Don't Get Fooled: The Plan Is To Kill Net Neutrality While Pretending It's Being Protected
from the pay-attention dept
Back in February, we had former top FCC staffer Gigi Sohn on our podcast and she laid out the likely strategy of Ajit Pai and Congress to kill net neutrality while pretending that they were protecting net neutrality. And so far, it's played out exactly according to plan. Each move, though, seems to be getting reported by most of the tech press as if it's some sort of surprise or unexpected move. It's not. There's a script and it's being followed almost exactly. So, as a reminder, let's go through the exact script:
Step 1: Set fire to old net neutrality rules
New FCC boss Ajit Pai announces that he's going releasing a plan to roll back the Open Internet rules that his predecessor, Tom Wheeler, put in place two years ago. This has been done, and Pai has released what's called an NPRM (a Notice of Proposed Rulemaking) which opens up a comment period. Once the comment period is over, the FCC can release its new rules and vote on them. The problem -- as basically everyone in telco knows (but which almost never gets mentioned in the press coverage) is that the FCC almost certainly will lose in court if it rolls back the rules that Wheeler put in place. This is important. Contrary to what you may have heard, the FCC isn't allowed to just willy nilly flip flop the rules.
Indeed, the FCC is barred by statute from putting in place "arbitrary and capricious" rule changes. Basically, every lawsuit challenging any FCC rulemaking includes claims that they were "arbitrary and capricious." And, to get over that burden, the FCC can't just change the rules willy nilly, but have to lay out clear evidence for why a change in policy is necessary. That's why the Wheeler Open Internet rules have been upheld by the DC Circuit (who shot down previous rules). Wheeler effectively laid out the clear reasons why the market had changed drastically in the decade plus since the FCC had declared broadband to be an "information service" rather than a "telecommunications service" (under Title II).
For Pai to successfully roll back those rules, he'd need to show that there was some major change in the market since the rules were put in place less than two years ago. That's... almost certainly going to fail in court. Again, this is important: Pai can change the rules, but that rule change will almost definitely be shot down in court. While many are assuming that the Pai's new rules are a done deal, they are not. I mean, he's almost certainly going to ignore the public outcry about how rolling back these rules will harm the internet. And he's almost certainly going to continue to blatantly misrepresent reality and (falsely) claim that investment in broadband has dropped because of these rules (despite tons of clear evidence that he's wrong). And, then he will pass new rules. But those rules will be challenged and he will almost certainly lose in court, and the old rules would remain in place.
Again: basically everyone in the FCC (including Pai) and in Congress know this. The press not reporting on this is a shame.
Step 2: Congress to the "rescue"
Congressional net neutrality haters (e.g. those receiving massive campaign contributions from big broadband players...) are well aware that Pai's plans have no chance in court. Yet, they want there to be this kind of uproar over the plans. They want the public to freak out and to say that this is bad for the internet and all that. Because this will allow them to do two things. First, they will fundraise off of this. They will go to the big broadband providers and act wishy washy on their own stance about changing net neutrality rules, and will smile happily as the campaign contributions roll in. It's how the game is played.
The second thing they will do... is come to "the rescue" of net neutrality. That is, they will put forth a bill -- written with the help of broadband lobbyists -- that on its face pretends to protect net neutrality, but in reality absolutely guts net neutrality as well as the FCC's authority to enforce any kind of meaningful consumer protection. We've already seen this with a plan from Senator Thune and this new bill from Senator Mike Lee.
Unfortunately, some reporters will buy this argument and pretend that these bills will "save net neutrality." The article at that link is correct that a change in administrations can lead an FCC to try to flip flop again on net neutrality, but totally ignores that any such attempt would totally flop in court as arbitrary and capricious, without actual evidence of a changed market. The article is also correct that Congress should fix this permanently, but misses two key factors: (1) Congress is way too beholden to broadband lobbyists to come up with anything that actually protects neutrality and (2) the plans presented so far are designed to kill net neutrality while pretending to "protect" it.
This latter point is why Verizon's General Counsel can say with a straight face that no one wants to kill net neutrality. Because he's going to be supporting Congress' plan that pretends to save it. That's because the Congressional plans do put in place a few bright line rules that seem important to net neutrality -- saying that it bars "paid prioritization," throttling and the like. The problem is that those are last decade's net neutrality issues. The big broadband providers have already said they're fine with those kinds of rules because they've found ways around them.
Specifically, the big broadband providers are doing things like deliberately overloading interconnect points to force large companies like Netflix to pay not to be throttled. Or they're putting in place totally arbitrary and low data caps, and then offering to "zero rate" certain services, pretending that this is a "consumer friendly" move. Again, as we've said dozens of times, you're not a hero if you save people from a fire that you set yourself. And that's exactly what zero rating is. Access providers set low data caps themselves and then "save" their customers from having to pay for going over those caps... but, only if you use approved services (often ones owned by the access provider themselves).
And this is the problem. Under the existing Wheeler rules, the FCC was able to adjust and respond to efforts by the telcos to continue to abuse net neutrality and block the open internet, while pretending they were doing something else. The Congressional proposals for "net neutrality" actually take away that authority from the FCC. In other words, they are opening the floodgates for the big broadband access providers to screw over customers, by saying (1) you can't do the obviously bad stuff, but you can do the hidden bad stuff that's effectively creates the same problems and (2) the FCC can no longer stop you from doing this.
That's not a plan to save net neutrality or an open internet. It's a plan to bless the access providers' plans to start walling off the internet and getting to double and triple charge companies for offering services. This is a plan to put tollbooths on the internet, but in ways that are less obvious than people were first worried about.
Step 3: Leverage the Controversy
Meanwhile, everyone who wants to kill net neutrality knows what's going to happen here. They will use the fact that Pai's rules absolutely can't withstand scrutiny in the courts to step up and push for the Congressional "rescue." Even more likely: they'll say that we need Congress to step in to "prevent uncertainty" from the inevitable lawsuits. Believe it or not: they're happy that this will get tied up in courts for years, because that gives Congress extra cover to push through this pretend "compromise." You'll hear lots of tut-tutting about "uncertainty" that has to be stopped. But, like zero rating and the fact that it's not heroic if you rescue people from your own fire, the fire here is being set by Ajit Pai and big broadband's key supporters. They're setting this fire of rolling back Wheeler's rules solely to whine about the uncertainty that will be caused by their own unnecessary rule change... and then will say that "only Congress can settle this."
So, what does all this mean? It means people who are mad about this (as you should be) need to be direct in what they're talking about here. Don't pretend that Pai's rule change is the real problem. It's not. It's just a mechanism to get to new regulations from Congress that will cause real problems. Don't let anyone say that the Wheeler rules have harmed the internet or investment. They have not. Don't let anyone (especially supporters of killing net neutrality) launch into self-pitying cries about "uncertainty." Remind them that the uncertainty is coming from them and their supporters. And, most importantly, don't pretend that a bill from Congress pretending to "save" net neutrality will actually do so, when it's quite obvious that the bills being offered will undermine our internet, help big broadband screw over users, and diminish competition.
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Filed Under: ajit pai, broadband, competition, controversy, fcc, john thune, mike lee, net neutrality, open internet, tom wheeler
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Too late!
We voted in Obama, got fooled and loved it!
We voted in Trump, getting fooled and loving it too!
What else you got for me?
O yea right I keep forgetting... here here... this is not my fault, I did not vote for THIS bastard I voted for that OTHER bastard. The fact that I only ever vote FOR a bastard is immaterial here. I am guiltless because this is not from MY bastard!
Trump spoke sweet sweet regulatory bullshit into my ears and I bit!
This has been the game of government since forever. It works, and it works damn good! Hopefully TD will help make a difference here but it will not. People can only speak through their party sycophancy and nothing else.
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Re: Too late!
That he acts as all other presidents is another matter. Most of it based on the fact that USA is ruled by cooperation with congress and by SCOTUS and constitution...
As for sycophancy, it is always problematic to only flatter one side and reject any other sides on its own. But structurally the larger problem is that as soon as a problem becomes a dichotomy, the issue has already lost its meaning in a philosofical sense and we are at a zero sum game where two cavemen measures sizes...
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Re: Re: Too late!
This speaks to a very serious problem of today. It matters more how something was said, than the truth of it. This is why Obama is just as evil as Trump is but sounded a lot better when going about it. The fruits of Obama's labors proved that he did not believe in anything he said to the American People.
{"It is not unique, but nevertheless not how the political game has been played historically."
Do tell, Trump is nothing new to our political history. The game has been played like this many times. The only thing that has changed is some of the rhetoric being said and the rhetoric being tolerated. But you base what has changed based on rhetoric alone than a lot of things look new and different.
Trump is super rich. Has not had to suffer the problems of a common person. Has loads of money and sycophants that respect or follow him just because he has a lot of money. The only real difference with Donald is the loud mouth and willingness to go for the drivers chair instead of buying off traditional drivers like Obama and Bush. Presidents in the past had enough respect to keep their diarrhea of the mouth in check, but not trump. this is hardly a new game however.
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Re: Re: Re: Too late!
Yeah, that must be it.
Maybe your post got flagged because vague false equivalence and knee-jerk both-sides-do-it-ism are a tedious waste of time and everybody's sick of reading them.
There are certainly cases where Obama did some things that I consider truly reprehensible. Net neutrality is not one of them. The Obama Administration was not remotely equivalent to the Trump Administration on the subject of net neutrality, the subject we are actually talking about here. Not even close. Obama supported net neutrality, Trump opposes it.
Do you have any examples to the contrary? Any argument that is relevant to the conversation that everyone else is having? If so, feel free to share. If not, you're just making off-topic noise, and people are going to flag you for it.
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Defense of the indefensible ... again.
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Re: Re: Re: Too late!
No, it's because you were acting like a child again, while inserting false equivalency and ranting about something only tangentially related to the subject of the article in question.
It's possible to be "honest" without being a dickhead or trying to derail the conversation before it's even begun. If you decide to do so anyway, it's the being a dickhead part that gets you flagged, not the "honesty".
"It matters more how something was said, than the truth of it. "
This has always been the case. If I say "I respectfully disagree with your opinion for the following reasons..." or I say "you're wrong, you fucking moron" with no explanation why, both statements may be true but you're going to respond very differently depending on how it was said.
That's one of the problems with Trump. His ranting on Twitter is derailing international relations at the very least, and has already led directly to the Supreme Court revoking one of his orders (his travel ban on Muslims may have worked if he weren't so solidly on record as intending to target religion). Forget for a moment that his behaviour really isn't how you want a head of state to act in the first place, he's actively undermining his own leadership. That's not a positive quality in a leader, no matter how you want to spin it.
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Yea! Who in the f*#* would want that?! DERP!
/s
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No kidding. It's obscene in the worst way.
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- Abraham Lincoln
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Step 2: masnick to the rescue
Step 3: sell lots of t-shirts.
The song remains the same.
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Good riddance!
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Re: Good riddance!
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As for Ajit Pai: I have no "vested interest" in him, but do respect him as a very capable and knowledgeable lawyer and a man of principle.
As for Arse Technica: They're merely a clone of Techdirt, or maybe vice versa. They also get money from Google to lie about, and libel, ISPs.
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Re: Re: Re: Re: Good riddance!
Brett Glass runs his own ISP and has been known to have vested interests in Pai for years. It's why he got embarrassed off Ars Technica.
If that's your benchmark for abusive your mother must not have hugged you very much as a child.
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One that's embarrassed to link to, name check or advertise his business in these rants. That's interesting, isn't it? You'd think that a business owner taking a principled stand in something that directly affects his customers would want to have that stance associated with his business.
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Re: Good riddance!
That's not what Vint Cerf and Tim Berners-Lee think, but hey, what the fuck would those guys know about the nature of the Internet?
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Re: Good riddance!
- "go against the very nature of the Internet"
- "slowed broadband investment and deployment, discouraged innovation, raised bills, slowed speeds, and threatened Internet users' privacy"
Thanks.
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Re: Good riddance!
The regulations, which go against the very nature of the Internet, are the result of corruption; they were bought by Google campaign contributions and written by Google lobbyists. Their purpose: to harm ISPs and Internet users while fattening the wallet of Google, the world's richest corporation. They SHOULD be repealed -- not replaced, simply repealed. There was no problem for them to solve, and they have created problems: They've slowed broadband investment and deployment, discouraged innovation, raised bills, slowed speeds, and threatened Internet users' privacy (by exempting the Internet's worst spies -- including Google). So, why does this publication say otherwise? And why does it libel ISPs (who, unlike the one person it attacked directly, have been nice enough not to sue it but would have a good case)? Because it gets money from Google. Unethical journalism at its worst."
Best comedy I've read in a while. thanks, and good riddance to you too, sir or madam.
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Re: Good riddance!
That is all net neutrality is about, ensuring that the communications provider cannot decide who you communicate with.
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