Consumers and innovators will lose if we kill net neutrality

Today FCC Chairman Ajit Pai will unveil his plan to undo the 2015 network neutrality rules, which prohibit Internet Service Providers (ISPs) like Comcast, AT&T and Charter from favoring or discriminating against any online applications, content and services. And while Pai claims he wants to preserve an open Internet, nobody should be fooled. Pai has been a long-time foe of net neutrality and that isn’t going to change. Whatever road he takes will harm consumers and innovators and benefit multibillion dollar cable and Internet companies

Recent press reports have said that Pai will first propose that the FCC reverse its decision to classify ISPs as essential “telecommunications services” under Title II of the Communications Act of 1934. That decision gave the FCC the legal grounding it needed to adopt strong rules prohibiting discrimination and “paid prioritization.”

Reversing the Title II classification will likely be coupled with a proposal to repeal the current rules. But what will replace them? Few expect Pai to answer that question tomorrow. I see three options, none of which will ensure an open Internet free of gatekeepers.

Voluntary commitments

Two weeks ago, the press was buzzing with rumors that Pai would recommend that the 2015 rules be replaced with voluntary commitments by ISPs that they would make part of their terms of service. Those commitments would then be enforced by the Federal Trade Commission.

This would amount to a radical abdication of the FCC’s responsibility to protect consumers and competition. While Pai’s Republican predecessors, Michael Powell and Kevin Martin, didn’t favor rules, they believed the FCC had a role to play in overseeing the broadband market, including ensuring non-discriminatory access to the Internet. Chairman Martin even ruled against Comcast when it blocked attempts to download lawful content on peer-to-peer networks (this decision was overturned by a federal court). Coupled with the classification reversal, Pai’s plan would leave the FCC -- the expert agency tasked with overseeing communications networks -- without any role when it comes to the most important network in history. This would leave the FCC powerless to prohibit fraudulent billing, price gouging and practices that violate consumers’ privacy.

Second, as has been well documented, Pai’s plan won’t work. ISPs can and do change their terms of service at any time; these commitments wouldn’t bind new ISPs, and Pai won’t be able to extract commitments from each of the hundreds of small rural ISPs that exist. In addition, because the FTC is merely an enforcement agency and can’t make rules, relief will be selective and will occur only after consumers and innovators are harmed.

Weak rules

Pai could instead move forward with weaker rules grounded in weaker legal authority. Reclassifying broadband ISPs as unregulated “information services” under Title I of the Communications Act would prevent the adoption of rules that flatly prohibit discrimination or paid prioritization.

The only Title I-based rules that could pass muster in the courts would have to permit discrimination, paid prioritization and individual negotiations between online companies and ISPs. In that vein, Pai has reportedly floated the idea that ISPs could be prohibited from engaging in “harmful” paid prioritization. Call those rules what you want, but they are not real net neutrality.

Imagine if you own a small start-up and you have to negotiate with Comcast for carriage. How could you afford it? Who would invest in you? It’s exactly that fear that led over 800 start-ups, entrepreneurs and investors in all 50 states to sign a letter asking Pai to preserve the current rules.

Do Nothing

Finally, Pai could reclassify ISPs, repeal the rules and replace them with NOTHING. Last week his Republican colleague Commissioner Mike O’Rielly made clear he thinks the voluntary commitment idea probably won’t work and that he thinks rules are unnecessary. So Pai may not have 2 votes for even the most minimal protections.

The bottom line

The battle over net neutrality has raged on for over 15 years. Finally, after three attempts, a federal court upheld the current rules, which are wildly popular. Now the Trump FCC wants to take them away and replace them (or not) with something that will fall far short of real net neutrality and will lead to many more years of uncertainty and litigation.

As has become commonplace for this FCC, the winners in Pai’s plan will be Comcast, AT&T, Charter and Verizon, the companies you pay handsomely for Internet access. These companies have few if any competitors, have become increasingly consolidated over the past 5 years, and are seeking to grow even larger. Do you want to control your Internet experience, or do you want huge ISPs to control it like your cable operator controls your cable service? Because the rules give you control, and Pai’s plan will hand that control to ISPs.

The good news is that we’ve seen what happens when Americans oppose efforts to remove hard-won protections. The successful uprising against the Affordable Care Act repeal is the most recent example. The Trump FCC’s effort to dismantle net neutrality will be a long, drawn out battle over many months and we’ll need your participation throughout. You can start today to voice your displeasure with Pai’s plan, both to the FCC and as important, to your representatives in Congress.

Original image has been replaced. Credit: Mashable

Gigi Sohn is an Open Society Foundations Fellow and a Mozilla Fellow. She served as Counselor to FCC Chairman Tom Wheeler from November 2013 to December 2016. More on Gigi can be found here.