The FCC’s Net Neutrality and Title II Regulations Must Go and New Chairman Ajit Pai is Just the Man to Do It

After eight years of battling the Obama Administration’s regulatory abuse at the FCC, we are excited about the new chairman appointed by the Trump White House being poised and ready to bring regulatory reforms that we’ve been championing at the ACLJ for years.

Earlier this week, The Hill ran a story about Ajit Pai as the new Republican chairman of the FCC, New Chairman Quickly Shakes Up FCC, highlighting that he “is quickly making his mark on the agency, shaking up its operations and rolling back Obama-era initiatives.” This is welcome news.

Between 2003-2007, the ACLJ was privileged to work closely with Ajit when he was Deputy Chief Counsel and Chief Counsel at the Judiciary Committee and Constitution Subcommittee, respectively.  ACLJ was also honored to recommend Ajit for his first nomination as a Commissioner at the FCC. In our February 5, 2009 letter to Senate Majority Leader Mitch McConnell, we said:

"In recognition that the FCC will confront significant policy and constitutional issues in the coming years, such as mandated localism, ownership diversification, Net Neutrality, cable a la carte, re-regulation, and possible reinstatement of the Fairness Doctrine, etc., we believe it is critical to have someone with Ajit's qualifications and qualities on the Commission. He has the ability, experience, professionalism, intellectual rigor, and demeanor necessary to help lead the FCC during this time of change.”

The last eight years have certainly been a time of change, but unfortunately not all for the good. A particularly bad change was the FCC’s 2015 party-line net neutrality decision applying public-utility-style regulations designed for the railroads of the 19th century and the telephone monopolies of the 1930s to the Internet. Promoting the Open Internet,30 FCC Rcd 5601 (March 25, 2015). After two prior attempts by the FCC to regulate the Internet were struck down, Comcast Corp. v. FCC, 600 F.3d 642, 644 (D.C. Cir. 2010), and Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014) (striking regulation of the Internet by FCC), the current regulations allow the FCC to finally control Internet access services by reclassifying the service as common carriage under Title II of the Communications Act of 1934. The D.C. Circuit upheld the reclassification last year. United States Telecom Association, et al. v. FCC, 74_ F. 3d ___.

For about twenty years, the FCC had classified Internet access services as an “information service”—i.e., “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications[,]” 47 U.S.C. § 153(24), and stayed out of regulating it. The Internet flourished free from the regulators’ heavy hand and was an engine of innovation, industry, and employment. The reclassification was a volte-face that ostensibly removed the statutory barrier to common-carrier regulation of broadband Internet access services. So liberated, the FCC has imposed significant restrictions on those services and broadband access to the Internet, and this is what Chairman Pai must now undo to free the Internet from Washington’s control, and restore its historic place as a locomotive helping to pull the economy forward with innovation and job creation.

Our legal team and government affairs team at the ACLJ stand at the ready, prepared to advocate for a free and open marketplace of communications with Chairman Pai and any others in our nation’s capital who wish to side with the American people against a regulatory state that has far too often inhibited innovation and economic growth.

This article was written by ACLJ Senior Counsel Colby May.