Pai: No Way to Paper Over Title II Failure

FCC commissioner Ajit Pai marked the one-year anniversary of the FCC's Title II reclassification decision by noting that it was appropriately the "paper" wedding anniversary, given that the FCC's decision was wedded to reams of paper used for litigation challenging the regs.

"Reams of paper have been spent on litigation. Mountains more have been built counseling ISPs on the new requirements,” he said. “And there are even stacks and stacks of paper that have been filed responding to the agency’s Paperwork Reduction Act analysis. All this has been a gift to the legal profession. But for most Americans, the marriage has been a dud."

Pai was speaking at the Heritage Foundation, providing a first year report card on Internet regulation by the FCC.

His report was that all the things he said at the time the Title II decision was made—he and fellow Republican Michael O'Rielly dissented—had come to pass. In addition to those mounds of paper, that included decreasing investment, slowing broadband deployment, discouraging "permissionless innovation," and injecting uncertainty in the marketplace.

With a nod to, and paraphrase of, the late Supreme Court Justice Antonin Scalia, a Pai favorite, the commissioner said that those were not hard calls. "'[T]his wolf was not clad in sheep's clothing. No, this came as a wolf,” Pai said.

Pai blamed the White House for dragging the FCC, "kicking and screaming," toward Title II. The President very publicly came out in support of Title II and FCC chairman Tom Wheeler moved from a non-Title II version to a Title II version, though he has said that option was never off the table.  In fact, Pai took to calling the proposal "President Obama's plan" to regulate the Internet, as he did again Friday in summing up his one-year-in report card.

"On the one-year anniversary of the Title II Order, it’s time to recognize that President Obama’s plan to regulate the Internet is, was, and will continue to be a wasteful distraction—that the Internet and heavy-handed regulation were not a marriage made in heaven."

In fact, Pai sued for divorce. "It’s time to separate the two and finally bring the bounty of broadband to all Americans who want it. It’s time to 'reduce talk to practical results,' as the National Broadband Plan put it half a decade ago. It’s time for a new beginning."

The current tension between those two is playing out not in divorce court but the U.S. Court of Appeals for the District of Columbia, which heard oral argument in the legal challenge to Title II-based regs Dec. 7 and could be rendering a decision any time.

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.