Former Federal Communications Commission Chairman Tom Wheeler took aim at his successor’s plan to eliminate net neutrality rules today, saying that FCC Chairman Ajit Pai is selling out consumers and entrepreneurs at the behest of major Internet service providers.
“ISP monopoly carriers have been trying for four years to get to this point,” Wheeler said, pointing to a 2013 story in The Washington Post about how telecoms were trying to “shift regulation of their broadband businesses to other agencies that don’t have nearly as much power as the FCC.”
Pai’s elimination of net neutrality rules, scheduled for a vote on December 14, will also shift consumer protection responsibility to the Federal Trade Commission and forbid state and local governments from writing their own net neutrality rules.
“It is a classic example of regulatory capture, where the regulatory agency bends to the wishes of those they are supposed to oversee,” Wheeler said today during a press conference with US Rep. Anna Eshoo (D-Calif.) and Sen. Ed Markey (D-Mass.).
Big ISPs will “make their own rules”
The net neutrality repeal hurts consumers while benefiting large broadband companies such as AT&T, Verizon, Charter, and Comcast, Eshoo said.
“There are essentially four enterprises that are very happy, and the rest of the country is very unhappy [about the repeal],” Eshoo said.
The big ISPs haven’t suffered from the net neutrality rules, Wheeler said. Instead, the rules have been a win-win for businesses that offer services over the Internet and the broadband providers, he said. Venture capital money for Internet-based companies has risen, and ISPs have enjoyed “expansion in profitability and stock prices,” he said.
But eliminating net neutrality regulations will allow the big four ISPs to “make their own rules,” Wheeler said. Wheeler accused the “Trump FCC” of “walking away from the responsibility… to oversee networks” and “walking away from existing consumer protections for a fast, fair, and open Internet.”
The FCC imposed net neutrality rules in 2010, but they were struck down in court in 2014 after Verizon sued. Wheeler’s FCC reinstated the rules and made them stronger in 2015 by reclassifying broadband providers as common carriers, which allowed the new rules to survive a court challenge.
ISPs scale back promises
Wheeler noted that when he was FCC chairman, ISPs made lots of promises about how they would uphold net neutrality even as they urged the FCC to avoid imposing strict rules.
“When we were considering our rule, they were constantly coming in and saying we will not have paid prioritization,” Wheeler said. “Well, you noticed that paid prioritization is off the list now.”
With net neutrality rules now on the chopping block, ISPs are “making no such assurances about not having fast lanes and slow lanes,” Wheeler said.
Wheeler also referred to a statement Verizon made in court in 2013 when the company was trying to eliminate the previous version of the FCC’s net neutrality rules. “The Verizon lawyer said, ‘I have been instructed by my client that I may say, one of the reasons we are appealing is that we intend to prioritize traffic,'” Wheeler said.
Pai’s proposal will eliminate bans on ISPs blocking or throttling traffic and a ban on paid prioritization. Pai’s plan would also remove FCC oversight of network interconnection disputes, such as the ones that harmed Netflix quality on major ISPs before the net neutrality rules were passed.
Wheeler’s FCC didn’t prohibit ISPs from demanding payments for network interconnection, but it set up a complaint process.
“That simple keeping-an-eye-on-what’s-going-on has resulted in the elimination of the interconnection bottlenecks that existed before, and interconnection prices actually going down, just because somebody was watching,” Wheeler said.
FTC can’t act until “the barn has burned down”
Relying on the FTC to police net neutrality will be much less effective than the FCC’s current regime, Wheeler said. The FTC can’t issue net neutrality rules of its own; it can only punish ISPs if they make net neutrality promises and then break them.
“The FTC does not have forward-looking rule-making authority, it can only look backwards,” Wheeler said. “The FTC can’t move until the horse is out of the barn, or actually the barn has burned down.”
Wheeler and Democrats in Congress don’t expect the Republican-controlled FCC to change its mind about scrapping net neutrality rules. There’s also little chance of Congress passing rules to enforce net neutrality, Markey said.
“We are at the point of litigation, not legislation,” Markey said. “I plan to stand side by side with online companies and advocates who plan to challenge the FCC in court… I think we have a very good chance of prevailing in court.”
Disclosure: The Advance/Newhouse Partnership, which owns 13 percent of Charter, is part of Advance Publications. Advance Publications owns Condé Nast, which owns Ars Technica.