Ajit Pai’s dream of killing net neutrality may soon turn into a nightmare

Federal Communications Commission Chairman Ajit Pai is set to meet with FCC commissioners Thursday to discuss the deregulation of the internet. Pai’s plan for doing so, which involves undoing Obama-era net neutrality regulations, would allow internet providers to give preferred status to some services and charge more for others.

A former lawyer for Verizon, Pai wants to abolish the 2015 FCC decision to regulate internet providers as utilities under what’s known as Title II regulation; instead, he believes the Federal Trade Commission should enforce the principles of an “open internet.” But the FTC can only enforce rules, not write them, and experts say it won’t be able to provide a meaningful deterrence to internet providers looking to control what users access online.

The push for an end to Title II is coming on the heels of a bill signed into law in March by President Donald Trump — also supported by telecoms, and rammed through Congress by Republicans — that eliminated Obama-era privacy protections for broadband internet users, effectively allowing internet providers to sell user information to advertisers.

“‘Deconstructing the administrative state’… [Pai] is doing all that,” said Gigi Sohn, who advised the FCC during the 2015 net neutrality fight. She was referencing a phrase used by White House strategist Steve Bannon in February. “This is what he believes in. This is his ideology.”

Pai’s proposed net neutrality reforms amount to a regulatory “punt” to Congress, says Mozilla Foundation Executive Director Mark Surman, who is one of the tech-industry leaders at the forefront of the net neutrality fight.

Here’s why Surman thinks so: Pai doesn’t think the FCC has the authority to regulate internet providers under Title II, believing instead that Congress needs to draft a law to either give the FCC this authority, or create a new entity altogether.

“You could say Pai is almost forcing Congress’ hand,” said Hal Singer, a Title II critic and senior fellow at the George Washington Institute for Public Policy who has discussed net neutrality with Pai and congressional Republicans. “If he takes away [the Title II rules], then Congress, if they are interested in regulating this space,” would have to craft legislation establishing who or what can write and enforce rules.

But Congress is so gridlocked that the chance of this happening are virtually nil, a fact Pai is presumably aware of. And so absent congressionally granted authority, the FTC can only enforce violations of open internet “principles,” which aren’t the same as actual rules, and which critics like Sohn say are all but unenforceable.

“Clearly what the FCC is trying to do is deregulate the internet,” Surman said. “The same way [the Trump administration] is taking away the teeth of the EPA, it’s trying to do the same to the FCC.”

After the vocal backlash to the GOP broadband privacy rollback, net neutrality promises to be a tough fight for Republicans, as they will almost certainly have to break a Democratic filibuster in the Senate. HuffPo-YouGov polling data compiled shortly after the rollback showed that more than 70 percent of Republicans opposed the measure, and strong net neutrality rules enjoy similar levels of support.

Although the undoing of internet regulation appears to be extremely unpopular among all Americans, it dovetails with the Trumpian, pro-business Republican agenda for which Pai has often shown support. In February, for example, the Pai-led FCC said it would no longer defend in court the agency’s cap on the phone rates providers can charge prisoners.

But it’s entirely possible Pai’s proposal will die before being implemented. The first obstacle could arrive as soon as July. Should Democratic-leaning FCC commissioner Mignon Clyburn leave the FCC at the end of June as expected, it would leave the body one commissioner short of a quorum, meaning the FCC wouldn’t be able to vote on Pai’s proposal. (Adding commissioners would likely mean picking yet another fight with congressional Democrats.)

The 1946 Administrative Procedure Act bars “capricious” rulemaking at federal agencies, and experts anticipate credible legal challenges against Pai’s proposal for not rising above that standard, especially because of how the FCC has bungled public comment. Pai in April invited Americans to submit public comments on his net neutrality proposal, just as the FCC did before enacting Title II in 2015. Then, earlier this month, John Oliver’s “Last Week Tonight” urged viewers to submit comments in support of net neutrality.

The next day, the FCC’s website went down. The commission said that it was due to a denial-of-service attack by hackers — but it has still not offered any proof.

Also wreaking havoc on the public comments are more than 50,000 bots that, impersonating people, have left comments expressing support for Pai’s proposal. Sohn says that Pai and the FCC are supposed to evaluate and respond to those comments, and “if the FCC bases its [net neutrality] decision on fake comments, that could be a problem.” Pai and the FCC have not yet publicly discussed investigating the origin of the bots.

Pai appears to be taking the pushback on his policies and proposals in stride. Earlier this month, he read mean tweets about himself in a video published on the conservative news site Independent Journal Review.