What the FCC chair’s actions tell us about net neutrality

FCC Chairman Ajit Pai moved quickly to rollback as much of the former chairman’s work

What the FCC chair’s actions tell us about net neutrality
US House of Representatives

With the elevation of Ajit Pai to chairman of the FCC, everyone is waiting for Pai to tip his hand on net neutrality. Looking at his first few actions, though, we can get a sense of what’s to come.

Since becoming chairman, Pai has used his authority to rescind much of the work implemented by his predecessor, Tom Wheeler, in the past 30 days. Pai’s orders are similar to President Trump’s executive orders. They are exercises of his discretion as chairman that do not need sign-off by the other commissioners.

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Steve Augustino, a partner at law firm Kelley Drye who specializes in telecommunications, expects to see a lot of disruption until we get a better understanding of what Pai considers important

“What you are seeing at the FCC is a pivot like what we’re seeing, more broadly, by the Trump administration to reverse regulation adopted by the previous administration,” he said. “It will be disruptive and uncertain until we can figure out Pai’s priorities.”

Pai has pretty much acted on everything that he could without a vote by the commissioners. According to Augustino, reversing Wheeler’s Open Internet Order, commonly refered to as net neutrality could be substantively and procedurally complex.

“Chairman Pai walked back from the zero-rating investigations, which is something that was low-hanging fruit for him in the net neutrality area,” he said. “What is clear from the record is Pai has a much narrower interpretation of Section 201(b)of the Telecommunications Act compared to Wheeler’s more far-reaching one.”

Section 201(b) states:

"All charges, practices, classifications, and regulations for and in connection with such communication service, shall be just and reasonable, and any such charge, practice, classification, or regulation that is unjust or unreasonable is declared to be unlawful …”

Pai’s first actions, summed up below, indicate that he will rely more on the market than regulation and enforcement, which could affect the enforcement of the Open Internet Order that said where internet communications did not meet the FCC’s current definition of broadband performance, the FCC could regulate the service providers like utilities and enforce the deployment that met the definition.

7 actions Pai has taken since becoming FCC chairman

  1. Pai sent letters to AT&T, Verizon, T-Mobile and Comcast saying the FCC terminated an investigation into sponsored data and zero-rated offerings with the finding that no violations were uncovered. Earlier this month, the FCC set aside the framework for investigating sponsored data and zero-rated offering.
  2. Pai closed the FCC’s inquiry into the development of security practices for 5G networks and technologies and will no longer accept comments on the issue, leaving privacy, security and availability up to the carriers.
  3. The FCC reversed its position on broadcast license deals between broadcasters that also have separate pending transaction or revenue sharing agreements. Wheeler's FCC was concerned that the two types of transactions might not really be separate and transparent. One transaction could be an incentive for the other, reducing the value of the broadcast license deal and the fees collect by the FCC.
  4. Nine grants for Lifeline support for broadband service to low-income consumers were revoked, and the service providers must undergo further review and perhaps be subject to newly adopted FCC procedural safeguards for the grants to be reinstated.
  5. Under Wheeler, the FCC had clarified the booking rules that broadcasters must follow when selling air-time for political use in admonishments against multiple broadcasters. These were rescinded by Pai who raised the review of allegations to the full commission.
  6. White papers on digital infrastructure improvement for future broadband deployment and design concepts for incorporating security into consumer devices were withdrawn, apparently leaving these two issues up to service providers and manufacturers. 
  7. The FCC retracted a progress report on modernizing the E-Rate program that helps schools and libraries acquire affordable broadband services and said the report would not have an impact on the FCC's decision.

Currently, the five-person commission has two open seats. When these positions are filled, the Republicans will have appointed the chairman and two commissioners and the Democrats will have two commissioners. This reverses the voting balance held during the previous administration when the three commissioners appointed by Democrats voted for the Open Internet Order and the two Republican appointees voted against.

Though the process to reverse the Open Internet Order is substantively and procedurally complex, four years may be long enough.

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