Get Ready to Say Hi to the New Freedom Order of the Internet – Empowering No One but the ISPs
The Federal Communications Commission is set to dismantle net neutrality protections this week. After the repeal, the FCC will lose control over ISPs and the Federal Trade Commission will be responsible for keeping ISPs in check. After a myriad of questions regarding FTC's powerless position to keep ISPs in check and the FTC's response that the FCC is setting it up to fail [read: "We Are Being Set Up to Fail” by Ajit Pai and FCC], Ajit Pai has now shared a draft describing how the two agencies will work together to make sure ISPs keep their promises - after all, once these rules that ensure consumer protection are gone, it will entirely depend on those voluntary promises that the ISPs will not throttle the internet, prioritize their own content, or engage in any anti-consumer practices.
The draft memorandum of understanding (MOU), however, is nothing but vague. It says that the "FCC will monitor the broadband market and identify market entry barriers by, among other activities, reviewing informal complaints filed by consumers, and will investigate and take enforcement action as appropriate with respect to failures by an Internet service provider to comply, in whole or in part, with the Internet Freedom Order’s requirements to file with the FCC or display on a publicly available, easily accessible website the specified subjects of disclosure".
The New Order of the Internet...
The Internet Freedom Order, for those who are unaware, is what will replace the net neutrality protections, restoring "broadband Internet access service to its Title I information service classification". Under this, the FCC will have the ability to take action against companies that don't properly inform the public of any throttling, blocking or prioritization practices. Yes, the FCC will check the consumer complaints against what the ISPs have promised to comply with to take action. No rules or anything as ISPs can cherry pick the parts they want to follow. As long as they openly share what anti-consumer practices they are going to engage in, all is okay.
As far the FTC is concerned, it will "investigate and take enforcement action as appropriate against Internet service providers for unfair, deceptive, or otherwise unlawful acts or practices, including but not limited to, actions pertaining to the accuracy of the disclosures such providers make pursuant to the Internet Freedom Order’s requirements, as well as their marketing, advertising, and promotional activities".
The FTC had previously said that its role to investigate and take enforcement action against ISPs after they have engaged in unlawful acts or practices cannot substitute the FCC's powers. It takes the FTC years of process before these ISPs are fined (if proven guilty), and in the meantime "the dominant ISP might lose the antitrust suit and yet still wind up better off".
Pai, the Chairman of the FCC, said in his statement last night that "instead of saddling the Internet with heavy-handed regulations, we will work together to take targeted action against bad actors". However, in the absence of these regulations, there will be nothing but voluntary promises to prevent ISPs from engaging in anti-consumer practices.
Pai has asked the companies to make public disclosures of blocking, throttling, prioritization of their own content, and limitations they are imposing on specific types of content or devices. Based on those voluntary promises and disclosures, the agencies will accept complaints if the ISPs fail to comply with those obligations set in their disclosures.
"The agreement announced today between the FCC and FTC is a confusing, lackluster, reactionary afterthought: an attempt to paper over weaknesses in the Chairman’s draft proposal repealing the FCC’s 2015 net neutrality rules," the FCC Commissioner Mignon Clyburn said.
"Two years ago, the FCC signed a much broader pro-consumer agreement with the FTC that already covers this issue. There is no reason to do this again other than as a smoke-and-mirrors PR stunt, distracting from the FCC’s planned destruction of net neutrality protections later this week."
Looking for a TLDR version? Pai essentially says it's okay for the open internet to die as long as the ISPs are happy to self-regulate and they voluntarily disclose how exactly they are killing it.