Why the FCC’s Plans to Gut Net Neutrality Just Might Fail – KLINT FINLEY 04.26.17. 6:23 PM


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FCC Chairman Ajit Pai speaks at an internet regulation event at the Newseum on April 26, 2017 in Washington, DC.Eric Thayer/Getty Images

It’s official: the country’s top regulator of the internet wants to end net neutrality. Specifically, Federal Communications Commission chair Ajit Pai plans to repeal changes that gave the agency the authority to enforce net neutrality protections—that is, rules requiring internet service providers to treat all internet traffic equally. But he won’t likely be able to do so without a big legal fight.

During a speech today in Washington, Pai announced his intention to undo one of the Obama-era FCC’s signature achievements. Although he was light on specifics (he plans to release the full text of his proposal tomorrow), Pai made clear that he would seek to reverse an FCC decision to classify broadband internet access providers as “Title II” common carriers, putting them in the same category as traditional telephone companies. The re-classification gave the FCC authority to impose net neutrality requirements on both wireless and home broadband providers, preventing them from, for example, charging specific sites or companies fees for sending traffic over their networks or slowing down competitors’ streaming video offerings.

“Going forward, we cannot stick with regulations from the Great Depression meant to micromanage Ma Bell,” Pai said.

The FCC will vote on—and given its Republican majority, likely pass—the proposal during an open meeting May 18. But that will only start what promises to be a lengthy battle for the future of net neutrality. To truly torpedo the requirements, Pai will have to make the case that he’s doing so for good reason.

A 1946 law called the Administrative Procedures Act bans federal agencies making “capricious” decisions. The law is meant, in part, to keep regulations from yo-yoing back and forth every time a new party gained control of the White House. The FCC successfully argued in favor of Title II reclassification in federal court just last summer. That effort means Pai might have to make the case that things had changed enough since then to justify a complete reversal in policy.

“That’s a pretty dramatic reversal,” says Marc Martin, chair of communications law at Perkins Coie. “Presuming there’s an appeal, a court may find that arbitrary.”

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