Why Is FCC Chairman Pai Dragging His Feet?

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Round-Up for the Week of April 23-27, 2018

Robbie McBeath

More than four months after the Federal Communications Commission voted to repeal its network neutrality rules, the rules adopted in 2015 are technically still on the books. And we still do not know when the repeal will take effect. The situation is “highly unusual” according to telecommunications policy expert Harold Feld. The question is, why is FCC Chairman Ajit Pai dragging his feet now when he’s so close to his goal?

Net Neutrality Did Not Die This Week

Some news outlets erroneously reported that net neutrality died on April 23. So, let’s be clear: the December 2017 repeal of net neutrality rules has still not taken effect. 

The confusion stems from, in part, the publication of the FCC’s “Restoring Internet Freedom” order in the Federal Register, which targeted April 23 as the effective date for some of the order. The bulk of the order, however, is dependent on approval from the Office of Management (OMB) which determines if the information collection provisions of the FCC’s transparency rules violate the Paperwork Reduction Act.

Pai's FCC got around to submitting the information collection changes to the OMB on March 28. The OMB will stop accepting public comments on the changes after April 27. As of April 25, John Eggerton reported in Broadcasting&Cable, OMB had not received any public comment about the transparency rule requirements [right? hard to believe, eh?]. Based on public input, the FCC will make any changes to the summary of the information collection. If the OMB approves that, the FCC can finally release a public notice setting the effective date of the network neutrality rule rollback. If the OMB withholds approval, the rollback will not go into effect until the OMB and the FCC work out their differences. 

So what did happen on April 23? Literally, a title change. The only change on Monday was a non-substantive title change that switched the title of the FCC rules from ‘Protecting and Promoting the Open Internet’ to ‘Internet Freedom’. 

The actual notice in the Federal Register is very confusing. Harold Feld, senior vice president at Public Knowledge, did some translating of the legalese. Paraphrasing the official notice, Feld said it effectively states:

Before net neutrality gets repealed and the new, much weaker disclosure obligations go into effect, we are going to wait for the Office of Management and Budget (OMB) to review the much weaker transparency rule under the Paperwork Reduction Act and other legislation that is supposed to make it harder to pass rules. Once OMB signs off, we at the FCC will publish a second notice in the Federal Register announcing when everything goes into effect. But until we do that, nothing actually happens. Zip. Nadda. Zero. Total psyche!

Why is Pai Dragging His Feet?

“There is absolutely no reason for FCC Chairman Ajit Pai to have stretched out this process so ridiculously long. It is especially puzzling in light [of] Pai’s insistence that he had to rush through repeal of net neutrality over the objections of just about everyone but the ISPs and their cheerleaders because every day — nay every minute! — ISPs suffer under the horrible, crushing burden of Title II is another day in which [ISPs] must endure the agonies of a blasted regulatory Hellscape.” -- Harold Feld

Oddly, the Pai FCC could have written its order in a way that would have killed the old net neutrality rules without OMB approval. Why didn’t it? There are some theories.

A Smooth Transition on Transparency

"The kindest interpretation is that since the majority have made their (weakened) disclosure rule the centerpiece of why they can relax the rules, they don't want the repeal to go into effect without the new transparency rule," said Harold Feld. And this squares with the explanation given by Chairman Pai’s office, which said that the reason was to, “make a smooth transition between the new framework and the old one.”

Delaying to Give Congress Time to Negotiate a Net Neutrality Law

Feld thinks it's more likely that Chairman Pai chose a slower repeal process to give Congressional Republicans time to pass their own version of net neutrality protections. And to debate net neutrality legislation in a period where 1) some people think the ISPs are free of regulation, but 2) ISPs are not acting in anti-competitive ways. "They are as aware as everyone else that the ISPs will inevitably do something stupid or greedy and trigger an even bigger backlash than they have on their hands now," Feld said.

If the rules were eliminated this week and ISPs began violating net neutrality while Congress is negotiating a net neutrality law, it would be harder for Republicans to force Democrats to compromise, Feld said. "This has all been about trying to push Democrats to compromise and adopt weak legislation."

Feld continued:

Try to remember what the world looked like all the way back in December when Pai (and the Republican leadership) made this calculation. It was a lot easier to imagine back in December that this was going to be a flash in the pan, that endangered Senate Democrats would be desperate to avoid being painted as ‘regulating business,’ that Democrats would want any compromise that ‘saved net neutrality.’ Using that set of assumptions, this wacky Federal Register notice makes sense. In theory, it lets Pai control the timing so as to slow things down or speed things up depending on whether Congressional Republicans want more time to negotiate or wanted to squeeze Democrats with the specter of net neutrality disappearing.

While Feld acknowledges this is speculation, he said it's "the only reason I can think of for Pai to set up a Federal Register notice that basically lets him control when the net neutrality repeal actually goes into effect rather than pushing for it to take effect as soon as possible. It's a negotiating ploy gone wrong, and now they are stuck."

“They thought they could stampede Democrats into caving,” Feld told Vice. “They totally misread the political reality.”

Feld's theory "is very plausible," said Andrew Schwartzman, Benton Senior Counselor at the Georgetown Law Center’s Institute for Public Representation.  "Republicans clearly underestimated public reaction and the Democrats' resolve. They likely were influenced by the fact that the ISPs have usually been able to get quiet help from some Democrats. Not any more."

What Will Congress Do?

Republican Moves

On April 17, the House Communications Subcommittee held a hearing on paid prioritization with Chairman Marsha Blackburn (R-TN) advocating for ISPs to be able to handle traffic similar to how TSA Precheck works. Back in December, Chairman Blackburn announced the “Open Internet Preservation Act” which would allow for paid prioritization.  In early March, Senator John Kennedy (R-LA) unveiled the Senate version of Chairman Blackburn’s bill.

“[T]he legislation’s real goal isn’t to protect net neutrality,” wrote Karl Bode for Vice. “The goal is to pre-empt tougher state proposals, and to prevent the FCC’s 2015 rules from being reinstated should ISPs and the FCC lose in court.” Bode continued, “Facing new state rules, overwhelming public anger, a potential CRA reversal and shaky legal prospects in court, ISP lobbyists have come up with a novel policy solution to these threats: throwing their support behind a fake net neutrality law. ‘

Democratic Moves

Rather than compromising on weaker net neutrality legislation, Democratic lawmakers are pushing a Congressional Review Act resolution that would reverse the FCC’s net neutrality repeal and ensure that the court-approved 2015 rules remain in force indefinitely.

Senator Ed Markey (D-MA), the chief sponsor of the CRA resolution in the Senate, says he envisions it hitting the Senate floor next month. Senate Democrats and Independents, along with Senator Susan Collins (R-ME), have thrown their backing behind the measure. The support of just one more Republican will win the day for resolution which only needs a simple majority for passage.

The CRA resolution faces an uphill battle in the GOP-controlled House. And President Donald Trump, a net neutrality critic, will have to sign the resolution for it to repeal the FCC order. But the CRA process will force lawmakers to vote on net neutrality -- many for the first time. That could make it a campaign issue come November 2018.  

Citizen Activism

Fight for the Future, Demand Progress, and Free Press Action Fund created an online scoreboard that shows which lawmakers have voiced their support for the CRA resolution.

Evan Greer, deputy director of Fight for the Future, said activist groups are planning “another huge internet-wide online push” before the CRA vote in the Senate. The action could be similar to the

Internet-Wide Day Of Action To Save Net Neutrality, where major tech companies, websites, and organizations rallied together to push for awareness about the FCC’s vote.

Besides internet-wide action, Greer said activists are putting together an open-letter from small businesses that support net neutrality. The letter will be delivered to Congress  on May 2 in the middle of “Small Business Week.”

Greer said, “I think this is a pivotal moment. This is really the moment to rally the internet to fight.” He continued:

We’re going to need another moment like we had before the FCC vote where the internet comes together to fight. That’s going to mean major web platforms will need to harness their reach, we’ll do phone calls and emails to Congress again, and it means ordinary internet users are going to have to do that too … This is very much a moment for everyone to get involved and exercise their power. In whatever small corner of the internet you control, this is the moment to put it on red alert and get everyone engaged.

Quick Bits

Weekend Reads (resist tl;dr)

ICYMI from Benton

Upcoming Events

April 30 -- FIBER: Putting Your Gigs to Work, Broadband Communities Summit

May 9 -- Bringing the Public Back In: Can the Comment Process Be Fixed?, New America

May 10 -- FCC Open Meeting

By Robbie McBeath.