Flimsy Last Ditch Effort To Derail Real Net Neutrality Protections Launches In Congress

from the let's-play-make-believe dept

With Title II based net neutrality rules pretty much a sure thing, the mega-ISPs have been engaged in a last-ditch attempt to derail the FCC ahead of an expected February 26 announcement and vote. This has included significant pressure on lawmakers to rewrite the Communications Act with a core focus on hamstringing the FCC by eroding both their authority -- and their budget. ISPs are also pushing well compensated Congressfolk to pass new, weaker neutrality rules in an effort to preempt tougher Title II provisions.

At the vanguard of this latter effort sit Senator John Thune and Representative Fred Upton. The two have been busily firing up an utterly adorable stage play the last week in which they profess to love net neutrality so much, they're starting a "public conversation" about new, bi-partisan neutrality rules they hope to pass. As part of this campaign, the two took to the Reuters op/ed page last week to convince the public that while they once saw neutrality rules as a "solution in search of a problem," they now think we need tough, comprehensive, bipartisan rules crafted after a painstaking public conversation:

"In the coming days, we plan to pursue a public process to draft and enact bipartisan legislation that would protect the open Internet. We hope FCC Chairman Tom Wheeler and the public will join Congress in working to build and enact a shared set of principles that will protect Internet users, promote innovation, encourage investment — and withstand legal challenge.

We have made this an early priority of this Congress, demonstrating we can come together on a bipartisan basis to protect the vitality of the Internet — now so indispensable to our economy and way of life. Enduring, long-term protections for our digital freedoms are something we should all support."

Clearly this is an amazing, unprecedented example of Congress working through its traditional partisan dysfunction and coming together to ensure the Internet is protected from the lack of last mile competition, nurturing a more robust Internet economy for generations to come. Just kidding. It's all bullshit.

What's actually happening here is Thune and Upton are trying to force through a law written by ISP lawyers that is actually weaker than the original FCC rules AT&T and Comcast supported (but Verizon sued to overturn). By "public conversation," they mean a series of public hearings in which the usual assortment of think tankers, fauxcademics, sock puppets and other ISP-payrolled policy folk gush over the proposal as a more "sensible" solution than Title II. Except when you actually bother to read their proposal (pdf), you'll note that the rules are so stuffed with loopholes, they fail to protect net neutrality whatsoever.

The bill's language leaves the FCC with less flexibility and authority to enforce net neutrality than ever before. It exempts anything having to do with copyright infringement, allows prioritization of a company's own content (provided payments aren't made), doesn't address discrimination via access charges, and has a painfully ambiguous definition of "reasonable network management." It also fails to cover the areas where the most important anti-competitive gatekeeper shenanigans are occurring right now: usage caps, payment schemes to bypass those caps (like AT&T's Sponsored Data), and interconnection.

Consumer groups like Public Knowledge note the proposal only prohibits the kind of ham-fisted offenses ISPs were never even considering (blocking websites or services outright). Otherwise it's a giant wishlist for all of the "creative" gatekeeper pricing efforts carriers have been cooking up for several years, while leaving the FCC largely powerless to protect consumers from them:

"For example, these principles would not have prevented AT&T from limiting FaceTime to particular tiers of service – as it tried to do in 2012. It would not address discriminatory use of data caps, such as Comcast has used to favor its own streaming content over that of rivals. It would not address potential issues arising at Internet interconnection, the gateway to the last mile. Even worse, by eliminating any flexibility on rulemaking or enforcement, the bill would prevent the FCC from addressing any new forms of discrimination and threats to openness that arise."

Still, some folks in the press were impressed that neutrality opponents were striking a "conciliatory note," seemingly portraying Thune and Upton as courageous for reaching across the aisle. That's giving this effort way too much credit, as they're just pantomiming according to a provided script. Worse, the two discard the last four years of progress in net neutrality discussions by actually making their proposal weaker than the rules crafted with Google, Verizon and AT&T's heavy participation in 2010. Thune and Upton's efforts are little more than a mule in a dress trying to do a Marilyn Monroe impression, and it's huge step backward for those interested in meaningful neutrality protections.

Filed Under: broadband, congress, fcc, fred upton, isps, john thune, loopholes, net neutrality, title ii, title x

Big Broadband's Hail Mary To Stop The FCC: Have Congress Pretend To Do Its Job

from the good-luck-with-that dept

As we've clearly stated in the past, having the FCC reclassify broadband as a common carrier under Title II of the Telecommunications Act is not the perfect solution to the net neutrality question, but it's the best of a bunch of bad options. A theoretically good Congress would step in with a rewrite to the law to update it for the times. As we noted in that link above, there were two problems with this idea of a Congressional rewrite: (1) Congress isn't particularly functional and (2) lobbying dollars might make the end result worse. Two interesting things have happened in the past couple of months. First, having the FCC reclassify broadband under Title II went from a pipe dream -- which it absolutely was at the beginning of the year -- to quite likely (especially following President Obama's official support for reclassification). Second, the Republicans won Congress in the election. As we've noted, for reasons that don't fully make sense, net neutrality has become a (stupidly) bitterly partisan issue, with Republicans against it and Democrats for it. This is true despite Republican and Democrat voters alike being overwhelmingly in favor of net neutrality.

So, with a Republican-controlled Congress, it appears that the plan is to actually try to do a rewrite of communications law, with the stated goal of legislating net neutrality -- even to the point (it's claimed) of supporting President Obama's requested net neutrality rules:

One important piece of the proposed legislation would establish a new way for the FCC to regulate broadband providers by creating a separate provision of the Communications Act known as "Title X," the people said. Title X would enshrine elements of the tough net neutrality principles called for by President Obama last month. For example, it would give FCC Chairman Tom Wheeler the authority to prevent broadband companies from blocking or slowing traffic to Web sites, or charging content companies such as Netflix for faster access to their subscribers — a tactic known as "paid prioritization."

In theory, this sounds great. This is, in fact, what we've long said is the better solution. Rather than trying to cram broadband under Title II and dealing with the ill-fitting pieces via forbearance, actually writing regulations for the 21st century sounds like a better idea. Especially if it's true that it would block paid prioritization.

But, does anyone honestly believe this is what's going to happen? Remember, for years Republicans in Congress have angrily denounced any sort of net neutrality rules as "regulating the internet." Yet, now, suddenly, people think that they're going to do so in a slightly different manner through a rewrite of communications law? On top of that, the politicians opposed to net neutrality have taken in insane amounts of cash from big broadband providers. It seems highly likely that any such rewrite to the Telecommunications Act is going to contain plenty of gifts for the big broadband players, and huge loopholes. Considering that the big broadband players have fought any sort of real net neutrality rules for over a decade, while also making noises about how they not only like paid prioritization very much, but that they really want to figure out more ways to charge internet services to double or triple pay just to reach end users, it's difficult to take seriously the idea that this new law will actually be real net neutrality at all.

And, of course, rewriting the Telecommunications Act is a massive job that will impact a ton of other issues as well -- from things like municipal broadband to spectrum to the Universal Service Fund -- but is unlikely to do very much of anything to actually help the key thing that is more important for the future of an open internet: encouraging real and meaningful competition. In fact, it seems fairly likely that most of the moves will be designed to limit such competition, giving more power to the giant broadband players who already dominate the market.

In many ways, this is a rather clever play by the big broadband players and their supporters. They're recognizing that they lost the battle over Title II. At this point, it's almost entirely certain that the FCC will move to reclassify. So, instead, they're going to switch over to Congress -- a plan that, in theory, is more appropriate -- while knowing that with the current state of Congress, the resulting law that will be written will not just block the possibility of Title II, but will serve up some sort of fake, loophole-ridden version of net neutrality in its place.

It is, of course, possible that Congress could do a good job rewriting the Telecommunications Act, but since when has anyone believed that Congress was competent about issues like this?

Filed Under: broadband, congress, fcc, net neutrality, paid prioritization, title ii, title x