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FCC Launches Rollback of Title II

Chairman Pai calls it repealing utility regulations; Clyburn calls it destroying freedom

The FCC has voted along party lines 2 to 1 to begin the process of rolling back Title II (common carrier) classification of ISPs and a review of whether the 2015 Open Internet Order prohibitions on blocking, throttling and paid prioritization are necessary. Chairman Ajit Pai pledged that any order resulting from the NPRM would be made public before a vote.

The only question had been whether Democrat Mignon Clyburn would decline to show up, which would have denied the majority necessary to vote on launching the Notice of Proposed Rulemaking. She did appear to offer a stinging dissent and call on the public to take that decision and other Pai deregulatory moves to court if necessary.

The item proposes to 1) end Title II regulation of the internet; 2) reinstate that mobile broadband is a private mobile service; 3) eliminate the general conduct standard for reviewing possible violations of open internet principles not covered under the rules; and 4) seeks comment on whether to keep, modify or eliminate those bright-line rules against blocking, throttling or paid prioritization.

The vote launches at least a three-month comment period — some Democratic legislators have called for longer — before the FCC could act on the proposal, which could light a fire under a Hill effort to pass bipartisan legislation.

The vote Thursday came even as Republicans were taking to the Senate floor to praise the move and talk about the need for compromise legislation to clarify the FCC’s regulatory authority over broadband once and for all.

Pai has said he welcomed such input and that the NPRM is just the beginning of the process. But both Pai and Hill Republicans are unified in their opposition to Title II, and some Dems have signaled the well has been poisoned for compromise given the general tenor of the times on the Hill.

FCC chairman Ajit Pai said the internet was not broken in 2015 but had succumbed to White House pressure to reclassify ISPs under the heavy-handed regulatory framework of Title II, which he called a hammer brandished at a flea, “only there was no flea.”

Pai says the evidence is already strong that reclassification is the right way to go. He also took aim at the general conduct standard, which he called expansive investigative authority the FCC has already used to identify “the enemy” — consumer-friendly free data plans. He said the standard allowed bureaucrats to second guess any business decision.

He called it a new chapter in protecting a free and open internet. “The FCC is simply seeking comment on these proposals.”

He said the public would have a chance to comment, then the FCC would follow the facts and law, “wherever they take us.”

He publicly committed that he would make the Open Internet Order public well before it is voted.

Republican commissioner Michael O’Rielly talked mostly, and briefly, about the proceeding as the beginning of a process of vetting data and analyzing the law. He said the proposal of a cost-benefit analysis is a welcome change from dealing with hypotheticals.

He said his primary goal is that the FCC ask the sufficient questions to establish a firm legal framework, including what the FCC’s authority over broadband is. The brevity of O’Rielly’s statement suggested that it was, indeed, just the beginning of a long process.

Calling it the Destroying Internet Freedom NPRM, Democratic commissioner Mignon Clyburn “vociferously” dissented and in a lengthy statement called for a court challenge. She said that if ultimately adopted, the proposal would deeply damage the FCC’s ability to “champion“ consumers and competition, gut protections for both, and most troublingly, “has the potential, to damage our authority to help provide broadband, for the poorest and most remotely-located Americans…”

“While the majority engages in flowery rhetoric, about light-touch regulation and so on, the endgame appears to be no-touch regulation and a wholesale destruction of the FCC’s public interest authority in the 21st century,” she said.

She called on the public to “stand up, make their voices heard and challenge the FCC in court,” both on the NPRM and Pai’s other deregulatory efforts.

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