Thursday, 27 April 2017

After privacy vote, net neutrality is next on Pai's hit-list

By Nick Wood, Total Telecom
Friday 31 March 17

FCC chairman is likely gearing up to take on his biggest challenge yet.

Federal Communications Commission (FCC) chairman Ajit Pai has been a busy man since taking on the role in January, generally living up to the widely-held expectation that he would clip the U.S. watchdog's claws. Based on the events of the last few days, he could soon be about to get a lot busier, by taking aim at net neutrality. The focus on the FCC has been particularly intense this week due to Congress' vote to overturn its broadband privacy rules – a move that has attracted widespread criticism from consumer advocates and praise from telco lobbyists in equal measure. Pai has been quick to defend this and other headline…

Federal Communications Commission (FCC) chairman Ajit Pai has been a busy man since taking on the role in January, generally living up to the widely-held expectation that he would clip the U.S. watchdog's claws.

Based on the events of the last few days, he could soon be about to get a lot busier, by taking aim at net neutrality.

The focus on the FCC has been particularly intense this week due to Congress' vote to overturn its broadband privacy rules – a move that has attracted widespread criticism from consumer advocates and praise from telco lobbyists in equal measure.

Pai has been quick to defend this and other headline-hogging changes to the country's regulatory rulebook.

"Until 2015, the Federal Trade Commission (FTC) was protecting consumers very effectively, policing every online company's privacy practices consistently and initiating numerous enforcement actions," he said on Tuesday.

He said the FCC had usurped the FTC and pushed through privacy rules that placed ISPs at a disadvantage to Web companies like Google and Facebook, which don't face the same degree of scrutiny over what they can do with customer data.

"Appropriately, Congress has passed a resolution to reject this approach of picking winners and losers," Pai said.

Instead of letting the FCC regulate privacy, Pai wants the FTC to do it again.

This is not as straightforward as it sounds though, if consumer group Public Knowledge's policy fellow Dallas Harris is correct when she points out that "the FTC cannot regulate broadband providers due to a Congressionally-mandated exemption for common carriers."

The legislation that classified ISPs as common carriers, as per Title II of the Communications Act ,would be the FCC's Open Internet Order, or net neutrality rules, as they are also known.

Pai seems quite keen for the FTC to be put in charge of privacy again, stating that "the FCC will work with the FTC to ensure that consumers' online privacy is protected.

"In my view, the best way to achieve that result would be to return jurisdiction over broadband providers' privacy practices to the FTC."

Not knowing the minutiae of the U.S. political and legal system, it is difficult for me personally to postulate about what course of action Pai can and will take.

But based on Dallas' observation and the wording of Pai's statement, it sounds like Pai would prefer to classify ISPs as entities over which the FTC does have jurisdiction, rather than extend the FTC's jurisdiction to common carriers.

That could be achieved by overhauling the net neutrality rules, something we know that Pai is keen to do, given his opposition to regulating net neutrality under Title II.

He has already closed investigations into zero-rated services offered by AT&T and Verizon. The two telcos stood accused by the FCC under the previous U.S. administration of undermining net neutrality.

Pai said at the time that going forward, the FCC "will not focus on denying Americans free data. Instead, we will concentrate on expanding broadband deployment and encouraging innovative service offerings."

The evidence is circumstantial, but it points to Pai and the Trump administration getting ready to take down net neutrality sooner rather than later.

As if on cue, according to a New York Times report on Thursday, White House spokesman Sean Spicer reiterated – following the vote to overturn the FCC's privacy rules – the government's opposition to net neutrality legislation.

However, taking on net neutrality represents a much greater challenge than scrapping privacy, because the government is likely to encounter not just public opposition, but opposition from major Web companies, which lobbied in favour of the Open Internet Order.

Without net neutrality rules, telcos would be free to offer specialised services, giving over-the-top (OTT)s an opportunity to pay telcos to prioritise the delivery of their data.

There is no question that Google and Facebook and others can afford to pay for these kind of services, but there is also no question that they would prefer to not have to.

Pai must prepare for a fierce, protracted battle if he wants to get his way on net neutrality.

With that in mind, he may well try to gain public support by pointing out that scrapping net neutrality and reclassifying ISPs as entities that fall under the FTC's jurisdiction would restore the highly-valued consumer privacy protections that Congress voted to overturn this week.

Whatever the final outcome, this week will be looked back on as the week that heralded the beginning of a new battle over net neutrality.

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