Net Neutrality Opponents Ignore History In Pretending FCC's Decision Breaks Some Made Up Rules

from the partisan-patty-cake dept

Desperate to stop the FCC's passage of meaningful Title II-based net neutrality rules later this month, ISPs and their loyal friends in Congress have taken a multi-pronged approach. First, ISPs encouraged Senator John Thune and Representative Fred Upton to table an incredibly feeble set of net neutrality rules that are actually worse than the ones Verizon sued to overturn back in 2010. The plan is to offer a particularly-awful set of rules, compromise a tiny bit, then offer up the final, still-historically-pathetic rules as a "bipartisan" solution to net neutrality that makes Title II unnecessary. The effort is (despite what some in the tech press believe and for lack of a more technical term) garbage and is going nowhere.

The second wing of the attack on Title II rules appears to be the launching of simultaneous House and Senate investigations into whether the White House "improperly" pressured FCC boss Tom Wheeler into adopting Title II rules. Because the President voiced support for Title II rules back in November, and FCC boss Tom Wheeler declared he would be supporting Title II rules last week, neutrality opponents insist there's a cabal of the highest order afoot. As such, they're demanding records of all correspondence between the White House and the FCC because they're so very concerned about transparency and the fact that the FCC potentially violated rules dictating it be an independent agency:

"Republicans are citing a succession of events, including Obama’s statement, that they say shows the White House may have thwarted the FCC’s regular process. The letter asks for information about communications between the FCC and the executive branch relating to the proposal, which would ban Internet-service providers from blocking, slowing down, or speeding up websites in exchange for payment

"Since the FCC is an independent agency that derives its authority from Congress and not the White House, it is highly concerning that the White House would seek to take on this level of involvement in the regulatory process of the FCC, or attempt to supplant completely the agency’s decision-making apparatus," Johnson wrote in the letter, which demands documents by Feb. 23."

It's important to note that however shifty the White House can be on a litany of issues, it didn't do anything out of the ordinary here in providing a little political cover for a controversial decision, and nobody spearheading these investigations can cite any specific examples of rules being broken. As Public Knowledge is quick to point out, the White House commenting on FCC policy is pretty standard operating procedure for both parties and perfectly legal:

"...every President in the last 30 years has weighed in publicly with the FCC on issues of national importance. It did not violate the FCC’s independence when President George W. Bush publicly called for Chairman Michael Powell to vote on deregulating media ownership, or when President Bill Clinton wrote a public letter to Chairman Reed Hundt to ban hard liquor advertising on television. It also did not violate the FCC’s independence when President Ronald Reagan asked Chairman Mark Fowler to drop his proposal to rescind the Financial Interest and Syndication Rules. Similarly, President Obama has not violated the independence of the FCC by making his support for strong net neutrality rules under Title II public."

If you've been reading the profiles on Wheeler's mindset shift, you'll also notice he appears to be the kind of guy who actually bases his decisions on careful consideration of the facts, and in very un-partisan political fashion appears willing to change his position if consistently contradicted by said facts (strange and unfamiliar, I know). Wheeler was told by more than a few telecom lawyers that his attempt to use the "commercial reasonableness" standard under Section 706 of the Telecom Act to police ISP behavior would be legally untenable and abused by ISPs, so he's decided to go Title II. He was also, on at least one occasion, called a dingo.

The White House gave political cover, but there's nothing new or seedy about that. There's also nothing new about broadband ISPs using politicians like marionettes, or partisan politicians pretending to be outraged when the other party does something that's fairly standard operating procedure. Similarly, there's nothing new about politicians pretending to adore certain values that are nowhere to be found when they're the ones in power.

For example, former Verizon regulatory lawyer turned FCC Commissioner Ajit Pai spent the week whining about the fact that the FCC's neutrality plans haven't been made public ahead of the February 26 vote. Pai, a walking personification of revolving door regulators, absolutely is correct that we should all be able to read the net neutrality rules right now. Still, FCC rules prohibiting publication of proposals ahead of a vote have been in place for years, impact both parties, and have been the bane of telecom beat reporters for years. Of course, you'd have to ignore the fact that Pai is the same gentleman who denies that the broadband market is uncompetitive, and has absolutely no problem with ISPs non-transparently writing state laws that keep things that way. As such, you wonder just how far this sudden breathless interest in transparency goes, and whether or not it will choose to stick around should the FCC bear witness to a 2016 party shift.

It's worth reiterating for the thousandth time, however, that despite this kind of partisan histrionics, net neutrality isn't a partisan issue, and it's a concept strongly supported by Progressives and Conservatives alike. It has only devolved into a droll, Democrat/Republican feud because companies find partisan politics to be a useful form of distracting idiocy. It has been especially useful the last ten years as AT&T, Verizon and Comcast coordinate round after round of partisan pattycake to deflect attention from the real problem: their anti-competitive stranglehold over the broadband last mile, and the abysmal customer service and awful pricing that Democrats, Republicans and Independents all get to enjoy as a result.

Filed Under: ajit pai, congress, fcc, independent agency, investigation, net neutrality, president obama, tom wheeler, transparency