Net Neutrality

Pai Opposes Title II, FCC Alums Oppose Pai

Today's first public meeting run by new FCC Chairman Ajit Pai was characterized as much by the rhetoric outside it as by the statements from within. Chairman Pai stuck largely to script about controversial issues like the Open Internet Order and set-top box regulations. He said he wouldn't comment on plans either to enforce or not enforce the Open Internet Order beyond existing statements about exempting small service providers from its provisions.

It is widely assumed that Pai will work to undo the ruling, but the new chairman didn't share further thoughts on the issue at today's meeting beyond saying, "I favor a free and open Internet and I oppose Title II."

FCC Chairman Ajit Pai presides.
FCC Chairman Ajit Pai presides.

Pai and fellow Republican Commissioner Michael O'Rielly have spoken out vehemently against the reclassification of Internet service providers as common carriers under Title II of the Communications Act. The ruling, which was passed under former Chairman Tom Wheeler's leadership in February 2015, gives the government, among other things, the ability to regulate broadband pricing where competition is lacking, although Chairman Wheeler and his associates emphasized repeatedly that they would not impose rate regulation or other pricing restrictions. (See FCC Vote Shows Net Neutrality Strains.)

One of those associates, former advisor to Chairman Wheeler Gigi Sohn, took to Twitter to express her dissatisfaction with Pai's statement today. Referring to the idea that Pai supports an open Internet but opposes Title II, Sohn tweeted: "Don't be fooled -- they are one in the same. Title II ensures that @FCC can protect consumers, competition & #netneutrality."

A small handful of protesters representing an organization called Fight for the Future gathered outside the Federal Communications Commission (FCC) and held up signs in support of so-called net neutrality regulations.

On the topic of set-top regulation, several media outlets have taken note of the fact that Chairman Pai removed his predecessor's set-top proposal from a list of pending items for FCC consideration -- alongside the similarly controversial business data services proposal -- late last week. Pai addressed that move by saying, "This is one of the 23 items that we are reviewing. Standard operating procedure, when there's a change in administration, the new administration takes a look at the items that were pending under the previous administration. So we're still making the determination as to the appropriate steps forward."

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That statement would seem to suggest that there is still an opportunity for the FCC to consider action on set-top competition, but since Pai has argued against government intervention in this area in the past, the odds are that set-top regulation truly is dead. (See The Set-Top's Not Dead, Set-Top Regulation Is and Comcast Brings Xfinity TV to Roku Boxes.)

Tom Wheeler tweeted his disapproval early Tuesday morning with some harsh words for Chairman Pai: "Removing set-top box rule victory for Cablewood over consumers. $200 million Pai Tax on helpless cable subs. Trump helping little guy??"

Meanwhile, on a different regulatory note, Pai did introduce one item of substance in today's meeting separate from minor procedural changes and statements on the previous FCC leadership's agenda. The chairman called for the formation of a new Broadband Deployment Advisory Committee (BDAC), which will draft a "model code for broadband deployment" covering topics such as "local franchising, zoning, permitting and rights-of-way regulations."

The FCC will accept nominations to the BDAC group through February 15, and Pai noted that he is aiming for 15 members from a diverse cross-section of the community, including industry experts, representatives from consumer organizations and more. He is planning for the first BDAC meeting to be held in the spring.

— Mari Silbey, Senior Editor, Cable/Video, Light Reading

kq4ym 2/12/2017 | 12:07:46 PM
Re: Shifting sands With advocates on each side of the issues, it's certainly going to be an interesting several years, as attorneys, lobbyists, and rule makers try to sort out the technological, financial and political issues that are before them.
brooks7 2/1/2017 | 7:09:10 PM
Re: Shifting sands  


My point on this is exactly the following:   The number of abuses that happened before - very few and many of the most important ones by IOCs.  The number of abuses that happened since...none.  Remember Cogent publicly admitted slowing down Netflix.  And the order after the imposition of Title II we had Project Hemisphere (which was mostly if completely not covered here).  https://en.wikipedia.org/wiki/Hemisphere_Project  So, as far as I can tell privacy has not improved.  So, we spent months and all the political capital for the next 10 years for Broadband Polidy on something that is theoretical and maybe.  If instead we had put in a universal broadband polidy mandating the everyone have 100Mbps or 1Gbps service in the next 5 years, then we would have done something.


Duh! 2/1/2017 | 6:12:35 PM
Re: Shifting sands You remember the sordid history of the Open Internet rules.  The core problem is that the Communications Act adopts the Computer II framework. It's a binary decision: either Internet Access is an Information Service or a Telecommunications Service.  If it's an Information Service, the FCC has almost no authority to regulate it. If it's a Telecom Service, the FCC has the authority to regulate it as a common carrier (but also to forbear from whaterver legacy regulations don't make sense).  As the DC Circuit decided (twice), there is no in-between.

Bottom line is that Title II doesn't do anything but give the FCC legal authority to make needful regulations on broadband access providers. That is an important 'but'.  Those include the disclosure rules that Pai undermined yesterday, the privacy rules, and the so-called Net Neutrality rules.

As for price regulation: it is a red herring.  Nobody is proposing that. The Order deliberately bars to door to pricing regulation. It's unnecessary, unless we see evidence of serious price gouging, predatory pricing and the like. The stated worry was a slippery slope argument. As if a future FCC, in reaction to future abuses, wouldn't pull the exact same levers.

brooks7 2/1/2017 | 4:19:17 PM
Re: Shifting sands  

I am saying that none of the issues that I raised or you just quoted were impacted AT ALL by Title II.  No new Consumer Protection.  No new Competition.  

Here is what changed - NOTHING.  Not a thing.  It was a complete waste of time and energy.

If you want to regulate it as a Utility, then regulate it as a Utility and go back to Rate-of-Return pricing and Implement a Universal Service Fund for Broadband.  Here is how to get the privacy issues resolved.  Required that ALL traffic is private and no cookies can be tracked and retargeted marketing has to go away.  Then we can talk about privacy.  Google stalking is so much more dificult to control.


Duh! 2/1/2017 | 2:57:46 PM
Re: Shifting sands Surely, you don't claim that CAPEX and service are the only two metrics that count? Title II addresses orthogonal issues like competition and consumer protection. Those are important as well.
brooks7 2/1/2017 | 1:36:05 PM
Re: Shifting sands Duh!,

My view is that nobody has adjusted CAPEX or Service because of Title II.  If it is rescinded nobody will change CAPEX or service.

To me the whole discussion is a waste of political capital instead of working on what we actually need - Universal Broadband Access.


Duh! 2/1/2017 | 11:28:37 AM
Re: Shifting sands We disagree.

Title II provides a legal footing for the Open Internet rules and the privacy rules, which have had impact. More important, it recognizes that broadband Internet access is more like a communications service than an information service, under the (obsolete but still operative) Computer II framework.  It also recognizes that there is not robust competition in consumer broadband access markets, and therefore that FCC rules must substitute for market discipline.
brooks7 2/1/2017 | 9:52:13 AM
Re: Shifting sands  

As far as I can tell, Title II has accomplished nothing and repealing it will accomplish nothing as well.  For something so heavily debated, it seems to have had zero impact.


msilbey 2/1/2017 | 9:32:24 AM
Re: Shifting sands The terms have always morphed to mean what people want them to mean. Typically the conservative commissioners and most industry reps have said that they agree with the bright line rules in the Open Internet Order regarding ISPs not having the ability to prioritize one company's traffic over another's. The big difference of opinion is whether ISPs should be classified as common carriers and treated essentially as utilities. That's what the Democratic commissioners and Internet/OTT companies believe. I think the only enshrined term is price regulation, something a Republican FCC will want to avoid opening the door to at all costs. 
[email protected] 2/1/2017 | 4:07:38 AM
Shifting sands Can we expect that the terms 'net neutrality' and open Internet' will mean whatever anyone wants them to mean, depdending on the day of the week and what the weather is like?

Or does the FCC have to define and enshrine such terms and then base and justify any rulings on such definitions?
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