Blistering dissent by FCC Commissioner Ajit Pai

Below are excerpts from the scathing dissent of FCC Commissioner Ajit Pai to the 3-2 vote of the FCC on Thursday on Obama’s plan to regulate the internet:

ORAL DISSENTING STATEMENT OF COMMISSIONER AJIT PAI

Americans love the free and open Internet. We relish our freedom to speak, to post, to rally, to learn, to listen, to watch, and to connect online. The Internet has become a powerful force for freedom, both at home and abroad. So it is sad this morning to witness the FCC’s unprecedented attempt to replace that freedom with government control.

It shouldn’t be this way. For twenty years, there’s been a bipartisan consensus in favor of a free and open Internet. A Republican Congress and a Democratic President enshrined in the Telecommunications Act of 1996 the principle that the Internet should be a “vibrant and competitive free market . . . unfettered by Federal or State regulation.” And dating back to the Clinton Administration, every FCC Chairman—Republican and Democrat—has let the Internet grow free from utility-style regulation. The results speak for themselves.

* * *

I.

The Commission’s decision to adopt President Obama’s plan marks a monumental shift toward government control of the Internet. It gives the FCC the power to micromanage virtually every aspect of  how the Internet works. It’s an overreach that will let a Washington bureaucracy, and not the American people, decide the future of the online world.

* * *

A.

Consumers will be worse off under President Obama’s plan to regulate the Internet. Consumers should expect their bills to go up, and they should expect that broadband will be slower going forward.

This isn’t what anyone was promised, to say the least.

* * *

B.

So do American consumers want slower speeds at higher prices? I don’t think so.

That’s certainly not what I heard when I hosted the Texas Forum on Internet Regulation in College Station, the FCC’s only field hearing on net neutrality where audience members were allowed to speak. There, Internet innovators, students, everyday people told me they wanted something else from the FCC—something that I thought had a familiar ring to it. These consumers wanted competition, competition, competition.

And yet, literally nothing in this Order will promote competition among ISPs. To the contrary, reclassifying broadband will drive competitors out of business. Monopoly rules designed for the monopoly era will inevitably move us in the direction of a monopoly. President Obama’s plan to regulate the Internet is nothing more than a Kingsbury Commitment for the digital age. If you liked the Ma Bell monopoly in the 20th century, you’ll love Pa Broadband in the 21st.

C.

***

So the FCC is abandoning a 20-year-old, bipartisan framework for keeping the Internet free and open in favor of Great Depression-era legislation designed to regulate Ma Bell. But at least we’re getting something in return, right? Wrong.

The Internet is not broken. There is no problem for the government to solve.

Apple iPhone or Microsoft Surface, a Samsung Smart TV or a Roku, a Nest Thermostat or a Fitbit. We live in a time where you can buy a movie from iTunes, watch a music video on YouTube, listen to a personalized playlist on Pandora, watch your favorite Philip K. Dick novel come to life on Amazon Streaming Video, help someone make potato salad on KickStarter, check out the latest comic at XKCD, see what Seinfeld’s been up to on Crackle, navigate bad traffic with Waze, and do literally hundreds of other things all with an online connection. At the start of the millennium, we didn’t have any of this Internet innovation.

And no, the federal government didn’t build that. Somebody else made that happen.

So what is there to fear? A sober reader might borrow from the father of Title II: “The only
thing we have to fear is fear itself.” But the FCC instead intones the nine scariest words for any friend of Internet freedom: “I’m from the government, and I’m here to help.”

To put it another way, Title II is not just a solution in search of a problem—it’s a government solution that creates a real-world problem. This is not what the Internet needs, and it’s not what the American people want.

D.

So—that’s substance. A few words on process. When the Commission launched this rulemaking, I said that we needed to “give the American people a full and fair opportunity to participate in this process.” Unfortunately, we have fallen woefully short of that standard.

Most importantly, the plan in front of us today was not forged in this building through a transparent notice-and-comment rulemaking process. Instead, The Wall Street Journal reports that it was developed through “an unusual, secretive effort inside the White House.” Indeed, White House officials, according to the Journal, functioned as a “parallel version of the FCC.” Their work led to the President’s announcement in November of his plan for Internet regulation, a plan which “blindsided” the FCC and “swept aside . . . months of work by [Chairman] Wheeler toward a compromise.”

Of course, a few insiders were clued in about what was transpiring. Here’s what a leader for the government-funded group Fight for the Future had to say: “We’ve been hearing for weeks from our allies in DC that the only thing that could stop FCC Chairman Tom Wheeler from moving ahead with his sham proposal to gut net neutrality was if we could get the President to step in. So we did everything in our power to make that happen. We took the gloves off and played hard, and now we get to celebrate a sweet victory.”Of course, a few insiders were clued in about what was transpiring. Here’s what a leader for the government-funded group Fight for the Future had to say: “We’ve been hearing for weeks from our allies in DC that the only thing that could stop FCC Chairman Tom Wheeler from moving ahead with his sham victory.”

What the press has called the “parallel FCC” at the White House opened its doors to a plethora of special-interest activists: Daily Kos, Demand Progress, Fight for the Future, Free Press, and Public Knowledge, just to name a few. Indeed, even before activists were blocking Chairman Wheeler’s driveway late last year, some of them had met with executive branch officials. But what about the rest of the American people? They certainly couldn’t get White House meetings. They were shut out of the process. They were being played for fools.

And the situation didn’t improve once the White House announced President Obama’s plan and “ask[ed]” the FCC to “implement” it. The document in front of us today differs dramatically from the proposal that the FCC put out for comment last May. It differs so dramatically that even zealous net neutrality advocates frantically rushed in recent days to make last-minute filings registering their concerns that the FCC might be going too far. Yet the American people to this day have not been allowed to see President Obama’s plan. It has remained hidden.

Especially given the unique importance of the Internet, Commissioner O’Rielly and I asked for the plan to be released to the public. Senate Commerce Committee Chairman John Thune and House of Representatives Energy and Commerce Chairman Fred Upton did the same. And according to a survey last week by a respected Democratic polling firm, 79% of the American people favored making the document public. But still the FCC has insisted on keeping it behind closed doors. We have to pass President Obama’s 317-page plan so that the American people can find out what is in it.

This isn’t how the FCC should operate. We should be an independent agency making decisions in a transparent manner based on the law and the facts in the record. We shouldn’t be a rubber stamp for political decisions made by the White House.

And we should have released this plan to the public, solicited their feedback, incorporated that input into the plan, and then proceeded to a vote. There was no need for us to resolve this matter today. There is no immediate crisis in the Internet marketplace that demands immediate action.

The backers of the President’s plan know this. But they also know that the details of this plan cannot stand up to the light of day. They know that the more the American people learn about it, the less they will like it. That is why this plan was developed behind closed doors at the White House. And that is why the plan has remained hidden from public view.

II.

These are not my only concerns. Even a cursory look at the plan reveals glaring legal flaws that are sure to mire the agency in the muck of litigation for a long, long time. But rather than address them today, I will reserve them for my written statement.

* * *

At the beginning of this proceeding, I quoted Google’s former CEO, Eric Schmidt, who once said: “The Internet is the first thing that humanity has built that humanity doesn’t understand.” This proceeding makes abundantly clear that the FCC still doesn’t get it.

But the American people clearly do.The threat to Internet freedom has awakened a sleeping giant. And I am optimistic that we will look back on today’s vote as an aberration, a temporary deviationfrom the bipartisan path that has served us so well.I don’t know whether this plan will be vacated by a court, reversed by Congress, or overturned by a future Commission.But I do believe that its days are numbered.

For all of these reasons, I dissent.

Here is Ajit Pai on Wednesday, the day before the vote:

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