Pai Expected to Circulate Draft Order on Rolling Back Title II Net Neutrality Regulation

"Signs all seem to be pointing to a December meeting item," emailed Russell Hanser, a Wilkinson Barker attorney who represents broadband providers." Gigi Sohn, an Open Society Foundations fellow and net neutrality advocate, agreed. "I think everyone's expecting it," said TechFreedom President Berin Szoka. The tentative agenda for the Dec. 14 meeting would normally be due Thursday, but since that's Thanksgiving, the agenda is expected by Wednesday, said an FCC official. An agency spokeswoman didn't comment.

Prospects for a bipartisan deal are seen as virtually zero. "There is no realistic hope for compromise on this, or on much of anything else," emailed Andrew Schwartzman, Georgetown Law Institute for Public Representation senior counselor. "The commissioners’ positions are too well staked out, and the politics too deeply ingrained, to expect any bipartisanship," emailed Geoffrey Manne, executive director, International Center for Law & Economics: "Even if the proposed order includes elements the minority commissioners would otherwise approve of, they will object in the most strenuous of terms." Free State Foundation President Randolph May emailed: "Almost certainly this will be a 3-2 vote on all the major issues -- reinforcing the need for legislation.”

An aide to Democratic Commissioner Mignon Clyburn pointed us to her statement Wednesday criticizing a Republican "assault on pro-consumer policies," including open internet protections (see 1711150039).

Pai is expected to seek to reverse Title II broadband and jettison an internet conduct standard and IP interconnection oversight, as a May NPRM proposed (see 1705230032). "I agree that the order will undo Title II and rescind the internet conduct and interconnection" regulation, Manne said.

The draft also will likely say the FCC lacks independent Section 706 regulatory authority, Manne and others said. Without Title II or 706 authority, Szoka expects, the FCC will eliminate open internet rules prohibiting blocking, throttling and paid prioritization of internet traffic. "There is a good chance that the commission will essentially get out of the business of regulating broadband," May said.

Commissioner Mike O'Rielly doesn't support using Section 706 authority for rules, said an aide. "If you don't have the authority, you don't even get to what the rules are." Sohn said it's rumored the draft could include a Further NPRM seeking more comment on authority to write rules.

Net neutrality advocates are bracing for the worst. Public Knowledge Senior Counsel John Bergmayer expects the draft to seek to eliminate "all or most of the rules." Pai appears to be "seriously considering tossing out all of the net neutrality rules, telling internet users that they can just trust phone and cable companies not to do anything wrong," emailed Free Press Policy Director Matt Wood. "I'm also hearing they're going to have no rules," said Sohn. "This is the worst-case scenario. ... This FCC is just going to toss it away."

Manne said there's uncertainty over broadband transparency rules. "I think there is support among the majority for some such rule; the question is where it locates its legal authority to enact it, if indeed it does," he said. Szoka said he believes the FCC could justify transparency rules under Title I ancillary authority tied to its Section 257 authority.

FCC transparency rules and the end of Title II broadband will allow the FTC to police deceptive broadband practices, Szoka said. "Maintaining the transparency rules will do a lot to assist the FCC because companies will have to disclose their practices and the FTC can then bring enforcement action without having to show any injury," he said.

Sohn played down the value of transparency rules and FTC enforcement absent the other rules. "Whoopty-doo," she said. "The FCC will allow ISPs to tell you how they're going to screw you. ... The only thing that could be enforced is if they lied to you." She called it "nonsense" to believe such enforcement could be an adequate substitute for FCC rules: "The whole point of net neutrality is to ensure they don't favor or discriminate in the delivery of content, applications and services."

Some believe the FCC will pre-empt state broadband regulation, something telcos, CTIA and others have urged, including Comcast Thursday in a meeting with O'Rielly, in docket 17-108. Manne emailed he's "confident" the draft will "include language (exactly what language, I don’t know) to attempt to preempt the states from enacting Open Internet rules, especially with respect to privacy." Szoka said the FCC has a strong argument for pre-empting state broadband regulation, though that doesn't stop states from enforcing laws of general applicability or participating in antitrust proceedings.

Twenty-one rural telcos urged a Title II reversal and suggested pre-emption of state and local broadband regulation. "Returning broadband service to the Title I light-touch framework that provided the foundation for the growth and success of the broadband-enabled Internet is essential to getting and keeping communities connected," they wrote Friday: "Because the Commission has repeatedly held that broadband is jurisdictionally -- and self-evidently -- an interstate service, it is important that states and localities not be allowed to impose common carrier-like regulations" on broadband service.