Net neutrality will depend almost entirely on ISPs’ promises.
The Federal Communications Commission is still on track to eliminate net neutrality rules this Thursday, but the commission said today that it has a new plan to protect consumers after the repeal.
The FCC and Federal Trade Commission released a draft memorandum of understanding (MOU) describing how the agencies will work together to make sure ISPs keep their net neutrality promises.
After the repeal, there won’t be any rules preventing ISPs from blocking or throttling Internet traffic. ISPs will also be allowed to charge websites and online services for faster and more reliable network access.
In short, ISPs will be free to do whatever they want—unless they make specific promises to avoid engaging in specific types of anti-competitive or anti-consumer behavior. When companies make promises and break them, the FTC can punish them for deceiving consumers. That’s what FCC Chairman Ajit Pai and Acting FTC Chair Maureen Ohlhausen are counting on.
“Instead of saddling the Internet with heavy-handed regulations, we will work together to take targeted action against bad actors,” Pai said in a joint announcement with the FTC today.
FCC Commissioner Mignon Clyburn, a Democrat who opposes the net neutrality repeal, is not impressed. She gave this statement to Ars:
The agreement announced today between the FCC and FTC is a confusing, lackluster, reactionary afterthought: an attempt to paper over weaknesses in the Chairman’s draft proposal repealing the FCC’s 2015 net neutrality rules. Two years ago, the FCC signed a much broader pro-consumer agreement with the FTC that already covers this issue. There is no reason to do this again other than as a smoke-and-mirrors PR stunt, distracting from the FCC’s planned destruction of net neutrality protections later this week.
Democratic Commissioner Jessica Rosenworcel agreed. FTC enforcement is no substitute for strict rules against blocking, throttling, and discrimination, she said. “Plus, FTC enforcement would happen long after the fact—many months, if not years, after consumers and businesses have been harmed,” she said in a statement to Ars. “This is why the FCC must not relinquish its authority and, more importantly, its responsibility, to the public interest.”
Pai’s approach essentially lets ISPs pick and choose which net neutrality guidelines, if any, they want to follow.
Most major ISPs are—so far—still promising that they won’t block or throttle lawful Internet content. But net neutrality promises are eroding.
Comcast deleted a “no paid prioritization” pledge from its net neutrality webpage on the very same day that Pai announced his plan to repeal net neutrality rules, as we previously reported.
Ohlhausen confirmed again today that FTC jurisdiction hinges on those ISPs’ promises. This leaves open the possibility that ISPs could change promises related to blocking or throttling.
“The FTC is committed to ensuring that Internet service providers live up to the promises they make to consumers,” Ohlhausen said.
FTC Commissioner Terrell McSweeny, a Democrat, has said repeatedly that the FTC cannot enforce net neutrality as effectively as the FCC. The FCC has broad rule-making authority and expertise in network engineering that the FTC lacks, McSweeny told Ars in April.
Moreover, the FTC’s jurisdiction over Internet service providers is uncertain. Pai’s plan would shift authority from the FCC to the FTC by eliminating the common carrier classification of broadband. But a pending court case involving AT&T could end up stripping the FTC of any regulatory authority over ISPs that also operate common-carrier phone networks.
AT&T’s attempt to eliminate FTC authority over any aspect of its business was initially successful when a panel of judges at the US Court of Appeals for the Ninth Circuit ruled in AT&T’s favor last year. A more recent court decision vacated AT&T’s victory, but a final ruling has not yet been issued. Despite this, Pai decided not to delay the vote on his plan for the FCC to relinquish authority over broadband providers.
“The FTC’s authority in this matter is in question, and an MOU does nothing to answer those concerns,” Rosenworcel said today.
ISPs’ public disclosures
Pai’s plan does require ISPs to make public disclosures of blocking, throttling, paid prioritization, prioritization of ISPs’ own content, congestion management practices, and limitations imposed on specific types of applications or devices.
The FCC/FTC agreement relies partially on those disclosures. This is how the FCC and FTC describe the major parts of their collaboration:
- The FCC will review informal complaints concerning the compliance of Internet service providers (ISPs) with the disclosure obligations set forth in the new transparency rule. Those obligations include publicly providing information concerning an ISP’s practices with respect to blocking, throttling, paid prioritization, and congestion management. Should an ISP fail to make the required disclosures—either in whole or in part—the FCC will take enforcement action.
- The FTC will investigate and take enforcement action as appropriate against ISPs concerning the accuracy of those disclosures, as well as other deceptive or unfair acts or practices involving their broadband services.
- The FCC and the FTC will broadly share legal and technical expertise, including the secure sharing of informal complaints regarding the subject matter of the Restoring Internet Freedom Order. The two agencies also will collaborate on consumer and industry outreach and education.
Consumer advocacy group Public Knowledge said that the FCC/FTC plan will not protect consumers from ISPs.
“Not only is the FCC eliminating basic net neutrality rules, but it’s joining forces with the FTC to say it will only act when a broadband provider is deceiving the public,” Public Knowledge VP Chris Lewis said. “This gives free rein to broadband providers to block or throttle your broadband service as long as they inform you of it.”