FCC’s Pai says Congress will lead on effort to remove ISP privacy rules

23 February 2017. By Mike Swift.

One month into the job, new US Federal Communications Commission Chairman Ajit Pai said Thursday that he has not spoken to the White House about scuttling controversial net neutrality rules, and that Congress will lead on whether to roll back associated privacy rules for Internet service providers.

Asked by reporters after the FCC's monthly meeting in Washington what conversations he's had with the White House on net neutrality, Pai had a one-word answer: "None."

When asked about the privacy rules, Pai said Congress would take the lead. US Senator Jeff Flake, an Arizona Republican, has proposed using the Congressional Review Act to eliminate requirements that ISPs get affirmative consent from subscribers before sharing their online browsing history and other personal data with advertisers and other third parties.

"That's entirely a decision for elected officials to make," Pai said, adding that he would not even make a recommendation to Congress.

Democratic opposition is building to Republican efforts to scuttle the Open Internet Order approved by the FCC's Obama-era Democratic majority in 2015 as well as the associated privacy rules. The net neutrality order, which prohibits ISPs from blocking online content, throttling back the data speeds of high-bandwidth services or charging special fees for prioritized digital services, were attacked during the presidential campaign by Donald Trump.

In a 2-1 party line vote Thursday, the FCC did put one chink in the Open Internet Order, exempting ISPs with fewer than 250,000 subscribers from complying with transparency rules to disclose network performance, data caps, pricing and other information for five years.

"These providers frequently serve rural areas that lack broadband, or provide competitive alternatives for consumers in other markets," the agency said, and they "would be disproportionately impacted if required to comply immediately with the 2015 enhanced reporting requirements."

The move drew a critical statement from US Senator Edward Markey, a Democrat from Massachusetts who has also scheduled a press conference Monday with the American Civil Liberties Union, Public Knowledge, Free Press and other consumer groups to oppose the elimination of privacy rules for ISPs.

"By granting this carve-out for the broadband industry, the FCC has made pricing and performance information less accessible to small businesses and consumers," Markey said.

Privacy advocates are particularly unhappy about the Republican plan to use the Congressional Review Act to remove the privacy rules, because with the Open Internet Order still in effect, ISPs are designated as common carriers under Title II of the Communications Act. That means by law they cannot be regulated by the US Federal Trade Commission, the default privacy regulator for online services.

The FCC is also considering a petition from cable companies and other ISPs to stay implementation of the privacy rules. "We're actively looking at that right now and will hopefully have something to report near term," Pai said Thursday.

If the FCC and the FTC were both blocked from regulating ISP privacy, there would be no regulatory oversight for a group of companies that, privacy advocates say, pose significant privacy concerns. Unlike discrete websites or services, ISPs can see the entire sweep of a person's online activity.

Pai resisted journalists' efforts to draw him into a discussion on net neutrality and privacy, preferring to talk about the FCC on Thursday setting rules for a competitive "reverse auction" intended to provide almost $2 billion over the next decade to extend broadband services in rural areas of the US. The FCC also moved to extend 4G LTE wireless broadband in the 575,000 square miles of rural areas and tribal lands that lack fast wireless connections by providing $453 million a year over the next 10 years.

In 2014, Trump tweeted that net neutrality was "another top-down power grab" that was "an attack on the Internet" by the Obama administration. But since his inauguration, the new US president has said little about the topic.

Pai on Thursday declined to even discuss net neutrality in generic terms.

Asked by a reporter for his view of paid prioritization, he said only: "I favor a free and open Internet, and nothing has changed my view about that."