FCC chair wants to replace net neutrality with “voluntary” commitments

Federal Communications Commission Chairman Ajit Pai reportedly met with broadband industry lobby groups this week to discuss his plans for eliminating net neutrality rules.

Instead of the FCC continuing to enforce net neutrality rules, Pai “wants Internet service providers to voluntarily agree to maintain an open Internet,” Reuters reported yesterday, citing three sources briefing on the meeting.

Pai wants to shift enforcement of net neutrality from the FCC to the Federal Trade Commission, according to The Wall Street Journal, which also talked to people familiar with the meeting.

“To preserve the basic tenets of net neutrality, the plans would require broadband providers to pledge to abide by net neutrality principles such as no blocking or paid prioritization of Internet traffic,” the Journal wrote. “That would allow the FTC to go after violators for deceptive or unfair trade practices.”

Reuters said that Pai discussed his preliminary plan with “major telecommunications trade groups” but did not identify which ones. "The officials briefed on the meeting said Pai suggested companies commit in writing to open Internet principles and including them in their terms of service, which would make them binding," Reuters wrote.

Even if these commitments are legally binding, enforcing net neutrality guidelines could become more complicated under the FTC. With the current rules, customers or companies can file a complaint with the FCC and get a decision from the government's expert agency on communications networks, potentially putting a stop to abusive behavior. The FTC uses a different process for enforcing rules. Instead of writing extensive rules and deciding whether an ISP has violated them, the FTC files lawsuits against companies over unfair or deceptive acts or practices, letting a court make the decision.

“Replacing clear rules of the road with a voluntary system where broadband providers decide ahead of time what rules they would like to follow and when they can change those rules would unilaterally open the door to massive market abuses, including unreasonably low data caps, inflated prices for some content, and preferring cable/broadband content over smaller, independent competitors," consumer advocacy Public Knowledge said today.

Former FCC Chairman Tom Wheeler recently warned that FTC oversight won't be enough to police ISPs. The FTC "has enforcement authority, not rulemaking authority," Wheeler told Ars in January. "They can say, 'we think this is an unfair and deceptive act or practice,' but they can't say, 'here’s how networks have to operate so they're fast, fair, and open."

We asked the FCC for further information on the plans and will provide an update if we get one. The meeting with trade groups suggests that Pai "is inching closer to making his plans public, possibly as soon as this month, and that an FCC vote could occur in May or June," the Journal wrote.

Title II reversal wipes out more than net neutrality

Pai, a Republican, opposed net neutrality rules when they were implemented by the FCC's previous Democratic leadership. He claimed that the FCC net neutrality order "imposes intrusive government regulations that won’t work to solve a problem that doesn’t exist using legal authority the FCC doesn’t have." But the FCC did have the proper authority to implement the rules, a federal appeals court subsequently said when it rejected a lawsuit filed by broadband lobby groups.

After being appointed FCC chairman by President Donald Trump, Pai said, "I favor a free and open Internet and I oppose Title II." Title II of the Communications Act, which governs common carriers, is the legal authority used by the FCC to impose net neutrality rules.

Based on the Reuters and Wall Street Journal articles, the voluntary pledges Pai wants would cover the core net neutrality rules prohibiting ISPs from blocking or throttling lawful Internet traffic or prioritizing traffic in exchange for payment. But the FCC used Title II to implement more than that, and the other changes could be eliminated if the FCC reverses its classification of fixed and mobile ISPs as common carriers.

The net neutrality order also required ISPs to make more specific public disclosures about prices, fees, and data caps. Pai already exempted ISPs with 250,000 or fewer subscribers from this rule, though larger ISPs must still follow it.

The Title II classification of ISPs allows customers or companies to bring complaints against ISPs over "unjust" or "unreasonable" treatment. This included a complaint process to oversee interconnection payments in which network operators or content providers pay ISPs for direct connections to consumer broadband networks. Before the rules were implemented, interconnection disputes were harming the quality of video streaming and other Internet services, but those disputes were quickly resolved once the complaint process was in place.

Former FCC Chairman Tom Wheeler used Title II to try to limit zero-rating plans in which ISPs charge content providers for data cap exemptions. But the FCC reversed its zero-rating findings under Pai. Title II was also used by the FCC to implement privacy rules, which were just eliminated by Congress and President Trump.

Eliminating the Title II classification of ISPs would get rid of all of the above in one fell swoop. The move would potentially return jurisdiction over ISPs to the FTC, which is barred from regulating common carriers. But further action from Congress might be necessary to let the FTC regulate the Internet businesses of mobile and landline phone companies because of a court ruling last year that let AT&T escape FTC oversight entirely.