FCC Urged To Hold Off On Net Neutrality Repeal

Regulators should delay voting on a proposal to repeal the net neutrality rules until a federal appellate court decides whether the Federal Trade Commission has authority to prosecute broadband providers, a coalition of advocates urge in a new letter.

"Rushing to a vote before the Ninth Circuit resolves this decision cavalierly risks the purported safeguards that you and other supporters of the Draft Order have repeatedly declared will protect consumers from abusive or anti-competitive practices," Public Knowledge, the City of New York, the Electronic Frontier Foundation, the American Library Association and 37 others say in a letter to Federal Communications Commission Chair Ajit Pai.

The FCC has scheduled a December 14 vote on Pai's proposal to repeal the net neutrality rules. Those rules, passed in 2015, classified broadband as a utility service and banned providers from blocking or throttling traffic and charging higher fees for prioritized delivery. Pai's proposal would also block states and cities from enforcing their own broadband laws.

Pai has said that his proposal will enable a different agency -- the Federal Trade Commission -- to police broadband providers. The FTC currently lacks that ability because it has no authority to prosecute common carriers.

But the advocates point out that a recent decision by three 9th Circuit judges strips the FTC of authority over telecoms regardless of whether the net neutrality rules are repealed. In that earlier decision -- now under review -- judges said the FTC can't prosecute AT&T and other traditional common carriers, even if those companies also offer non-common carrier services. (Specifically, the judges said the FTC can't prosecute AT&T for allegedly duping consumers on unlimited data plans throttling them after they hit an arbitrary data cap.)

Eleven of the 9th Circuit's judges are currently reconsidering the initial pro-AT&T decision. The judges heard arguments about the matter in September. They haven't yet yet issued a decision.

If the 9th Circuit again decides that the FTC lacks authority over broadband, the planned net neutrality repeal will leave broadband providers without oversight by any agency, Public Knowledge and the others argue.

"A vote to approve the Draft Order, followed by a decision favorable to AT&T Mobility by the Ninth Circuit, would therefore create a 'regulatory gap' that would leave consumers utterly unprotected," the groups say. They add that the situation is worsened by the proposal to block state laws.

"Given the enormous danger to consumers of losing all protections should the Ninth Circuit decide to affirm the panel decision and side with AT&T Mobility, the FCC should delay a vote until the en banc panel of the Ninth Circuit issues its decision," the groups say.

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