Select Page

Source: Larry Downes, January 24, 2017

Related story  

FCC Commissioner Ajit Pai will succeed Tom Wheeler (left) as Chairman of the embattled agency. (Photo by Chip Somodevilla/Getty Images)

The net neutrality misinformation bandwagon has opened an ugly new front.

As Forbes contributor Harold Furchtgott-Roth reported, President Trump has named Ajit Pai, one of the current members of the FCC, as its new Chairman.

Unlike many of the outsider and largely unknown candidates the President has nominated for positions in his government, Pai is very much a lifer when it comes to technology and communications issues.  He has been on the Commission for five years, following stints in the agency’s Office of Legal Counsel, as legal clerk to a federal judge, senior counsel to two U.S. Senators and as senior attorney in the Justice Department.

“He has had an extraordinary legal career for an individual of any age,” as Furtchtgott-Roth notes, “much less a person still in his mid-40s.”

For technology companies here in Silicon Valley and across the Internet ecosystem, Pai’s appointment is very good news.  He favors a return to the bi-partisan policy of light-touch regulation established in the early days of the commercial Internet—policies that have made possible the convergence of networks, media and technologies on the single open Internet standard.   His FCC is likely to be consistent, professional, and predictable.

But to judge from the vast majority of media postings about Pai’s promotion to FCC Chairman, it’s—once again–the end of the world as we know it.

Consider just a small sampling of headlines from yesterday and today:  “Trump’s New FCC Chief Is Ajit Pai, And He Wants To Destroy Net Neutrality” (The Verge); “New FCC Chief Ajit Pai Who Promises To Kill Net Neutrality Is Confirmed” (The Inquirer); “Trump Names New FCC Chairman:  Ajit Pai, Who Wants To Take A ‘Weed Wacker’ To Net Neutrality” (The L.A. Times); “Ajit Pai, Trump’s FCC Pick, Hates Net Neutrality” (The Daily Beast).

Media outlets across the political spectrum reporting on Pai’s promotion have focused on a single issue—the FCC’s controversial 2015 open Internet rulemaking, which transformed Internet access providers into public utilities.  In doing so, they have trivialized the very real and important issues facing the agency and its new Chairman.

Much worse than that, they have badly conflated and misreported Pai’s views on net neutrality itself—an almost entirely separate topic.

The how and why of this serious reporting failure is the real story here.

But first, a reality check.  Pai has consistently supported the basic principles of net neutrality—the common sense view that ISPs should not be allowed to block specific legal websites or devices, intentionally slow some traffic to benefit others, misrepresent their network management practices or otherwise behave in conduct long-considered anti-competitive in American law.

Here’s an extended excerpt from Pai’s statement issued at the time the FCC began considering its most recent effort to craft prophylactic rules to enforce net neutrality in 2014, noting the “vigorous” public debate over how best to do so consistent with the law:

But we should not let that debate obscure some important common ground: namely, a bipartisan consensus in favor of a free and open Internet. Indeed, this consensus reaches back at least a decade. In 2004, then-FCC Chairman Michael Powell outlined four principles of Internet freedom: The freedom to access lawful content, the freedom to use applications, the freedom to attach personal devices to the network, and the freedom to obtain service plan information.

One year later, the FCC unanimously endorsed these principles when it adopted the Internet Policy

Respect for these four Internet freedoms has aided the Internet’s tremendous growth over the last decade. It has shielded online competitors from anticompetitive practices. It has fostered long-term investments in broadband infrastructure. It has made the Internet an unprecedented platform for civic engagement, commerce, entertainment, and more. And it has made the United States the epicenter of online innovation. I support the four Internet freedoms, and I am committed to protecting them going forward.

(Emphasis added)

What is true is that Pai objected strongly to the bizarre process that waylaid the agency over the next several months, including an unprecedented intervention by the White House and the legally fraught decision in early 2015 to enact the new rules while, at the same time, transforming broadband Internet access services into public utilities.

But Pai’s 67-page dissent from that decision—which, in nearly 400 pages, itself said almost nothing about net neutrality or consensus on the rules themselves—was devoted entirely and sensibly to problems with the FCC’s process, and authority.  It focused on the certain negative unintended consequences of former Chairman Tom Wheeler’s decision to abandon what Wheeler himself described as a simple “blueprint” provided by the courts for getting the rules enacted in favor of public utility “reclassification.”

(At yesterday’s annual State of the Net conference in D.C., for example, one of those consequences was bemoaned repeatedly by policy experts on all sides of the debate.  In reclassifying broadband access as a public utility, the legal authority of the Federal Trade Commission to police anti-competitive practices was immediately cut off.

That removed what had been an active and often aggressive “cop on the beat” for consumer protection, and likely the reason actual net neutrality concerns always remained theoretical during nearly two decades when the FCC had no rules of its own in place.)

So why is the press getting the story so very wrong?

The post from The Verge (“Wants to Destroy Net Neutrality”) provides an instructive example.  “Shortly after Trump’s election,” it reports, “Pai indicated that a top priority under the new administration would be dismantling net neutrality.”

The sole source for this statement is a letter Pai wrote in response to questions about a small business exemption for ISPs with less than 250,000 customers from some of the more onerous government reporting requirements included in the 2015 order.  Pai notes the failure of the Commission to reach agreement on a deal to extend the exemption, which has lapsed.

“[W]e would not support any adverse action against small business providers,” the letter concludes, “and we will seek to revisit those requirements, and the Title II Net Neutrality proceeding more broadly, as soon as possible.”

That is the only reference to net neutrality in the letter, which says nothing about “dismantling” or “destroying” anything, let alone a “top priority.”  If there is anything implied by the pledge to “revisit” the 2015 proceeding “more broadly,” it is clearly the public utility reclassification that is being referenced (known in the law as “Title II”), not the net neutrality principles themselves, in whatever form.

In two further paragraphs reiterating Pai’s being “long critical of net neutrality,” the Verge story makes no reference or even acknowledgment of Pai’s detailed and specific comments on the difference between the rules (“bipartisan consensus”) and reclassification throughout the proceedings.

Instead, the author quotes from statements by two advocacy groups (more on that in a moment) who continue to lobby hard for the public utility reclassification.  They describe Pai without supporting facts as  an “effective obstructionist” and someone opposed to “basic privacy online.”  The author does not verify those claims or quote opposing views.

The Verge’s story, which unlike many at least cited to some evidence of Pai’s views rather than to nothing at all or to other stories that also failed to provide any actual sources, is far from the worst example.

Indeed, even Vox’s Timothy B. Lee, who understands the engineering behind the Internet better than nearly any tech reporter I know, missed the mark in his post (“a net neutrality foe”).

Lee describes Pai as being “known for his deregulatory views generally and his opposition to network neutrality in particular.”  But his only source for the latter conclusion is a speech Pai gave in December, just after the election, in which he complained of “regulatory underbrush” from the FCC’s proceedings over the last half century, and a pledge to “fire up the weed whacker and remove those rules that are holding back investment, innovation, and job creation.”

While Pai’s speech did reiterate his objections to reclassification (but without reference to “net neutrality in particular”), the discussion of “regulatory underbrush” came later.  It specifically refers to other, older regulations having nothing to do with the 2015 order.  The full context makes that clear:

In the months to come, we also need to remove outdated and unnecessary regulations. As anyone who has attempted to take a quick spin through Part 47 of the Code of Federal Regulations could tell you, the regulatory underbrush at the FCC is thick. We need to fire up the weed whacker and remove those rules that are holding back investment, innovation, and job creation. Free State and others have already identified many that should go. And one way the FCC can do this is through the biennial review, which we kicked off in early November. Under section 11, Congress specifically directed the FCC to repeal unnecessary regulations. We should follow that command.

(Emphasis added)

And removing obsolete and outdated regulations is hardly partisan or controversial, nor does it reflect a blind desire to deregulate for its own sake.  Indeed, President Obama, following previous administrations, issued multiple executive orders requiring Cabinet-level departments and other federal agencies to do just that.

Lee’s article goes on to quote some of the same advocacy groups as The Verge article, then mischaracterizes Pai’s dissent from the 2015 order as a vote “against the network neutrality rules,” which he says Pay described as “a threat to internet freedom.”

But the threat Pai detailed was not the rules—which, again, are never mentioned—but rather the decision to ground the FCC’s authority to enforce them in public utility regulations issued in the 1930’s.

Indeed, the 2015 order devotes almost no discussion to the rules at all.  It is one part net neutrality, and 99 parts public utility—including a return to the Ma Bell days of regulated rates, services, and artificial barriers to entry.

Emotional but misleading appeals to Internet freedom are not just playing politics.  Leaving Internet governance largely to the engineering-driven multistakeholder process, as everyone acknowledges, has been critical in revolutionizing the information industries, empowering consumers in a golden age of new content, services, and devices, and left the U.S. the clear winner—a source of envy and imitation by every other world economy

And for what it’s worth, Pai’s alarm over reclassification has already been borne out.  Though the Commission promised repeatedly in the 2015 order to limit its new public utility powers solely to ensure net neutrality rules could be enforced, that forbearance was short lived.

In the final months of the Wheeler FCC, the Commission rushed through orders re-regulating rates for enterprise data services, subjecting ISPs (and only ISPs) to a highly-restrictive privacy regime that upends the model of ad-supported free content, and flirted with banning free and sponsored mobile data services that consumers actually want.

Still, advocates and commentators may disagree with Pai about the public utility decision.  But it is simply wrong to characterize his objections as a rejection of net neutrality or even to the specific rules the FCC finalized in 2015.

Nowhere has Pai indicated hostility to basic net neutrality principles themselves, or disavowed his repeated pledge “to protect them going forward.”  Nor has he ever proposed to “kill,” “destroy,” “gut,” “end” or “hate” those protections.

Related story