Over the past week, a number of progressive grass roots groups and some 21 state attorneys general have filed suit in federal appellate courts seeking to overturn the Federal Communications Commission’s repeal of net neutrality rules that were promulgated in December 2015. This early in the process the petitions have laid out general assertions that the Commission’s decision to repeal was arbitrary, capricious, and an abuse of agency discretion.
In other words, the Commission, dominated by three Republicans to two lone Democrats, was given to sudden and unaccountable mood swings as it went from determining in 2015 that broadband access providers should be viewed as old style telephone companies to last year’s decision where the Commission now views broadband access providers as information service providers.
I don’t see how the left’s position, that the Commission should use rules for regulating a point to point communications service, is to increase broadband access for insular communities like the U.S. Virgin Islands and Puerto Rico. According to Commission data, 66% of population in U.S. territories lacks access to 25 megabit per second download, 3 megabit per second upload broadband access services. The flexibility required for deploying more advanced broadband access services in U.S. territories like the USVI and Puerto Rico cannot manifest itself in a regulatory framework that requires a body of regulators give approval or delay proceedings necessary for approving the introduction of new services.
The real arbitrary behavior took place when the Commission, led by Democrat Tom Wheeler, actually persuaded two other Democratic members of the board and some four million naive voters and taxpayers, that the Commission was actually in a position to ensure traffic neutrality throughout the entire internet; from the voter and taxpayer’s laptop to her favorite porn site hosted on a server located in the Azores. For Mr Wheeler to premise a ridiculous expansion of the Communications Act on the assertion that the Commission, via regulation, could ensure that all traffic be treated equally on the internet only resulted in creating false expectations regarding service among a public that couldn’t tell you exactly what net neutrality is in the first place.
The Commission, now led by Ajit Pai, has, if anything, reintroduced some reality into communications regulation. The first reality is that Title II of the Communications Act of 1934 is not necessary for regulating advanced, broadband internet access services in the 21st century. Second, the repeal of the 2015 Wheeler order recognizes that providing American consumers with the best access to a global, interconnected computer network means being able to leverage the openness of the internet to provide new services in a permission-less environment.
It is ironic that the edge providers that want their subscribers to access their content on the highest quality communications networks are willing to endure delays that will certainly arise under a Title II regime that requires permission to innovate at every turn.