After Tom Wheeler’s tenure as FCC Chairman, no one could have expected a dull Commission when the FCC passed back into Republican hands in the wake of Trump’s January inauguration. On that score alone, the Ajit Pai-led FCC has not disappointed, pursuing a strong deregulatory agenda, which seeks to undo many of the market regulations initiated by the Wheeler FCC. But it’s been the Pai Commission’s move to reverse the Obama-era open internet regulations that’s generated the most headlines, bringing the net neutrality debate to full blaze.
A brief history of the net neutrality debate.
Amidst the Sturm und Drang, it might appear like we’ve always had open internet safeguards. But the fact is that net neutrality regulations (and the larger practice of regulating ISPs as utilities) that we have today only date back a couple years. In 2015, then-Commissioner Wheeler released his revised proposal, which called for the prohibition of broadband companies from blocking websites, slowing connection speeds, and charging for the faster delivery of content. Those regulations were approved in the FCC on a party-line vote, with the three Democratic Commission appointees’ “yesses” carrying the day.
But one of the two Republican “no’s” came from then-Commissioner Pai, who quickly positioned himself as the most vocal net neutrality-detractor, deriding the new protections as backdoor regulations that would dampen digital innovation, eliminate competition, and introduce new taxes.
The contours of the net neutrality debates had been set. On one side, advocates asserted that regulations are absolutely necessary to keep the internet open to all, protect consumers, and prevent ISPs from picking data winners and losers. Meanwhile, detractors saw the regulations as obtrusive government overreach, needlessly harming the broadband industry and (by extension) consumers, if ISPs could no longer afford to invest in capital improvements and expansion. So it was no surprise that with Pai’s ascension to the Chairmanship, the Obama-era net neutrality regulations would be on the chopping block. Surprising or not, the passion engendered by the ensuing debate has still caught industry watchers by surprise. Let’s look at some of the pockets of the debate.
Does Portugal offer a preview of a world without net neutrality?
In arguing against Chairman Pai’s proposed rules changes, many net neutrality proponents like to point to one particular country they believe exhibits all the negative, market consequences of weak open internet protections. Not China, not Russia – though those countries feature prominently in pro-open internet discussions– but Portugal.
Although the EU administers a strong, supranational regulatory regime, it cedes a lot of the actual enforcement muscle to individual member states, like Portugal. And those national regulators can find loopholes for things like zero rating, a practice in which ISPs exclude certain services (often their own) from data caps. Practices like zero rating rankle proponents of net neutrality, but are supposedly rife in Portugal. Without open internet safeguards, it is feared that American ISPs will steer traffic towards preferred sites and services by creating service packages, like many in Portugal, that only offer access to certain sites and services. To get access to a fuller breadth of sites and services, you would have to buy a pricier, more robust plan.
The debate was open for comment. But who actually commented?
Before making an official recommendation on the net neutrality debate, the Pai Commission, like most other regulatory bodies, put the question of net neutrality out for public comment. And public comment it received, upwards of some 20 million comments. However, the validity of many of those comments (and the process itself) have come under recent scrutiny, after the FCC revealed that millions of comments were submitted from fake email addresses.
Fake or not, the vast majority of the comments might still not have had much of an impact on the Pai Commission’s ultimate decision. The FCC had already stated that it would only vet comments based on whether they made a serious legal argument. A difficult standard for the vast majority of non-lawyer citizens.
>And what does Twitter have to do with it?
The debate over the open internet has, by and large, pit incumbent ISPs, like Comcast, AT&T, and Verizon, against high-tech behemoths, especially Google, Facebook, and Twitter. Facebook and Twitter have created a digital commons; and hence, they would consider any attempt to limit the flow of information on the net (and to their platforms) as a significant threat. But in a recent defense of his decision to gut net neutrality protections, Chairman Pai came out swinging against what he saw as Twitter’s hypocritical stance on the so-called open internet, claiming that Twitter’s enforcement of its own community standards showed demonstrable bias against users who spouted politically conservative view points.
It’s fair to say that even if Pai pushes through a more deregulatory agenda at the FCC, the net neutrality debate will be far from over.