FCC’s Pai proposes ‘Open Internet’ policy reversal

Having signalled his preference for such a move in a keynote speech at the Mobile World Congress in Barcelona at the end of February, FCC Chairman Ajit Pai has confirmed his intention to reverse predecessor Tom Wheeler’s ‘Open Internet’ policy designed to ensure net neutrality.

In a speech at the Newseum in Washington, DC on ‘The Future of Internet Freedom’ on April 26th, Pai described the Internet as “the greatest free-market success story in history”, in large part thanks to a “landmark” decision made by President Clinton and a Republican Congress in the Telecommunications Act of 1996. In that legislation, they decided on a bipartisan basis that it was the policy of the United States “to preserve the vibrant and competitive free market that presently exists for the Internet . . . unfettered by Federal or State regulation.”

Pai noted that for almost two decades, the FCC respected that policy, but that two years ago, the federal government’s approach suddenly changed. “The FCC, on a party-line vote, decided to impose a set of heavy-handed regulations upon the Internet. It decided to slap an old regulatory framework called ‘Title II’—originally designed in the 1930s for the Ma Bell telephone monopoly—upon thousands of Internet service providers, big and small. It decided to put the federal government at the centre of the Internet,” he claimed, suggesting that the move was “all about politics” and a transparent attempt to compromise the agency’s independence.

Moving forward, he said that from a political standpoint, there was “no question” that the easiest path would be to do nothing: Leave Title II alone and move on to other issues, but said that the FCC could not stick with regulations from the Great Depression. “Instead, we need rules that focus on growth and infrastructure investment, rules that expand high-speed Internet access everywhere and give Americans more online choice, faster speeds, and more innovation,” he declared, revealing that earlier that day, he shared with his fellow Commissioners a proposal to reverse the “mistake” of Title II and return to the light-touch regulatory framework that served the US “so well” during the Clinton Administration, the Bush Administration, and the first six years of the Obama Administration.

“The document that we will be voting on at the Commission’s May meeting is called a Notice of Proposed Rulemaking. If it is adopted, the FCC will seek public input on this proposal. In other words, this will be the beginning of the discussion, not the end,” he advised.

Although some had called on the FCC to reverse Title II immediately, through what is known as a Declaratory Ruling, Pai said he didn’t believe that was the right path forward. “This decision should be made through an open and transparent process in which every American can share his or her views,” he declared.

Outlining the basic elements of the Notice of Proposed Rulemaking, Pai said the FCC was proposing to return the classification of broadband service from a Title II telecommunications service to a Title I information service, “that is, light-touch regulation drawn from the Clinton Administration. As I mentioned earlier, this Title I classification was expressly upheld by the Supreme Court in 2005, and it’s more consistent with the facts and the law,” he suggested.

“Second, we are proposing to eliminate the so-called Internet conduct standard. This 2015 rule gives the FCC a roving mandate to micromanage the Internet. Immediately following the FCC’s vote adopting the Title II Order, my predecessor was asked what the Internet conduct standard meant. His answer was that ‘we don’t really know’ what it means and that ‘we don’t know where things go next’. I’ve never heard a better definition of regulatory uncertainty,” he stated.

Thirdly, the FCC is seeking comment on how it should approach the so-called ‘bright-line’ rules adopted in 2015.

Pai confirmed that he would be publicly releasing the entire text of the Notice of Proposed Rulemaking document afternoon of April 27th.

“At the FCC’s next meeting on May 18, we will take a significant step towards making that prediction a reality. And later this year, I am confident that we will finish the job. Make no mistake about it: this is a fight that we intend to wage and it is a fight that we are going to win,” he concluded.

 

 

 

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