Interview US Congress could be discussing net neutrality legislation within three months, replacing controversial FCC-created regulations, according to an academic with the ear of the administration.
And new FCC chief Ajit Pai could well favour the kind of neutrality protection Americans enjoyed in 2005 and 2010, before Obama pushed the FCC to apply sweeping Title II regulations to internet services, Roslyn Layton told us.
Layton, the only academic to produce empirical studies of the merits of hard vs soft net neutrality, was invited to participate in the Trump Administration’s transition team and can be considered as familiar with the new FCC chief’s thinking.
“The consumer has been forgotten in the desire to punish telecomms companies,” says Layton.
What will accelerate the process to replace regulation with more robust legislation, she believes, is that nine lawsuits are ongoing against the FCC’s Title II reclassification. These would continue even if Pai, who strongly opposed the FCC’s expansion, killed Title II overnight. Nor is Pai inclined to do so, Layton says.
“Ajit has the power to overturn Title II. He can just do it, and his opponents can hate him. But it’s not his way. And even if he overturned it the court cases would run on.”
She cites the case of VoIP pioneer Dan Beringer, who is suing the FCC over paid prioritisation rules. He operates a high definition voice service and says paid prioritisation rules limit free speech. Beringer told a court in 2015 that the FCC could not continue to "lump" him and other entrepreneurs into the same category as service providers.
Layton says: “I think action will be teed up very quickly in terms of a repeal, and Congress will do legislation: whether it’s repealed or not in force. Ajit will push it, and that will bring the Democrats to the table to negotiate.”
Legislation is far more robust and less prone to being shot down in court. FCC-created neutrality rules have already been shot down twice, in 2010 and 2014. Congress will find time to revisit the twenty-year old Telecomms Act, Layton thinks.
So where would new neutrality ideas come from? Bipartisan net neutrality was tabled by Republican Senator John Thune (R-South Dakota) in 2015 [PDF].
The proposed law would “prohibit blocking lawful content and non-harmful device … prohibit throttling data … prohibit paid prioritization [and] require transparency of network management practices, to provide that broadband shall be considered to be an information service.”
Democrats didn’t need to support Thune’s ideas when Obama’s radical advisors were dictating policy, and the FCC was led by one of his biggest fundraisers, Tom Wheeler. But they might now, arguing that it achieves consumer protection just as well, or better, than a vulnerable FCC order.
War is over (if you want it)
For several years the FCC argued it could police net neutrality without even creating an order, let alone waiting for new legislation. The move that first shot net neutrality into the tech headlines was in 2005, when the FCC moved swiftly to prevent an ISP blocking VoIP calls over its network. The FCC argued at the time that showed it was already vigilant, and an effective policeman.
Indeed throughout much of 2014, Wheeler was working on a new set of rules designed to win bipartisan support, to replace the Open Internet Order that had been struck down in court, when Obama’s advisors informed him not to bother. Emails later revealed that Obama put pressure on Wheeler to support the President's push for Title II.
But for bipartisan neutrality legislation to succeed, extremists on both sides - telcos and Left-leaning activists - need to wind their necks in a bit.
Not all Republicans take the conciliatory, bipartisan approach that Senator Thune advocates. Some view any regulation as harmful, and with the Republicans now in full control on both houses of Congress, why show the vanquished slacktivists any favours. “A lot telcomms companuies were asking what was wrong with the 2010 rules? They were mad with Verizon,” Layton told us.
Layton also thinks the activist groups’ anti-Pai strategy is “reckless”, and could backfire.
“When you have 33 Republican Governors and when 32 state legislatures are Republican, there you can argue that the people have rejected this idea that more Government is better. 60 million people have just voted to see the regulatory footprint of America decreased. Why throw everything out of the window just to keep Title II?”
“Net neutrality supporters would be wise to take the proverbial bird in hand of a legislative compromise now, rather than betting they can grasp for the two birds in the bush whenever they want,” Scott Cleland advised recently.
Before long, we’ll see. One area Layton tips us to look out for is Universal Service Broadband, which Republicans oppose. Huge sums have been diverted to corporations to improve rural coverage and internet adoption, with little to show for it.
Funds even flowed to the world's second richest man, Carlos Slim, for a USB scam for which he was eventually fined by the FTC. “There’s a huge amount of abuse because they can game the system and get lots of reimbursements from people who never take it up,” Layton noted. ®