On Thursday,?????? ?? ????? ?????? ?????? the Trump FCC will vote to adopt a final “Notice of Proposed Rulemaking” (NPRM) that will officially begin the effort to repeal the 2015 network neutrality rules and the legal authority upon which they are based — Title II of the Communications Act of 1934. Title II says that broadband Internet Service Providers (ISPs) like Comcast and AT&T are essential “telecommunications services,” and as such, can be prohibited from discriminating against or favoring certain Internet traffic.
Anticipating a huge outcry, FCC Chairman Ajit Pai two weeks ago opened a “docket”for the public to submit comments, and it has — over one million comments have already been submitted. The final NPRM will start the official period for comments and reply comments on the proposal to repeal the rules (comments are currently due on July 17; replies on August 16). Comments can be submitted here, but you must wait until the NPRM is released (likely Thursday afternoon).
SEE ALSO: Mysterious bots flood the FCC with fake anti-net neutrality commentsAfter the reply comment period is over, the FCC will draft its decision. Depending on the length and complexity of an issue, it usually takes anywhere from 2 to 6 months to draft a final decision. But Pai has made it clearthat he already knows what the decision will say. He and his supporters are in a rush — the longer this proceeding goes, the more likely it will become a major issue in the 2018 election (based on the fundraising emails I’m getting, I’d say it already has).
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What to expect from the policy debate:
Put simply, Pai believes the 2015 rules and Title II are burdensome and unnecessary and that the Federal Trade Commission (FTC) should oversee the broadband market. Supporters of the rules say they are essential to protect consumers and innovation; have worked to the benefit of the entire Internet ecosystem and the public; and that the FCC has more expertise and stronger legal tools to protect consumers and competition in the broadband market. Here’s a deeper dive:
Net Neutrality ensures you have the freedom to control your Internet experience. The 2015 rules prohibit broadband ISPs like Comcast and AT&T from picking winners and losers on the Internet. Contrary to what net neutrality opponents say, the rules do not “regulate the Internet.” As powerful as these companies are, they are not “the Internet” — they provide access tothe Internet. Most Americans have little or no choice in ISPs — a recent FCC studyshowed that 58% of census blocks had either zero or one broadband provider, and 87% had no more than two. Does anyone really think that consumers are better off without rules of the road moderating the behavior of these gatekeepers?
Strong Net Neutrality is currently possible only under Title II. You’ve probably seen ads from Comcast and others: “Title II is not Net Neutrality.” This ignores reality — without Title II, net neutrality rules cannot survive. The FCC twice tried to enforce net neutrality under other sections of the Communications Act. Twice a federal court of appeals in DC invalidated those efforts. It wasn’t until the FCC based net neutrality on Title II that the court upheld the rules.
Under the court’s rulings, any rules the FCC might adopt using a different legal authority than Title II couldn’t prohibit discrimination. This of course, is the signature requirement of net neutrality. Those rules would also have to allow for individual negotiations between online companies and ISPs. Imagine a small start-up having to negotiate with Comcast or AT&T for carriage. That’s not a fair fight.
ISPs, online companies, and the public have all benefitted under the net neutrality rules. The federal court foundthat net neutrality rules allow online companies to thrive, which in turn increases consumer demand for broadband, which leads to more broadband investment, leading to new online innovation. The court called this the “virtuous circle.” Since 2015, the number of new online companies exploded — witness over 1000 startups from all 50 states that asked Paito preserve the rules. This has resulted in increasing numbers of Americans adopting broadband.
Pai and other net neutrality opponents cite ISP-funded researchthat purports to demonstrate that industry investment has decreased since the 2015 rules were adopted. Other research derived from publicly available sources demonstrates otherwise. But what is most telling is what ISPs tell Wall Street. Not one publicly traded ISP has told its investors or the Securities and Exchange Commission that investment has decreased as a result of the 2015 rules. Indeed, AT&T has boastedboth that it invests more than any other US company and that the cost of building wired networks is decreasing. In other words, being an ISP — where costs are declining, competition is minimal and subscriber fees are high — is a very good business.
The FCC is the agency best suited to oversee the broadband market, including net neutrality. The net neutrality debate is really a debate over whether the FCC, which is tasked by law with overseeing America’s communications networks, will have any oversight over the most important communications network of our lifetime. Pai would like to abdicate that role and give it to the Federal Trade Commission.
The FCC is the “expert agency” on how networks function and how the industry operates. Importantly, the FCC is authorized to adopt rules to protect consumers and competition — and not just net neutrality rules. Among other things, the FCC protects against fraudulent billing, price gouging, and privacy violations. Given the importance of broadband to the American people and the economy, it is critical to have rules that protect consumers and innovation beforethey are harmed. That harm can be substantial — financial, social and even physical.
The FTC has been a great partner to the FCC, but it has neither the technical expertise nor the rulemaking power to protect consumers and innovators fully. Instead, the FTC enforces a legal prohibition against “unfair and deceptive trade practices” after a consumer has been harmed. What is unknown is whether that would extend to net neutrality and other anti-consumer practices like price gouging. What is known is that the scope of what constitutes an “unfair and deceptive trade practice” has been constantly litigated, and will continue to be if ISPs are overseen only by the FTC.
The bottom line
The fight to save net neutrality has just begun. While Chairman Pai boasts that this is a “fight [he is] going to win,” he faces significant political and legal hurdles. Your participation - at the FCC, with your representatives in Congress, in the public debate - will be crucial to making those hurdles more difficult to overcome in the months ahead.
Original image has been replaced. Credit: Mashable Gigi Sohn is an Open Society Foundations Fellow and a Mozilla Fellow. She served as Counselor to FCC Chairman Tom Wheeler from November 2013 to December 2016. More on Gigi can be found here.