No last minute reprieve, no surprises as FCC heads for net neutrality vote

by Steve Blum • , , ,

There seems no stopping the Federal Communications Commission’s republican majority plan to end broadband’s status as a common carrier service and, as a result, kill network neutrality obligations for service providers. The decision is scheduled for tomorrow morning, and FCC chair Ajit Pai has either ignored or explicitly rejected the three main arguments for delaying a vote.

One of those arguments should be ignored. Much has been made about the spam submitted along with substantive comments on the issue. It appears that people on both sides of the issue have hacked (in the honorable sense of the word) the FCC’s online comment system. That’s no big deal. There are enough substantive comments, on both sides, to inform commissioner’s deliberations, even if they were actually deliberating rather than digging in to well established, partisan positions. On both sides.

Among the substantive comments is a definitive rebuttal signed by people who really know what they’re talking about. They include Vint Cerf, Tim Berners-Lee, Steve Wozniak and a bunch of others you probably haven’t heard of but likewise invented the stuff that the Internet depends upon and that FCC chair Ajit Pai pretends not to understand. They should be taken seriously but won’t. At least not unless the federal courts decide to sort out the political arguments. Then, what they say will matter hugely.

The third argument involves the ninth circuit federal appeals court, based in San Francisco. It’s deciding whether companies that are reckoned to be common carriers, like, say, AT&T, should be subject to any consumer protection rules at all, regardless of whether the particular service involved – broadband, for example – is specifically classified that way. If the ninth circuit agrees with a previous ruling and exempts telecoms companies from consumer protection oversight, then tomorrow’s inevitable decision will free big telecoms companies from any rules at all.

The draft decision dismisses that possibility, and the FCC released a draft memorandum of understanding with the Federal Trade Commission on Monday that assumes the problem away. The draft MOU states the obvious – that the FTC would police general violations of consumer protection law – and talks about information sharing between the two agencies, in a hand waving, we’re all on the same team sort of way.

There’s no knowing which way the appeals courts or, eventually, the federal supreme court will rule. Delaying the decision until the court system resolves basic, underlying questions would be prudent, but that’s not in the cards either: tomorrow, the FCC will end net neutrality and other broadband common carrier obligations on a party line three-to-one vote.