Apr 27, 2017

Repealing net neutrality hurts innovators, consumers

There was little new in yesterday's speech by FCC Chairman Ajit Pai announcing his plan to undo the 2015 network neutrality rules, which prohibit cable and Internet companies like AT&T and Comcast from favoring or discriminating against online content and services. Pai spouted the usual ISP-funded investment statistics (accurate numbers here) and again took statements made by Democrats in the 1990's out of context. Even so, there was much that should alarm every American with a broadband internet connection.

Why consumers should care: In reviewing the 2010 net neutrality rules, the DC Circuit found that because ISPs have bottleneck control over your Internet access, they have both the incentive and the ability to discriminate. In a world where these companies are consolidating, buying content and providing their own over-the-top services, that incentive has increased. Which makes preservation of the current rules all the more necessary and Pai's plan all the more dangerous.

Not surprisingly, Pai announced that he would reverse the decision to classify broadband ISPs as telecommunications services under Title II of the Communications Act. This decision allowed the current rules to pass scrutiny by a federal court after two previous failures. Its reversal would leave the agency tasked with overseeing communications networks with virtually no role when it comes to the most important network in history. The FCC would be powerless to prohibit anti-consumer practices by ISPs like fraudulent billing, price gouging and practices that violate consumer privacy. While I agree with Pai that Title II is not the only route to real net neutrality, he didn't endorse the best alternative— Congressional action giving the FCC flexible authority to protect consumers and competition in the broadband market.

Equally disturbing is what Pai didn't say. He talked a lot about "repeal," but not about "replace." Perhaps this is because whatever "replacements" Pai might propose will be wholly inadequate to protect consumers and innovators. The much-maligned idea of voluntary commitments from ISPs would result in unenforceable, empty promises that could be changed at anytime. New rules grounded in Title I would have to permit discrimination, paid prioritization and individual negotiations between online providers and ISPs to survive court scrutiny. Maybe that's not so bad if you are Google or Facebook, but it would be death to small start-ups like the 800+ who signed this letter asking Pai to keep the rules in place.

The other thing Pai didn't say were the words "net neutrality." That's for a simple reason — he has never, and does not today, support the core principle of non-discrimination. His replacement, be they voluntary commitments, Title I regulations or nothing at all, may be something, but they are not net neutrality.

Gigi Sohn is an Open Society Foundations Leadership in Government Fellow and served as counselor to former FCC Chairman Tom Wheeler.

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