Pai, Wright On Why Title II is Wrong

Say it Would Give FCC Unfettered Power, Neuter FTC

Call it "The Case of The Concerned Commissioners."

No, it is not a newly discovered Sherlock Holmes story, but a pair of regulators are suggesting that it might take a sleuth to provide details to the public about just what network neutrality rules the FCC will be voting on Feb. 26. These are rules, they argue, give the FCC "almost unfettered discretion to micromanage virtually every aspect of the Internet, including the choices that consumers have for accessing it."

The commissioners were Republican FCC commissioner Ajit Pai, who will be voting on -- and almost surely dissenting from -- the rules, and Federal Trade Commissioner (also a Republican) Joshua Wright, whose commission will likely have reduced authority over online privacy following the vote.

In an op ed in the Chicago Tribune, they said the Internet isn't broken and doesn't need FCC chairman Tom Wheeler's regulatory fix, which is to reclassify Internet access as a telecommunications service under some Title II common carrier rules to buttress the FCC's authority to regulate Internet openness.

They argued that the most problematic part of the rule proposal is a general "Internet conduct" standard meant to address any questionable ISP conduct that could harm consumers or edge providers and is not explicitly prohibited in not blocking, throttling or paid prioritization "bright line" rules.

"It's a vague rule that gives the FCC almost unfettered discretion to micromanage virtually every aspect of the Internet, including the choices that consumers have for accessing it. If a company doesn't want to offer an expensive, unlimited data plan, it could find itself in the FCC's cross hairs," they wrote

Wright joins Pai in labeling the plan President Obama's, rather than Wheeler's, a reference to the fact, which they make explicit, that the President urged Wheeler to adopt Title II-based rules. Wheeler initially did not plan to go that route.

They complained that the chairman was not going to publicize the plan before the vote--Republicans asked him to but he declined, and Pai has been itching to let out details but said he would not so long as the chairman did not release it.

They also talked about the order neutering the FTC.

"Federal law already protects competition and consumers online — and the president's plan would strip away those protections," they said.

The FTC has authority to sue companies for false and deceptive actions. "Indeed, the Federal Trade Commission has the authority to quickly address any anti-competitive exercise of market power, protect consumer privacy, and prevent deceptive and unfair practices that harm consumers," they said. "And it uses its authority aggressively to police market power and fraud in the Internet economy. But regulating broadband service like a public utility denies the FTC these powers and denies consumers the protections that come with them. That's because the law makes clear that the FTC doesn't have jurisdiction over 'common carriers,' which is what broadband providers would become under the president's plan."