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FCC Chair Wants to Replace Net Neutrality Rules with ISPs’ Promises

Stan Ward

Stan Ward

April 11, 2017

Now that privacy rules have been rolled back in the US, next up for assault by the Federal Communications Commission (FCC) is net neutrality. In this regard, the new FCC chairman, Ajit Pai, wants you to rely on trusting broadband firms, rather than abiding by established regulations.

“Voluntary” net neutrality is the gist of an Ars Technica article on the subject, and is likely to be the case if the FCC, as expected, eliminates the Obama-era net neutrality rules.

In a meeting with broadband lobby groups last week, Pai said he, “wants internet service providers to voluntarily agree, in writing, to maintain an open internet.” It is not known if the proposed voluntary mandate for an open internet would preclude the broadband providers (Internet Service Providers) from monetizing the potential new advantage by selling access to a speedy internet – essentially a “fast lane” – to certain internet services over others.

Concurrent with the dismantling of this aspect of the net neutrality regulations, Pai wants to shift enforcement of net neutrality rules from the FCC to the Federal Trade Commission (FTC). This, according to him, had its historic enforcement capability emasculated by Obama’s 2015 rules. If Pai has his way, the FTC will be back in charge of enforcing the rules, and will be the one to monitor any voluntary agreements made by the broadband behemoths.

This, it is claimed, would make the Internet Service Providers (ISPs) tow the line when it comes to principles such as no blocking of, or paid prioritization of, internet traffic.

Critics, however, charge that letting the FTC be the arbiter is an unnecessary and cumbersome procedure. Under the current FCC rules, they can ostensibly respond quickly and directly to any rule-breaking, whereas the FTC would apparently file lawsuits against companies over unfair or deceptive acts or practices – letting a court make the final decision.

This, observers claim, is an expensive and time-wasting proposition. However, it is not so much this aspect of the rules change that sticks in privacy advocates’ craw. Consumer advocacy Public Knowledge said:

Replacing clear rules of the road with a voluntary system where broadband providers decide ahead of time what rules they would like to follow and when they can change those rules would unilaterally open the door to massive market abuses, including unreasonably low data caps, inflated prices for some content, and preferring cable/broadband content over smaller, independent competitors.

In other words, whereas the FCC previously had hard and fast rules that stated what was legal and what was not, the FTC doesn’t. It could only, after the fact of an apparent abuse, file a lawsuit. It is reactive, whereas the FCC was proactive – at least according to dismayed Democrats. Deposed Chairman, Democrat Tom Wheeler, said as much some months ago:

They can say, ‘we think this is an unfair and deceptive act or practice,’ but they can’t say, ‘here’s how networks have to operate so they’re fast, fair, and open’.

Should privacy lovers be concerned? FCC Commissioner Mignon Clyburn, a Democrat who will fight against the proposed change (futilely) thinks so:

Press reports suggest this administration’s approach to net neutrality will simply be to ask for unenforceable commitments instead of looking out for the best interests of competitors and consumers. Given the incentives and abilities of broadband providers to harm Internet openness, all Americans should be extremely concerned.

Obama famously said, way back when he was ramming through myriad regulations with his pen rather than with the consensus of Congress, that elections have consequences. The US is now living with the consequences of the last one. Everyone assumed in a new Republican administration that laws would be promulgated which might favor corporations. This has been a staple of Republican politics for a century or more.

But I doubt that anyone was ready to allow policy to be conducted based purely on corporate promises without teeth, instead of the rule of law…

Image credit: Federal Communications Commission/flikr.
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