FCC Commissioner: ‘Unprecedented Involvement Of Executive Branch In Our Decision-Making’
WASHINGTON — Republican Federal Communications Commission Commissioner Ajit Pai hosted a press conference on Tuesday to discuss with reporters about his concern about President Obama’s proposal “to regulate the internet.” Pai cited concerns ranging from the proposal causing heavy-handed FCC regulations on the internet to the plan being a “gift to trial lawyers.”
Under the idea of net neutrality the president, along with FCC Chairman Tom Wheeler, is pushing the plan forward prior to the Feb. 26 FCC vote on the matter. However, Wisconsin Sen. Ron Johnson appears concerned about the influence the White House may have on the agency decision making with this policy. Johnson sent a letter to the commission requesting information on the issue, as did House Oversight Chairman Jason Chaffetz.
Johnson told reporters after Pai’s presser, “We certainly want to find out to what extent [WHEELER’S] change of heart was actually his own or whether there was influence by the White House. [The FCC] is supposed to be an independent agency and so we’re trying to find the information. We want to find the communication between himself and the White House—his agency and the White House and see whether this truly was an independent act.”
The Daily Caller sat down with Pai following his press conference to discuss these matters and other issues relating to the president’s net neutrality proposal:
TheDC: How will content possibly be censored when the government moves in on this and treats the internet as a utility?
PAI: Great question. I think what is focused upon in the item—all 332 pages of it is—not so much the FCC micromanaging particular editorial content decisions but more the entire ecosystems of how the internet functions telling different providers of content and of broadband service how they should interact and on what terms they should interact and what prices they should interact. I think it’s that kind of micromanaging that ultimately is the gist that’s in the order. Now whose to say what the FCC might do in the future as a result of this, but as far as this document goes, it focuses more on the infrastructure part of the equation as opposed to content.
TheDC: So it sets up the foundation of what could happen in the future in terms of once the government gets its hands into this, it could bring about some kind of censorship in some way shape or form?
PAI: The document doesn’t suggest that and I would hope, especially given the clear first amendment law on this question, the FCC wouldn’t even entertain that proposition but if—and I’ve been outspoken in my opposition to it—and other attempts have hinted at infringement on first amendment values, I can tell you that if the agency ever proposed to do something like that, I would speak out against it.
TheDC: Previous attempts at regulating the internet have been shot down in the courts, why is it that this one seems to be a little scarier than the last ones?
PAI: Two different reasons. One is the unprecedented involvement of the executive branch in our decision-making. Traditionally the FCC has been an independent agency that, even though I and the other chairmen are appointed by the president and confirmed by the Senate, we’re considered to be independent and render expert objective judgment about some of these difficult policy questions.
Here what you have is the president in an unprecedented way saying explicitly, “Not only do I want the FCC to do XY and Z, but this is the legal theory I want them to use to support it.” I think once that announcement was made, the trajectory of how our decision-making was proceeding, I think the writing was on the wall and the FCC felt like it was under enormous pressure to do what the president wanted us to do. And so that’s one fact.
And secondly, in terms of the breadth of it, the previous two attempts were nowhere near as heavy handed as title II common carrier regulations that we would adopt in this order. It asserts jurisdiction over not just what net neutrality supporters were originally concerned about which is the relationship between an internet service provider and a consumer—that last mile, as they call it, of connectivity but it’s the entire internet.
It’s the way the traffic routed between an internet service provider and edge provider. It’s the points of interconnection over the internet, which is hundreds of miles away in some cases in consumers’ homes. I think it’s that expansion of authority that really marks this as being farther beyond the previous attempts were. So it seems to me, if those previous attempts—limited though they were in comparison were struck down by the courts, this one is just doesn’t put the FCC on a firm footing going forward.
TheDC: Can you expand on your statement that riffed off of the president’s healthcare quote? “If you like your current service plan, you should be able to keep current service plan.” How are people going to be paying more?
PAI: It’s not just the business practices of internet service providers that this plan is focused on. It’s also going to directly affect consumers who have certain service plans that the FCC might decide at some future date are unlawful. For example, for a sponsored data plans or other innovative plans like T-Mobile Music Freedom–it’s essentially T-Mobile for certain online music providers that will exempt streaming music using those consumers’ data allowance. That is something that is good for the consumers. You get to listen to music for free without accounting against your data allowance.
The FCC has explicitly put practices like that in the crosshairs and has said, “Under this new vague internet standard…” which is not really defined with specificity, the agency might decide that practices like that are unlawful and if it ends up barring people from getting service plans that they like, then essentially we’re doing what happened in health care, where people who liked their plans were told, “Sorry, a law is a law. Pick something else.” In the telecom space, that’s something I don’t want to see happen, because I think that there are a number of people like the plans they have and the FCC shouldn’t stand in the way of them being able to enjoy them for years to come.
TheDC: Trial lawyers. What’s the most concerning issue to come out of this proposal in regards to litigation?
PAI: I think the scariest thing is that this order explicitly opens the door to trial lawyers across the country filing everything from an individual lawsuit to a sprawling class action against one or all internet service providers, claiming that everything from a rate to a practice was unlawful and once the FCC adopts this order, I think you’re going to see people come out of the wood work and claim anything under the sun—not just on the consumer side, mind you but from edge providers is a reason for the commissioner or the courts to get involved.
Ultimately that kind of litigation is something that saddles every part of the economy but especially the dynamic part of the economy. It burdens them with less innovation and less investment and ultimately a worse experience for consumers.