FTC Commissioner: If The FCC Kills Net Neutrality, Don't Expect Our Help

from the Comcast-gets-what-Comcast-wants dept

So we've been talking a lot about new FCC boss Ajit Pai and his plan to not only kill net neutrality, but eliminate FCC oversight of broadband providers almost entirely. Reports recently surfaced indicating Pai has been busy meeting with large ISPs behind closed doors to replace hard net neutrality rules with "voluntary commitments" from ISPs (insert laugh track). This won't cause any problems, Pai and ISP lobbyists have argued in perfect unison, because the FTC will rush in to protect broadband consumers -- and net neutrality -- in the wake of the FCC's dismantling.

We've already noted how this entire narrative is exquisitely-crafted bullshit.

The FTC doesn't have any real authority over broadband without Congress passing a new law, which ISP campaign contributions will ensure won't be happening. And thanks to some lovely tap dancing by AT&T lawyers (looking to help the company dodge accountability for lying about throttling), a recent court ruling declared that broadband ISPs are largely immune to FTC oversight courtesy of common carrier exemptions. Former FCC staffer Gigi Sohn drove that point home this week in a piece over at The Verge:

"...Because of a recent decision from a Federal Appeals Court in California, the FTC can’t prohibit the vast majority of ISPs from sharing or selling your personal information at all. That decision says that if a company provides a common carrier service, the FTC cannot enforce its laws against any of its services, even if they are non-common carrier services like video or online news. So ISPs that also provide mobile or fixed telephone service — which is pretty much all of them — would be completely exempt from FTC oversight.

If people understand nothing else they should understand this: the goal here is virtually no real oversight of one of the least competitive, and most anti-competitive industries in America. But it's going to be sold as an improvement and a move toward "more efficient" regulation in an attempt to make killing net neutrality and eliminating regulatory oversight of Comcast sound reasonable.

Former FCC boss and one-time dingo Tom Wheeler had already stated Pai's entire argument is a "fraud," pointing out that ISP lobbyists want all consumer issues simply "lost in a morass" over at the already over-extened FTC. Current FTC Commissioner Terrell McSweeny this week effectively told Ars Technica the same thing, stating the FTC really isn't positioned to provide oversight of the broadband sector:

"We are a very hard-working agency but we’re not a very big agency," McSweeny said. "The FTC doesn't have a lot of expertise in network engineering. We're not the FCC in that regard." The FTC receives "millions of consumer complaints every year" across all industries under its jurisdiction, and "we can’t act on every single complaint."

Not only is the FTC too over-extended to provide real oversight of the likes of Comcast, Verizon and AT&T -- but McSweeny reiterates that ISPs can simply use the recent court ruling on common carrier exemptions to dodge oversight completely:

"In order to make sure that this isn’t just a no-cops-on-the-beat plan, the FTC Act would actually have to be amended by Congress to eliminate the common carrier exemption," McSweeny said.

And what, do you think, is the over-under for a campaign-contribution-soaked Congress actually doing that? There's a reason ISPs are spending millions in lobbying to roll back the FCC's Title II reclassification and shift broadband oversight back to the FTC -- and it's not to help the collective American public's complexion. Repeatedly throughout the article McSweeny makes it abundantly clear Pai's entire plan for "voluntary" net neutrality commitments is a joke, and trusting in the FTC to aid consumers in the wake of the looming neutering of FCC authority is a fool's errand:

"Moving from a clear ex ante rule around the open Internet and requirements that maintain an open Internet, and moving to this ex post enforcement kind of world is going to strongly tilt everything in favor of the incumbents," McSweeny said. "It will be harder potentially for innovators and edge providers to make sure that they are being treated fairly and in a nondiscriminatory way."

This narrative that killing net neutrality and Title II is no big deal because the FTC will rush in to save the day is a misleading canard, but you're going to see it start showing up literally everywhere over the next few months as ISPs fire up their think tanks, consultants, and other policy sockpuppets to support the push in the media.

If you're playing along at home, make sure you note how these folks will go to comic lengths to avoid addressing the elephant in the room (a lack of broadband competition). Also be sure to note how they intentionally avoid using the phrase "net neutrality" to avoid public backlash, instead focusing on the argument that FTC oversight is the one, true path toward glorious telecom Utopia (ignoring everything we already pointed out above).

It's clear the public is bored stiff with the net neutrality debate after a decade of often hyperbolic claims. But if large ISPs and those paid to love them succeed in gutting net neutrality, privacy, and FCC oversight of broadband carriers -- consumers, startups, many hardware vendors, smaller ISPs and content companies alike are collectively in for a very real, very bad time in relatively short order.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community. Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis. While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: ajit pai, broadband, competition, fcc, ftc, net neutrality, terrell mcsweeny