Tim Wu: Why the Courts Will Have to Save Net Neutrality<br />chairman, Ajit Pai, announced plans to eliminate even the most basic net neutrality protections — including<br />the ban on blocking — replacing them with a “transparency” regime enforced by the Federal Trade Commission.<br />From what we know so far, Mr. Pai’s rationale for eliminating the rules is<br />that cable and phone companies, despite years of healthy profit, need to earn even more money than they already do — that is, that the current rates of return do not yield adequate investment incentives.<br />Because he is killing net neutrality outright, not merely weakening it, he will have to explain to a court not just the shift from 2015<br />but also his reasoning for destroying the basic bans on blocking and throttling, which have been in effect since 2005 and have been relied on extensively by the entire internet ecosystem.<br />The evidence points strongly in the opposite direction: There is a long history<br />of anticompetitive throttling and blocking — often concealed — that the F. C.C.<br />So drastic is the reversal of policy (if, as expected, the commission approves Mr. Pai’s proposal next month),<br />and so weak is the evidence to support the change, that it seems destined to be struck down in court.<br />The problem for Mr. Pai is that government agencies are not free to abruptly reverse longstanding<br />rules on which many have relied without a good reason, such as a change in factual circumstances.<br />), Mr. Pai is not examining the facts: Security and Exchange Commission filings reveal an increase<br />in internet investments since 2015, as the internet advocacy group Free Press has demonstrated.
