The FCC has approved a significant number of major pro-consumer rules in the last few years. Most, however, were contentious within the Commission, and passed on a 3-2 margin. One of the two reliable dissenters, commissioner Ajit Pai, is now on deck as the likely inheritor of the Chairman’s seat when President-Elect Donald Trump’s administration comes to power in January — and he’s already hoping to do away with some of the FCC’s recent rules.
At the top of the stack is 2015’s Open Internet Rule, better known as net neutrality. The Commission voted in February, 2015 to reclassify broadband as a Title II communications service, which gave the commission authority to impose rules that all internet traffic has to be treated equally, without throttling, blocking, or charging by source or type.
Industry players, led by AT&T, filed suit almost immediately (in legal time, anyway) to have the rule overturned. However, after hearing oral arguments last December, in June of this year the U.S. Court of Appeals for the D.C. Circuit sided with the FCC, and upheld the rule — reclassification and all.
As far as commissioner Pai is concerned, however, this is a mistake.
Speaking at a luncheon before the Free State Foundation this week, Pai spoke to the need for the FCC to scale back and, essentially, stay in its lane by “[respecting] the limits that Congress has placed” on its authority.
In his remarks [PDF], Pai spoke against several specific FCC rules and also against broad regulation in general.
“In the months to come, we need to remove outdated and unnecessary regulations,” he said. “We need to fire up the weed whacker and remove those rules that are holding back investment, innovation, and job creation.”
Net neutrality was a particular topic of concern for Pai. He quoted a member of Free State (the organization where he was speaking) on the topic of analyzing regulation: “Does the regulation address a market failure or systemic problem? If it does, how does it correct the perceived market failure? And do the benefits of the regulatory solution outweigh the costs of imposing new regulatory requirements?”
If the harms are not already proven to have occurred, Pai argued, then the FCC has no business regulating — even if it seems to reasonable observers that they could, might, or probably will occur.
“Proof of market failure,” Pai said, “should guide the next Commission’s consideration of new regulations. And the FCC should only adopt a regulation if it determines that its benefits outweigh its costs.”
At the time the FCC voted to adopt the measure, Pai prophesied that “its days are numbered.” And although the appeals court didn’t make that happen, a still-hypothetical Pai tenure at the FCC could.
“Today, I am more confident than ever that this prediction will come true,” Pai said. “And I’m hopeful that beginning next year, our general regulatory approach will be a more sober one that is guided by evidence, sound economic analysis, and a good dose of humility.”
Pai did not specify in this speech what might be able to count as “evidence,” however.
He also hopped on his favorite hobby horse, process reform. Pai has frequently — in both FCC proceedings and Congressional review hearings — voiced his displeasure with the method by which the FCC proposes and votes on regulation.
“It is time to bring more openness and transparency, to the FCC,” Pai said. “We also need to let the American people have more information about our agency’s operations. From publicly releasing the text of documents we vote on at public meetings to establishing an FCC Dashboard with key performance metrics, we can better enable to the public to know what and how we are doing.”
Commissioner Michael O’Rielly, the other reliable dissenter on the FCC’s recent pro-consumer rules, also spoke at the event.
He, too, put a bullseye on net neutrality in his remarks [PDF].
At the top of O’Rielly’s agenda under the new administration? “Undoing harmful policies,” and, you guessed it, net neutrality is the top of his list of agenda items that were “wrongheaded, harmful to consumers and the industry, costly, and ultimately unworthy of continuation.”
O’Rielly also called the commission’s year-long investigation into zero-rating “one last gift to be left under the tree for net neutrality activists” before the commission can “act quickly to reverse any damaging policies put into place over the last eight years and in the last few weeks of the Administration.”
Whether or not he steps down from the Commission entirely (D.C. scuttlebutt goes back and forth on the matter), current chair Tom Wheeler will lose his leadership role after Inauguration Day. Wheeler has publicly asked his successor — whoever that may be — to consider the public good first and foremost.
“When so-called controversy is the result of choosing between the broader common good or those incumbents preferring the status quo, I believe the public interest should prevail,” Wheeler said in November. “I think it’s an important thing to remember that taking a fast, fair and open internet away from the public and away from those who use it to offer innovative new services to the public would be a real mistake.”