Leaked E-mail Shows Even The FCC's Own CTO Thinks Gutting Net Neutrality Harms The Public

from the dysfunction-junction dept

So by now we've pointed out how 200 engineers, internet legends, nearly 1000 startups, countless internet companies, 30 small ISPs, and millions of American consumers have told the FCC its plan to repeal net neutrality is extreme and will harm competition, innovation, and the health of the internet. But we've also pointed out repeatedly how this makes absolutely no difference at Trump's FCC, which appears mindlessly dedicated toward one singular purpose: pleasing entrenched telecom duopolies like Comcast, AT&T and Verizon.

You can add the FCC's own CTO to the long list of folks who think the FCC's net neutrality repeal is neither in the public interest, nor good for the health of the internet. In a leaked e-mail this week, FCC CTO Eric Burger (hired by Ajit Pai last October) warned that once the rules are repealed, there's really nothing in place to stop these entrenched duopolies from throttling or hamstringing services or websites they compete with:

"In an internal email to all of the FCC commissioner offices, CTO Eric Burger, who was appointed by Pai in October, said the No. 1 issue with the repeal is concern that internet service providers will block or throttle specific websites, according to FCC sources who viewed the message. "Unfortunately, I realize we do not address that at all," Burger said in the email. " If the ISP is transparent about blocking legal content, there is nothing the [Federal Trade Commission] can do about it unless the FTC determines it was done for anti-competitive reasons. Allowing such blocking is not in the public interest ."

So if you buy the FCC/big ISP argument here, the net neutrality repeal and the gutting of FCC authority over giant ISPs isn't a big deal -- because the FTC will rush in and protect consumers. But we've already noted in great detail how that's simply not going to be happening. The FTC's currently losing a lawsuit against AT&T that could obliterate that ability almost entirely. Even if they win that case, we've explored in detail how the FTC's existing authority is so limited, clever ISPs like Comcast will be able to simply tap dance around enforcement.

Another source at the FCC told Politico that Burger's concerns were just part of the everyday back and forth chatter that occurs at the FCC, and that his concerns had somehow been addressed by an update to the NPRM:

"An FCC official, speaking on the condition of anonymity to discuss the internal deliberations, said Burger's concerns have been addressed since his message Wednesday morning. The discussion, the official said, is part of the normal back-and-forth process of editing an FCC order. The official said that some clarifying language was added to the order and that Burger replied Wednesday afternoon to say his concerns were "fully addressed." The official also noted that the CTO was focused on one section of the order and not the part that dealt with the rules.

The problem is that there's no way that this issue was "fully addressed," because it's the entire foundation for Pai's order. Gutting FCC authority, then throwing any piddly remaining oversight of ISPs to an FTC ill-equipped to handle it is the entire plan. The fact that enforcement will fall through the cracks at the FTC is the whole damn point and is precisely why ISPs are lobbying for this. The FTC can't make new rules, can't act until after offenses have occurred, and even then -- only if it can be clearly proven that the ISP was being "unfair" or "deceptive" --something that's easy to dodge just by using TOS mouse print.

In the world of net neutrality violations, where ISPs often hide anti-competitive behavior under faux technical nonsense or breathless claims they were only trying to protect the network -- ISP lawyers will run circles around the FTC. And again, this is only if the FTC wins its court case against AT&T. If it loses, there's really nothing stopping giant ISPs from being as large of an anti-competitive ass as they can imagine. And should any states get the funny idea to step in and protect consumers or competitors, Pai's FCC incumbent ISPs want to hamstring those efforts as well.

Experts have been pointing out this fatal flaw in Ajit Pai's plan for much of the last year. That includes the two-time former FCC CTO, who has repeatedly pointed out how easy large ISPs will be able to abuse a lack of competition under this new paradigm. And while it's nice to see the FCC's current CTO recognize the problem as well, these concerns will likely only join the now-towering pile of discarded feedback that didn't quite line up with Comcast, Verizon and AT&T's vision of the internet.

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Filed Under: ajit pai, eric burger, fcc, ftc, net neutrality, title ii