The chairman of the FCC announced his desire to abandon the agency’s net neutrality protections – which protect online competition, free speech, and privacy from interference by Internet service providers like Comcast and AT&T – by undermining the legal authority behind those protections.
Rolling back the FCC’s Open Internet Order would mean losing the only rules that meaningfully prevent ISPs from taking advantage of their control over your Internet connection to shape your Internet experience and the market for services and devices that rely on that Internet connection. Since most Americans have only one option for broadband service, ISPs would have unchecked power to extract tolls from you and from businesses that wish to reach you. While the big incumbents like Facebook and Netflix might be able to pay those tolls, the next Facebook or Netflix would have a very hard time competing. Investors hesitate to fund startups that can be held for ransom by someone like an ISP. And the situation is even more dire for nonprofits like schools, libraries, educational sites, and political groups.
Chairman Pai suggests these fears are unfounded, but we’ve seen ISPs use every method at their disposal to favor their own content over competitors, going up to and even over the lines drawn by the previous FCC. This is particularly concerning given that at least one major ISP, Verizon, ran a news service that banned content regarding mass surveillance and net neutrality itself as contrary to the company’s interests. In Canada, an ISP blocked access to a site being used by a labor union to organize against it. A decade of misguided FCC policymaking unfortunately helped create the dysfunctional ISP market; the Open Internet Order is our best hope for preventing ISPs from abusing their power to become private gatekeepers on speech.
Today’s announcement cleverly pretends that the current “bright-line rules,” which clearly prohibit blocking and throttling, might survive. The law says otherwise. If Chairman Pai follows through on his intention to “reclassify” broadband service, it would be legally impossible for the FCC to enforce any such rules. How do we know this? Because the DC Circuit said so.
The same is true for privacy. Pai suggested that the Federal Trade Commission could enforce privacy requirements, but this is an empty promise for two reasons. First, the FTC can only intervene if an ISP breaks a privacy promise, and ISP lawyers are very good at avoiding enforceable promises. Second, a federal appeals court has held that a company can’t be the subject of FTC action if any part of its offerings is a “common carrier,” like telephone service. So if your ISP also offers telephone service, the FTC can’t touch it. That’s the law right now on the west coast and it’s a regime that telecoms doubtless will continue to promote elsewhere.
In short, Pai’s proposal leaves Internet users and small businesses completely at the mercy of ISPs. No one in the government would be able to step in to prevent abusive blocking and throttling of Internet content, pay-to-play fast lanes, or privacy violations by ISPs.
That in turn will be devastating for competition, innovation, and free speech. The harms of ISP discrimination and market failure were well-documented in the months-long rulemaking and millions of comments that urged the FCC to protect net neutrality in 2015. The new FCC seems determined to ignore the evidence and the wishes of the vast majority of the public, in order to advance the desires of some powerful ISPs.
The Internet has won this fight before, and we can win it again. The best way you can help now is to tell Congress to stop the FCC from throwing Internet users and innovators to the wolves. If you have a startup, you can also join a letter from over 800 small businesses from all fifty states in supporting net neutrality.