For the past several years, the web radio program I host (Cyber Law & Business Report) has had a year-end “Heroes and Zeros” show in which we assemble a panel to highlight those doing wonderful things on the internet and those deserving a cyber lump of coal. This year, my top zero by far is Federal Communications Commission(FCC) Chairman Ajit Pai.
The FCC is charged with encouraging broadband deployment “on a reasonable and timely basis” and to remove barriers to broadband deployment. Under the Obama 2009 stimulus package, the FCC was directed to develop a detailed strategy
for achieving affordability and maximizing use of broadband to advance consumer welfare, civic participation. . . entrepreneurial activity, job creation and economic growth, and other national purposes.
Since taking over as FCC Chairman earlier this year, Pai has taken the FCC in the opposite direction.
Rather than determining what steps are necessary to expand broadband deployment and increase U.S. internet speeds (which at 18.7 Mbps is only 10th worldwide and only two-thirds as fast as leader South Korea), Pai instead is proposing to lower the definition of broadband from 25 Mbps to only 10 Mbps and declare victory. By way of reference, Uruguay and Vietnam (ranked 57th and 58th) have an average speed of 9.5 Mbps. That is hardly making America great again.
Pai took office pledging to bridge the “digital divide,” but he has taken a cleaver to the FCC Lifeline program which uses telecommunication provider fees to grant a small subsidy to low-income Americans to obtain telephone and internet service. Under a Pai “reform plan,” the FCC imposed a cap on Lifeline subsidies and eliminated discount providers from the program thereby forcing seventy-percent of recipients to more expensive providers.
Pai also has proposed cutting funding for the FCC’s E-Rate Program which, according to a staff report Pai has quashed, has driven down the cost of broadband service for schools and libraries and more than doubled the number of school districts with high speed connectivity.
Pai’s record on consumer protection is no better, as he endorsed Congressional repeal of the FCC’s consumer privacy rules and blocked a data security rule that would have required internet service providers to take “reasonable measures” to secure customer data.
Pai’s defining achievement will come December 14th, when the FCC will vote on his proposal to repeal the FCC’s Open Internet Order (aka Net Neutrality). In February 2015, after receiving nearly 4 million comments mostly in favor, the FCC adopted the Open Internet Order to treat internet service as a telecommunication service under Title II of the Communications Act of 1934 and adopted rules prohibiting broadband providers from (i) blocking “lawful content, applications, services, or non-harmful devices or throttling, degrading or impairing access to the same;” (ii) favoring traffic in exchange for consideration or to benefit an affiliate entity; and (iii) “unreasonably interfer[ing] with or unreasonably disadvantag[ing] end users’ ability to select, access, and use broadband Internet access service or the lawful Internet content, applications, services, or devices of their choice.”
Pai has questioned the legality of the Open Internet Order, asserting that its rationales were mere "phantoms that were conjured up by people who wanted the FCC for political reasons to overregulate the internet,” and claiming that the Order had depressed investment in broadband infrastructure. The legality of the Open Internet Order, however, was upheld by the D.C. Circuit Court of Appeals and there is no evidence that it has suppressed investment as asserted by Pai. As to Pai’s claimed phantoms, it is worth noting that he has refused to release complaints of net neutrality violations and shut down pending investigations into the use of zero-rating plans exempting favored services from carrier data caps in violation of the Open Internet Order.
Pai sees nothing wrong with paid prioritization (aka high-speed toll roads), blocking content or throttling internet users to disrupt their service as long as the internet service provider’s policies are disclosed. Of course, what good is disclosure when 55-percent of Americans only have one broadband provider to choose from (and only two percent have more than two options)? Pai will usher in a new era for the internet that will be more expensive and where internet service providers will be able to stifle innovation and speech. (See It’s Time To Speak Up To Save Your Internet.)
Pai is the perfect example of a Faustian bureaucrat in the age of Trump, disinterested in facts or the greater good, as all that matters is power and using it to serve the powerful telecom providers. Like the colonial lords described by Joseph Conrad a century ago in Heart of Darkness, “their administration was merely a squeeze . . . . They grabbed what they could get for the sake of what was to be got.” For that, Pai is my top zero of 2017.
Cyber Law & Business Report’s “Heroes and Zeros” episode will air on December 20th at 1 pm EST on WebmasterRadio.fm and will feature guests Brenda Christensen, Denise Howell and Dan Tynan. Note the views expressed herein are my own and do not necessarily reflect the views of CLBR guests, WebmasterRadio.fm or its advertisers. CLBR, which launched in February 2011, focuses on major legal, policy and business developments in the internet space and was nominated by the LA Press Club for “Best Public Affairs Talk Show” in 2014.