FCC Chairman Ajit Pai has provoked a biting senatorial response from California after calling the “nanny state’s” new net neutrality legislation “radical,” “anti-consumer,” “illegal” and “burdensome.” Senator Scott Wiener (D-CA), in response, said Pai has “abdicated his responsibility to ensure an open internet” and that the FCC lacks the authority to intervene.
The political flame war was kicked off this morning in Pai’s remarks at the Maine Heritage Policy Center, a free market think tank. You can read them in full here, but I’ve quoted the relevant part below:
Of course, those who demand greater government control of the Internet haven’t given up. Their latest tactic is pushing state governments to regulate the Internet. The most egregious example of this comes from California. Last month, the California state legislature passed a radical, anti-consumer Internet regulation bill that would impose restrictions even more burdensome than those adopted by the FCC in 2015.
If this law is signed by the Governor, what would it do? Among other things, it would prevent Californian consumers from buying many free-data plans. These plans allow consumers to stream video, music, and the like exempt from any data limits. They have proven enormously popular in the marketplace, especially among lower-income Americans. But nanny-state California legislators apparently want to ban their constituents from having this choice. They have met the enemy, and it is free data.
The broader problem is that California’s micromanagement poses a risk to the rest of the country. After all, broadband is an interstate service; Internet traffic doesn’t recognize state lines. It follows that only the federal government can set regulatory policy in this area. For if individual states like California regulate the Internet, this will directly impact citizens in other states.
Among other reasons, this is why efforts like California’s are illegal.
The bogeyman of banning zero rating plans has been raised again and again, but everyone should understand now that the whole thing is a sham — just another ploy by telecoms to parcel out data the way they choose.
The legal question is far from decided, but Pai has been crowing about a recent court ruling for a week or so now, despite the fact that it has very little to do with net neutrality. Ars Technica went into detail on this ruling; the takeaway is that while it is possible that the FCC could preempt state law on information services in some cases, it’s not clear at all that it has any authority whatsoever to do so with broadband services. Ironically, that’s because Pai’s FCC drastically reduced the FCC’s jurisdiction with its reclassification of broadband in Restoring Internet Freedom.
At any rate, more consequential legal challenges and questions are still in the works, so Pai’s jubilation is somewhat premature.
“The Internet should be run by engineers, entrepreneurs, and technologists, not lawyers, bureaucrats, and politicians,” he concluded. Odd then that those very engineers, entrepreneurs and technologists almost unanimously oppose his policy, while he — literally seconds earlier — justified that policy via the world of lawyers, bureaucrats and politicians.
Senator Wiener was quick to issue a correction to the Chairman’s remarks. In an official statement, he explained that “Unlike Pai’s FCC, California isn’t run by the big telecom and cable companies.” The statement continued:
SB 822 is necessary and legal because Chairman Pai abdicated his responsibility to ensure an open internet. Since the FCC says it no longer has any authority to protect an open internet, it’s also the case that the FCC lacks the legal power to preempt states from protecting their residents and economy.
When Verizon was caught throttling the data connection of a wildfire fighting crew in California, Chairman Pai said nothing and did nothing. That silence says far more than his words today.
SB 822 is supported by a broad coalition of consumer groups, groups advocating for low income people, small and mid-size technology companies, labor unions, and President Obama’s FCC chairman, Tom Wheeler. I’ll take that support over Ajit Pai any day of the week.
The law in question has been approved by the state legislature, but has yet to be signed by Governor Jerry Brown, who has another two weeks to consider it.