Net Neutrality

Net neutrality proponents who summarily dismiss any potential for Congress to resolve net neutrality with a legislative compromise, might want to rethink that heroic assumption after closely reading the Pai-FCC’s Title II NPRM.

Apparently, Chairman Pai has figured out a way that could overturn the FCC’s 2015 Open Internet order, and in addition, practically neuter the going-forward precedential value of the D.C. Circuit Court of Appeals’ USTelecom v. FCC decision that upheld the legality of the 2015 FCC order.

Importantly, it is the continuation of the legal validation and legitimacy of the USTelecom v. FCC decision that gives net neutrality proponents their long-term hope that they could restore a Title II net neutrality regime in the U.S. with just a simple FCC majority vote in 2021 or 2025, just like they did in 2015.

Please don’t miss my latest The Hill op-ed: “Six definitions that are preventing consensus on net neutrality.”

Please don’t miss my latest The Hill op-ed:   “Google’s ad blocking exposes the company’s hypocrisy on net neutrality” (& copyright).  

FOR IMMEDIATE RELEASE, April 20, 2017, Contact:  Scott Cleland 703-217-2407

Pai FCC is wisely spurring private broadband infrastructure investment and facilities-based competition, which is what makes America’s Internet infrastructure unique in the world, and which is the opposite of the Wheeler FCC’s broadband infrastructure policy of Title II public utility regulation and promotion of taxpayer-funded municipal broadband networks

WASHINGTON D.C. – The following may be attributed to Scott Cleland, Chairman of NetCompetition:

“In a series of consistent digital infrastructure decisions today by the Pai FCC, the important policy takeaway is a Pai-FCC laser focus on encouraging private sector infrastructure investment and facilities-based competition, a complete reversal of the Wheeler-FCC’s opposite laser focus of discouraging private broadband infrastructure investment via aggressive promotion of taxpayer-funded, municipal broadband infrastructure investment, and maximal Title II public utility regulation of competitive broadband facility providers.”

“These Pai-FCC infrastructure decisions today represent a clear return to the bipartisan 1996 Telecom Act purpose of “promoting competition and reducing regulation,” and the consistent bipartisan broadband policies of the 1997-2013 FCC’s of Senate-confirmed FCC Chairmen Kennard, Powell, Martin, and Genachowski, that all promoted facilities-based broadband competition and investment, and consistently rejected Title II utility regulation of broadband Internet access.”

At best the notions of net neutrality and consumer privacy are somewhat in tension.

At worst, they are in opposition, and harm consumer privacy as happened when the Wheeler-FCC subordinated the goal of what’s best for consumer privacy to the conflicting and overriding goal of what was best for imposing maximal, Title II net neutrality.

Net neutrality and consumer privacy are in tension because they are very different concepts, priorities, and approaches for the handling of information online.

However, the original tension between the FCC’s first concept of net neutrality and consumer privacy was very limited because the Martin-FCC’s 2005 Internet Policy Statement on net neutrality was an extension of the Powell-FCC’s “Internet Freedoms” concept of net neutrality, and both approaches were consumer-first, i.e. very clearly centered around what consumers could expect from the Internet.

What thrust them into the more opposing concepts that they are today?

It was when net neutrality flipped from being primarily a consumer-centric principle to an edge-provider centric principle defined by Google, Amazon, Facebook and Netflix; and from the enforcement of a general broadband nondiscrimination principle, to the preemptive imposition of “the strongest possible,” specific, utility rate regulation framework – i.e. Title II of the 1934 Communications Act -- on a competitive industry that had done nothing wrong to warrant it.

Please see PBS NewsHour’s five minute segment here with Gigi Sohn and I discussing Congress’ rescission of the FCC’s unimplemented broadband privacy order that the Wheeler-FCC majority passed last October by a 3-2 vote.

Please see my latest The Hill op-ed: “Congress was right to save consumers from privacy rules imposed under net neutrality.”

Consumer privacy has been the biggest loser from net neutrality proponents’ politicization of privacy.

Please don’t miss my latest The Hill op-ed: “Pai’s FCC is rebooting broadband facilities competition and 5G investment.”

It uncovers what is important underneath the focus on Title II net neutrality.

FCC Chairman Ajit Pai gets it that 5G wireless is a gamechanger for the rationale underlying the Wheeler-FCC’s Title II Open Internet order and net neutrality policy.

Fast-changing markets and new competitive realities are a huge threat to the viability of the previous-FCC’s Title II Open Internet Order and net neutrality policy because they are based on the unsupported and unproven assumption that competitive ISPs command monopoly market power.

FCC Chairman Pai enjoys a plethora of new competitive evidence that enables this FCC to reverse the previous FCC’s Open Internet order, based on recent tectonic market changes, new competitive realities, and Chairman Pai’s return to FCC policymaking based on real world evidence, reason and the law. 

Two years is an eternity in Internet time.

New Trump FCC Chair Ajit Pai’s keynote speech on “Building the 5G Economy” at the Mobile World Congress in Barcelona today spotlighted to the communications world that the U.S. FCC is going in a very different policy direction than that of the previous FCC Chairman Tom Wheeler, who just happens to be speaking at the same event as a private citizen to a break-out session on “The Fourth Industrial Revolution.”

The fact that they are both at the largest communications event in the world delivering starkly divergent messages and visions, on the same day, provides an instructive and illuminating opportunity to juxtapose their contrasting policy approaches.