Pai, O'Rielly Expected to Stand Firm as Noise Level Grows on Net Neutrality

“They already have the order written, they know what they want to say,” said Gigi Sohn, aide to then-Chairman Tom Wheeler and now a fellow at the Open Society Foundations. “The question is whether politically it’s going to get much too hot for them to complete this process. ... Whether it’s going to bleed into election politics.”

Several net neutrality advocates said if the heat is high enough, the White House ultimately could see Chairman Ajit Pai as a liability. Advocates also said their job is easier this time because there's less of a learning curve for the public, which is already familiar with net neutrality from the last fight two years ago. Pai is expected to win reconfirmation (see 1704280055).

“Pai will become the political albatross strangling the political fortune of the Trump White House,” said Jeff Chester, executive director of the Center for Digital Democracy. “Supporters of an open internet will do everything we can to bring down what both Trump and Pai are doing on behalf of the tiny, but incredibly greedy, elite cable and phone giants.”

“I have no doubt that the advocates of increased government regulation will press a political and PR agenda with great drama,” countered Mark Jamison, University of Florida professor and member of the Trump FCC transition landing team. “My impression is that Chairman Pai and his colleagues are committed to evidence-based regulation. The facts and the analyses are on their side.”

“A lot of us were appalled by what happened under Wheeler and, I think as a matter of principle, inclined not to capitulate to whatever it was that happened the last time around,” said Jeff Eisenach, American Enterprise Institute visiting scholar and Trump transition landing team member. “The FCC was sort of set up specifically not to be a democracy. Independent regulatory agencies were established as a progressive idea back when progressives were different than the ones we know now. The progressive idea was to separate politics form decision-making on complex issues like this.”

A Republican academic said there have been so many protests against the Trump administration, they're losing their force. During the buildup to the 2015 order, the FCC got millions of comments that crashed its system. HBO comedian John Oliver piled on, telling viewers: “We need you to channel that anger, that badly spelled bile that you normally reserve for unforgivable attacks on actresses you think have put on weight” and direct it at the FCC (see 1406030041). Hundreds of thousands of his fans apparently reacted. The FCC ultimately reclassified broadband as a common-carrier service.

“Public sentiment can and should be a factor in the decision-making process,” said Andrew Schwartzman, “Georgetown Law Institute for Public Representation senior counselor. “Ultimate determination includes consideration of what is in the public interest. The limits of the FCC's powers are set by statute, but the law gives the commission a good deal of discretion within those boundaries.” Schwartzman said neither FCC Republican is likely to change his stance based on public comments. “Proceeding on this course will have a political cost,” he said.

“The FCC can't simply ignore the comments it doesn't like,” said Matt Wood, Free Press policy director. “The FCC is a public agency, charged with upholding the public interest. Whatever impact people's voices have on the current closed-minded regime, or on its plans to kill the open internet, the political weight and the substantive import of those voices is real.”

Opponents of the 2015 rules and reclassification said they expect Pai and O’Rielly to stand firm. Former Telecommunications Industry Association President Grant Seiffert, now a consultant, said Pai’s and O’Rielly’s speeches on net neutrality Wednesday were effective and well received (see 1704260054). “From what I can tell, Chairman Pai is going to be transparent in all his actions and that will help both audiences, whether you’re for or against.”

Big Flare-Up

The FCC likely faces a “pretty big public flare-up, taking what was already a contentious issue, and pouring the Trump resistance gasoline on the fire,” said Doug Brake, senior telecom policy analyst at the Information Technology and Innovation Foundation. “I worry the way we are heading, with rhetoric only escalating on both sides, is only making it more difficult for bipartisan legislation, which is really the best long-term solution.” Big picture, net neutrality will never be as big an issue with voters as healthcare or tax reform, he said. “I don’t think Pai will be convinced by raw numbers of filings, or simplistic calls for real net neutrality.”

“The only thing that matters in this proceeding is analysis of the FCC's legal authority,” said Berin Szoka, president of TechFreedom. “Anything else is either grandstanding or better directed at Congress, specifically, at Democrats, who have thus far refused to negotiate over legislation to resolve this fight once and for all.”

The FCC isn’t looking at “killing” net neutrality rules, nor are any ISPs asking the commission to do so, Verizon General Counsel Craig Silliman said in a YouTube video posted by the carrier. “There are a lot of advocacy groups out there that fundraise on this issue,” Silliman said: “How do you fundraise? You stir people up with outrageous claims.” Regardless of what’s true, “you just say things to rile up the base,” he said.