WASHINGTON D.C. — FCC Chairman Ajit Pai today unveiled his draft proposal to roll back the “extravagant statutory power” over the Internet claimed by his two predecessors to justify the FCC’s 2010 and 2015 Open Internet orders. The Commission will vote out a full order on December 14. Pai summarized the order in a Wall Street Journal op-ed yesterday, and discussed the order on the latest episode of TechFreedom’s Tech Policy Podcast.
“At heart, this has always been a debate over the FCC’s power to regulate the Internet,” said Berin Szóka, President of TechFreedom. “The last three chairman claimed broad power to regulate the Internet in the name of net neutrality. Internet watchdogs called Republican Chairman Kevin Martin’s broad claims of ancillary jurisdiction a ‘Trojan Horse’ for broader Internet regulation. But when Democratic chairmen made even more grandiose and troubling claims of authority, those civil libertarians long worried about FCC overreach held their tongues. Over time, this became a needlessly partisan issue. And once President Obama redefined net neutrality as maximizing the FCC’s statutory power, it became almost impossible for news coverage to separate the two. But they are distinct issues. Everyone who understands the true nature of the FCC’s claims should applaud Chairman Pai for finally returning to what used to be a bipartisan consensus against FCC regulation of the Internet.”
“We don’t need the FCC to police net neutrality concerns,” continued Szóka. “All the FCC needs to do is require broadband providers to clearly disclose what they’re doing. Pai’s proposing to keep the 2010 transparency rule, which can rest on uncontroversial legal authority. The rest can be left to the same federal and state agencies that police most business practices: the Federal Trade Commission, the Department of Justice, and each state’s attorney general. Even without formal rules on the books, consumers will still be protected. Indeed, these agencies will effectively be doing what the FCC would have done anyway — minus the baggage of the FCC’s statutory claims. The D.C. Circuit decision upholding the FCC’s rules this year made clear that the rules are ultimately about about ‘holding the provider to its representation’ anyway.”
As Szóka explains in a blog post on the Tech Policy Corner, the full D.C. Circuit found that the FCC’s rules did not violate the First Amendment because every broadband provider “holds itself out as giving customers neutral, indiscriminate access to web content of their own choosing.”
“Chairman Pai has handled this issue with greater transparency than any Chairman in FCC history,” concluded Szóka. “Until this year, the FCC has never issued draft orders in advance of public meetings. Indeed, the FCC has regularly failed to publish any text until days or weeks after the vote — allowing the Chairman to deny the public any ability to comment on the item and also to minimize the important role played role played by the other four Commissioners, two Democrats and two Republicans.”
In another TPC blog post, TechFreedom Legal Fellow Graham Owens explains Pai’s transparency reforms and the way the two previous chairmen handled their Open Internet orders.