FCC Chair Ajit Pai has not even hit his 100-day mark as chairman, but he is already on track to become the most consequential and arguably the most successful FCC leader in a generation.
Fresh from his success in urging Congress to overturn the Obama FCC’s poorly written and absurdly complex internet privacy proposal, Pai is poised for his biggest challenge yet: undoing the previous Commission’s 2015 vote to regulate broadband as a public utility (referred to as Title II regulation). This vote, taken after unprecedented meddling from the Obama White House, put today’s internet networks under the yoke of a 1934 law meant for rotary-dialed telephones.
This will be one of Washington’s biggest fights, since the issue stands at the nexus of regulation, technology, politics and some media ignorance. To succeed, Pai and fellow Republican Commissioner Michael O’Rielly will need a smart strategy to address each of these.
Start with the failures of the regulation itself. The ink was barely dry on the then-FCC Chairman Tom Wheeler’s February 2015 Order when the Commission began receiving formal notice from broadband companies that the Order’s legal costs were curbing broadband deployment, especially in rural areas.
Made under oath, these company statements were the canary in the coal mine. Within three months, the Commission knew that internet deployment was being cut back in Virginia, Indiana, Arkansas, Missouri, Illinois and Washington State. That summer, Amplex, a fixed-wireless Internet provider in Ohio, told Congress, “The [FCC’s] ruling does such a poor job of defining what the FCC actually intends that many years of expensive litigation will result before we know exactly what the FCC costs are going to be.”
Since those warnings emerged, the damage has gotten worse. As Chairman Pai himself noted recently, the U.S. “experienced the first-ever decline in broadband investment outside of a recession” and our broadband investment “remains lower today than it was when the FCC changed course in 2015.” In addition, Leichtman Research has reported declines in telecom wired broadband lines for every quarter since Title II regulations were enacted.
Unfortunately for consumers, the damage from Title II goes even further. Last fall, the Obama FCC used these regulations in attempt to curb “free data” services that let mobile users stream data without charge. The irony, of course, is that “free data” is great for consumers, especially those who rely on mobile as their primary internet access.
The Title II order also needlessly threatens promising advances in telemedicine, which requires fast, uninterrupted data transmission. These programs are a particular benefit for seniors, people with disabilities, and anyone with difficulty traveling to a doctor’s office.
A focus on all of these problems will be helpful to the two other fights that Chairman Pai and Commissioner O’Reilly have to confront on this issue: politics and media handwringing.
In both cases, Pai and O’Reilly will have to shout from the hilltops on the difference between the FCC’s utility regulation and the more general concept of “net neutrality.”
The former comes from the FCC’s 2015 decision to cave to White House pressure and regulate broadband with Title II of the 1934 Communications Act. This set of rules is as ill-suited to broadband as you might imagine of an 80-year-old law. (Among thousands of outdated provisions, it requires operators to speak “audibly and distinctly”.)
By contrast, Net neutrality, which focuses on consumer rights online, has enjoyed bipartisan praise for more than a decade. Unfortunately, a lot of tech reporters conflate the two issues, which is sloppy reporting.
This issue should not be about whether users should enjoy the basic freedoms that have been the internet’s hallmark for more than a decade. Rather, this is about why 1934 Title II regulations are a horrible means to guarantee this freedom.
The fight over replacing Title II rules will be long and tough. Those who believe in free enterprise should be glad that Chairman Pai is on our side.
This article was originally printed in FORBES.