capitol Hill of starting to impose net neutrality regs on them as well. Edge providers helped killed the SOPA/PIPA antipiracy legislation when they perceived that as an existential threat.

Calling it a pre-holiday "news dump," Democratic commissioner Mignon Clyburn, who supported the 2015 order, was not happy.

“In just two days, many of us will join friends and family in celebrating the spirit of Thanksgiving. But as we learned today, the FCC majority is about to deliver a cornucopia full of rotten fruit, stale grains, and wilted flowers topped off with a plate full of burnt turkey," she said. "Their Destroying Internet Freedom Order would dismantle net neutrality as we know it by giving the green light to our nation’s largest broadband providers to engage in anti-consumer practices, including blocking, slowing down traffic, and paid prioritization of online applications and services."

“Today the FCC circulated its sweeping roll back of our net neutrality rules," said FCC Commissioner Jessica Rosenworcel. "Following actions earlier this year to erase consumer privacy protections, the Commission now wants to wipe out court-tested rules and a decade’s work in order to favor cable and telephone companies.  This is ridiculous and offensive to the millions of Americans who use the Internet every day."

ISPs were understandably pleased with the order.

“We fully support Chairman Pai’s effort to restore the ‘light touch’ regulatory approach that proved so successful in driving the growth and development of our internet economy," said NCTA-The Internet & Television Association President Michael Powell. "In 2015, the FCC unjustifiably departed from two decades of bipartisan consensus and imposed 1930s-era, utility-style regulation on the internet. It did so without any evidence that ISPs were degrading or interfering with internet access. And unless corrected, this unprecedented shift risks stifling innovation, costing jobs, and casting a pall over the investment needed to drive the rapid expansion of next-generation networks to every corner of America. For that reason, we welcome today’s announcement and efforts by the Commission to restore its proven Title I framework.

“An open internet is deeply rooted in consumers’ expectations. For the better part of two decades, our companies have built services that meet those expectations and satisfy their customers’ desire to visit any lawful website or run any lawful application. The draft order will not change how our companies view the freedoms intrinsic to internet service, but critically, it will correct the prior FCC’s mistake in relying on an outdated framework that elevates government micromanagement over market innovation and growth.”

It was Powell, as FCC chairman back in 2004, who proposed the basic internet regulatory values of nondiscriminatory access to legal content and applications.

"ACA commends FCC Chairman Ajit Pai for outlining his proposed Restoring Internet Freedom order, which the FCC is scheduled to act on in several weeks," said American Cable Association President Matthew Polka. "Since the beginning of his tenure in January, Chairman Pai has focused intently on giving American consumers "more" - more high-performance networks, more innovative services, and more choices. His proposed Restoring Internet Freedom order will further achieve this aim by removing the dark cloud of Title II regulation that has hung over the industry and deterred investment by the many hundreds of Internet Services Providers throughout the country, including in smaller communities and rural areas. And, not only will the proposed decision drive investment, it will come at no cost to an 'open Internet.' The ISPs that are ACA members have always stood steadfast in providing their customers with unfettered access to the Internet, regardless of whether there were regulations on the books. Treating your customers well is simply good business, and that practice will not change with this decision."

"The FCC's current regulations, put in place at President Obama's direction in 2015, constitute a misguided act of regulatory aggression leveled at the dynamic broadband Internet marketplace. It is none too soon to repeal them," said Randolph May, president of free market think tank, the Free State Foundation.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.