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There are three things to know about the current claims regarding the Federal Communications Commission’s decision on May 18 to begin the process of moving internet regulation back to Title I, reversing the reclassification under Title II enacted 2015.
The three things are these: Title II does not ensure net neutrality, despite the claims from all sides that it does. Title I does not eliminate network neutrality, despite those anguished claims to the contrary. And this is one of those times when the process really matters.
The process that matters in this situation began in 2015, when the White House demanded that the FCC reclassify the internet and Internet Service Providers as falling under Title II of the Communications Act. Title II is the same part of the Act that regulates telephone companies as common carriers. The rationale for doing this was to maintain net neutrality regulations.
The White House demanded this action because the federal courts had found that the FCC lacked the authority to enforce net neutrality under Title I. The fact that there was a bipartisan net neutrality bill on the road to passage in Congress was ignored by the administration. By agreeing to the While House pressure, the FCC violated its own independence.
But that wasn’t the only instance when former FCC chairman Tom Wheeler violated the rule-making process. The agency had held hearings and comments for a Notice of Proposed Rulemaking that would work with the net neutrality legislation that was being finalized in Congress. But the commission changed course radically with its reclassification. Instead of holding new hearings and receiving comments as the law requires, it simply enacted the change.
What was worse is that Wheeler kept the 300-plus page reclassification order secret before the FCC action and didn’t reveal its contents until weeks later, another violation of the law, which like the others included the Administrative Procedures Act. The new order provided for net neutrality through a set of forbearances, which the commissioners could change at their whim.
The new Chairman, Ajit Pai, announced that he was going to see about undoing the FCC’s previous decision. But unlike the Wheeler FCC, Pai made the planned action public and openly invited public comments before and after the vote.
So far, the comments seem to slightly favor net neutrality, although it’s hard to tell because the FCC’s comments were flooded by spammers who sent millions of identical anti-neutrality messages using people’s names acquired from hacked accounts.
To be sure how the trend is going, the FCC staff will have to identify those bogus comments and remove them. Until that happens, we don’t actually know for sure how the pro versus con count is going.
But the FCC doesn’t make up its mind based on the number of comments anyway. The real issue is how to find people to read all of those comments, once they sort out the real ones.
Adding confusion to the whole rule-making process is that the commissioners’ recent statements aren’t exactly lending clarity. In his statement backing the recent NPRM proposal, FCC Chairman Pai used carefully chosen comments from other proceedings to support his claim that network investments are declining. Others, arguing for continuing the internet’s title II status, use other numbers to bolster their claims that investment is actually rising. Who’s right?
Commissioner Mignon Clyburn pointed out this conflict by invoking the famous cat thought experiment proposed by Austrian physicist Erwin Schrödinger to demonstrate the bizarre implications of quantum mechanics.
“As far as the open internet rules go, this is Schrödinger’s NPRM: the text devoted to the open internet rules is so open-ended that the rules are both alive and dead until the Commission adopts an order in this proceeding,” Clyburn said in her prepared statement.
Regardless of whether this NPRM is either alive or dead, the FCC’s current Chairman has shown a tendency to actually pay attention to public comments, unlike his predecessor who mostly ignored them. This means that a preponderance of well-thought-out comments favoring net neutrality might have an impact on how the final rule is written. But that’s not the same thing as ensuring net neutrality, if only because the courts have turned down such regulations under the legal framework that currently exists.
But those comments can also have another effect. If enough users send copies of their comments as attachments to letters to their legislators, they may get enough attention to revive the net neutrality legislation from 2015. There are two reasons for this. First it’s a non-partisan issue and second, it gives Congress a way to flex its muscles in an arena where the executive branch hasn’t preempted action.
Combine those reasons with the fact that since you’re not railing about health care, your representatives might take a closer look at the issue just from a sense of relief and because of the novelty of dealing with a fresh issue that appeals to the public interest.
But just knowing that there are a lot of comments in front of the FCC isn’t enough. Those comments to your senators and representatives also have to clearly and calmly state the reasons for or against net neutrality and the need for new legislation.
And there have to be a lot of such letters. Congress pays attention to the mail, but not so much email or social media. If net neutrality is important, this is the time to voice it.