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Pai Proposes NPRM, Not Declaratory Rule, to Overturn Title II Regulation of Broadband

FCC Chairman Ajit Pai said in a speech at the Newseum Wednesday he is circulating to the two other commissioners a rulemaking notice that would reverse the 2015 reregulation of broadband as a Communications Act Title II service, as expected. Pai said he will release the full text of the draft NPRM Thursday afternoon for a vote at the May 18 commissioners’ meeting. The FCC later posted on its website two fact sheets (here and here) and a copy of Pai's Newseum speech, which we attended.

This will be the beginning of the discussion, not the end,” Pai said. Some urged the FCC to reverse Title II immediately through a declaratory order, but that's not the best approach, he said. “I don’t believe that’s the right path forward,” he said. “This decision should be made through an open and transparent process in which every American can share his or her own views.”

Pai said he's proposing to eliminate the “so-called internet conduct standard” contained in the 2015 rules. The standard “gives the FCC a roving mandate to micromanage the business practices of internet companies,” he said. After that order was approved, then-Chairman Tom Wheeler was asked what the standard meant, Pai said. “His answer was, ‘We don’t really know what it means and we don’t know where things go next,’” Pai said. “I have never heard a better definition of regulatory uncertainty.”

The NPRM will also seek comment on how to approach the bright-line rules approved in 2015, Pai said. “You won’t just have to take my word about what is in the notice of proposed rulemaking,” he said. “I will be publicly releasing the entire text of the document tomorrow afternoon and this, too, will be a marked change from what happened in 2015.”

The easiest path was to do nothing to reverse Title II, but “doing nothing was nothing doing,” Pai said. “We cannot stick with regulations from the Great Depression that were meant to micromanage Ma Bell. Instead, we need rules that focus on growth and infrastructure investment, rules that expand high-speed internet access everywhere.”

Commissioner Mike O’Rielly, who was also at the event, spoke after Pai, leaving little doubt how he will vote on Title II. “I’m actually really excited to be here, never knew this day was going to come,” he said. “Today, my colleague and I announce the beginning of a process to free the internet from the terrible constraints of common-carrier regulation now imposed on America’s broadband providers.” After two years of experience, “it is clear this archaic regime never should have been imposed in the first place,” he said. The 2015 rules were based on “hyperbole, rent seeking, imaginary problems and liberal ideology,” he said. At the NAB Show in Las Vegas the day before, O'Rielly repeated in a brief interview and on the show platform that he wants to junk the ban on paid prioritization and the general conduct standard springing from the current net neutrality regulations.