FCC Commissioner Asks Chairman Ajit Pai: Why Don’t You Listen To Your Own Advice On Net Neutrality?

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Sometimes, the old saw goes, you’ve got to go to war with the resources you actually have, not the ones you might want. So with nothing really left to lose in her battle to preserve net neutrality, the FCC’s lone Democratic commissioner is deploying some scorched-earth Microsoft Word table-making to use FCC Chair Ajit Pai’s own words against him.

Commissioner Mignon Clyburn today Tweeted a “flashback” to 2014, when then-Commissioner Ajit Pai had many, many objections to the FCC’s process for creating a net neutrality rule — objections that he mysteriously seems much less concerned about this time around.

In her fact sheet [PDF], Clyburn very helpfully lays out several of these changes in position side-by-side, twisting that knife to contrast the past to the more hypocritical present.

As a refresher: Back in 2014, a federal court struck down the existing Open Internet Rule from 2010, leaving the FCC holding the metaphorical bag. The agency had to create a new rule to replace the lost one, and so it did.

The Commission formally voted in May, 2014 to open a proceeding to consider a new proposed rule.

That vote passed by 3-2, with the then-minority Republican commissioners Ajit Pai and Michael O’Rielly dissenting. It also kicked off months of public debate and comment from stakeholders and the general public (who also have a stake in how the internet works), eventually racking up nearly 4 million responses and temporarily crashing the comment system.

When the FCC first voted just to consider the rule, Pai mustered up five full pages of dissenting arguments [PDF] breaking down every one of his objections to even considering the idea of neutrality.

For example, in 2014 he wrote: “A dispute this fundamental is not for us, five unelected individuals, to decide. Instead, it should be resolved by the people’s elected representatives,” adding, “I recommend that the Commission seek guidance from Congress instead of plowing ahead yet again on its own.”

However, Clyburn points out, not only is Pai having the FCC take action on its own once more — but it’s not even at full strength. The positions once filled by former Chair Tom Wheeler and former Commissioner Jessica Rosenworcel have remained vacant since the Trump administration began, leaving the Commission barely at its minimum quorum of three Commissioners.

Pai also said in 2014 that the Commission needed to seek more expert input, saying, “We should ask ten distinguished economists from across the country to study the impact of our proposed regulations,” “We should host a series of hearings where Commissioners could question the authors of studies,” and “We should also engage computer scientists, technologists, and other technical experts” while crafting a new rule.

However — you guessed it — the Commission has done none of that so far. Pai announced his proposed alternative rule in April after reportedly meeting with representatives from the big internet providers. However, while CEOs and telecom lobbyists might be experts in some things, they are not unbiased technologists, scientists, or economists… whose input is apparently not as important as that, after all.

Pai also said, notably, that “We are not confronted with an immediate crisis that requires immediate action,” and tempered caution, adding that the Commission “should avoid embroiling everyone, from the FCC to industry to the average American consumer, in yet another years-long legal waiting game.”

The Open Internet Order of 2015 did indeed kick off a years-long legal waiting game. Industry and trade groups sued as soon as they were legally able, after the rule was passed. Oral arguments in the case were heard ten months after the rule was adopted, and it took another six months to receive a ruling.

But when the court did rule, in June, 2016, it sided with the FCC and allowed the Open Internet Order to stand. Meaning that when 2017 began, the law was stable — no immediate crisis that required immediate action existed. Instead, the Chairman’s office, by trying to overturn an existing rule, is creating that crisis, spurring everyone else into action.

And if he thinks that rescinding the 2015 rule and replacing it with some new 2017 standard won’t result in a “years-long legal waiting game,” he’s got another think coming.

The earliest point at which this rulemaking process could wrap up would be after September of this year. If the Commission does ultimately choose to reverse course on the 2015 rule, it is all but guaranteed immediately to face lawsuits for doing so.

Pai made several other since-disproven statements in his 2014 dissent, that Clyburn did not highlight. For example, he asserted that, “I see no legal path for the FCC to prohibit paid prioritization,” saying that in his legal opinion, Title II wouldn’t work. In fact it did, and was upheld in court.

He also concluded by saying, “Nevertheless, if we are going to act like our own mini-legislature and plunge the Commission into this morass, we need to use a better process going forward,” adding, “we need to give the American people a full and fair opportunity to participate in this process. And we must ensure that our decisions are based on a robust record.”

And yet while the American people are trying to take advantage of their opportunity to participate in this process, the Commission seems not exactly interested in what the public is saying.

“The comments process does not function as the equivalent of a public survey opinion or poll, and what matters is the quality of the argumentation presented,” an FCC official said in April. “The facts that are entered into the record, the legal arguments that are placed into the record — it’s not a counting procedure where we decide which side has placed more comments onto the record and that side wins.”

And when the electronic comment filing system crashed early Monday in the wake of comedian John Oliver’s new segment about net neutrality, the Commission blamed the outage on malicious actors deliberately attacking the site.

Clyburn’s office declined to provide any additional statement to Consumerist beyond what the Commissioner already said in her Tweet and fact sheet. A spokesman from Pai’s office, however, didn’t hold back.

“Commissioner Clyburn refused to support a single one of the listed suggestions back in 2014,” the spokesman told us. “Chairman Pai is leading a much more transparent rulemaking than the one supported by Commissioner Clyburn back then. For example, the text of Chairman Pai’s proposal has been released publicly. By contrast, Commissioner Clyburn in 2014 voted for a Notice of Proposed Rulemaking that the public had not been allowed to see. Also, because economic analysis is critical to the Commission’s decisions in this area, Chairman Pai has proposed that the FCC conduct a cost-benefit analysis during this rulemaking proceeding. Commissioner Clyburn voted for the Title II Order, which contained no cost-benefit analysis whatsoever.”

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