Ajit Pai Doesn't Want You Talking About Court Ruling That Undermines His Bogus Claim That The FTC Will Protect Consumers

We've noted a few times how the attack on net neutrality and consumer broadband privacy protections are just a small part of a massive lobbyist attempt to remove nearly all oversight of one of the least-competitive and least liked business sectors in America. Industry lobbyists (and the lawmakers and policy folk paid to love them) have made it abundantly clear that the goal is to gut FCC authority over broadband ISPs, then shovel any remaining, piddly authority to an FTC that's not only ill-equipped to handle it, but is currently engaged in a lawsuit with AT&T that could dismantle its authority over large ISPs entirely.

That FTC lawsuit was filed against AT&T after the company lied about throttling its wireless customers as part of an effort to drive unlimited customers to more expensive plans. Lower courts sided with AT&T's creative argument that the very Title II common carrier FCC classification AT&T has been fighting tooth and nail against on the net neutrality front -- exempted it from the FTC's jurisdiction. Last year, the FTC argued that should this ruling stand, it could let any company with a common carrier component (inhereted or acquired) dodge FTC oversight:

"The panel's ruling creates an enforcement gap that would leave no federal agency able to protect millions of consumers across the country from unfair or deceptive practices or obtain redress on their behalf. Many companies provide both common-carrier and non-common-carrier services-not just telephone companies like AT&T, but also cable companies like Comcast, technology companies like Google, and energy companies like ExxonMobil (which operate common carrier oil pipelines). Companies that are not common carriers today may gain that status by offering new services or through corporate acquisitions. For example, AOL and Yahoo, which are not common carriers, are (or soon will be) owned by Verizon. The panel's ruling calls into question the FTC's ability to protect consumers from unlawful practices by such companies in any of their lines of business."

So again, that's the FTC warning that the AT&T court case could leave it rudderless in any attempt to protect consumers. Odd, given that Ajit Pai and his FCC staffers have been promising everyone that the FTC (which was already under-funded, over-extended, and lacked rulemaking capabilities) was the superior option when it comes to protecting consumers and competition (you can hear former FCC boss Tom Wheeler talk about how this promise is bunk here).

Fast forward to this week. Seeing an opportunity to highlight this blatant gift to the telecom sector, a coalition of 40 consumer advocacy and digital rights groups (as well as New York City) are hoping to use AT&T's legal fight with the FTC as a good reason to delay the FCC's December 14 vote to kill net neutrality. The coalition sent a a letter (pdf) to FCC boss Ajit Pai, arguing that it's irresponsible to plan a wholesale dismantling of net neutrality when one of Pai's central justifications for it (that the FTC will rush in and fill the enforcement gap) may be entirely untenable:

"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. Astoundingly, after committing the entire future of consumer protection from broadband access providers to the FTC, the Draft Order cavalierly dismisses the ongoing litigation that deprived the FTC of any jurisdiction to carry out the job[...] The question that should concern the Commission is whether or not the en banc panel will likewise deprive the FTC of jurisdiction over broadband access providers."

While an excellent point, this isn't likely to sway the FCC's thinking because, again, weakening FCC and FTC authority is the entire point and is exactly what large ISP lobbyists have been gunning for. Companies like Comcast, AT&T and Verizon would obviously prefer it if neither the FCC nor FTC had the authority to actually protect consumers from abuse of a lack of competition in the sector. Granted, if sound logic and compelling points could make the FCC backtrack from its extremely unpopular attack on net neutrality, Ajit Pai and friends would have retreated from this myopic assault months ago.

As such, it's not too surprising to see that Pai's response to a request for a delay involved calling net neutrality supporters "desperate":

"This is just evidence that supporters of heavy-handed Internet regulations are becoming more desperate by the day as their effort to defeat Chairman Pai's plan to restore Internet freedom has stalled. The vote will proceed as scheduled on December 14."

What happens next? Once the FTC and FCC are left rudderless, ISPs have made it clear that they want the FCC to slap down any states that get any funny ideas about policing anti-competitive behavior in the sector, whether that comes in the form of net neutrality violations or privacy abuses. FCC staffers have made it equally clear that they're happy to oblige. Again, this all ends with little to no ability to protect consumers and competition from AT&T, Verizon or Comcast's monopoly strangleholds over the last mile at any level. That might be ok if the government fixed the sector's competition problems first, but Ajit Pai's FCC has made it abundantly clear that trying to hide the sector's competition problems (a prime symptom of regulatory capture) is going to take top priority.