For all the pitched debate over net neutrality, it’s easy to forget that the Federal Communications Commission technically hasn’t even started undoing the Obama administration’s rules.
When the telecom agency meets on May 18, it’ll vote on a public notice to begin the process, not end it. From there, tech companies, telecom giants and consumer advocates will be able to weigh in with their views — a public-comment period that last time overwhelmed the FCC’s website.
Even so, the FCC’s new Republican chairman, Ajit Pai, hasn’t offered much detail as to what his replacement net neutrality rules might look like. But Pai left a few potential breadcrumbs during a chat on Recode Decode:
What we know for sure: Pai, of course, is clear on one thing: He seeks to scrap the net neutrality protections put in place by his Democratic predecessor, former Chairman Tom Wheeler, in 2015. Those rules treat internet providers like AT&T, Comcast*, Charter and Verizon similar to old-school telephone companies to stop them from blocking or slowing down their competitors’ web traffic, or from charging internet companies for faster delivery of their movies, music or other forms of content.
Instead, Pai stressed the importance that net neutrality protections come in the form of “light-touch regulation.” And his public notice leaves it up for tech and telecom companies to debate exactly how that might look.
What “light touch” really means: Pai has repeatedly used this phrase, while casting the Obama-era FCC’s work as heavy handed — and damaging to investment. In short, “light touch” net neutrality could take a lot of forms, but here’s one of them: There’s a world in which the FCC doesn’t have any explicit, preemptive net neutrality rules on its books at all.
In his public notice, Pai specifically asks companies and consumers whether other federal agencies or laws are best equipped to prevent ISPs from blocking or slowing down web content. (Maybe federal competition rules, for example, are the right bet.) The document also questions whether the telecom industry could perhaps police itself. Pai said he hasn’t ruled out changing the FCC’s role when it comes to net neutrality, but it seems possible. “That’s the entire purpose of a notice of proposed rulemaking,” he told me, “to seek comment on what people think the rules of the road should be, and what the legal framework for securing those rules should be.”
What Pai really thinks about online fast lanes: For years, tech companies and public interest groups have expressed deep fear that internet providers could charge companies for faster delivery of their content. The Obama-era FCC, under Chairman Tom Wheeler, heard their cries and adopted net neutrality rules that explicitly sought to ban the practice, known as “paid prioritization.”
But Pai takes a different view: “These don’t exist, and prior to 2015, they didn’t exist ... so we’re talking about something that’s entirely hypothetical,” he said of such deals. That means, to Pai, maybe the FCC doesn’t need to ban them outright.
The chairman’s fuller take:
“Now, here, if we’re talking about a hypothetical harm, something that hasn’t happened yet, it seems to me that ex post regulation, after the fact, is appropriate. Because number one, we don’t know if these will ever exist; and number two, to the extent these do exist, if some companies try to pursue these arrangements, then on a case-by case basis you can determine based on real facts, actual evidence that you can see, and evaluate and test whether something is competitive or not.”
How Pai plans to approach public comments: Nearly four million comments flooded the FCC last time, thanks to the likes of high-profile net neutrality advocates like John Oliver, who railed against telecom giants. Pai can pretty much expect the same reception, but he said it isn’t all about numbers.
“We have to remember not all four million were in support of the rules,” he said. What happens, though, if a majority still thrashes Pai and his plan to roll back the Obama administration’s work? “Well, look, that’s part of the process. ... After that [public comment period] is over, the agency takes stock of what’s in the record.” While he said the FCC must have “substantial evidence” justifying its work, he said “there’s no numerical threshold the courts have applied” to evaluate if regulators act appropriately.
And by the way, he stopped short of saying consumers’ fears are unfounded. Asked if public-interest groups had been disingenuous, he replied: “The parade of horribles trotted out have no resonance in fact.”
* Comcast, through its NBCUniversal arm, is an investor in Vox Media, which owns this website.
This article originally appeared on Recode.net.