Net Neutrality Fight Likely to Dominate What Could Be Pai's Last Substantial Meeting as Chair
The net neutrality order set for an Oct. 27 vote at the FCC means that what could be the last big meeting of Chairman Ajit Pai’s tenure will include action on the same politically charged, divisive issue that took over his first year as chairman. The order is likely to be approved 3-2, but with strong dissents from FCC Democrats. Other contentious items are also on the agenda, including the 5G Fund, tower compound expansions and a final order on wireless infrastructure.
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The FCC wrapped up a comment cycle May 20 on its response to the remand from U.S. Court of Appeals for the D.C. Circuit in Mozilla v. FCC (see 2004210019). The court asked the FCC to address concerns involving public safety, pole attachment rights for broadband-only providers and the Lifeline program.
Industry experts said they’re not sure why Pai didn’t seek a net neutrality vote months ago rather waiting for the October meeting. In January remarks at CES, Pai noted net neutrality has become “more of a political issue than a policy one,” with Congress needing to step in to ensure rules that will last beyond any administration (see 2001070054). The FCC didn’t comment.
“For whatever reason Pai wants to do it, whether it’s Ahab getting the whale or whatever, he’s serious about wanting to make this stick at this point,” said Public Knowledge Senior Vice President Harold Feld. “If he was going to do it, it has to be now,” and the order took a while to write, he said. “Once the election comes, if the administration flips, Pai may feel constrained” to act, and no one knows how long Republican Commissioner Mike O’Rielly will stay, he said. “This is the best time to do anything you want to get away with in Washington, given that everyone is totally focused on the election and … on the pandemic.”
Many recent actions by Pai, especially those giving a big boost to spectrum for Wi-Fi, have built some bridges to the same groups opposed to the FCC’s 2017 order rewriting the net neutrality rules, some industry experts said. “Pai was always very clear that he was doing things for his own policy and political reasons and that things that he did … weren’t done expressly to court the left or build bridges,” Feld told us, noting he still has many differences with the chairman. PK sees no reason to launch a big fight against the order and is waiting for a new administration, he said: “Pai has made it fairly clear that even if we got millions of people to weigh in again, that wouldn’t matter to him.”
The court didn’t reverse the FCC, said Phoenix Center President Lawrence Spiwak. The D.C. Circuit “asked the FCC to explain these three issues, but … it doesn’t go to the legal issue of can you reclassify or not,” he said. If Democratic presidential nominee Joe Biden wins in November, the next FCC is likely to make overriding the Republican rules a top priority, he said. There’s no doubt Democrats “are already drafting a notice of rulemaking, and they’re ready to do it,” he said: “It has become religion, and that’s the problem.”
“Pai’s true legacy on net neutrality will be that he used the issue to move the agency back to using analytical rigor,” said Mark Jamison, a University of Florida professor who helped the Trump FCC transition. “One of Pai’s key roles as chairman is to protect good legal and analytical work from political pressure. He drove a stake in the ground with net neutrality that his staff’s work won’t be moved by protests and political rhetoric.”
The meeting will likely be the last substantial one before the end of the year, said Shane Tews of the American Enterprise Institute. The FCC likely “had a strategy to keep this dormant as long as possible until they had to deal with it,” he said.
“Neutrality long ago became more about politics than policy,” similar to the fight over masks, said Fletcher Heald’s Francisco Montero. “As a communications lawyer, I was frequently asked about my position on net neutrality, and when I asked them to first tell me how they defined the issue, I was amazed at how many had no idea what the debate was really about, although many already had a strong position,” he said. “Net neutrality is indelibly a major part of Pai’s legacy, and that is unquestionable. Its appearance in this possibly last substantive meeting of his tenure just cements that. ... [Appearing] along with 5G, AM revitalization, as well as the resent Supreme Court cert for media ownership, almost gives a neat recap for his legacy.”
“It wasn’t analytical rigor that motivated the commission majority to kill net neutrality,” said former FCC Commissioner Michael Copps, now at Common Cause. “It was flaming ideology on top of the untoward influence of companies grown too powerful,” he said: “Let’s hope 2021 will usher in some real commitment to an open internet that the pandemic has showed us is something America cannot do without.”