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FCC's net neutrality repeal 'boggles the mind,' says commissioner

Mignon Clyburn, one of two Democrats on the five-member FCC, is speaking out against the Republican plan to unravel Obama-era net neutrality protections.

Sarah Tew/CNET

In 2015, when the FCC's net neutrality rules became the law of the land, Mignon Clyburn was one of three Democrats who made it happen.

FCC Commissioner Mignon Clyburn addresses demonstrators who gathered in Washington on Dec. 7 to oppose FCC Chairman Ajit Pai's plans to scrap Obama-era net neutrality protections.

Chip Somodevilla / Getty Images

Clyburn, along with fellow commissioner Jessica Rosenworcel and then-chairman Tom Wheeler, championed the strictest set of open-internet protections the Federal Communications Commission had ever imposed. Two years later, after the rules were upheld in a federal appeals court, Republicans now in control of the agency are set to tear them apart.

On Thursday, the agency will vote and, in all likelihood, will approve a plan to dismantle those rules. The plan -- spearheaded by FCC Chairman Ajit Pai, who was elevated to that job by President Donald Trump earlier this year -- would roll back the 2015 protections, which prohibited broadband providers from blocking or slowing traffic. The rules also banned them from charging companies like Netflix to reach their customers faster than their competitors.

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But Pai's plan doesn't just ditch the old rules. It also abdicates much of the FCC's authority for overseeing the internet, deferring to another federal agency, the Federal Trade Commission.

Clyburn and Rosenworcel have been outspoken against repealing the existing rules. Clyburn even took to the streets last week, joining protesters who rallied outside an annual dinner honoring the FCC chairman.

In a phone interview this week, Clyburn shared her thoughts on why the existing rules should be preserved. Below is an edited transcript of the conversation.

Q: Broadband companies argue that the fears over repealing the net neutrality rules are overblown. They claim it would be bad business to block or slow customer traffic. What would you say to that?
Clyburn:  I've heard the claims that there is no incentive to bypass or go against the open-internet principles. But that's not true. There are incentives for companies to do what they do best, which is answer to their shareholders and look out for their own business interests.

But we -- meaning the FCC -- are supposed to be here protecting the consumer's experience and interests when it comes to communications and other services. We are supposed to be enablers of opportunities both for businesses and individuals.

How do we best balance the scales when it comes to regulating consumer protections and promoting innovation and investment? We use legally sustainable rules of the road so there is a cop on the beat that can and will enforce them.

Chairman Pai's proposal gives up key parts of the FCC's authority to protect consumers' internet experience and hands it over to the Federal Trade Commission. Is this a mistake?
Clyburn: The FTC is an agency that has never enforced these net neutrality protections. It is not in the business of managing consumer complaints before harm has happened. They come into play after harm is done. The strength of having the FCC regulate under current net neutrality rules is the fact that we can define, right now, what the expectations are.

We can affirm to the public right now what protections we will offer. We can say right now to these companies that they cannot block or throttle or slow down traffic and they cannot engage in paid prioritization.

Now we're about to reverse course and give the keys of the internet over to entities that answer to shareholders first. They will look at their bottom line first. And if there is anything left over, then maybe they will think about the general public. I find that problematic.

Pai says the current rules have hurt broadband investment. What do you say to that argument?
Clyburn: I say show me. Just saying the words alone doesn't make it so. Show me the data. Show me the information you can point to where the 2015 rules, which evolved from a set of principles that we've had for a number of years, have been a barrier to innovation and investment. And then we'll have a conversation, not a minute before.

But I haven't seen a credible neutral report that proves that premise. Publicly held companies are supposed to identify in SEC filings areas in their plan and tell shareholders and others whether there is a particular threat over the horizon when it comes to their business plan or expected returns. I have not heard on earnings calls nor have I seen any SEC filings that have pointed to Title II and the 2015 rules being a negative factor when it comes to their investments or their returns.

Pai has attacked Twitter and other internet companies as the real threat to net neutrality. Do you agree that something should be done to protect consumers when these companies censor or deny access to content on their sites?
Clyburn: I look at my job description and, simply put, we don't have jurisdiction over internet content. So the argument that the chairman put forth in his speech was an intentional misdirection. To suggest that content is the problem is the chairman swimming outside of his lane. I suggest we keep to the issue at hand, which is do we have or should we have net neutrality protections or not?

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A good regulator attempts to strike a balance. There needs to be certainty for consumers, internet service providers, the internet companies and throughout the entire ecosystem.  

What we're about to do is to throw that all away. In addition to having massive lawsuits, which I know are coming, you're going to have people who are unsure if they have an issue and where should they go to seek help or relief.

If Democrats win the White House in 2020, a new FCC led by Democrats could reinstate the rules. Isn't this flip-flopping on policy bad for the industry and for consumers? Should Congress come up with a legislative fix?
Clyburn: I will concede uncertainty is bad for consumers and for investment. But Congress has already written the law that gives us a clear course. We have the mandate to protect consumers. We have tried a different approach under the current law, which didn't reclassify broadband, and the courts said twice that wasn't good enough. Then we invoked another part of the law, Title II, which reclassifies broadband, and the court told us that is a legally sustainable framework.

When you have certainty from the courts, it boggles the mind and puzzles me that we'd say, forget about what the court said. I'm not a lawyer, but I am perplexed.

You mentioned there will be lawsuits challenging this. What are the chances that this will be overturned in court?
Clyburn: If history is a guide, then we will be right back in this place when a decision is rendered. We are on a legally slippery slope with the order Chairman Pai has proposed. The courts have already spoken, and we are going right back and acting like we didn't hear them.

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