Pai Seen Pressing to Tackle Net Neutrality, Title II Soon; Critics Say Comment Needed

"He's given every indication he wants to move forward sooner rather than later," said Kate Forscey, Public Knowledge associate policy counsel. "It's his prerogative." A longtime industry attorney said a May 18 vote is possible but challenging, given the "tight" schedule and expected controversy. "Anything he introduces is going to be scrutinized under a high-powered microscope," the attorney emailed. "So I think June may be more likely." An FCC spokesman didn't comment. Disclosing recent meetings with Silicon Valley companies, Pai again said April 20 he opposes the FCC's 2015 reclassification of broadband as a Title II telecom service under the Communications Act but favors a "free and open internet" and believes there's room to find "common ground" (see 1704200038)

Pai has reason to move quickly because a net neutrality compromise is so difficult, said Jeff Eisenach, American Enterprise Institute visiting scholar and former Trump FCC transition team member. "The best efforts of reasonable people to find a middle ground haven't been successful ... and that's sad," Eisenach said. "I don't know if there's any place Ajit Pai and [Commissioner] Mike O'Rielly can end up that will satisfy the people who don't agree with them. So you're probably better off just doing what you think is right based on your principles, and doing it sooner rather than later." Eisenach stressed he didn't have inside knowledge of specific FCC plans but said if Pai does seek to act in May it wouldn't be surprising, "given his demonstrated ability to generate massive amounts of substantive policy" in short order. "The amount and quality of the work has been astonishing," he said.

Questions remain about Pai's procedural course. He could issue a rulemaking notice and propose both to undo broadband as a Title II service and revise open internet protections; or he could move immediately to a Title II repeal through a declaratory ruling while seeking comment on the open internet protections.

Net neutrality advocates said it would add risk to repeal Title II without seeking further comment. "Pai could accelerate the process by issuing a declaratory ruling. However, the risk of doing that without a record is high," emailed Andrew Schwartzman, Georgetown Law Institute for Public Representation senior counselor. Forscey said the FCC would run into Administrative Procedure Act problems if it issued a ruling repealing broadband Title II without notice and comment. One alternative would be to tee up everything in an NPRM but with aggressive comment deadlines and relatively quick action, perhaps in the fall, she said.

"The commission needs to establish a record through a further notice in order to even stand a chance of sustaining a new reclassification," said consultant and attorney David Goodfriend, a former FCC and White House staffer under President Bill Clinton. "Even then, it will be difficult to show the market has changed significantly since 2015 to justify such a radical change." He said Pai was running into some of the same problems congressional Republicans are encountering. "From Obamacare repeal to privacy, the Republicans have just received some wake-up calls, and by pushing to weaken net neutrality Chairman Pai has walked right into that buzzsaw. Just as the Republican voter actually likes certain aspects of privacy or Obamacare, there are plenty of Republican voters who do not want Comcast blocking their Breitbart."

"I’m not sure what the most likely course on open Internet protections will be, but I know what I think would be the strongest, and the solution least subject to more of the kind of back-and-forth we’ve had for over a decade. And that would be legislation from Congress, along the lines of the Thune-Upton-Walden bill from late 2014," emailed Larry Downes, a project director at the Georgetown Center for Business and Public Policy. "Barring legislation, and depending on how the FCC undoes the Title II overreach, a simple alternative is to give the FTC back its jurisdiction over anti-competitive practices, which could happen automatically with Title II gone." Forscey disputed the FTC's ability to provide the type of open internet protections the FCC can provide through its rulemaking authority and telecom expertise.

Pai's statements that he supports an open internet without supporting Title II ring false, said Free Press Policy Director Matt Wood. "That's nothing more than emptily saying he supports the principle but opposes the best and only legal framework to make it a reality under current law," Wood emailed. "It's like saying I support free speech, but not the First Amendment."