Pai Still Hoping to Fend Off Vote Reclassifying Broadband as Title II Service

Commissioner Ajit Pai said he hasn't given up on turning back an FCC move to reclassify broadband as a Communications Act Title II service as is expected to be recommended by Chairman Tom Wheeler. The FCC is to vote on the order at its Feb. 26 meeting, approving classification with some form of forbearance from most parts of Title II (see 1501070054). Pai also was candid Wednesday in his comments on how Wheeler runs the commission, alleging the agency has become more political than in the past. The Pai interview is scheduled to appear on C-SPAN’s The Communicators this weekend.

Pai conceded that President Barack Obama’s endorsement of reclassification (see 1411100033) was a “game changer.” But he said the FCC remains an independent agency. “I, perhaps foolishly, believe that we are not a rubber stamp for the executive branch,” he said. “We are an independent agency.” Pai said: “The law and the facts” are “still in flux.”

The FCC's independence is “jeopardized” if the agency is seen as basing decisions on a “specific legal rationale” from an elected official, Pai said. “To the extent the agency simply rubber-stamps that demand from the executive branch, the perception is going to be that we are just another political agency like a cabinet department,” he said. “That is ultimately going to be to the long term detriment of the agency, to the industry and to the consumer.”

Big questions remain about the net neutrality order, Pai said, saying the Communications Act specifically forbids classifying “private mobile services” as common carrier services. “How do we get around that?” he asked. “That’s a pretty substantial legal roadblock.” To the extent the FCC embraces Title II with forbearance, the agency's “litigation risks” would be “substantial,” he said. Industry won’t have certainty for years to come, he said. “We’re not talking about a decision that is going to be over on Feb. 26," he said. "We’re talking about a process that’s going to extend probably beyond the Obama administration.”

Pai said he has crossed the U.S. to speak about the Internet. Net neutrality “is a very handy slogan” but what people really want is “greater broadband competition,” he said.

Pai said the trend toward party-line votes at the FCC is “troubling” and “unprecedented.” The lack of consensus “is not a good thing” for the FCC or the American public, he said. “There is not a spirit of collaboration and the consensus at the agency as there has been.”

Pai said he and fellow Republican Commissioner Mike O’Rielly are “routinely” told “that is a red line that we are not going to cross” when they offer suggested changes to items. “Later, when a Democrat commissioner makes precisely the same suggestion, that suggestion is accepted, no questions asked,” Pai said. “That’s not the way it should be. A good idea doesn’t have a party affiliation.”

Pai cited the FCC vote in December on an incentive auction public notice (see 1412110065). Pai said one of his suggestions that had been quickly denied was that the FCC extend the comment deadline. He said he learned only at CES that the agency had “quietly” done just that. “That just doesn’t speak well, I think, of the agency when we end up shutting out certain commissioners from decision-making,” he said. A Pai spokesman also cited the FCC's summer vote on an E-rate modernization order (see 1407140069).

Pai was asked if the two Republicans are partly to blame. “The historic complaint about the minority commissioners was they didn’t vote fast enough or at all,” he said. Pai said that since he has been on the FCC, he has consistently voted early. “That’s because I don’t think that issues should be bottled up at the agency for years on end,” he said. Pai said he has tried to put constructive proposals “on the table.” Most of these have been “rejected for what I consider to be arbitrary political reasons,” he said.

An FCC official said in response to Pai that of all the votes taken under Wheeler, through mid-December, 91 percent were 5-0 votes. Among votes taken at open meetings, 73 percent were unanimous. “We are willing to compromise but not in a way that undermines core principles and objectives such as having concrete proposals in NPRMs, or making sure that schools have the broadband connections they need for 21st century education,” the official said. Wheeler’s office has a general rule of accepting all edits that improve an item, even if the commissioner suggesting it eventually dissents, the official said.

On a second issue raised by Obama, municipal broadband (see 1501140048), Pai said he has “serious concerns” about the FCC’s authority to restrict government-run broadband projects. Pai cited Nixon v. Missouri Municipal League, a 2004 Supreme Court case that upheld the right of states to prevent municipalities from providing telecom services. “It casts great doubt on the ability of the FCC to act in the absence of a clear statement by Congress that it intended for the FCC to have that authority,” he said. “If the voters of a state want to pass a law prohibiting government-run broadband, that’s their prerogative.” Obama’s statement “doesn’t change what the law is,” he said. “I hope the chairman will take an independent, objective look at it.”

Pai also repeated calls for the FCC to take a "pause" in moving forward on the TV incentive auction, explaining his comments at CES earlier this month (see 1501080032). The auction is to start in early 2016. In the aftermath of the AWS-3 auction, carriers will need more time to raise capital for a second big auction, he said. “They can’t turn around on a dime and raise those funds from the capital market.” A pause would also give the FCC time to reconsider the auction rules and simplify them where possible, he said.