FCC Calls Net Neutrality Supporters 'Desperate'

FCC boss Ajit Pai has called net neutrality supporters "desperate" after a coalition of 40 consumer groups penned a letter to the agency boss asking him to delay the agency's December 14 vote to kill net neutrality. A coalition of 40 consumer groups (alongside of representatives from New York City) penned a letter (pdf) to Pai urging the FCC to delay its vote until a landmark court case between AT&T and the FTC can be settled.

That case would determine whether the FTC actually has the authority to effectively police anti-competitive behavior by the nation's biggest ISPs.

As we've long noted, the broadband industry's goal isn't just the elimination of net neutrality and broadband privacy rules that protect consumers, it's the wholesale elimination of FCC, FTC, and state oversight of some of the least liked, and least competitive companies in America. This goal has been stated time and time again by lobbyists for AT&T, Verizon and Comcast, and the lawmakers and regulators clearly beholden to their every whim.

History, unfortunately, has long shown how the one-two punch of regulatory apathy and limited competition doesn't end well for consumers.

One refrain from Ajit Pai and industry friends as they try to kill FCC oversight of large ISPs is that the FTC will step in and protect consumers.

But there's several flaws with that claim. One, unlike the FCC, the FTC lacks the rulemaking authority of the FCC, and can only respond to anti-competitive behavior long after they've actually occurred. The other problem is that the FTC is already under-funded, overburdened and incapable of truly policing yet another massive sector, something former FCC boss Tom Wheeler made clear in an interview earlier this year.

"It’s a fraud," Wheeler said when asked about the Trump administration's plan to "reform" the FCC. "The FTC doesn’t have rule-making authority. They’ve got enforcement authority and their enforcement authority is whether or not something is unfair or deceptive. And the FTC has to worry about everything from computer chips to bleach labeling. Of course, carriers want [telecom issues] to get lost in that morass. This was the strategy all along ."

Somebody is killing all the baby sitters

And it gets worse. AT&T is currently in court trying to weaken FTC oversight of large ISPs even further. AT&T was sued by the FTC after the company lied about throttling its "unlimited" wireless data customers. Should the FTC lose that website, it recently noted that any company with a "common carrier" component to its business operations would be able to tap dance around the agency's authority.

"The panel’s ruling creates an enforcement gap that would leave no federal agency able to protect millions of consumers across the country from unfair or deceptive practices or obtain redress on their behalf," warned the FTC. "Many companies provide both common-carrier and non-common-carrier services -- not just telephone companies like AT&T, but also cable companies like Comcast, technology companies like Google, and energy companies like ExxonMobil."

The FTC proceeded to warn that should AT&T prevail in court, companies could just gobble up small common carrier business segments to dodge regulatory oversight.

"Companies that are not common carriers today may gain that status by offering new services or through corporate acquisitions," said the FTC. "For example, AOL and Yahoo, which are not common carriers, are (or soon will be) owned by Verizon. The panel’s ruling calls into question the FTC’s ability to protect consumers from unlawful practices by such companies in any of their lines of business."

If the goal really is to gut FCC oversight and shovel any remaining oversight to the FTC, the fact that AT&T may soon be able to tell the FTC to go to hell seems, well, important.

Desperate Times

All of this explained, consumer groups thought it might make sense for the FCC to delay its net neutrality killing vote, giving the courts time to determine whether or not the FTC could actually protect consumers like Ajit Pai and the broadband industry have claimed.

"Rushing to a vote before the Ninth Circuit resolves this decision cavalierly risks the purported safeguards that you and other supporters of the Draft Order have repeatedly declared will protect consumers from abusive or anti-competitive practices," the letter notes.

"Astoundingly, after committing the entire future of consumer protection from broadband access providers to the FTC, the Draft Order cavalierly dismisses the ongoing litigation that deprived the FTC of any jurisdiction to carry out the job," says the groups. "The question that should concern the Commission is whether or not the en banc panel will likewise deprive the FTC of jurisdiction over broadband access providers."

Consumer groups and New York City officials say things are compounded by the fact that large ISPs have lobbied the FCC to crack down on any states that rush in and dare try to protect consumers from privacy or net neutrality violations. So far, the FCC (which only defends "states rights" when apparently convenient) has said they're eager to do just that.

"This potential regulatory gap is further compounded by the Draft Order's purported preemption of any state regulations the FCC deems "incompatible" with the newly announced "deregulatory" federal policy," says the letter. "Although the Draft Order is vague as to what, precisely, the FCC is preempting, it would appear from context that it includes state consumer protection laws. In short, the FCC has decided to put all remaining consumer protection eggs in one basket, but cannot be troubled to wait until the Ninth Circuit affirms that this approach is actually consistent with the FTC's own jurisdictional statute."

The FCC's response to these entirely legitimate concerns? To call those worried about the agency's blatant handout to industry "desperate."

"This is just evidence that supporters of heavy-handed Internet regulations are becoming more desperate by the day as their effort to defeat Chairman Pai's plan to restore Internet freedom has stalled," the FCC told Ars Technica in a statement. "The vote will proceed as scheduled on December 14."

Granted, that kind of response is well in line with an agency that's intent on ignoring the record 22 million public comments on its Orwellian-named "restoring internet freedom" plan, which may just be the least popular tech policy agenda item in the agency's eighty-three-year history.