Net Neutrality Realism

Quotes from dissenting opinions on the Federal Communication Commission “Open Internet Order” (FCC-15-24).

Commissioner Ajit Pai (now FCC Chairman):

Americans love the free and open Internet.  We relish our freedom to speak, to post, to rally, to learn, to listen, to watch, and to connect online.  The Internet has become a powerful force for freedom, both at home and abroad.  So it is sad to witness the FCC’s unprecedented attempt to replace that freedom with government control.

It shouldn’t be this way.  For twenty years, there’s been a bipartisan consensus in favor of a free and open Internet.  A Republican Congress and a Democratic President enshrined in the Telecommunications Act of 1996 the principle that the Internet should be a ‘vibrant and competitive free market . . . unfettered by Federal or State regulation.’ And dating back to the Clinton Administration, every FCC Chairman—Republican and Democrat—has let the Internet grow free from utility-style regulation.”

But today, the FCC abandons those policies.  …  It seizes unilateral authority to regulate Internet conduct … . So why is the FCC changing course?  Why is the FCC turning its back on Internet freedom?  …  We are flip-flopping for one reason and one reason alone.  President Obama told us to do so.

The Commission’s decision to adopt President Obama’s plan marks a monumental shift toward government control of the Internet.  It gives the FCC the power to micromanage virtually every aspect of how the Internet works.” 

The not-so-dirty secret, of course, is that this will be a boon for trial lawyers.  And the Order’s decisions will make their lives even easier.  Every edge provider, and thus every person online, is now swept up by FCC’s new and rather peculiar view of what constitutes broadband Internet access service.  This means that a wayward plaintiff’s attorney could sue every single Internet service provider in the country from his hometown courtroom.  I’m sure such litigation will benefit our nation’s lawyers, but the American people—not so much.”

“One facet of that control is rate regulation.  For the first time, the FCC will regulate the rates that Internet service providers may charge and will set a price of zero for certain commercial agreements.”

So while the FCC is abandoning a 20-year-old, bipartisan framework for keeping the Internet free and open in favor of Great Depression-era legislation designed to regulate Ma Bell, at least the American public is getting something in return, right?  Wrong.  The Internet is not broken.  There is no problem for the government to solve.

And no, the federal government didn’t build that.  It didn’t trench the fiber.  It didn’t erect the towers.  It didn’t string the cable from one pole to the next, and it didn’t design the routers that direct terabits of data across the Internet each and every second.  It didn’t invest in startups at the angel or seed stage or Series A rounds.  It didn’t code the webpages, the software, the applications, or the databases that make the online world useful.  And it didn’t create the content that makes going online so worthwhile.

For all intents and purposes, the Internet didn’t exist until the private sector took it over in the 1990s, and it’s been the commercial Internet that has led to the innovation, the creativity, the engineering genius that we see today.

Nevertheless, the Order ominously claims that ‘[t]hreats to Internet openness remain today,’ that broadband providers ‘hold all the tools necessary to deceive consumers, degrade content or disfavor the content that they don’t like,’ and that the FCC continues ‘to hear concerns about other broadband provider practices involving blocking or degrading third-party applications.’

The evidence of these continuing threats?  There is none; it’s all anecdote, hypothesis, and hysteria.

“Therefore, all of the action at the Commission was just for show.  Those filing comments, holding publicly disclosed meetings with FCC officials, or participating in FCC roundtables were being led to believe that their input would matter.  But the joke was on them.  While the media and the public were focusing on events at the FCC, the real action was occurring behind closed doors at the White House.

Of course, a few insiders were clued in about what was transpiring.  Just listen to what a leader for the group Fight for the Future had to say:  ‘We’ve been hearing for weeks from our allies in DC that the only thing that could stop FCC Chairman Tom Wheeler from moving ahead with his sham proposal to gut net neutrality was if we could get the President to step in.  So we did everything in our power to make that happen.  We took the gloves off and played hard, and now we get to celebrate a sweet victory.’

What the press has called the ‘parallel FCC’ at the White House opened its doors to a plethora of special-interest activists: Daily Kos, Demand Progress, Fight for the Future, Free Press, and Public Knowledge, just to name a few.  Indeed, even before activists were blocking Chairman Wheeler’s driveway late last year, some of them had met with White House officials.  But what about the rest of the American people?  They certainly couldn’t get White House meetings.  They were shut out of the process.  They were being played for fools.

And the situation didn’t improve once the White House announced President Obama’s plan and ‘ask[ed]’ the FCC to ‘implement’ it.  The document in front of us today differs dramatically from the proposal that the FCC put out for comment last May.  It differs so dramatically that even net neutrality advocates frantically rushed in recent days to make last-minute filings registering their concerns that the FCC might be going too far.  Yet the American people to this day have not been allowed to see President Obama’s plan.  It has remained secret.

Especially given the unique importance of the Internet, Commissioner O’Rielly and I asked for the plan to be released to the public.  Senate Commerce Committee Chairman John Thune and House of Representatives Energy and Commerce Chairman Fred Upton requested this as well.  And according to a survey last week by a respected Democratic polling firm, 79% of the American people favored making the document public.  But still the FCC’s leadership has insisted on keeping it hidden.  We have to pass President Obama’s 317-page plan so that the American people can find out what is in it.

Commissioner O’Reilly:

“Today a majority of the Commission attempts to usurp the authority of Congress by re-writing the Communications Act to suit its own ‘values’ and political ends.”

“Along the way, however, the means became the end.  Net neutrality is now the pretext for deploying Title II to a far greater extent than anyone could have imagined just months ago.  And that is the reality that the Commission tried to hide by keeping the draft from the public and releasing a carefully worded ‘fact’ sheet in its place.”

“Hardly anyone at the time thought that the Commission would seriously consider applying Title II.  And truth be told, the Commission did not give it much thought either, as is evident from the NPRM.  Outside parties warned the Commission to take a few months to seek further comment, but the Commission was not operating on its own timetable because it has to be responsive to the political winds and views of the perpetually outraged.

“Incredibly, the item gives significant weight to a theoretical cost of forgone innovation but gives essentially no weight to the cost of forgone investment.  I am far more concerned about the Americans that will remain unserved as a result of our rules.  Forget about an open Internet; they have no Internet.

“The Commission attempts to downplay the significance of Title II, but make no mistake:  this is not some make believe modernized Title II light that is somehow tailored to preserve investment while protecting consumers from blocking or throttling.  It is fauxbearance:  all of Title II applied through the backdoor of sections 201 and 202 of the Act, and section 706 of the 1996 Act.  Moreover, all of it is premised on a mythical ‘virtuous cycle’—not actual harms to edge providers or consumers.”

“The Commission’s Decision to Classify Broadband Internet Access Service as a Telecommunications Service is Contrary to Law and Fact.”

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