Analysis Despite more than a million comments opposing it, tomorrow at around 12:00pm Eastern time, the three FCC commissioners will vote 2-1 to approve a so-called "notice of proposed rulemaking" and start on the rocky path to rescinding net neutrality rules.
Just as it was three years ago, it is going to be a long and tortuous process. Not only that, it will be made worse by the fact that Ajit Pai – the chairman of the FCC, America's comms watchdog – has already jettisoned any pretense of objectivity or impartiality.
We can't decide whether to nickname the new head of the federal telecom regulator Partisan Pai or Telco Trump. But his seeming inability to behave like the head of an important government agency is going to turn what was already going to be a goat rodeo into something far, far worse. And the firing pistol goes off Thursday.
First up, let's take a brief look at what we're talking about. It is the "Restoring Internet Freedom" notice of proposed rulemaking. Basically this is the first step in an FCC process to create new rules. It gets voted on, then the staff draws up plans that are sent out for review. Then they typically revise them and put them out for comment again. And then the FCC votes once again on whether to adopt the end result.
The actual notice is a very lengthy justification document [PDF] stretching to 58 pages. It's not a riveting read. The first page basically covers what 99 per cent of people want to know, then follow 30 or so pages complaining about the previous rules (approved only two years ago), and the rest is dry, factual information about what the FCC has done in the past.
In essence, the order will:
- Move internet access from being a utility like telephones back to being just a service (Title II to Title I classification). This basically removes the FCC's ability to clamp down on broadband providers for abusing their unique position (The Comcast Change.)
- Reinstate the carve-out for mobile operators so they are not under the same rules as internet providers (The Verizon Change).
- Return broadband providers back to weaker FTC rules over data privacy issues, requiring people to complain about their providers before regulators take any actions.
- Get rid of the "internet conduct" standard, which was designed to let the FCC prohibit future abuse of the market.
- Limit the ability of the FCC's enforcement division to make sure the new rules are being followed.
Depending on what side of the ideological divide you fall on, these changes will either sound like a terrific application of free market policies, or an open invitation to large US corporations to rip off their tens of millions of users.
The first time around, from the time the FCC issued its notice of proposed rulemaking (October 2009) to the Open Internet Order being published in the Federal Register, it took 23 months. Verizon sued and two years and four months later, it was overturned by the Washington DC courts. In total, just over four years.
The second time around, a new proposal was put forward in May 2014 and it was published 10 months later. It was also challenged in the courts and it wasn't until June 2016 – 15 months later – that the court upheld it. In total, just over two years.
So, when the notice gets approved on Thursday, we can expect the actual rules to appear sometime between March 2018 and April 2019, and then to be either upheld or struck down (because they will be challenged in court) sometime between June 2019 and August 2021.
The next presidential election is scheduled for November 3, 2020. Given the approach Partisan Pai is currently taking, it is all too possible that a Democratic president will then install a new FCC chair and we will start the process all over again.
As has been widely reported, even this first comment period on the notice of proposed rulemaking has been a complete disaster.
And while Partisan Pai and his team (not to mention his think-tank cheerleaders) have been quick to point the finger at current affairs comedian John Oliver and racist liberals, the truth is that Pai is himself to blame for tipping the process from contentious to downright shameful.
There have been roughly 1.4 million comments, around 60 per cent of which were almost certainly created by automated systems, and many of those used fake details – ie, they didn't even come from individuals using a comment form.
Most notably, nearly 500,000 comments were identical and take a very pro-Partisan Pai and anti-Obama position. They appear to come from real people, but it turns out they were generated from a database of real people's details. So far, no one has been able to find a single example of the actual person listed submitting the comment themselves, meaning it has been a vast identity-theft exercise.
Someone has even set up a website to let you search whether you have had your details misappropriated to make the following pro-Partisan Pai message:
The unprecedented regulatory power the Obama Administration imposed on the internet is smothering innovation, damaging the American economy and obstructing job creation. I urge the Federal Communications Commission to end the bureaucratic regulatory overreach of the internet known as Title II and restore the bipartisan light-touch regulatory consensus that enabled the internet to flourish for more than 20 years.
A developer from Chicago, Chris Sinchok, went to the trouble of doing a full breakdown of responses – something that you would love to think the FCC's staff are carefully analyzing to figure out a better way forward for the next round of public comment. But don't hold your breath, because Telco Trump has already made it plain he intends to pass what rules he wants, regardless of what people actually say.
What has garnered more attention than the vast number of seemingly reasonable but illegal comments, however, has been the racist comments directed at Partisan Pai, thanks in no small part to the determined efforts of Pai's team to draw attention to them.
Partisan Pai, while claiming to be outraged by personal attacks, kickstarted the lack of civility by using his speech announcing the new rules to personally attack a key figure at pressure group Free Press.
When Pai then recorded a video of himself reading out unpleasant messages about him sent during the FCC's comment period – in the style of late-night Jimmy Kimmel's "mean tweets" – many decried what they saw as a populist effort to undermine the legitimate concerns that many have against his plan.
Let's all just agree that personal abuse, and especially racist abuse, has no place in this process and that any commentators doing that should be shut out of it entirely. But if the FCC wants to run as professional a public comment process as it can, its chair needs to demonstrate some level of decorum, rather than actively encouraging the shit-show that this is going to be.
As one long-time FCC observer has pointed out, this is hardly the first time that the FCC has had a contentious issue on its books. And far from the first time that the chair has been the target of unnecessary personal ire.
But we live in the era of President Trump, and the Telco Trump seems to believe that stirring things up rather than working on keeping them civil is the best way to achieve his agenda.
And it may work. Partisan Pai may be able to use the inevitable, unbearable sound and fury that will result from his decision to open up the net neutrality rules to his advantage and pass what he wants to see, regardless of the majority of public opinion.
It is impossible to hear rational argument in a cheering sports stadium, so if your goal is unlikely to hold up to rational argument, turning a policy process into a football match may seem like a good approach.
It all depends on how you view government regulation and policy making. Should the ends justify the means? Or should the process itself lead to the conclusion?
Traditionally the latter has always been the goal. In 2017, and stretching to 2020, it looks as though the former will take priority. Great for sports fans and cable companies; not so great for everyone else. ®