In 2015, following years of dedicated activism – including individual actions by millions of Internet users – Team Internet scored a crucial victory: clear, enforceable protections for net neutrality. The new head of the Federal Communications Commission (“FCC”) wants to take away those protections and allow broadband providers like Comcast and AT&T to become permanent Internet gatekeepers. The good news is we can stop him. We need to tell Congress: Don’t let the FCC surrender the Internet!
According to several news reports, FCC Chairman Ajit Pai is planning to gut the FCC’s Open Internet Order, eliminating hard-fought net neutrality protections. What do we get instead? ISPs have to promise, cross their hearts and hope to die, to include certain net neutrality “principles” in their terms of service. The ISPs will doubtless jump at the chance, because they know what we know: artfully drafted pledges and promises don’t mean much when there’s no firm legal obligation to back them up. In theory, of course, there is a way to enforce terms of service commitments.
Pai’s plan would reportedly rely on the Federal Trade Commission to go after service providers that violate their promises, on the theory that any such violation would be an unfair and deceptive business practice. But as The Verge’s Nilay Patel, and former FCC Counselor Gigi Sohn point out, companies change their terms of service all the time, and as yet we haven’t heard of anything in Pai’s plan that would stop them from doing so. Moreover, it’s not clear that all ISPs would have to make those promises. And, while the FCC’s current rules are proactive, the FTC would be limited to bringing enforcement actions after the harm has already occurred – and there’s only so many actions it can bring. Moreover, there’s no reason to expect that the FTC – or most subscribers – will have the expertise needed to figure out when service providers are breaking their promises. Finally, in at least some states, the FTC can’t actually bring enforcement actions against many ISPs, thanks to a 2016 decision by the Ninth Circuit Court of Appeals.
As Sohn explains, “Another name for the Pai Plan might be “Just Trust Us.” Hardly a comforting thought in a market where ISPs face little competition and serve as the sole gatekeeper to the [I]nternet.” Pai is expected to announce his plan as early as tomorrow, and if so, the FCC could vote on the plan at the Commission’s May 18th open meeting. But Pai can’t reverse the will of millions of Internet users without giving us a chance to weigh in – directly and through our representatives.
The FCC’s net neutrality rules are crucial for the Internet – they help make sure that ISPs run their networks in ways that are fair to users and innovators alike. Without those protections, ISPs can abuse their position as gatekeepers to the broader Internet to further cement their monopolies, hurting Internet users, content providers, nonprofits and small businesses in the process. We don’t need to look back very far to see the kind of harmful practices ISPs can get up to without effective oversight. We can’t let the FCC trade the desperately-needed rules of road we fought so hard to put in place for empty promises. It’s time to tell Congress: Don’t let the FCC surrender the Internet!