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FCC douses America's net neutrality in gas, tosses over a lit match
Watchdog's clown, er, chairman debases policymaking in the United States
Despite the clearly stated and serious concerns of a broad cross-section of industry and society, on Thursday morning a mocking, preening excuse of a regulatory chairman tore down US rules that ensured content over the internet was kept free from manipulation by companies that sell access to the global network.
As expected, it fell down political lines, with the three Republican commissioners on America's broadband watchdog, the FCC, voting yes, and the two Democratic commissioners voting no.
The vote [PDF] was a victory for the cable industry, whose overweening influence on the FCC was fading in recent years and has been gradually replaced by the views of a new wave of internet giants.
For everyone else, it was a baffling and infuriating sign that American institutions are open to clear and blatant manipulation so long as the person in charge is willing to discard all previous expected standards of behavior.
In recent weeks, countless groups – from lawmakers to consumer rights warriors to prosecutors to internet pioneers to fellow agency commissioners – have pleaded with FCC boss Ajit Pai to delay the vote. In an unprecedented departure from policymaking norms, he simply ignored those concerns.
It's a question worth asking: Why is the FCC boss being such a jerk?READ MORE
Pai and his fellow Republican commissioners on the FCC have also abandoned foundational policymaking steps.
Irrespective of the enormous impact of the decision, the FCC has not held a single public hearing on its decision to reverse America's open internet rules. And the comms watchdog has made a mockery of the critical public comment process – a mainstay of any public body that makes decisions that impact citizens – by allowing millions of fake comments to be lodged with the regulator, and then simply refused to address the situation, despite no less than 18 attorneys general formally stating their concern.
Amazingly, FCC Commissioner Michael O'Rielly attempted to defend the abandonment of accepted policy norms – and quickly tied himself up in his own obvious contradictions.
"Some would like to have us believe that the comment process has been irreparably tainted by the large number of fake comments," he noted. "That view reflects a lack of understanding of the Administrative Procedure Act."
He went on: "The agency is required to consider and respond to significant comments in the record. Millions of comments [include] colorful language that I can't say in public... Whether or not they are submitted by real people or bots or honey badgers has no impact on the decision… we do not rely on any such comments."
He went on: "[Today's] order reflects a careful evaluation and response to all the significant comments including those that took a different position."
In essence, O'Rielly argued the FCC is right to ignore millions of comments, and draws no distinctions between who they are sent from, or whether they are real, while at the same time noting that the FCC is obliged to consider and respond to comments, and claiming that it did so. (Which, by the way, the FCC did not do: its response was massively biased in favor of comments sent by cable companies.)
Then, taking the logic-bending response one step further, O'Rielly rejected criticism that the agency held no public hearings on the matter because, he argued, people could send in their comments to the public comment process. A process that he – literally the sentence before – argued that the FCC could and should ignore.
"Any member of the public that wanted to express a view could have done so through the comment process," he noted. And then, for good measure, he questioned the entire public hearing process itself because "it is inefficient for reaching large number of interested parties around the country."
God help us
That such a wildly incoherent statement would accompany such a significant decision will be devastating to those who spend their lives working on public policy issues. In effect, O'Rielly argued that a federal regulator should be allowed to make up its own mind on what it does, regardless of what anyone else says. That is the absolute opposite of what a policymaking process is supposed to achieve.
O'Rielly's approach reflects that of the chair. Since taking over, Ajit Pai has discarded the long-standing rational argument approach expected of the head of a federal agency and instead adopted the habits of a reality TV star.
He has repeated the same arguments again and again, even after their foundational logic and data has been shown to be demonstrably false, and relied on parroting the same positive phrases, irrespective of context.
Pai has used strawman arguments as pretence for answering critics' concerns. And focused on a populist outpouring of concern by public figures – actors and singers – rather than address the points put forward by public policy experts.
In a clear reflection of the lowest-common denominator approach adopted by Donald Trump in his presidential campaign, Pai has relied on mockery and disparagement as way to push back on sincerely held concerns.
Even on the eve of the vote, Pai starred in a video produced by right-wing whinge-site The Daily Caller in which he dressed up as Santa and Luke Skywalker, among others, and gave a list of things you "will still be able to do" once the net neutrality safeguards are voted out.
Ajit Pai is the Martin Shkreli of technology policy pic.twitter.com/Ns52EodMP1— The Register (@TheRegister) December 14, 2017
For those with serious concerns about what removing the rules will mean to the internet economy, the fantastically shallow video in which Pai buys fidget spinners, binge-watches TV shows and eats junk food is a perfect summary of how calculated ignorance has been used as a smokescreen to avoid serious policy discussions.
What should have happened
Policymaking is never black-and-white but the determined approach taken by Pai and his fellow Republican commissioners has made it so – to the obvious detriment of everyone. The truth is that the net neutrality rules as passed in 2015 were not perfect: in fact they contain a number of significant flaws that a properly functioning regulatory body would be striving hard to fix.
But just as we have seen in Congress, tribal politics have overridden commonsense and whatever one side wants, the other side feels it has to vigorously oppose. The Open Internet Order had to be torn up, rather than fixed, because it was approved by the other side. To hell with the citizens that the elected officials are supposed to be representing.
The shambolic process of the past six months has also seen a Trumpification of telecoms policy that has been watched with horror by many.
Democrat FCC commissioner Jessica Rosenworcel, who is opposed to the plan, had some fiery words for her organization. Pai has run a "corrupt process," she fumed, and one that has shown "contempt and sheer disdain" for citizens and public opinion.
Fellow Democrat commissioner Mignon Clyburn was equally caustic. "The fix was already in," she summarized in trying to explain why the FCC was taking the action it was, and had run such an abnormal process. Addressing the public, she argued that "the agency that was supposed to protect you is abandoning you."
Clyburn closed her angry statement by reciting Pai's words back at him when the Open Internet Order was passed in 2015. "He said that we will look back on today's vote as 'an aberration, a temporary deviation from the bipartisan path that has served us so well. I don't know whether this plan will be vacated by a court, reversed by Congress, or overturned by a future commission but I do believe that its days are numbered.' Amen to that, Mr Chairman," she concluded. "Amen to that."
Maintaining his jokey, mocking persona, Pai responded: "Thank you Commissioner Clyburn. I will mark you down as a No," and laughed, as did others. Most, however, did not. ®