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Ajit Pai, Donald Trump's pick to head the Federal Communications Commission (FCC), is a critic of the Net Neutrality rules the agency passed two years ago. As an FCC commissioner, Pai voted against the agency's 2015 open internet order, whose defenders said was necessary "to protect free expression and innovation on the Internet and promote investment in the nation's broadband networks." After losing court battles to regulate the Internet directly, then-FCC head Tom Wheeler said the agency had the right to regulate the Internet under Title II rules originally designed to control telecommunications utilities. That the FCC could point to essentially no cases of providers throttling competitors' data or blocking particular websites didn't matter much. As long as the possibility existed, say Net Neutrality supporters, the FCC must be empowered to regulate data on the Internet.
Does this mean that, as a Buzzfeed article fret, "The Fate of Net Neutrality Is Still Up in the Air in the Trump-Era FCC"? If you're concerned about the FCC regulating the Internet using decades-old Title II rules, yes, absolutely. If you're worried about whether or the Internet will be a place of unparalleled free expression and constant innovation, absolutely not. As Pai says, "I favor a free and open internet and I oppose Title II." That's not a contradiction at all.
It's upbeat phrasing aside, Net Neutrality has never been about increasing freedom of expression online. It actually represents an attempt by the government to regulate various aspects of the online world in the name of saving us from a phantom menace of cable monsters and ISPs who are supposedly blocking or throttling traffic from unwanted competitors. I have no love for cable companies, cell phone providers, or anyone else who gives me access to the 'net. I also know that products and services continue to get better, faster, and ultimately, cheaper.
Here's how Clemson University economist Tom Hazlett defined Net Neutrality from a libertarian perspective:
Hazlett, author of The Fallacy of Net Neutrality, argued that net neutrality is best defined as "a set of rules…regulating the business model of your local ISP." Thinking about it that way clarifies what's really going on. By seeking to ban differential pricing and services among different ISPs, net neutrality backers are trying to maintain the status quo that's worked for them so well (many of the strongest proponents for net neutrality represent bandwidth-hogging companies and services such as Netflix, YouTube, and Skype that ISPs would likely hit up for extra fees). Of course Netflix, say, doesn't want to have to pay Comcast or Verizon or whomever for special treatment. But if Netflix is increasing demand for bandwidth and it wants to ensure that its users' experience is fast, reliable, and glitch-free, why shouldn't an ISP tap them for extra money to build more capacity or help in managing it? (As a matter of fact, Comcast and Netflix have already done exactly this via an arrangement known as "peering," that elides most strict concerns about net neutrality.) As Hazlett argues, "The [FCC] argues that [net neutrality] rules are necessary, as the Internet was designed to bar 'gatekeepers.' The view is faulty, both in it engineering claims and its economic conclusions. Networks routinely manage traffic and often bundle content with data transport precisely because such coordination produces superior service. When 'walled gardens' emerge, including AOL in 1995, Japan's DoCoMo iMode in 1999, or Apple's iPhone in 2007, they often disrupt old business models, thrilling consumers, providing golden opportunities for application developers, advancing Internet growth. In some cases these gardens have dropped their walls; others remain vibrant."
Hazlett's insight has proven prescient. Net Neutrality supporters spend a good chunk of their time attacking customer-friendly programs such as T-Mobile's Binge On, which allows users to stream unlimited amounts of data from certain providers, as dread threats to freedom. To confuse such offerings with censorship is idiotic, especially as other providers such as Sprint are moving toward flat rates for unlimited data packages.
More to the point, Pai told Reason in 2015 that Net Neutrality is "a solution that won't work to a problem that doesn't exist":
reason: So you're simply saying the Internet is not broken. Pai: I don't think it is. I think by and large, people are able to access the lawful content of their choice. While competition isn't where we want it to be—we can always have more choices, better speeds, lower prices, etc.—nonetheless, if you look at the metrics compared to, say, Europe, which has a utility-style regulatory approach, I think we're going pretty well. reason: The FCC recently redefined broadband, but using standards from the last roundup of where we were in terms of the number and variety of Internet connections. One of the things that people say is, "Well, we need to regulate the Internet because local ISPs like Time Warner or Comcast have an effective local monopoly on service." Is that accurate, and would that be enough of a reason to say, "Hey, we gotta do something"? Pai: I certainly think there are a lot of markets where consumers want and could use more competition. That's why since I've become the commissioner, I've focused on getting rid of some of the regulatory underbrush that stands in the way of some upstart competitors providing that alternative—streamlining local permit rules, getting more wireless infrastructure out there to give a mobile alternative, making sure we have enough spectrum in the commercial marketplace—but these kind of Title II common carrier regulations ironically will be completely counterproductive. It's going to sweep a lot of these smaller providers away who simply don't have the ability to comply with all these regulations, and moreover it's going to deter investment in broadband networks, so ironically enough, this hypothetical problem that people worry about is going to become worse because of the lack of competition. reason: But you're also saying it doesn't exist. So do most people in America have a choice in broadband carriers, and do they have more choice than they did five years ago, and is there reason to believe they'll have more choice in another five years? Pai: I think there are hiccups any given consumer might experience in any given market. Nonetheless, if you look on the aggregate, Americans are much better off than they were five years ago, ten years ago. Speeds are increasing; the amount of choice is increasing. Something like 76 percent of Americans have access to three or more facilities-based providers. Over 80 percent of Americans have access to 25 mbps speeds. In terms of the mobile part of equation, there's no question that America has made tremendous strides. Eighty-six percent of Americans have access to 4G LTE. We have 50 percent of the world's LTE subscribers and only 4 percent of the population.
Pai's selection as FCC chair is interesting for any number of reasons. First and foremost, it means that a person who is both dedicated to a truly free, open, and competitive Internet and who understands markets will be running the FCC for a change. Second, it means the Internet is likely to remain a fortress of freedom during a Trump administration that may well attempt to beat down the press both from the bully pulpit and in courts. Recall that during the election season, Trump vowed to "open up" the country's libel laws to make it easier to sue publications such as The New York Times. He also called out by name Amazon's Jeff Bezos, who also owns the Washington Post (Bezos is also a supporter of Reason Foundation, the nonprofit that publishes this website). That Bezos is reportedly working against Trump's executive order on immigration and refugees only makes it more likely that the president might actually try to muzzle the press. In December 2015, both Trump and Hillary Clinton in a 24-hour period argued in similar language that parts of the Internet should be shuttered to make it more difficult for jihadists to recruit:
"We're losing a lot of people because of the internet," Trump said. "We have to see Bill Gates and a lot of different people that really understand what's happening. We have to talk to them about, maybe in certain areas, closing that internet up in some ways. Somebody will say, 'Oh freedom of speech, freedom of speech.' These are foolish people."
In less than two weeks, Trump has shown a willingness to follow through on what he promised on the campaign trail. So he may well try to screw down freedom of the press, and of expression.
That's disturbing in the extreme and it needs to be beaten back. The good news? Trump's pick for the FCC is certainly the type of person who will refuse to play along with the president. If he stays true to his word, Ajit Pai will protect the Internet from censorship—by refusing to treat it as a public utility the government has a right to control.
Here's Reason TV's interview with Pai. Transcript here.
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