ICLE Statement on the FCC’s Restoring Internet Freedom Order

The following may be attributed to Geoffrey Manne, Executive Director, ICLE

Today, Federal Communications Commission Chairman Ajit Pai announced the restoration of the Commission’s historically light-touch, pro-innovation approach to regulating broadband Internet access services. The full text of the Restoring Internet Freedom Order will be available to the public here tomorrow.

Chairman Pai’s proposed Order rescinds the misguided 2015 Open Internet Order and reasserts the primacy of competition and consumer protection laws to govern conduct by Internet providers, just as they do everywhere else in the economy.

As Chairman Pai puts it:

“[A]s a result of my proposal, the Federal Trade Commission will once again be able to police ISPs, protect consumers, and promote competition, just as it did before 2015. Notably, my proposal will put the federal government’s most experienced privacy cop, the FTC, back on the beat to protect consumers’ online privacy.”

Consumers are not left without government oversight. Not only does the Order return authority to the FTC, it also requires ISPs to disclose how they will treat traffic and be held accountable for any deviation from their claims. As under Section 5 of the FTC Act, deceptive disclosures or unfair practices — practices that have the actual effect of harming consumers — will be subject to FTC enforcement.

As Chairman Pai describes the proposed rules in today’s op-ed:

“[T]he FCC simply would require internet service providers to be transparent so that consumers can buy the plan that’s best for them. And entrepreneurs and other small businesses would have the technical information they need to innovate…. Instead of being flyspecked by lawyers and bureaucrats, the internet would once again thrive under engineers and entrepreneurs.”

Chairman Pai must be commended for the process by which he has introduced the new rules. Today he shares his proposed rules with his fellow commissioners and tomorrow he will release the full text of the rules to the public, a full three weeks before the Commission will vote on them.

Sadly, this has not been the norm. Rather, since the 1970s the Commission has voted on proposed rules without public disclosure of the text until an undetermined time after the vote.

The last time around, under Chairman Wheeler, the text of the Open Internet Order wasn’t released until 14 days after the vote, and the Order itself had undergone a complete transformation from NPRM to Order.

Nothing about that process was open or transparent, and, not surprisingly, the 2015 Order evinces virtually no consideration of opposing views or rigorous analysis of complex and controversial issues.

Chairman Pai has changed all of that, and followed basic rules of good governance that actually facilitate discussion and debate over the proposed regulations.

A fuller analysis of Chairman Pai’s proposed Order will have to await its release (and the wearing off of the stultifying effects of L-Tryptophan and over-indulgence). But it seems clear that the Chairman’s office has taken a careful, rigorous, and humble approach to fixing the regulatory mess of the 2015 OIO.

Selected ICLE work on this issue:

  • ICLE Notice of Ex Parte on Restoring Internet Freedom, here
  • ICLE Economics and Policy Comments on Restoring Internet Freedom, here
  • ICLE Privacy Comments on Restoring Internet Freedom, here
  • US Telecom v. FCC, US Supreme Court Amicus of ICLE and affiliate Gus Hurwitz, here
  • The Feds Lost on Net Neutrality, But Won Control of the Internet, Wired, here
  • Net Neutrality’s Hollow Promise to Startups, Computerworld, here
  • Since When Is Free Web Access a Bad Thing? The Wall Street Journal, here
  • How to Break the Internet, Reason Magazine, here
  • Net Neutrality is Bad for Consumers and Probably Illegal, Truth on the Market, here
  • Court strikes down Net neutrality rules but grants FCC sweeping new power over Internet, Truth on the Market, here
  • Thirty-two Scholars of Law and Economics Urge the FTC to Advise the FCC to Employ Case-by-Case Rules in Regulating Net Neutrality, Letter to the FTC , here

About ICLE:

The International Center for Law & Economics is a nonprofit, nonpartisan research center. Working with a roster of more than fifty academic affiliates and research centers from around the globe, we develop and disseminate academic output to build the intellectual foundation for rigorous, economically-grounded policy.