Former FCC Officials Expect Quick Action on Net Neutrality Rules

The FCC is expected to move very quickly on a final order on net neutrality after voting to launch a rulemaking Thursday (see 1705180029). Chairman Ajit Pai said he hoped to move as early as October, industry lawyers said. Former officials said that’s a tough timetable, especially if new commissioners join by then, including possibly a new commissioner to replace Democrat Mignon Clyburn, whose term expires in June.

“I think it will go pretty quickly,” said former Commissioner Michael Copps, now at Common Cause. Copps told us he’s concerned the FCC will move too quickly. “We need to have a national discussion on the future of the internet, not just two guys ramming something through down at the FCC,” he said. “The whole administration has been doing that.” Copps said net neutrality is complicated and too big of decision for a three-member commission. “I don’t know what the rush is,” he said. “The internet is healthy. People are investing.”

Gigi Sohn, former top aide to then-Chairman Tom Wheeler, said October might be too ambitious, and impossible if the commission doesn’t have a three-member quorum. “November, December at the latest, that’s pretty quick,” she said. The draft NPRM proposed July 17 for comments, Aug. 16 for replies. An FCC official said that's the deadline approved by commissioners Thursday. Sohn, now at the Open Society Foundation, expects lots of pressure to extend the reply deadline by at least two-to-four weeks. She doesn’t expect the FCC to adopt new rules to replace those it terminates: “Everything leads to getting rid of the general conduct standard, getting rid of [Communications Act] Title II and not replacing the other rules with anything.” Commissioner Mike O’Rielly has made clear he doesn’t think there should be rules, period, she said: “I don’t know how you’re going to get his vote” on new rules.

The FCC already has a “voluminous” record from past proceedings, said former Commissioner Robert McDowell, now at Cooley and Mobile Future. “The record needs to be refreshed, however, for the agency to support its ultimate conclusions,” he said. “That endeavor shouldn't take a year, rather just a few months. Open questions are the timing of a possible Supreme Court appeal and potential congressional action. Some will argue that having those hanging out there mean that the FCC should hurry up, while others will say it means that it should slow down."

“It’s obvious, by virtue of the length of the comment periods established, that the commission is not intending to steamroll this proceeding to a quick conclusion,” said Randolph May, president of the Free State Foundation. “I would expect that Chairman Pai would want to try to get an order out before the end of the year.” Doug Brake, senior telecom policy analyst at the Information Technology and Innovation Foundation, expects a quick turnaround: “There is always the possibility of unexpected turns, but positions on net neutrality have been long staked out and I doubt the commissioners will be surprised by much in the record.”

Copps lambasted the majority for approving the NPRM. “I've never heard such a bunch of spurious arguments, distorted history, and just plain rubbish as Chairman Pai and his big industry allies have put forth to sustain their totally untenable argument against an open internet,” Copps said in a statement. "The 2015 rules are working, and the internet industry remains opposed to any changes to FCC regulations governing net neutrality," said Internet Association President Michael Beckerman. "ISPs should not be able to use their position as gatekeepers to prioritize their own content over others."

“The chairman’s willingness to trot out alternative facts about broadband-industry investment and recycle long-debunked talking points should worry anyone who cares about the free and open internet,” said Free Press President Craig Aaron. “Pai’s intent is clear: to destroy the internet as we know it and give even more gatekeeper power to a few huge companies like AT&T, Comcast and Verizon.”

The FCC didn’t have a “debate,” on net neutrality; instead, commissioners read prepared statements, tweeted Kevin Werbach, professor at the University of Pennsylvania’s Wharton School. “The FCC majority decided long ago what it wants to do,” he said. “Only question is whether they'll succeed.”

FTC acting Chairman Maureen Ohlhausen welcomed the NPRM "as further progress toward restoring the FTC’s ability to protect broadband subscribers from unfair and deceptive practices, including violations of their privacy,” she said. “Those consumer protections were an unfortunate casualty of the FCC’s 2015 decision to subject broadband to utility-style regulation. “Eliminating #OpenInternet will further concentrate power in a few enormous firms tilting the marketplace in their favor & against innovators,” tweeted FTC Commissioner Terrell McSweeny.

Thune Pushes Legislating

Bipartisan legislating should begin “without any further delay” despite wishes of some to let courts and the FCC continue, said Senate Commerce Committee Chairman John Thune, R-S.D., in a floor speech Thursday. “We can find common ground to protect the internet so long as we don’t fixate on the misguided notion that monopoly regulation is the only way to preserve it.” He’s happy to meet with anyone and “would also welcome discussing any new open internet proposals from my colleagues,” warning against “apocalyptic rhetoric and fear mongering.” The vote “sets the stage” to legislate, striking “the right balance between providing regulatory oversight on the one hand and giving the broadband industry the flexibility it needs to innovate and expand on the other,” agreed Senate Communications Subcommittee Chairman Roger Wicker, R-Miss., in his own floor speech.

Few Democrats showed willingness. Several took to the Senate floor Wednesday to slam Pai’s actions. Members’ many statements Thursday split along party lines.

Pai “has an obligation to keep an open mind” despite his seeming prejudgment, said Senate Communications Subcommittee ranking member Brian Schatz, D-Hawaii. “I plan to hold him to that obligation -- to make sure that the people who weigh in are heard, as they should be.” Pai’s actions are “profoundly anti-competitive, anti-innovation, and anti-consumer,” agreed House Communications Subcommittee ranking member Mike Doyle, D-Pa. Sen. Ed Markey, D-Mass., accused Pai of “taking steps to restrict innovation, economic growth and democratic expression by voting to roll back net neutrality rules,” favoring big corporations. Markey “will oppose any legislative efforts that weaken or undermine the Open Internet Order,” he pledged. Sen. Al Franken, D-Minn., called the vote “a major step toward destroying the internet as we know it” and Rep. Anna Eshoo, D-Calif., said it’s “demonstrating that he is on the wrong side of history, consumers and the public interest." The FCC “seems to be covering its ears” to the many comments, said House Commerce Committee ranking member Frank Pallone, D-N.J. “That leaves the American people with only one option: get louder.” The vote’s “bad news for every American who depends on #OpenInternet & the 3 million+ jobs it provides,” tweeted Sen. Maria Cantwell, D-Wash., who changed her website to first feature a prompt saying the FCC threatens people’s internet access. The site urges people to comment on the proceeding. "The fight to save Title II Net Neutrality protection is about guaranteeing every citizen’s right to dissent," Rep. John Lewis, D-Ga., tweeted.

Republicans cheered. Senate Majority Leader Mitch McConnell, R-Ky., commended Pai on Twitter “for taking this step to address the #netneutrality issue, and to keeping the Internet open for consumers -- permanently.” House Communications Subcommittee Chairman Marsha Blackburn, R-Tenn., is “hopeful that Republicans and Democrats, internet service providers, edge providers and the internet community as a whole can come together and work towards a solution,” she said. Sen. Mike Lee, R-Utah, called the vote a “first step,” urging congressional action and citing his GOP-backed Restoring Internet Freedom Act (S-993), which Democrats have scorned.

Protest

During a concurrent protest outside the FCC, many speakers likened the potential rollback of Title II rules to a limitation on free speech and unfettered communication. "The debate we are here to begin is ... over democracy itself," said Sen. Ed Markey, D-Mass. The FCC is acting at the behest "of a small number of corporate behemoths" looking to limit competition, Markey said to boos. "The Trump administration has no idea what they are about to unleash on this country." Copps said a Title II rollback "would be the worst decision in the history" of the agency.

Many pointed to the large public outcry against elimination of net neutrality rules as a sign of lack of popular support. Despite what policymakers think, "there's no constituency out there for cable companies," Electronic Frontier Foundation Legislative Counsel Ernesto Falcon said. Public Knowledge Senior Vice President Harold Feld criticized the FCC for not pursuing the distributed denial-of-service attack that has caused electronic comment filing system problems in recent days: "Where the hell is action on an illegal hack of the FCC?"

The protest included call-and-response chants, a series of short speeches and a large effigy depicting Pai and Donald Trump as marionettes manipulated by telcos. "We won once before for net neutrality; it's time to win again," said Sen. Ron Wyden, D-Ore. Free Press CEO Craig Aaron said, "I don't trust [telcos] to show up between 10 and 2 [and] I don't trust them with the future of the Internet."

Former Commissioner Gloria Tristani, a Democrat like Copps, said rhetoric about the internet in its early years benefiting from a light-touch regulatory approach is incorrect since at that time it was delivered over phone lines, which the FCC heavily regulated. Lifting Title II regulation will lead to "a cable TV future" for the internet, with content controlled by a few, said Kevin Zeese, co-director of Popular Resistance, which he said has been active protesting outside Pai's home. The dozens of protesters were largely representatives of, or organized by, various groups behind the event, including Free Press, Fight for the Future and Demand Progress.

Meanwhile, pointing to the FCC's not responding to a pair of Freedom of Information Act requests on possible Obama administration influence in the FCC classifying broadband as a Title II service, Judicial Watch on Tuesday sued the agency in U.S. District Court for the District of Columbia. In its suit (in Pacer), Judicial Watch said it has had no agency response to its March 30 request for any records dating between March 28, 2015, and March 30, 2017, "discussing or analyzing the desirability of a 'two-sided' market for broadband internet services from an economics or public policy standpoint." It also said the FCC hasn't responded to its April 4 request for all emails between April 15, 2014, and Jan. 20, 2017, between the FCC and CTIA General Counsel Tom Power, who in 2014 was deputy chief telecommunications officer in the White House Office of Science and Technology, and between the FCC and David Edelman, who at that time was special assistant to the president for economic and technology policy. In a news release Thursday, Judicial Watch said the records "could show the Obama White House rigged the FCC power grab over the Internet." The FCC didn't comment.

ISPs Support FCC

Industry heavyweights released statements on the NPRM, saying they support net neutrality but oppose the 2015 rules.

AT&T looks "forward to engaging in the complex discussions teed up in this proceeding, as the questions raised here are so important to consumers and the economy,” blogged Joan Marsh, senior vice president-federal regulatory. “But, in the end, significant policy judgments are the province of Congress. Administrative agencies can act only on the authority they are granted to implement Congressional mandates.”

“Verizon supports net neutrality,” said General Counsel Craig Silliman. “Our customers demand it and our business depends on it. Our customers should be able to access the internet wherever, whenever and however they choose.” Comcast Senior Executive Vice President David Cohen blogged that, "especially in the current heated political climate, we must come together, from across the aisle, both public and private sector, to find common ground that protects consumers on the core elements of net neutrality without unnecessary and harmful regulatory overreach.”