I doubt ISPs are laughing at the irony in the FCC’s decision to propose a record-setting fine for an alleged lack of transparency without the agency providing any guidance regarding the reasonableness of the underlying practice.
When it adopted net neutrality rules imposing “Title II” restrictions on the Internet, the Federal Communications Commission (FCC) claimed it was adopting a “modernized” approach that wouldn’t burden Internet service providers (ISPs) with “antiquated rate regulation” — a claim FCC Commissioner Ajit Pai charged was “flat-out false.” The first net neutrality fine proposed by the FCC has since revealed Commissioner Pai was telling it true. The FCC’s net neutrality rules impose the same old rate regulation on ISPs with the “modern” addition of unfair procedures and discriminatory enforcement.
The fundamental duties that Title II imposes on ISPs are exactly the same as those it has imposed on telephone companies since 1934: to provide communications serviceupon reasonable request subject to reasonable charges and practices that are not unreasonably discriminatory. Both ISPs and telephone companies are also required to publicly disclose their charges and practices.
The biggest change the FCC made to Title II involves its process for monitoring and enforcing these antiquated obligations. The 1934 version of Title II requires the FCC to determine the reasonableness of telephone services before they are offered to the public and the “21st century” version requires ISPs to offer their services without knowing whether the FCC will fine them afterward. This seemingly minor procedural change has the effect of keeping the harmful aspects of antiquated rate regulations in place while discarding their only potential benefit. Read More