By Kieran McCarthy, THE REGISTER UK
December 5, 2017
With just a week to go before the head of the FCC will put his plan for a repeal of current net neutrality rules up for a vote, Ajit Pai has come under another barrage of criticism, this time with a focus on consumer protection.
Despite claiming that his proposal will protect consumers by handing over responsibility for dealing with ISP complaints to the consumer-focused sister regulator the Federal Trade Commission (FTC), Pai's assertion has been questioned by dozens of organizations and even an FTC Commissioner.
In a letter [PDF] sent to the FCC on Monday, 41 organizations including the Consumer Federation of America, Consumer Watchdog, Consumer Action, American Library Association and the National Consumer League pleaded with Pai to delay his planned vote next week.
Their concerns stem from an ongoing court case between the FTC and AT&T that could see the FTC stripped of its right to carry out the very investigations that the FCC says its rule change will enable.
"Given the enormous danger to consumers of losing all protections should the Ninth Circuit decide to affirm the panel decision and side with AT&T Mobility, the FCC should delay a vote until the en banc panel of the Ninth Circuit issues its decision," the letter argues.
"This modest delay is certainly worthwhile to ensure that consumers will continue to enjoy at least some token protections if the Commission adopts the Draft Order."
The risk is not theoretical: no one is sure which way the Ninth Circuit will go in its review of the case in which AT&T effectively claims that the FTC has no right to impose sanctions on it for misleading customers.
Back in August 2016, the appeals court ruled in favor of AT&T Mobility and said that the FTC did not have the authority to fine the phone giant $100m for failing to tell customers that their "unlimited" data plans would be throttled once they reached a certain threshold.
The logic of the court was that the FTC was constrained by the fact that AT&T was legally designated a "common carrier" and so therefore stood outside the regulator's jurisdiction. The FTC appealed that decision in October and asked for the case to be heard by the full Ninth Circuit – an en banc review – rather than just a three-judge subset of the court.
Except Pai's current plan would remove that "common carrier" status, leaving AT&T open to the FTC's jurisdiction. Pai formally argued for the Ninth Circuit to take up the FTC's appeal and celebrated when it agreed to do so.
As such, to Pai's eyes, if he removes the common carrier designation then it is more likely that the Ninth Circuit will find that the FTC now holds jurisdiction over network operators.
The problem, as critics have repeatedly pointed out, is two fold: first, it would leave consumers with no protection at all until the Ninth Circuit reports – which it is expected to do in February or March next year; but second, if the court does not reverse the current ruling, consumers would be left with no protections for an unknown length of time.
That is extremely reckless behavior and would "create a 'regulatory gap' that would leave consumers utterly unprotected," the consumer protection agencies complain, especially when Pai could simply delay the vote until the court rules. Typically, federal regulators don't just hope for the best when it comes to protecting millions of Americans.
The organizations further complain that despite having raised these concerns for months, the FCC and Pai have been "cavalier" in their dismissal of them. "The draft order cavalierly dismisses the ongoing litigation that deprived the FTC of any jurisdiction to carry out the job the Draft Order thrust upon it," the letter reads.
The same concerns were also raised by FTC Commissioner Jessica McSweeney online. "As I've said many times, the FTC doesn't have resources, expertise, or authority to ensure the Internet remains open," she tweeted.
And the same point was made aggressively last month by former FCC chair Tom Wheeler. "To claim somehow this is some kind of consumer protection is fraudulent representation," he said in an interview. "In the name of consumer protection they say they're not going to protect consumers."
So what has been the FCC's response to accusations that it is being "cavalier" in its dismissal?
Pai's office put out the following statement: "This is just evidence that supporters of heavy-handed Internet regulations are becoming more desperate by the day as their effort to defeat Chairman Pai's plan to restore Internet freedom has stalled. The vote will proceed as scheduled on December 14."
Meanwhile, policymakers and journalists have started expressing open despair at the head of a federal regulator refusing to engage in serious discussion about a policy that will impact millions. Pai's office has ignored dozens of requests for interviews to dig into the details of his plan.
That's not the only accusation of foul play either.
Earlier this week, current FCC Commissioner Jessica Rosenworcel called on Pai to delay the vote in the face of increasing evidence that the public comment process over his plan was flawed at best and quite possibly fraudulent, with millions of fake comments and people's identities having been stolen in support of the plan. One study found that 99 per cent of real, non-fake responses were opposed to the plan.
And a second FCC Commissioner – Mignon Clyburn – has also weighed in, noting that the FCC handed over more than 50,000 documents in response to a record request about consumer complaints filed with the FCC under the current rules.
Clyburn notes that despite the request being made seven months ago, the FCC has still yet to hand over 16,000 complaints made in relation to broadband providers. And it has refused to put the complaints into the public record.
"What is the FCC majority trying to hide?" she asked of her own agency.
Pai's actions are certainly both reckless and cavalier and as time goes on his refusal to engage in any form of serious discussion about his plan to radically change the law around internet access is starting to create a groundswell of serious opposition.
Unfortunately, as was similarly displayed recently in Congress, growing opposition to poorly thought through and rushed plans – in that case a tax overhaul – has led to the opposite behavior that one would normally expect from government. Rather than slow things down and get it right, the growing list of flaws has caused policymakers to rush through approval.
Pai is determined to pass his plan as quickly as possible – which is why the FCC will almost certainly vote on his proposal on December 14. At that point, it will almost certainly head the law courts again as opponents question its legality.
As former FCC chair Wheeler – whose internet rules went through the courts no less than three times – said: "I hope the court will look at this and say 'hey, wait a minute – this has been in effect for two and half years – why are they turning around and going in the other direction'?"