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The Trump administration on Tuesday set in motion its plan to repeal virtually all of the U.S. government’s existing net neutrality rules — a move that will soon deliver another major deregulatory win to telecom giants like AT&T, Charter, Comcast* and Verizon.
In a forthcoming proposal from Ajit Pai, the Republican chairman of the Federal Communications Commission, the country’s telecom agency is set to eliminate open internet protections that prevent broadband providers from blocking, slowing down or otherwise interfering with web traffic.
In doing so, Pai seeks to shift the responsibility for net neutrality to another federal agency — one that arguably has far fewer powers to protect consumers from corporate harm. And he opens the door for AT&T, Verizon and others to begin to strike special deals with web companies for faster delivery of their music, movies or other content — arrangements derided as “online fast lanes” by critics who fear it would break the internet.
For now, Pai’s proposal is merely a final draft. As is custom at the FCC, he has circulated the order privately among his fellow commissioners today. It sets up the FCC to hold a vote on the future of net neutrality as soon as December — and Republicans, who hold three of the FCC’s five slots, are guaranteed to prevail.
“Under my proposal, the federal government will stop micromanaging the Internet,” Pai said in a statement. “Instead, the FCC would simply require internet service providers to be transparent about their practices so that consumers can buy the service plan that’s best for them and entrepreneurs and other small businesses can have the technical information they need to innovate.”
Already, Pai’s proposal has generated another intense online backlash. Even before he announced his plans, roughly 21 million web users bombarded the FCC with comments this summer urging the agency to preserve its existing net neutrality rules. Left-leaning public-interest groups like Free Press and Demand Progress helped organize online rallies this summer in defense of net neutrality, and top tech giants — including Amazon, Facebook, Google and others — similarly pleaded with the FCC to keep its existing open internet protections on the books.
Soon, those forces could band together once again to mount a lawsuit, potentially setting up months, if not years, of further legal wrangling over one of the web’s most contentious, unresolved issues. Telecom giants, meanwhile, have said they would invest more in their networks if the U.S. government merely regulated them less.
Adopted in 2015 under former President Barack Obama, the U.S. government’s current approach to net neutrality subjects the likes of AT&T, Comcast, Charter and Verizon to utility-like regulation. That legal foundation prevents them from blocking or throttling web pages, while banning content-delivery deals known as paid prioritization. And it grants the FCC wide legal range to review virtually any online practice it deems harmful to consumers.
Such strong rules always have been popular in Silicon Valley, where startups in particular fear they could not compete without tough net neutrality safeguards. But they long have drawn sharp opposition from the telecom industry, which sued the FCC in 2015 in a bid to overturn them.
Before that case could come to its conclusion, however, Trump entered the White House, ushering in a new era of Republican control at the nation’s telecom agency. And Pai, a fervent opponent of utility-like regulation of net neutrality, embarked on his campaign to undo the Obama-era rules almost as soon as he took over the FCC.
To that end, Pai’s new plan would no long consider telecom giants akin to utilities, a classification under law known as Title 2. It’s a move that has a cascading effect: It means the FCC cannot — and will not, under Pai — outright prohibit practices like blocking, throttling or paid prioritization.
Pai’s order does require internet providers to disclose more information to customers about their policies. That would include clear alerts whenever they prioritize their own streaming services over others, for example, or strike special deals with content makers to speed or free up their offerings, FCC officials explained.
And Pai’s blueprint — the full text of which he will release tomorrow — appears to shift the thrust of enforcing net neutrality to another agency, the Federal Trade Commission. Generally, the FTC would be empowered to take action against AT&T, Verizon or other telecom giants if they promised consumers to protect the open web but failed to keep such promises.
It’s an attempt at a compromise that’s sure to infuriate Pai’s critics, including the Internet Association, a Washington, D.C-based group that lobbies on behalf of Amazon, Facebook, Google, Twitter and other web giants. In July, it told the FCC that paid prioritization would harm startups and tech giants alike, putting them “at the mercy of ISPs who would face minimal constraints on their ability to charge [the industry] for prioritized access.”
Otherwise, the FTC is much more limited than its sister agency. Its efforts to ensure companies do not block or interfere with web traffic hinges greatly on whether those telecom giants are being deceptive. And the FTC is handcuffed in some cases from issuing fines for some corporate misdeeds.
Even the FTC’s own commissioners fear it might be too hamstrung to serve as the primary cop on the beat for net neutrality.
“These are very real and significant limits to the effectiveness of the FTC’s tools in policing nondiscrimination on networks and protecting competition,” said Terrell McSweeny, the FTC’s lone Democratic member, during a hearing on Capitol Hill earlier this month.
Meanwhile, Pai’s order would spare telecom giants from state legislators and regulators who might hate the FCC’s new approach and try on their own to police net neutrality, senior agency leaders said Tuesday. In recent weeks, AT&T, Verizon and their allies specifically lobbied the agency for this prohibition, federal records show.
Once Pai’s plan is adopted, though, the fight is far from over. Much as the Obama administration faced multiple court challenges, so too will Trump’s FCC, as public-interest groups and tech giants already are signaling they intend to sue.
Among their criticisms is that Pai ignored millions of comments that urged him to preserve the government’s rules. They also reject Pai’s argument that broadband investment has suffered as a result of his predecessors’ regulation. The FCC, for its part, is likely to contend that many of the comments it received were fake — and that its own numbers show telecom giants truly invested less in recent years.
* Comcast, through its NBCU arm, is an investor in Vox Media, which owns this website.
This article originally appeared on Recode.net.
