The Letter of the Law
Under the leadership of Ajit Pai, the Federal Communications Commission (FCC) has announced plans to repeal net neutrality rules that were approved in 2015. These rules classify an internet service provider (ISP) as a “telecommunications service” and not an “information service.” Anyone can comment on the plan, which the FCC is calling “Restoring Internet Freedom,” via the FCC site until August 16, and now, 10 U.S. lawmakers have decided to share their opinion on the matter.
The group of 10 representatives includes Frank Pallone, Jr. and Mike Doyle — both ranking members of the House Committee on Energy and Commerce — and the written comment is roughly 20 pages long. It echoes the concerns of the many American citizens who have already voiced their support for stronger net neutrality, and it opens with these lines:
We, as members of Congress who also sit on the House Energy and Commerce Committee, submit these comments out of deep concern that the FCC’s proposal to undo its net neutrality rules fundamentally and profoundly runs counter to the law. As participants either in the passage of the Telecommunications Act of 1996 or in decisions on whether to update the Act, we write to provide our unique insight into the meaning and intent of the law.
The purpose of this comment isn’t just so the lawmakers can add their opinion to the mix. They are essentially clarifying the “congressional intent” behind the law, and they call the FCC out for getting the facts wrong and misinterpreting the law — despite Pai’s earlier comment about basing his net neutrality decision on the “facts and the law”:
While the technology has changed, the policies to which we agreed have remained firm — the law still directs the FCC to look at the network infrastructure carrying data as distinct from the services that create the data. Using today’s technology that means the law directs the FCC to look at ISP services as distinct from those services that ride over the networks.
The FCC’s proposal contravenes our intent — the FCC should tread carefully before interfering with content creation. While some may argue that this distinction should be abandoned because of changes in today’s market, that choice is not the FCC’s to make. The decision remains squarely with those of us in Congress — and we have repeatedly chosen to leave the law as it is.
The Commission’s proposal performs a historical sleight of hand that impermissibly conflates this fundamental distinction. The FCC proposes to treat network infrastructure as information services because the infrastructure gives access to the services running over their networks. The FCC contends that ISPs are therefore “offering the capability” to use the services that create the content.
However this suggestion obliterates the distinction that Congress set in to law — we meant for the FCC to consider services that carry data separately from those that create data. The FCC’s proposal would therefore read this fundamental choice that we made out of the law. Under the proposal’s suggestion, no service could be a telecommunications service going forward.
Experts criticized the FCC’s plan early on, saying it takes away American citizens’ right to free internet access, handing control to corporations. Without the net neutrality rules, ISPs could potentially force some sites to load slower than others, charge users additional fees to access certain sites, or make some legal sites completely inaccessible.
Furthermore, the lawmakers claim that the FCC’s plan “impermissibly ignores the Commission’s core mandate to fully consider the public interest before taking action” by focusing on just one metric — how much money ISPs have spent upgrading network infrastructure since net neutrality was passed in 2015:
Americans overwhelming support stronger and clearer privacy rules. Yet the Commission — without comment — proposes to eliminate before-the-fact protections at the FCC in favor of an enforcement-only approach. The FCC should not degrade people’s privacy rights without thorough consideration.
Instead of considering these critical national priorities, the proposal single-mindedly concentrates on one issue to the exclusion of all others: the raw dollars spent on network deployment. This narrow focus is clearly contrary to the public interest — if we had intended network investment to be the sole measure by which the FCC determines policy, we would have specifically written that into the law.
The Trump administration had encouraged the dismantling of net neutrality prior to the announcement of the controversial “Restoring Internet Freedom” plan, signing legislation voted on by Congress that allows ISPs to sell users’ browsing history.
The 10 lawmakers suggest in their comment that the FCC might have been taking direction from the White House when crafting their proposal, which presents an entirely different problem: “It appears that the President directly ordered Chairman Pai to repeal net neutrality, potentially during a visit to the Oval Office. If true, this proposal clearly violates our intention to create an agency independent of the executive.”
Overall, the dismantling of net neutrality will have huge implications for the future of the internet and our relationship with it, so it is imperative that those in Congress listen to their voters and amplify their opinions using the platform we give them. This comment from 10 lawmakers is a start, but time is running out for the rest of our government leaders to make their (and our) voices heard.