Pixel Envy

Written by Nick Heer.

Details Begin Leaking About FCC Chair Ajit Pai’s Plans for Net Neutrality

David Shepardson, Reuters:

The rules approved by the FCC under Democratic President Barack Obama in early 2015 prohibited broadband providers from giving or selling access to speedy internet, essentially a “fast lane”, to certain internet services over others. As part of that change, the FCC reclassified internet service providers much like utilities.

Pai wants to overturn that reclassification, but wants internet providers to voluntarily agree to not obstruct or slow consumer access to web content, two officials said late Tuesday.

The officials briefed on the meeting said Pai suggested companies commit in writing to open internet principles and including them in their terms of service, which would make them binding.

Hands-up, everyone who thinks their ISP is so great that they’d voluntarily promise not to shape traffic to preference their own subscription service over, say, Netflix.

Didn’t think so.

Also, terms of service regulate an agreement between customers and the ISP; my understanding is that this is not an agreement between the ISP and the law. Even though it’s a contract, individual clauses in those agreements have been ruled to be non-binding — most famously, the 1996 decision finding “shrink-wrap” agreements unenforceable.1 More to the point, ISPs would totally put up a fight and sue the FTC or FCC — depending on who ends up regulating ISPs — claiming that their First Amendment rights have been violated. Don’t believe me? In 2015, prior to the introduction of the FCC’s net neutrality rules, Alamo Broadband did exactly that.

Pai’s dogmatic mistrust of regulation is terrible for the neutrality of the web. I am not optimistic for the state of the web in ten years’ time if the proposals described here become reality.

Update: Nilay Patel has an astute point:

Second, let’s say Pai manages to thread the needle and gets every ISP in the country to agree on the exact same open internet language in their terms of service, and further secures a commitment that the language will remain in their terms in perpetuity. Isn’t that functionally identical to… a law? Shouldn’t we just have… a law? And don’t we already have that law? What specifically is Pai trying to accomplish if he agrees that open internet principles are important?

Ah, the old trick of replacing a law with a-pinky-promise-that’s-not-a-law-but-still-legally-binding.

  1. This link is from May 1996, likely making it the oldest article I’ve ever linked to here. ↩︎