WASHINGTON D.C. — Today the FCC voted to approve Chairman Ajit Pai’s “Restoring Internet Freedom” Order, which returns Internet regulation to the light-touch regulatory regime that, until recently, commanded bipartisan support. In late November, Pai unveiled his proposal to roll back the “extravagant statutory power” over the Internet claimed by his two predecessors. Pai is the first chairman to make orders public before a vote. The public did not see any text of the 2015 Order until 2 weeks after the vote. Pai discussed the order on a recent episode of TechFreedom’s Tech Policy Podcast.

“The FCC isn’t ‘killing net neutrality;’ it’s just returning to the way net neutrality concerns were policed prior to 2015,” said Berin Szóka, President of TechFreedom. “Net neutrality has never really been in jeopardy; now it will be policed by consumer protection and competition authorities just as it was until 2015. The real issue has always been whether the FCC can claim sweeping powers over the Internet in the name of net neutrality. Today’s vote protects the entire Internet, especially the kind of VoIP entrepreneurs who joined TechFreedom in suing to block the legal theories that would have implicated not only broadband providers but any communications service that uses an IP address.”

“The FTC, the DOJ and state attorneys general already have the tools they need to protect Internet users,” continued Szóka. “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 sweeping claims of power. The court decision upholding the FCC’s rules this year made clear that those rules were essentially ‘voluntary’: the rules applied only to broadband providers that held themselves out as offering a neutral Internet experience anyway. The FCC couldn’t have done anything more than the FTC can do under its deception authority anyway: enforce promises made to consumers. But the FTC, DOJ, and state AGs have much broader authority: to punish practices that injure consumers or competition. Today’s order reactivates that authority. If anything, net neutrality is on safer ground today than it was yesterday.”

“Nearly a decade ago, net neutrality stalwarts at the Electronic Frontier Foundation warned us that net neutrality could be a ‘Trojan Horse’ for ‘unlimited authority to regulate the Internet,’” concluded Szóka. “The FCC’s claims of power over the Internet since have grown only more extravagant and alarming. In 2010, Chairman Genachowski claimed Section 706 allowed the agency to do almost anything that somehow promoted broadband deployment. In 2015, Chairman Wheeler went even further, imposing Title II common carriage regulation on the Internet — the ‘morass of regulation’ Bill Clinton’s FCC Chairman had warned against in 1999. Wheeler’s contorted reading of the statute effectively erased the line between telephone regulation and IP services. And his promises not to use all the powers of Title II could never bind future chairman. Pai is doing his best to put the genie back in the bottle, but only Congress or the Supreme Court can stop the next FCC Chairman from reclaiming essentially ‘unlimited authority to regulate the Internet.’”

The FCC’s 2015 reclassification has been shown to undermine investment in broadband infrastructure.

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For more information on the issue, take a look at some of our recent work:

  • Only Congress, not the FCC can fix net neutrality, Szóka’s Op-Ed in WIRED:
  • Tech Policy Podcast Episode with FCC Chairman Aji Pai
  • Tech Policy Podcast Episode with FCC Commissioner Brendan Carr
  • Pai Brings Unprecedented Transparency to Open Internet Proceeding, Graham Owens’ Blog Piece
  • How net-neutrality advocates would let Trump control the Internet, Szóka’s Op-Ed in the Washington Post
  • The Feds lost on net neutrality, but won control of the Internet, Szóka’s Op-Ed in WIRED