If Federal Communications Chairman Ajit Pai gets his way, consumers can expect a full reversal of the Obama-era push toward net neutrality later this year. Pai outlined his intentions yesterday in a speech, and in a phone call Thursday FCC senior officials provided more details about the plan.
In a nutshell, Pai aims to remove regulations that prohibit ISPs from favoring certain types of internet traffic over others, meaning that a video from a random creator might not play as smoothly as one from a deep-pocketed studio who paid for priority treatment. But consumers will have until the end of summer to try and convince the FCC otherwise.
At the FCC’s next meeting on May 18, Pai will introduce a Notice of Proposed Rulemaking that, if enacted, would reclassify internet providers as information services, similar to cable companies. That’s significant because ISPs have been classified as common carriers – entities that provide communication services to the general public and are regulated to ensure they indiscriminately provide said services – since 2015. Prior to that, ISPs were considered information services. But the Obama-era FCC classified them as common carriers after several previous attempts to establish net neutrality were shot down by the courts, and then enacted what is called the Open Internet platform.
Returning ISPs to their earlier classification will effectively revoke the legal authority for the FCC to impose net neutrality on ISPs. In particular, this would impact what’s known as the “Bright Line Rules,” adopted by the FCC in February 2015 as the underpinnings of its Open Internet platform.
Those rules prohibit carriers from engaging in three types of behavior with regard to lawful internet content: blocking, throttling — impairing or degrading certain content from loading or playing to effectively favor others — and paid prioritization — favoring certain traffic over others as a result of those owners paying for that treatment.
The officials said the FCC will take a look at those core principles themselves, and is asking the public to weigh in. “We are seeking comment about the usefulness and merits of bright line rules as well as what legal authority there is to have them,” an official said.
The FCC is seeking comment in compliance laws which require a 60-day public commentary period and 30-day reply period whenever the FCC presents a Notice of Proposed Rulemaking, before the rule can go into effect.
When asked later in the call whether that meant there could eventually be “no rules,” the officials demurred, declining to speculate on the final result of the process after hearing from the public.
“I think it would be premature to comment on what the particular rules would be at the end of the process,” an official said.
One official said regardless of what happens with the Bright Line Rules, the Federal Trade Commission would then have the authority to police them. The FTC is legally prohibited from regulating common carriers.
“I’m extremely confident that the Title I classification would be held up in court,” one of the officials said., referring to the clause in the 1996 Copyright Act governing information services and cable companies.
However, that official said he wouldn’t be surprised if it comes down to that.
“Knowing the history in this area, I think it’s highly likely that whatever we do will end up in court,” an official said.
One senior official pushed back at many of the comments against Pai’s proposal from business leaders, pointing at the growth in the tech sector between 2005 and 2015, when ISPs were classified as information services companies.
“The lighter touch Title I regulatory framework was a boon to the internet economy,” an official said.