One of the most unfortunate aspects of the net neutrality debate is its ability to bring out the worst sides of otherwise good people. Many friendships have been lost to the issue; many good people on both sides of the issue can no longer engage civilly with their counterparts on the other side. This is what came to mind when I saw Federal Communications Commission (FCC) Commissioner Mignon Clyburn’s “fact sheet” (0) that purports to show how FCC Chairman Ajit Pai has reversed his positions on the Open Internet Order between 2014 and today. Clyburn’s fact sheet is misleading, giving a false impression that the chairman’s views have changed in ways that they have not.
The fact sheet begins with a quote from Pai, in which he says that “[a] dispute this fundamental is not for us, five unelected individuals, to decide.” But, Clyburn claims that Pai is now proposing to put his own signature on this dispute, this time with only three unelected individuals on the commission. But that is not what he proposes to do. His position would merely undo the changes the previous commission made — reversing the decision previously made by those unelected officials and returning the commission’s approach to broadband internet service back to the status quo ante. Undoing the previous commission’s work is entirely in line with Pai’s 2014 position that the commission should not adopt new rules without congressional direction.
Indeed, it is worth noting that in their opinions (1) dissenting from the DC Circuit’s denial of en banc review of the court’s opinion in the Open Internet Order litigation, Judges Brett M. Kavanaugh and Janice Rogers Brown both raised precisely the same concern as Pai, that issues relating to net neutrality present major questions that the commission is not authorized to address on its own without clear congressional authority.
There is another problem with Clyburn’s suggestion that Pai means to implement new rules with only three commissioners. At this point, the commission is only voting to issue proposed rules for public comment. The final rules will not be voted on until the fall at the earliest, by which time there may be a full five commissioners.
Clyburn also criticizes Pai for not having sought congressional guidance on what the rules should be, stating that Pai has “[d]ecid[ed] the FCC is the appropriate venue, instead of waiting for Congress to act.” Anyone who has followed Pai’s activity regarding net neutrality since becoming chairman knows that this is a false characterization. There can be no doubt that Pai would prefer Congress to step in to resolve these issues with legislation — he has frequently said so publicly, such as in this podcast (2) (listen to the whole thing or skip to 11:39). This, in fact, is likely why the rules Pai has proposed do little to affect the substantive rules adopted by the previous commission, focusing instead on addressing the most concerning and egregious aspects of the prior order — Title II reclassification and the creation of the general conduct standard. The proposed rules are triage, tending to the clearly problematic aspects of the prior order and then standing out of the way so that Congress can step in and act.
The most humorous of the passages Clyburn uses to criticize Pai relate to his concerns that in 2014, the commission did not conduct hearings or engage with technologists or economists before issuing its proposed rules. The present rulemaking is not occurring in a vacuum: Today, Pai has the benefit of the extensive record developed in the previous rulemaking. That was one of the most extensive records ever compiled by the commission, featuring over 4 million (wow! 4 million!) comments, hearings, and studies by economists and technologists (for whatever that was worth (3)). As Clyburn characterized it in her statement on the 2015 order, there were “seemingly endless meetings with stakeholders.” That record, of course, does not dictate the outcome in the new proceeding — a new record will need to be developed to provide basis for any new rules — but it also means that the rules that Pai is proposing today are based on a far more developed and sophisticated understanding than was available to the commission in 2014.
Clyburn’s final criticism relates to Pai’s concerns from 2014 that the then-proposed rules were not responsive to any immediate need and that pursuing them would create years of legal uncertainty. The unfortunate reality is that there is some truth to Clyburn’s concerns here (and to Pai’s 2014 concerns): No matter what the results Pai’s proposed rulemaking are, those results are bound for court.
The reality, however, is that no matter what Pai does, our national net neutrality nightmare has no clear end in sight. On the other hand, the 2015 rules are still subject to substantial legal uncertainty: They are a prime candidate for a challenge in the Supreme Court, and Congress has expressed a great deal of interest in legislation. Indeed, the single best argument today against the Supreme Court reviewing the DC Circuit’s opinion is that Pai has proposed rules that would moot, and congressional leadership has made clear that the FCC should not wait (4) for Congress to act on net neutrality.
In other words, Pai is playing the cards that he has been dealt and is playing them in a way that minimizes judicial risk and maximizes legislative involvement.
And, unlike the previous commission, which was acting on speculative concerns based on a contrived theory of investment in the internet ecosystem — the “virtuous cycle” theory — Pai is acting upon actual data, which suggest that the 2015 order got things wrong. Contrary to that order’s prediction that its rules would lead to investment growth, investment since the adoption of that order has, at best, stalled and, at worst, decreased by more than 5 percent.
In her statement supporting adoption of the 2015 order, Clyburn lamented that she “ha[s] been struck by how much rhetoric in this proceeding is completely divorced from reality.” We should all share that lament and include in it Clyburn’s own role in that divorce.