EFF and Allies Write to Congress: FCC Chairman Pai's Network Neutrality Plan Unworkable

EFF and a coalition of other groups wrote a letter to Congress today detailing the failings of Federal Communications Commission (FCC) Chairman Ajit Pai’s reported—but undisclosed—network neutrality plan and requesting that lawmakers hold hearings over any FCC plans for the Internet.

So far, media outlets have reported that Chairman Pai intends to surrender the legal authority the FCC holds over cable and telephone companies. All the FCC apparently wants in exchange is empty promises from the industry to not end Internet freedom while relying on the Federal Trade Commission to protect users. Our letter to Congress details why that plan, as reported, will fail to protect an open Internet and how placing all of their eggs in the Federal Trade Commission (FTC) basket invites the industry to game the system and avoiding any meaningful accountability.

Here is why the plan fails:

1) The FTC lacks rulemaking power and therefore can not create open Internet rules much like the Open Internet Order.

2) A recent circuit court ruling has vastly limited the FTC’s ability to oversee the activities of telephone companies due to their status as common carriers, granting the telecoms a powerful loophole from any federal enforcement actions. In essence, FCC Chairman Pai’s plan could allow AT&T, Verizon, and any local telephone company in the states of Oregon, Arizona, Alaska, Hawaii, California, Idaho, Montana, Nevada, and Washington to exempt their broadband business from any federal consumer protections.

3) The undisclosed plan appears to rely on cable and telephone companies publishing written pledges to do no harm to the open Internet so the FTC could hold them accountable, but nothing in the law will require those companies to keep those promises. They are more than free to change their pledges to reshape the Internet, charge higher prices, and invade consumer privacy.

In short, Americans are being asked to substitute the rule of law that guarantee an open Internet for promises that do not have to be kept. Tomorrow the FCC Chairman is scheduled to deliver a speech regarding his vision for the future of the Internet. We will find out if Chairman Pai intends to continue down the path of surrendering the Internet to Comcast, Verizon, and AT&T or if he will reverse course.