WASHINGTON D.C. —  Today, Federal Communications Commission Chairman Ajit Pai laid out his vision for how to address demonstrable “net neutrality” concerns without stifling innovation or entrusting the FCC with overly broad powers. Tomorrow, Pai will release the draft text of a Notice of Proposed Rulemaking, which Pai will put on the agenda for the Commission’s May 18 Open Meeting. The NPRM will seek comment on reversing the two claims of legal authority that underlay the 2010 and 2015 Open Internet Orders —  Section 706 and Title II — and what that would mean for the FCC’s ability to address net neutrality. The NPRM will also invite comment on alternative approaches. The Commission could issue a final order this fall or winter. If, as expected, the order reverses both previous claims of legal authority, responsibility for policing net neutrality will, absent legislation, return to the Federal Trade Commission, state attorneys general, and private plaintiffs.

The debate of the last decade has never really been about ‘net neutrality,’ but the FCC’s sweeping claims of power over the Internet,” said Berin Szóka, President of TechFreedom. “In 2008, the Republican FTC was ready to bring action against Comcast for throttling BitTorrent traffic in 2007 — a clear ‘net neutrality’ violation. But the Republican FCC made vague claims of ‘ancillary jurisdiction’ over the Internet to support an attempt to police net neutrality case by case. This shut the FTC out of the discussion and needlessly began a decade of litigation over the FCC’s authority. Internet freedom advocates presciently warned that this was a ‘Trojan Horse’ for further interventions, like copyright crackdowns. But once Democrats took over the FCC, that well-deserved skepticism disappeared. Whatever party is in charge, we simply can’t trust the FCC not to abuse its powers.”

There has always been bipartisan consensus on the basics of net neutrality,” continued Szóka. “It was Republican Chairman Michael Powell, building on the academic work of Tim Wu, who laid out four principles of ‘Net Freedom’ in 2004. His successor, Republican Kevin Martin, turned those principles into the Open Internet Policy Statement in 2005. The Republican-controlled House passed a new Communications Act in 2006, which would’ve given the FCC authority to enforce its Policy Statement. In 2010, centrist Democrats (and Google and Verizon, too) wanted to do a legislative deal, but Republicans balked. Since 2015, it’s Democrats who’ve stonewalled Republican efforts to compromise. Compromise was made increasingly difficult as the goalposts for net neutrality moved to include things, such as interconnection, that even former Chairman Tom Wheeler once insisted were unrelated.”

Telecom policy shouldn’t swing like a pendulum between elections, and the FCC can’t resolve this debate on its own,” concluded Szóka. “Only the Supreme Court can finally say what existing telecom law means, and only Congress can finally decide what it should mean. A challenge to Title II is still pending, and it may make its way to the Supreme Court by early October. Whatever happens on the legal front, this debate won’t end until Congressional Democrats come to the table and negotiate over legislation. Chairman John Thune (R-SD) of Senate Commerce, and his counterpart in the House Greg Walden (R-OR), have consistently supported a legislative compromise, regardless of whether it was Wheeler or Pai in charge of the FCC. Such willingness to negotiate in good faith is hard to come by in today’s political climate, and it would be a shame to waste. Resolving this debate would allow government, industry, and civil society to move on to areas of profound bipartisan consensus, such as bridging the Digital Divide.”

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We can be reached for comment at media@techfreedom.dreamhosters.com. See our other work on net neutrality, including:

  • Our statement on the need for a legislative compromise over net neutrality
  • Our statement on our appeal over the DC Circuit’s decision upholding Title II reclassification
  • A summary of our opening brief challenging the FCC’s order

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