'Net Neutrality Hurt Internet Infrastructure Investment' Is The Bad Faith Lie That Simply Won't Die

from the repetition-forges-reality dept

Since the very beginning of the net neutrality debate, ISPs have repeatedly (and falsely) proclaimed that net neutrality rules (read: stopgap rules crafted in the absence of competition to stop giant monopolies from abusing their power) utterly demolished broadband sector investment. It was a primary talking point during the battle over the flimsy 2010 rules, utilized extensively during the 2015 passage of slightly tougher rules, and was foundational in the Trump FCC's arguments justifying their hugely unpopular and fraud prone repeal of those rules.

Time after time after time, big ISPs (and the politicians and regulators paid to love them) lied and claimed that the modest rules (by international standards) had crushed sector investment. Then, when the rules were repealed, they again lied that this had triggered a massive new investment wave. Never mind that countless different studies showed the rules had no impact on investment. If that wasn't enough, it was repeatedly confirmed by ISP earnings reports, and the public statements of numerous CEOs that this claim was never true.

It's a lie, the folks pushing it know it's a lie, but they just keep repeating it so it's cemented as gospel among the alternative facts set.

With net neutrality potentially getting restored at the Biden FCC (assuming they can get around to appointing a new Democratic Commissioner), the lie is being trotted out again by Trump's last-minute FCC appointment, Nathan Simington. Speaking over at the Free State Foundation on Wednesday, Simington once again trotted out the old, reliable bogeyman:

"...my biggest worry about Title II is really that, after a few years of chilling effects on infrastructure construction, we will find ourselves in an entirely avoidable and artificial broadband infrastructure crisis."

So one, we're already in a crisis now caused by decades of shitty state and federal leadership and monopolization. The previous FCC gutted most FCC consumer protection authority right before a pandemic, leaving it unable to adequately police everything from privacy violations to billing fraud. And it turned a blind eye as the telecom industry used bogus statistics (and even fake or dead people to provide bogus support for it). It also literally did absolutely nothing to meaningfully address the stranglehold regional monopolies like AT&T and Comcast have over the market.

If Simington was really concerned about the idea that reclassifying ISPs as common carriers under Title II harmed infrastructure investment, there's just an ocean of data disproving the claim that should have put his mind at ease. The same day Simington was giving his speech, consumer groups like Free Press were testifying before Congress, using reams of research data showing this lie isn't true. In fact, several of the ISPs that were given tens of billions in tax breaks and subsidies during the Trump era for literally doing nothing trimmed overall investment:

"In fact, investment declined every year of Chairman Pai’s tenure. AT&T investment dropped 20 percent in 2020, and 52 percent from its peak in the last year for the Obama FCC. Comcast’s dropped 4 and half percent last year, down 22 percent from 2016. But even if deregulation alone had increased deployment — and it didn’t — buildout alone would not lower price or increase adoption in the absence of competition, oversight, and more robust adoption subsidies."

Again, this isn't a "he said, she said" scenario. SEC filings, earnings reports, CEO statements, and numerous studies all show net neutrality rules (which again had the overwhelming bipartisan majority of public support) neither harmed, nor spurred, meaningful broadband investment. As somebody that has covered this sector for twenty years, I assure you the lack of broadband investment in the United States has two primary causes: rampant state and federal corruption (regulatory capture), and monopolization.

Obvious problems folks like Simington (much like freshly-departed FCC boss Ajit Pai) either downplay or refuse to acknowledge whatsoever.

Most of these folks know they're parroting a lie, but they continue to do it anyway because in the US media environment, it continues to work. Bloomberg, for example, was quick to write an entire story parroting the falsehood, even going so far as to repeat the lie, unchallenged, in a headline. So as the latest net neutrality debate heats up once again, don't expect the press, or many of the folks who think "let Comcast do whatever it wants" is real policy, to meaningfully change their stripes.

Filed Under: fcc, infrastructure, infrastructure investment, nathan simington, net neutrality, regulations

Dumb New GOP Talking Point: If You Restore Net Neutrality, You HAVE To Kill Section 230. Just Because!

from the unserious-people dept

As the FCC gets closer to restoring net neutrality, a new and bizarre GOP talking point has emerged. It goes something like this: if you're going to restore some modest rules holding telecom monopolies accountable, you just have to dismantle a law that protects free speech on the internet! This of course makes no coherent sense whatsoever, but that's not stopping those looking to demolish Section 230, a law that is integral to protecting speech online.

Take FCC Commissioner Brendan Carr, for example. Despite having a post at the nation's top communications regulator, Carr is literally incapable of even acknowledging that US telecom monopolies exist. Or that said monopolization is directly responsible for the high broadband prices, spotty coverage, terrible customer service, and/or sluggish speeds everybody loathes. His tenure has been spent rubber stamping the every whim of Comcast and AT&T, yet, for no coherent reason whatsoever he's emerged as a major voice in the conversation about Section 230 and social media.

This week, Carr had this to say at the INCOMPAS policy summit:

While there certainly are moments these worlds collide (like Amazon AWS or Google Fiber) this is not a good faith argument, and conflating net neutrality and the debate over 230 into one incoherent ball is a tactical strategy, not a real legal or policy argument.

Like it or not, net neutrality was simply an effort -- in the absence or real US broadband market competition -- to create some baseline rules preventing natural, physical telecom monopolies from abusing their market power. Power they attempted to abuse time, and time, and time, and time again. The Trumpist GOP assault on Section 230, by contrast, is the brain fart of an unqualified and corrupt ex-president, designed largely to bully content platforms into carrying hate speech and political disinformation, cornerstones of modern GOP power in the wake of changing US demographics and a sagging electoral base.

The latter is dressed up as something more noble and patriotic than it really is. But there's absolutely nothing meaningfully tethering one policy debate to the other. Well, aside from the blistering hypocrisy required for FCC Commissioners like Carr to claim that FCC efforts to hold telecom monopolies accountable was "socialism" or "government run amok," then pivoting on a dime to support Trump's ridiculous attempt to have the FCC regulate social media (despite having no authority to do so).

Of course this same bizarre conflation also recently popped up over at Fox Business courtesy of an anonymous "former FCC official" (possibly ex FCC boss turned cable lobbyist Mike Powell) in a piece that uses the exact same illogical framing (and even the word "holistic"):

"If Democrats want to talk about net neutrality, they’re going to have to include Big Tech,” says one former FCC official. "It has to be a holistic conversation."

Uh, no they don't?

There's absolutely nothing, anywhere that fully tethers the two policies, and just claiming otherwise repeatedly won't magically make it true. It's clear the GOP wants to confuse the public into conflating "net neutrality" with some imagined requirement for platform and service "neutrality." They've already confused "being held accountable for being a lying asshole on the internet" and "being kicked off a private service for clearly violating its terms of service" with "censorship," and Fox is more than happy to muddy the water further:

"GOP activists and lobbyists interviewed by FOX Business concede legislation that would extend net neutrality rules to Big Tech is a long shot given the current makeup of Congress. Still, they believe they can start a debate on the matter that could focus the public's attention on what they believe is the tech industry's stifling of conservative voices."

Let's be clear: the GOP has made "big tech" public enemy number one not because they genuinely care about corporate power or monopolization, but because companies like Twitter finally started more seriously policing hate speech and political disinformation after the country almost imploded. At the same time, the GOP is literally incapable of even acknowledging that "big telecom" (1) exists, or (2) is a problem. That's in part thanks to telecom lobbyists, who've been beating that particular drum for years as they attempt to grab a broader share of online video advertising by lobbying for a lopsided policy environment.

The GOP position here is about money and political power, and all else is performative bullshit.

If you really want to crack down on monopolies, let's have that conversation and apply it to all industries, not just the one you're currently trying to pressure for political reasons. Let's talk about shoring up antitrust, and perhaps not rubber stamping every job and competition killing megamerger that comes down the road. Let's talk about campaign finance reform, so giants like AT&T (or Facebook and Google) aren't literally writing state and federal law. This is not, I can assure you, a conversation the Trump-obsessed GOP actually wants to have, despite the occasional policy wonk claim to the contrary.

Regardless, as the conversation heats back up about net neutrality, you can expect a lot of dodgy op-eds parroting this intentional conflation. Because who wants to have an honest, good faith discussion about US tech policy reform, when you can instead try to confuse the public into supporting your bad faith victimization complex?

Filed Under: brendan carr, broadband, fcc, net neutrality, section 230

DOJ Drops Ridiculous Trump-Era Lawsuit Against California For Passing Net Neutrality Rules

from the round-and-round-we-go dept

After the Trump FCC effectively neutered itself at telecom lobbyist behest, numerous states jumped in to fill the consumer protection void. California, for example, passed some net neutrality rules in 2018 that largely mirrored the FCC's discarded consumer protections. There's a strange contingent of folks who try to claim that because the internet didn't immediately explode in a rainbow of fireworks, the net neutrality repeal must not have been a big deal. But a major reason why ISPs didn't behave worse (than they already are) is because they didn't want to violate new state laws.

That said, they did yeoman's work to try and thwart these state efforts too. Including convincing Billy Barr's DOJ to file suit against California to prevent the popular bill from ever becoming law. You know, "states rights!" and all that.

The DOJ's central argument was that California's attempt to protect consumers was somehow "anti-consumer" and "extreme" (it was neither). The suit leaned on language the FCC included in its repeal (at industry behest) claiming that states couldn't step in and protect consumers in the wake of federal apathy. The courts so far haven't looked too kindly upon that logic, arguing that the FCC can't abdicate its authority over telecom consumer protection, then try to lean on that non-existent authority to try to tell states what to do.

This week the DOJ's ham-fisted effort to curry favor with US telecom monopolies fell apart completely when the Biden DOJ quietly pulled out of the lawsuit. It was a move quickly applauded by new FCC Commissioner Jessica Rosenworcel:

Keep in mind California's law went a little beyond the FCC's original rules, tackling stuff like zero rating that the Wheeler FCC didn't realize was anti-competitive until it was too late. Still, by international standards (India, Japan, Canada, elsewhere) both sets of rules were pretty modest, compared to the telecom industry's talking point that some basic guidelines for broadband monopolies (in the absence of meaningful competition) was "government run amok."

The DOJ retreat leaves a separate broadband industry lawsuit as the last remaining obstacle to the California law's passage, the next hearing for which occurs on February 23. But by the time this case makes its way through a full hearing, federal regulators will likely have restored the original federal rules. That, however, requires a 3-2 majority at the FCC, which can't happen until Biden appoints -- and Congress formally seats -- a third Democratic Commissioner and possible third boss.

That's weeks to months away, still. It's worth reiterating that the Ajit Pai net neutrality repeal didn't just kill net neutrality. It dismantled the agency's authority to hold ISPs accountable for things like billing fraud, leaving the FCC partially paralyzed during a pandemic that's showcasing how broadband is essential to education, health care, opportunity, and survival.

ISPs have worked pretty tirelessly just to get to this point. AT&T and Comcast engaged in all matter of dodgy gamesmanship and outright disinformation to first get the federal rules repealed despite massive public, bipartisan approval of the rules. They then convinced the FCC to include provisions in the repeal that tried to ban states from protecting consumers, while in California they engaged in some dodgy gamesmanship to prevent the law from even being voted on. At the same time, they were so politically powerful they got the US Department of Justice to file a bullshit lawsuit trying to pretend California's law was "anti-consumer."

All to derail something the public broadly supported across party lines. Really pause for a second to stop and think about the level of regulatory capture and corruption required to accomplish all of that.

Filed Under: ajit pai, california, doj, fcc, net neutrality, states rights

The Wall Street Journal Kisses Big Telecom's Ass In Whiny Screed About 'Big Tech'

from the bad-faith-bullshit dept

Apparently, when you write about major tech policy for the Wall Street Journal, you don't have to have the slightest idea what you're talking about. Take, for example, this bizarre piece by Allysia Finley dubbed "Net Neutrality and Big Tech’s Speech Hypocrisy." Finley and the WSJ editorial board were apparently excited to paint "big tech" companies as hypocrites for supporting net neutrality, while (gasp) opposing efforts to dismantle Section 230 by a bunch of folks who think they have a God-given right to be bigoted, trolling assholes on private platforms.

The Murdoch family screed steadily goes downhill as it tries to fuse net neutrality and recent Section 230 debates into an incoherent mush just to paint Silicon Valley as hypocritical:

"Facebook and Twitter turned out to be more threatening than under threat. Broadband providers haven’t attempted to block content or competitors since the FCC repealed net neutrality. But social media, app stores and cloud providers, which were never subject to the rules, all have engaged in censorship repeatedly in recent weeks."

First, Facebook never seriously supported net neutrality, and spent ample time in countries like India trying to dismantle it. Second, (once more with feeling!) it's not "censorship" if you get kicked off social media outlets for violating their terms of service. That's called consequences for being an asshole on privately owned platforms, not "censorship." Third, many tech giants like Netflix actually backed off from supporting net neutrality once they were powerful enough to be insulated from the impact of telecom monopolies behaving badly, which is hypocritical, but in an entirely different way the Journal doesn't understand.

Fourth, big ISPs certainly did try to violate net neutrality to harm competitors. The only reason they haven't behaved worse is because in the wake of federal apathy, numerous states passed their own net neutrality rules. It's also worth repeating that the FCC's net neutrality repeal didn't just kill net neutrality, it demolished the FCC's consumer protection authority in general, which the Journal, of course, thinks was wonderful. The argument that "well, the internet didn't immediately implode in a rainbow therefore the FCC gutting its consumer protection authority must not be a bad thing" is a telltale sign the person you're listening to has no idea what they're talking about.

From there, the Journal parades a bunch of outright lies, most notably the longstanding telecom industry fable that some modest net neutrality rules stifled network investment. This part, for example, is just complete bullshit:

"The Obama rules made it harder for telecom carriers that owned content providers to compete with tech giants and finance network expansions. This is one reason broadband investment declined in 2016."

Again, SEC filings, earnings reports, independent studies and even CEO statements made it clear that net neutrality never hindered network investment, nor made it difficult for telecom to compete with tech giants. The Journal's piece is basically just telecom monopolization fan fiction that nibbles the earlobes of Ajit Pai while falsely claiming that the telecom sector is ultra healthy and competitive (it takes about half an hour of dealing with Comcast customer support to easily determine that's not true), and that gutting the FCC's protection authority right before a massive health and economic crisis was a wonderful idea.

For years now I've noted how the telecom industry has covertly been playing a starring role in getting a huge chunk of DC policymakers to believe that "big tech" is the root of all evil, while "big telecom" is a healthy market filled with angels and puppies. It's because they want to elbow in on Silicon Valley ad revenues, and create a policy environment where tech companies get saddled with ample regulation, while the telecom sector is free to engage in all manner of dodgy, monopolistic behavior (I'd say that's going pretty well). That bullshit framing is clearly on display in the Journal's piece:

"Tech companies, on the other hand, boast far more market power because of so-called network effects. Customers of different phone and internet carriers can call, text and email one another, but social-media platforms aren’t interoperable. This makes it harder for startups to compete. Facebook and Twitter have to worry less about losing ground to competitors if they censor or unfairly treat users."

While Google and Facebook pose very real monopolistic problems (especially in advertising), users can still choose not to use many of these platforms. That's simply not true of US telecom, a sector dominated by natural monopolies resulting in 83 million Americans having the choice of just one provider, making it physically impossible to vote with your wallet. Companies like AT&T and Comcast are also massive media conglomerates that dictate news coverage, control access to content, and are effectively fused to our intelligence gathering apparatus.

All while having many of the very same advertising ambitions as Google and Facebook. So yes, tech giants create very real problems. But if you're serious about corporate power and monopolization, you advocate for antitrust and court reform, shore up and properly fund regulators, and enforce existing laws consistently across sectors. You don't single out one sector while ignoring all others, unless you're engaged in some bad faith patty cake.

The Journal and GOP's ceaseless attempts to downplay telecom monopolies perfectly mirrors (not at all coincidentally) the bullshit claims by telecom monopolies themselves:

"All of which is to say big tech companies today more closely resemble the old telephone monopolies that Congress sought to regulate as common carriers in 1930s than broadband providers do. They have used their market power to suppress speech and competitors, even while pretending to defend an "open and free Internet."

That's complete nonsense. So is the piece's final proclamation:

"Which leads to an idea: While Republicans now have little clout in Washington, those in Florida or Texas might consider imposing their own neutrality rules on Big Tech."

Again, telecom and media giants like AT&T (and the lawmakers paid to love them) desperately want you to believe that telecom monopolies are great, and tech giants are the only real problem in modern policy conversations. They're pulling many of the strings here. It's why you'll see guys like Josh Hawley performatively prattle on about the vile nature of "big tech," but you'll never see him criticize Comcast or AT&T. That's not some quirky coincidence. It's part of a longstanding coordination between telecom, companies like Oracle, and others using opportunistic DC nitwits to gain tactical advantage against competitors in fields like video advertising.

It's excruciatingly clear the GOP (and by proxy the Journal) couldn't give any less of a genuine shit about corporate power or censorship. The GOP's only real interest here is in bullying Silicon Valley giants into carrying bigoted hate speech and political disinformation, cornerstones of modern GOP power. The telecom industry's only real goal here is saddling competitors with regulatory headaches. And, as the Journal does a lovely job illustrating, this self-serving nonsense is routinely dressed up as some noble, intellectually consistent pursuit. In reality, it's bad faith, self-serving bullshit crafted by people with heads full of pudding.

Filed Under: allysia finley, big tech, content moderation, net neutrality, section 230

New Interim FCC Boss Jessica Rosenworcel Will Likely Restore Net Neutrality, Just Not Yet

from the baby-steps dept

With Trump FCC boss Ajit Pai and his giant coffee mug headed for the revolving door, the Biden administration has tagged existing FCC Commissioner Jessica Rosenworcel as the new boss of the agency. Rosenworcel is well liked by consumer advocates and industry insiders, and largely opposed the Trump FCC's efforts to lobotomize the agency's consumer protection authority, kill net neutrality, eliminate decades-old media consolidation rules, and effectively turn the agency into a rubber stamp for Comcast, AT&T, and Verizon's every policy pipe dream.

Outside of that time when she helped scuttle an FCC effort to bring more competition to the cable box because the US Copyright Office (falsely) claimed doing so would violate copyright, Rosenworcel has a good track record as somebody genuinely interested in real data and real solutions. That makes her a notable improvement to Ajit Pai, who literally could not even admit US broadband is expensive, spotty, and generally mediocre, or that this is due to rampant, unchecked monopolization. It's a willful blindness Rosenworcel clearly doesn't share:

Granted, with the recent rushed appointment of Trump Section 230 sycophant Nathan Simington, the FCC's currently gridlocked at 2-2. Meaning Rosenworcel will be notably limited in what she can accomplish until Biden and Congress appoint and seat a third Democratic Commissioner. That third Commissioner could be the permanent boss, and conversations are still ongoing on that front in the Biden camp. As a result, restoring net neutrality with a 3-2 vote (and all the discourse shenanigans that entails) is likely to be some time away yet.

That doesn't mean Rosenworcel will be powerless. For example, she could pull FCC support from the ongoing (and likely now doomed) DOJ lawsuit against California for passing its own net neutrality law. Much like when (then) new FCC boss Ajit Pai pulled the rug out from under his own lawyers in court as they were busy trying to fight against prison telco monopoly price gouging at the behest of the previous, Wheeler FCC.

Granted the Biden FCC could still go several ways here depending who they appoint as permanent agency boss (which could very well be Rosenworcel). I can see them picking an aggressive consumer advocate to lead the agency who'll immediately set about restoring the FCC's consumer protection authority and net neutrality, then using that power to hold telecom monopolies accountable for pandemic price gouging, improving broadband mapping, and reverse Trump era apathy to Comcast monopolization.

But I can also see them appointing a bland centrist like Obama's first FCC boss Julius Genachowski. Somebody who'll talk a lot about Covid and their breathless devotion to closing the "digital divide," but won't be eager to restore FCC authority to more efficiently meet these goals because it's "divisive" and we need to "move forward." Somebody who'll say all the right things, but, like Pai, won't be capable of clearly acknowledging that monopolization and regulatory capture are the cause of most US telecom market dysfunction.

I think the political pressure being created by Covid (42 million still lack access to any broadband whatsoever, 83 million are stuck under a monopoly) will result in the former and an aggressive Biden FCC reversal of Trump-era policies. But since kissing the ass of telecom monopolies and powerful media conglomerates is a bipartisan tradition some forty-plus years old at this point, it's something I'll need to see before I believe it.

Filed Under: ajit pai, broadband, competition, consumer protection, digital divide, fcc, jessica rosenworcel, joe biden, net neutrality

Small Idaho ISP 'Punishes' Twitter And Facebook's 'Censorship' ... By Blocking Access To Them Entirely

from the really-dumb-ideas dept

A small Idaho ISP by the name of Your T1 WIFI has decided to punish Twitter and Facebook for perceived "censorship" ... by censoring them. In an email to subscribers posted to Twitter, the company claims it will be blocking customer access to both websites by default moving forward. To access the websites, users apparently will need to contact the company to be added to a whitelist:

While the company doesn't specify what "censorship" its customers are complaining about, the complaints were likely driven by Twitter's decision to ban Trump after he violated the company's terms of services by inciting a fatal insurrection. Or perhaps they're complaining about the steady purging of QAnon conspiracy theorists for espousing bogus claims of election fraud. Either way, the ISP claims to ingeniously be combating what they claim is censorship ... by embracing the exact same thing:

"Our company does not believe a website or social networking site has the authority to censor what you see and post and hide information from you, stop you from seeing what your friends and family are posting," the email states. "This is why with the amount of concerns, we have made this decision to block these two websites from being accessed from our network."

There are ample problems here. The first being that "Conservative censorship" isn't actually a thing. What hyperventilating partisans deem as "censorship" in our broken modern discourse is usually just Facebook and Twitter belatedly enforcing their own terms of service (which is different than censorship). While the platforms certainly do sometimes boot people for stupid reasons, more often than not such bans are simply the natural consequence of behaving like an asshole on the internet. Don't want to be blocked, banned or limited? Don't be an asshole on the internet.

The other problem, of course, is that there's an endless parade of research showing that internet filters are stupidly expensive and don't work. They're usually easily bypassed with only a modicum of technical knowledge, and they pretty routinely result in collateral damage (aka the accidental blocking of legal, legit websites). In this case, blocking access to Facebook by proxy blocks access to all the systems Facebook ties into, including automated login systems. The end result is likely to be more of an avoidable headache than a real solution to a real problem.

I reached out to contact Your T1 WIFI, but their 1-888 number resolved to a woman's voicemail box that didn't even mention the name of the company. However, company owner Brett Fink spoke to a local CBS affiliate and contradicted his own company's email by claiming they weren't blocking anybody:

"In a phone call with KREM, the owner of the company, Brett Fink, again said the websites would only be blocked for customers who asked.

"We've had customers asked to be blocked by it. That is what the email was about, so no we are not blocking anybody, only the ones that have asked for it," Fink said."

Again, that's not what the company's own email to its subscribers states:

"Please let us know and we can add you to the allowed list to be able to not be blocked from going to these sites and the ones that do want to be blocked will have to do nothing they (Twitter and Facebook) will just not show up."

So that certainly sounds like a DNS-level IP blacklist, which users have to call in to be whitelisted from.

Of course in the wake of the Trump net neutrality repeal this doesn't run afoul of federal rules ... because there are no federal rules. But it's still a problematic, dumb idea and a slippery slope for an ISP to inject itself into the information stream in such a hamfisted fashion. With industry BFF Ajit Pai on the way out, and the Biden administration purportedly keen to restore net neutrality, it's extremely unlikely any major ISPs would follow down this particular rabbit hole and draw regulatory scrutiny. Still, it should add some interesting ... flavor to the debate when it inevitably heats up later this year.

Either way, engaging in blocking to protest "censorship" that isn't actually happening isn't a great look.

Filed Under: blocking, censorship, content moderation, idaho, isps, moderation
Companies: facebook, twitter, your t1 wifi

A Few Reminders Before The Tired Net Neutrality Debate Is Rekindled

from the get-ready-for-another-round dept

Bad news for folks "worn out" by the longstanding debate over net neutrality: it's about to be rekindled in a major way. But for those who are a bit too easily annoyed by having to revisit this well tread path, it's worth remembering that the debate about net neutrality is really about competition, policing monopolization, and having regulators and antitrust enforcers that aren't feckless cowards in dutiful sway to powerful natural monopolies. And either you care about these very real problems, or you don't.

With the Senate falling under Democratic control in the wake of the Georgia run off elections, Mitch McConnell, AT&T, and Comcast's dream scenario -- an FCC perpetually crippled by partisanship by McConnell -- is no longer happening. Big telecom had hoped that the rushed appointment of unqualified Trump sycophant Nathan Simington would bring the agency to a 2-2 partisan Commissioner tie. It's extremely clear McConnell then planned to block the appointment of a new FCC boss to ensure the agency was crippled and lacked the majority to reverse Trump's lengthy list of handouts to the telecom sector.

That's no longer possible, meaning the Biden administration, with a 3-2 Commissioner majority, should be able to pick their preferred FCC boss and get back to at least occasionally pretending that monopolistic behavior and consumer protection is something we take seriously. Net neutrality activists are, as you might expect, excited to reverse a lot of Trump era policies like the factually dubious and hugely unpopular repeal of net neutrality:

"Already, net neutrality advocates are barely containing their excitement. Reached for comment, Fight for the Future’s Evan Greer laid out a laundry list of progressive goals that can now be pursued, from overturning FCC Chairman Ajit Pai’s order to implementing more aggressive privacy and connectivity policies.

“If Democrats take the Senate they should move quickly to confirm an FCC chair who will make it their first order of business to restore the Title II open Internet protections,” Greer said in a statement. “But they should also do more than that. The FCC can and should take steps to protect people’s privacy, and to ensure that everyone can afford Internet access during a time when many are working from home and sending their kids to school online."

Granted things could go one of several ways here. Yes, the Biden camp could appoint somebody with a backbone willing to quickly tread back into reclassifying ISPs as common carriers under Title II of the Communications Act, giving the FCC the authority to once again adequately police obnoxious monopolies. The Democratic FCC could just vote along 3-2 party lines to restore net neutrality and FCC authority, given the courts have made it clear now several times it has that right. Even if this risks simply being reversed in 2024 should Democrats lose the White House.

But I can also see the Biden camp taking a far flimsier route, appointing somebody "safe" and unwilling to rock the boat; somebody like Obama's first FCC boss, Julius Genachowski, who was largely incapable of taking tough stands on any issue of substance.

Ideally, to avoid FCC regulatory ping pong, you'd prefer Congress pass a useful, well-crafted, new net neutrality law prohibiting ISPs like AT&T and Comcast from abusing their power as gatekeepers. But there too it's no certain bet that the Biden team genuinely sees holding telecom monopolies accountable as a priority (Biden's first 2020 fundraiser ever was at a Comcast lobbyist's home), wants to spend the time making it a priority with so many other urgent problems, or will be able to secure the necessary votes among heavily lobbied lawmakers who traditionally treat upsetting AT&T, Verizon and Comcast as a cardinal sin.

While Democrats are saying that restoring net neutrality is a top priority, I can see providing COVID relief to low-income Americans consuming most of the oxygen in the room, and quite justly. Under this scenario, a feckless new Democratic FCC boss could use COVID as a shield to justify not taking a tougher stance against telecom monopolies or restoring net neutrality ("there's more important things to do than revisit contentious issues!"), even if the restoration of the FCC's authority would go a long way toward giving the FCC the tools needed to accomplish any COVID-related goals.

Either way, expect all the same arguments to be dusted off for what feels like the eighty-fifth time. And while annoying, it's still a conversation we need to have. 82 million Americans live under a broadband monopoly, usually Comcast. 43 million Americans can't get any service whatsoever. The one-two punch of monopolization and chickenshit lawmakers and regulators is why Americans pay some of the highest prices in the world for broadband service that's routinely mediocre by any metric that matters. Monopolies have cornered the market, closed the door behind them, lobbied endlessly against any threat of disruption, and are now ceaselessly on the prowl for creative ways to nickel-and-dime captive customers.

Net neutrality (read: dumb, anticompetitive ideas only made possible by a lack of competition) gets the focus, but this is really about policing monopolization and driving more competition to market so there's an organic market penalty for bad behavior, whether that's a privacy violation or net neutrality skullduggery.

Again, maybe you really don't like net neutrality as a concept, and that's fine. But if you don't, you'd better be recommending real regulatory and antitrust reform that addresses monopolization and the myriad of problems that creates. If you're whining about how much you hate net neutrality--while downplaying, ignoring, or encouraging rampant monopolization and regulatory capture--you're sure as hell not helping and may even be part of the problem.

For four straight years, the Trump FCC couldn't even admit a lack of market competition is a problem, and went to great lengths to push fabricated data claiming the market was perfectly healthy. So whatever direction the Biden camp goes, it's likely to be an improvement from the fabricated post-truth delusion that has been the highlight of the last four years.

During its tenure the Trump FCC, directed by the telecom lobby, convinced the lion's share of DC that "big tech" is the root of all evil, while effectively gutting most oversight of telecom giants with 30-year track records of predatory, anti-competitive behavior. Whatever solution emerges from the Biden camp, it would be nice if it stems from an understanding that monopolistic jackassery is not somehow the exclusive domain of big tech, and we need more consistent, and far less pathetic antitrust and regulatory enforcement across the board.

And before the dumb hyperbole and decades-old arguments emerge anew, let's be clear about something: folks who argue that net neutrality didn't matter because the rules were killed and the internet didn't immediately explode (and there's a lot of them) are only advertising their own ignorance. As we've been covering for years, the Trump FCC's net neutrality repeal didn't just kill net neutrality. It hamstrung the FCC's ability to police telecom monopolies on a wide variety of fronts, whether that's recent bullshit attempts by ISPs to charge consumers "rental" fees for modems they already own, to policing the sneaky, bullshit fees cable TV giants and ISPs use to covertly jack up your bill and falsely advertise a lower price.

In short, anybody who thinks that gutting most meaningful oversight of monopolies like Comcast and AT&T resulted in "innovation," new investment, or free market Utopia has fallen into an ideological mud puddle. That said, it also remains true that if the broadband industry saw meaningful competition at scale, you wouldn't need net neutrality in the first place. A company in a competitive market can't engage in ham-fisted throttling or other bullshit, because consumers would flock to a (gasp) competitor.

But in a country where there's virtually no competition at modern speeds, our regulators are usually feckless chickenshits, and we're intent on rubber stamping every job and competition-killing merger than comes down the pike -- that can't happen. Net neutrality is an imperfect stopgap measure until we figure out how to fix this mess. And fixing this mess requires some backbone and standing up to politically powerful telecom monopolies welded to our intelligence-gathering apparatus. No easy feat.

Hopefully, whatever happens, a Biden FCC will at a minimum make better real-world data a priority so we can, for the first time, accurately measure the least competitive and most disconnected areas of the country, then embrace creative solutions that drive competition to market. Instead of what we've long been doing for thirty years, which is to use bad ISP data to blindly guess which areas of the country need help, then throw billions of dollars at giant companies for networks that (mysteriously!) always wind up half deployed.

Again, it's not yet clear how much backbone a Biden FCC boss will be have, or just how serious the Biden FCC will be about restoring net neutrality and FCC authority. But whatever the future of the FCC looks like, it might be nice if we stopped our generation-long trend of letting monopolies like AT&T and Comcast dictate the lion's share of state and federal policy, then standing around with a dumb look on our collective faces wondering why US broadband is a mediocre mess.

Filed Under: congress, fcc, joe biden, net neutrality

U.S. Broadband Speeds Jumped 90% in 2020. But No, It Had Nothing To Do With Killing Net Neutrality.

from the damned-lies-and-statistics dept

Last last week, a report out of the UK topped the trending news items at Hacker News. The report found that U.S. broadband speeds -- historically the poster child for mediocrity -- jumped roughly 90% during the COVID-19 lockdowns. The improvements weren't consistent geographically, and the report was quick to note that by and large, the U.S. remains relatively mediocre when it comes to broadband speeds (in large part due to limited competition):

"The US stills lags behind many European and developed nations worldwide, and its major cities also often lag behind their European equivalents. That said, there is cause for celebration in Dallas, Seattle and Austin, after our analysis has shown that these cities are performing extremely well relative to most European capital cities."

I spoke briefly to study author Thomas Buck after he reached out to note that folks were misinterpreting his study. Yes, the study shows U.S. broadband speeds jumped 90% in 2020. But Buck also notes this likely isn't because of policy decisions at the FCC, or because ISPs did much of anything differently. It's most likely because when consumers were forced to stay home to work and attend school during COVID lockdown, they were simply willing to pay more money for already available, faster speeds because they realized faster broadband was essential. Buck put it this way:

"... the findings are more likely to suggest increased consumer spending on high-speed plans for working from home than anything else...speed test data is fascinating and helpful, but using it as proof that net neutrality was bad is a giant stretch by any means. When looking at broadband data, I think it’s more important to discuss the dark spots (subscriber data, full capacity testing at scale, same-year fiber build data) than what we have (hundreds of thousands of speed tests, most of them showing results a fraction of what ISPs advertise)."

Yet a number of folks (including commenters at Hacker News) set to work trying to claim that this sudden boost in speed was courtesy of the FCC's decision to kill net neutrality and effectively self-immolate at telecom lobbyist behest. It's part of a fairly relentless attempt to proclaim that because killing net neutrality didn't immediately result in a rainbow-colored explosion, the repeal itself must have somehow been a good thing.

For example, this entire thread from a Federalist contributor takes the study and creates an elaborate alternate reality where critics of the net neutrality repeal must have been wrong, because (you guessed it) the internet didn't immediately come to a stop:

Yes, many activists and supporters of net neutrality were hyperbolic in trying to explain the very real, very negative impact the net neutrality repeal would have over the longer term. That doesn't mean it wasn't a terrible idea done in exclusive service to telecom monopolies.

Once again, killing net neutrality didn't just kill fairly modest net neutrality rules. It left the FCC incapable of holding giant ISPs accountable for fraud, anti-competitive behavior, predatory billing, bogus fees, privacy violations, and all the other symptoms of a broken, uncompetitive, and highly geographically monopolized U.S. telecom market. If you think that's a good thing (especially during a massive economic and public health crisis that has shown broadband to be an essential lifeline), you either don't understand how any of this works, or are being intentionally misleading.

Speaking of misleading, the study also appears to have popped up in FCC Commissioner Brendan Carr's goodbye letter to Ajit Pai (pdf), in which he attributes the speed jump to Pai's incredible leadership:

"With Internet speeds more than doubling under his leadership, America is now home to the strongest 5G platform in the world."

That is, if you're playing along at home, not true. 83 million Americans live under a broadband monopoly. Tens of millions more live under a broadband duopoly. Americans pay some of the highest prices in the world for what's routinely patchy service, mediocre speeds, and terrible customer service. And U.S. 5G speeds also provably and dramatically lag behind most other developed nations as well. There's a reason for this: it's called regulatory capture and mindless pandering to powerful telecom monopolies. Resulting in the FCC effectively dismantling itself because Comcast and AT&T told it to.

Again, if you genuinely think having chickenshit regulators commit seppuku because some widely despised telecom monopolists told them to is a good thing, you're either very confused as to how absolutely any of this works, or you're being intentionally misleading. Possibly both.

Filed Under: ajit pai, broadband speed, competition, fcc, net neutrality

FCC Ignores The Courts, Finalizes Facts-Optional Repeal Of Net Neutrality

from the unserious-people dept

Just about a year ago the courts partially upheld the FCC's hugely unpopular net neutrality repeal. But it also kicked some aspects of the repeal back to the FCC. Most notably, the courts stated the Ajit Pai FCC couldn't ban states from protecting consumers if the FCC is no longer interested in doing so. The courts also noted that the FCC (surprise!) did little to no research into how the repeal would impact public safety or efforts to bridge the digital divide (the latter being kind of important in a massive pandemic in which affordable access is essential to survival) and urged the agency to try again.

Knowing full well the polls suggest their good times may soon be coming to an end, the FCC this week voted along party lines (pdf) to ignore the court's complaint, pat itself on the back for a job well done, and double down on its Orwellian-titled "Restoring Internet Freedom" repeal. With no changes to it whatsoever:

"After thoroughly reviewing the record compiled in response to its request for additional comment on these issues, the FCC found no basis to alter the FCC’s conclusions in the Restoring Internet Freedom Order. The Order on Remand finds that the Restoring Internet Freedom Order promotes public safety, facilitates broadband infrastructure deployment by Internet service providers, and allows the FCC to continue to provide Lifeline support for broadband Internet access service."

Again, despite chirping from some "experts," the repeal of net neutrality mattered. It not only killed off consumer protections, it hamstrung the FCC's ability to protect consumers and competitors from entrenched telecom monopolies. It shoveled much of this authority to an FTC telecom giants like Comcast and AT&T know full well lacked the authority, funds, or willpower to properly police one of the more problematic sectors in all of tech. That was the entire goal: zero accountability for widely disliked telecom monopolies. Anybody who claims the repeal "must not of mattered because the internet still works" is advertising their immense ignorance as to the chain of problems this obvious regulatory capture created for consumers and competitors alike.

FCC Commissioner Jessica Rosenworcel, in her own statement, lambasted the agency's unsurprising hubris:

"The decision before us today was an opportunity to step back in. It was an opportunity to rethink this agency’s rollback of net neutrality from top to bottom and front to back. I regret that it is not. Instead, it is a set of three cobbled-together arguments designed to tell the court to go away, the public that we are not interested in their opinion, and history that we lack the humility to admit our mistake."

Again, keep in mind that the entirety of the FCC's justification for repealing net neutrality is based completely on fabricated data from the telecom sector. The supposed benefits of the repeal? Also completely fabricated. And the repeal itself involved the broadband industry using fake and/or dead people to stuff the FCC comment section with bogus support with the FCC's help. Nobody, on absolutely any level, has been held accountable for any of this. In fact, when many journalists and pundits talk about the repeal, most of these facts are routinely ignored.

This is all before you even get to Ajit Pai's blistering hypocrisy in the subsequent Section 230 attacks. The same folks who repeatedly claimed that natural telecom monopolies shouldn't be treated as a common carrier, have pivoted 180 to claim that non-dominant social media platforms like Twitter should be. The same folks who spent years insisting the FCC had no authority over the parts of the internet it actually had authority over, now insist the FCC must regulate the parts it has no authority over. The same folks who whined incessantly about the perils of the Fairness Doctrine, now mindlessly support something arguably worse in Trump's sloppy social media executive order.

All to keep social media giants from policing toxic political disinformation to protect GOP power, now highly reliant on online disinformation to gloss over what are usually, much like the net neutrality repeal, often extremely unpopular policies.

Despite obvious net neutrality fatigue in policy circles, this is still a battle that matters if you give a shit about things like monopolization, competition, healthy networks, consumer rights, and even playing fields. "Big telecom" has done a great job the last few years convincing DC that "big tech" needs massive, expansive new oversight while "big telecom" should be allowed to engage in whatever anti-competitive behavior it likes. But if we genuinely want to police unchecked corporate power and its impact on competition and innovation, undermining our regulators using, fraud, deceit, and bogus data isn't the solution.

Filed Under: ajit pai, fcc, jessica rosenworcel, net neutrality, repeal, rifo

It's Opposite Day At The FCC: Rejects All Its Own Legal Arguments Against Net Neutrality To Claim It Can Be The Internet Speech Police

from the are-you-guys-fucking-serious? dept

As was expected following Ajit Pai's announcement that the FCC would be moving forward with the rulemaking process to reinterpret Section 230 of the Communications Act in response to a petition from NTIA -- instigated by the President's unconstitutional executive order, which came about because Twitter suggested people research the facts,following Trump tweeting blatant disinformation regarding elections and ballots -- the FCC's General Counsel Tom Johnson has released the FCC's legal explanation for how it could possibly have authority here.

The shorter answer is that it has no authority here. It hasn't had authority over websites on the internet ever. Indeed, when the Cox/Wyden bill that became 230 was being debated in Congress, they made it quite clear in floor speeches that the intent of their bill was to prevent the FCC from having any authority over websites. That was the point. As Cox said during a floor speech:

Some have suggested, Mr. Chairman, that we take the Federal Communications Commission and turn it into the ‘Federal Computer Commission’ — that we hire even more bureaucrats and more regulators who will attempt, either civilly or criminally, to punish people by catching them in the act of putting something into cyberspace. Frankly, there is just too much going on on the Internet for that to be effective....

[This bill] will establish as the policy of the United States that we do not wish to have content regulation by the Federal Government of what is on the Internet —that we do not wish to have a ‘Federal Computer Commission’ with an army of bureaucrats regulating the Internet....

And no one -- least of all the FCC -- has ever argued otherwise.

In fact, throughout the various net neutrality fights, many at the FCC including the majority in the current FCC have argued -- vehemently, often in court and under oath -- that the FCC has no authority whatsoever in this area. Here's FCC chair Ajit Pai just two years ago, as highlighted by the Washington Post:

Pai’s announcement broke from his past public comments on the issue, according to experts. Asked at an August 2018 event about the FCC’s ability to police social media, for example, the chairman stressed that the agency “does not regulate them” and does not “have the authority under the laws that have been passed by Congress and the Constitution, of course, under the First Amendment.”

“So from that perspective, they are not going to be regulated in terms of free speech,” Pai continued, stressing that these tech companies should instead commit to transparency. He said consumers and competition otherwise would correct any ills: “If they want to focus on cats to the exclusion of dogs, ultimately, it’s a market that’s going to capitalize. There are a lot of dog owners out there who say it’s a step too far. . . and they’ll move to some other platform.”

“The government doesn’t have a role in solving every single ill that we identify on these platforms,” Pai said.

Well, that's embarassing.

But even more embarrassing and potentially legally messy, is the fact that this very same FCC has been arguing in court pretty much the exact opposite of what they're now arguing here. This is the key part:

To understand why the Commission has authority to interpret Section 230, it helps to understand how that section became part of the Communications Act. In 1934, Congress adopted the Communications Act in its original form, establishing the FCC as an independent federal agency charged with regulating interstate and international communications. Four years later, Congress added Section 201(b), which delegated to the Commission the power to “prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of this Act.”

Since then, the most consequential set of amendments to the Communications Act arrived in the Telecommunications Act of 1996, which updated the Act for the then-nascent Internet age. Section 1(b) of that Act made clear that, except where otherwise expressly provided, each of the 1996 Act’s provisions were to be inserted into the Communications Act of 1934.

Title V of the 1996 Act was named the “Communications Decency Act of 1996.” Among other provisions, this Title included Section 509, named “Online family empowerment.” Consistent with Section 1(b), Congress instructed in Section 509 that “Title II of the Communications Act of 1934 . . . is amended by adding at the end the following new section: Section 230.” Thus, Section 230 was born and became part of the Communications Act of 1934.

Basically, they're saying that they have the authority to interpret CDA 230 under Section 201(b) of the Communications Act. This is (admittedly) somewhat broad power granted to the FCC to set regulations -- but for common carriers as classified under Title II. At least that's how it's always been interpreted. That was a key part of the Net Neutrality fight. Would the FCC classify broadband internet access as such a common carrier under Title II, and if they did, then they could put in place a few simple rules to guarantee that these common carrier internet access providers couldn't block or favor certain services.

Here, the FCC literally skips all of that and just acts like it's obvious and not even in question that every website is somehow a Title II service. This is... insane? It also goes against everything that this very same FCC said in Ajit Pai's "Restoring Internet Freedom Order" (RIFO) that took away Tom Wheeler's Title II classification for broadband access and the associated net neutrality rules. From Pai's own order:

On this record, claims of authority to adopt conduct rules governing ISPs that also offer telecommunications services have many shortcomings. The Open Internet Order contended that ISPs that also offer telecommunications services might engage in network management practices or prioritization that reduces competition for their voice services, arguably implicating section 201(b)’s prohibition on unjust or unreasonable rates or practices in the case of common carrier voice services and/or section 251(a)(1)’s interconnection requirements for common carriers. The Open Internet Order never squares these legal theories with the statutory prohibition on treating telecommunications carriers as common carriers when they are not engaged in the provision of telecommunications service or with the similar restriction on common carrier treatment of private mobile services.

In other words, in the net neutrality scenario, the FCC is intoning, seriously, that it has no authority to use 201(b) in cases in which the broadband providers are not providing common carrier telecommunications services.

Yet, now, this very same FCC is claiming its clear that you can use 201(b) on non-common carrier, non-telecommunications-providing, websites?

Incredibly, in the FCC's justification, they claim that the law doesn't require at all what they had claimed it required before as a justification for getting rid of net neutrality:

They note that most of Section 201(b) deals with rules that apply to common carriers and argue that Congress did not intend to treat social media companies and other covered websites as common carriers. But the general grant of rulemaking authority at the end of Section 201(b) contains no reference to common carriers; it simply empowers the Commission to make rules that are “necessary in the public interest to carry out the provisions of this Act,” without qualification. For this reason, the U.S. Court of Appeals for the Sixth Circuit in Alliance for Community Media v. FCC, 529 F.3d 763 (6th Cir. 2008), held that Section 201(b) gave the Commission authority to interpret ambiguous provisions in the Cable Television Consumer Protection and Competition Act of 1992. Notably, that Act by its terms applies to cable operators, not common carriers. The Court reasoned, relying on Iowa Utilities Board, that it was sufficient that the 1992 law amended the Communications Act and incorporated the relevant provisions therein. The same reasoning applies to Section 230.

Got that? Even though we said before that it required telecommunications services from a common carrier, we can ignore that now.

It gets even worse. In Pai's RIFO, they even point to Section 230 as evidence of why the internet is an information service over which they have no authority, and not a telecommunications service.

We also find that other provisions of the Act support our conclusion that broadband Internet access service is best classified as an information service.219 For instance, Congress codified its view in section 230(b)(2) of the Act, stating that it is the policy of the United States “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.” This statement confirms that the free market approach that flows from classification as an information service is consistent with Congress’s intent. In contrast, we find it hard to reconcile this statement in section 230(b)(2) with a conclusion that Congress intended the Commission to subject broadband Internet access service to common carrier regulation under Title II.

And yet, now they suddenly think that they can regulate the internet? Yup. Because they think the public are idiots.

Nor does it matter that the U.S. Court of Appeals for the D.C. Circuit in Comcast v. FCC, 600 F.3d 642 (D.C. Cir. 2010), and the FCC itself in the Restoring Internet Freedom Order, agreed that Section 230(b) was merely a statement of policy and not an affirmative source of authority. The Commission need not rely on Section 230(b) as the source of its authority in this contemplated rulemaking. Instead, the Commission can comfortably use Section 201(b) to resolve ambiguities in the text of Section 230(c)

Basically, the FCC under Pai is now turning around everything he said to kill net neutrality (even though in that case there was a strong argument that broadband is a traditional common carrier telecommunications service), and instead saying that of course the FCC gets to regulate speech on websites.

Or, as Adam Thierer noted, night is day with this new FCC justification:

Filed Under: ajit pai, common carrier, fcc, free speech, net neutrality, regulations, section 201, section 230, title ii, tom johnson