After Attacking Random Hollywood Supporters Of Net Neutrality, Ajit Pai Attacks Internet Companies

from the why? dept

So, we already talked about FCC chair Ajit Pai's odd attacks on a small group of Hollywood celebrities for daring to support net neutrality, but his other point of attack seemed even more random: internet companies. Remember, the whole point of Pai doing this -- according to his very own words -- is to get the government out of the internet and to allow for what he calls "internet freedom." But, it's funny, because that's not really the message you'd get if you heard Pai speaking over the past few days. In his talk on Tuesday he seemed to be suggesting that perhaps Twitter, in particular, needed a heavy dose of regulation:

Anyway, the criticism of this plan comes from more than just Hollywood. I’m also well aware that some in Silicon Valley have criticized it. Twitter, for example, has said that it strongly opposes it and “will continue to fight for an open Internet, which is indispensable to free expression, consumer choice, and innovation.”

Now look: I love Twitter, and I use it all the time. But let’s not kid ourselves; when it comes to an open Internet, Twitter is part of the problem. The company has a viewpoint and uses that viewpoint to discriminate. As just one of many examples, two months ago, Twitter blocked Representative Marsha Blackburn from advertising her Senate campaign launch video because it featured a pro-life message. Before that, during the so-called Day of Action, Twitter warned users that a link to a statement by one company on the topic of Internet regulation “may be unsafe.” And to say the least, the company appears to have a double standard when it comes to suspending or de-verifying conservative users’ accounts as opposed to those of liberal users. This conduct is many things, but it isn’t fighting for an open Internet.

This is, of course, playing to his political base, who are currently angry at Twitter. But... it's also... strange. Both of the examples he brings up are misleading or were overblown. We were among those who mocked Twitter for blocking Blackburn's ad, but as a bunch of people, who chided us in the comments, correctly noted, no one stopped Blackburn from posting the tweet -- just from promoting it as an advertisement on Twitter's ad platform. Which is really different than blocking content -- and, not only that, but Twitter backed down within hours of this becoming public, admitting it was a mistake. The story about Twitter "warning users" that "a link to a statement by one company on the topic of Internet regulation 'may be unsafe'" is also exaggerated. Twitter's sketchy anti-spam/anti-malware detector for links, very briefly, accidentally warned that AT&T's blog may be unsafe. Once again, this lasted for a very short time, and was clearly a mistake by the filter.

Indeed, these examples serve to undermine Pai's whole point. First of all, having someone with regulatory power directly claim that "Twitter is the problem" while suggesting (misleadingly) that it's unfairly censoring content is... just strange for Pai. It sounds like he's suggesting that Twitter needs to institute some sort of "fairness doctrine" which is a policy basically universally opposed by Republicans, and especially Pai. Hell, just last month, Pai said the following:

Pai also discussed the FCC's history with the Fairness Doctrine, which was eliminated in 1987. When in force, the doctrine required stations to devote some programming to controversial issues of public importance and to air contrasting views on those issues.

"We learned that it was an affront to the First Amendment to have the government micromanaging how much time a particular broadcast outlet decided to devote to a particular topic," Pai said today.

Moreover, "it was an administrative nightmare. You had FCC employees literally spending hours upon hours listening to broadcasts, watching them, and logging to the second how much time a broadcaster spent on one side of the issue vs. the other," Pai said.

And yet, now, with his comments about how Twitter filters, he certainly seems to be hinting at the idea that Twitter should be forced to implement a sort of "fairness doctrine" itself.

But the bigger issue is that Pai is directly saying this in response to the company opposing his plans. It's a very Trumpian move. Rather than respond to the actual points raised by Twitter, Pai is attacking them and implicitly threatening them with excessive regulation. While pretending to be the great deregulator. What a hypocrite. He goes on:

And unfortunately, Twitter isn’t an outlier. Indeed, despite all the talk about the fear that broadband providers could decide what Internet content consumers can see, recent experience shows that so-called edge providers are in fact deciding what content they see. These providers routinely block or discriminate against content they don’t like.

This is conflating a variety of different things -- and again, certainly appears to be Pai pining for a fairness doctrine on the internet (but not for internet access) just because internet companies have supported net neutrality. But the larger point is that he's deliberately comparing apples to orangutans. Internet access providers -- whom Pai is looking to free up to do whatever the hell they want -- are clear natural monopolists. They control the last mile to the home and the vast majority of Americans have no real competition in those providers. And they control THE WHOLE PIPE, meaning they can legitimately completely block users' access or degrade it or cause other problems. The so-called "edge providers" are completely different. They all have competitors. They don't control overall access. There's no monetary cost to switching or avoiding them.

The examples from the past year alone are legion. App stores barring the doors to apps from even cigar aficionados because they are perceived to promote tobacco use. Streaming services restricting videos from the likes of conservative commentator Dennis Prager on subjects he considers “important to understanding American values.” Algorithms that decide what content you see (or don’t), but aren’t disclosed themselves. Online platforms secretly editing certain users’ comments. And of course, American companies caving to repressive foreign governments’ demands to block certain speech— conduct that would be repugnant to free expression if it occurred within our borders.

It's pretty odd to couch this as a "free expression" argument, because the courts have made it clear that filtering decisions by the platforms are, themselves, protected under the First Amendment. And, as we've discussed, the Prager lawsuit is silly and going nowhere fast. So far, all of the actual examples that Pai has tossed out are... bad examples. They don't actually show what he wants them to show and they just underline how weak his evidence is.

But the larger point is that if YouTube doesn't want to host your content, there are lots of other ways to host your content. But if Verizon says "fuck you" and you don't have any other options than Verizon, you're screwed. That's why net neutrality matters so much for internet access providers. This attempt to turn the issue around on so-called "edge providers" has long been the distraction flag attempted by the big broadband players, but it's meaningless. Complaining that Google's algorithms decide what you see and what you don't -- well, what the hell does he want? Google is a search engine. The whole point of it is to rank links based on search criteria. Is Pai arguing that they shouldn't rank at all and just throw up random results any time anyone does a search?

As for the fact that these companies have caved to some foreign governments to take down content -- we agree, that's repugnant. And we've said so many times and urged these companies to take stronger stands where they could. But... it's not just "repressive foreign governments" who have been pressuring these platforms to take down content. It's the US government as well. Remember, as we speak, we have Congress rushing to pass a law in SESTA that will require platforms to remove lots of content or face criminal liability. We have that same Congress threatening new regulations on Facebook, Twitter and Google for the supposed crime of allowing Russian propaganda to exist on those platforms. We have the US government telling these same tech platforms to magically stop ISIS. And, frankly, Twitter especially took a much stronger "free speech" stance for years and got slammed for it over and over again, often by US government officials. To now argue that their decision to do some filtering (often badly) is somehow an affront, after they were pressured into doing so, often by this very same US government, is just ridiculous.

In this way, edge providers are a much bigger actual threat to an open Internet than broadband providers, especially when it comes to discrimination on the basis of viewpoint. That might explain why the CEO of a company called Cloudflare recently questioned whether “is it the right place for tech companies to be regulating the Internet.” He didn’t offer a solution, but remarked that “what I know is not the right answer is that a cabal of ten tech executives with names like Matthew, Mark, Jack, . . . Jeff are the ones choosing what content goes online and what content doesn’t go online.”

Except what happened with Cloudflare was quite different. Could you ever imagine AT&T President Randall Stephenson posting about the moral dilemma over whether or not AT&T should do something that might harm some customers? Cloudflare was addressing a serious issue by kicking off a discussion. AT&T just fucks over users at basically every opportunity. Comcast didn't discuss a moral dilemma it faced when throttling BitTorrent. It hid from it. AT&T didn't discuss the moral dilemma it had in blocking the use of Facetime.

For Pai to use the fact that Cloudflare's Matthew Prince held an open and transparent conversation about this against him, while enabling the broadband companies to continue their fuckery in secret, is incredibly hypocritical.

Nonetheless, these companies want to place much tougher regulations on broadband providers than they are willing to have placed upon themselves.

Except, that's ridiculous. Again, one is core access infrastructure. One is edge-providers. There aren't any "net neutrality" regulations you can place on edge providers that make sense. It would lead to things like no spam filtering, and no ranked search results. That's nonsensical.

So let’s be clear. They might cloak their advocacy in the public interest, but the real interest of these Internet giants is in using the regulatory process to cement their dominance in the Internet economy.

This one is pure bullshit. First off, as we've noted, the biggest, most dominant, internet companies -- Google and Facebook -- have more or less sat out net neutrality fights for the past few years. Indeed, both companies actually were against net neutrality in other countries. Without net neutrality, Google and Facebook can actually expand their dominant positions, because if anyone can pay up to Verizon, Comcast and AT&T to get preferred treatment, it's Google and Facebook.

It's the smaller internet companies who get screwed. That's why the most vocal opponents to Pai's plan have not been Google or Facebook. But over 1,000 startups who know how much damage Pai's plans will do, in part by cementing Google and Facebook's position in the market. So, for Pai to claim that internet companies are supporting net neutrality for their own dominance... there's no evidence to support that at all. Indeed, without net neutrality it's much harder for new entrants, since they can't cut the same kinds of deals with the access providers.

And here’s the thing: I don’t blame them for trying. But the government shouldn’t aid and abet this effort. We have no business picking winners and losers in the marketplace. A level playing field, not regulatory arbitrage, is what best serves consumers and competition.

And that's the most hilarious statement of all, given that Pai has spent his entire time as chair tilting the playing field towards three companies: Verizon (his former employer), Comcast and AT&T.

On Wednesday, Pai continued his attacks on internet platforms, in some ways contradicting his statements from just a day earlier. You see, now he's upset that these platforms allow people to be rude to him online. Because, what the fuck, nothing matters anymore:

In a way, one could say that ‘social media’ is perhaps the most inapt phrase ever coined. It allows us to stay in touch while keeping a distance. It has sped the breakdown in human interaction. It has fed the unfiltered id at the expense of genuine understanding. And it has to some extent enabled the worst of human impulses — the drive to associate only with one’s own and to exclude the ‘other.’”

So, uh, then what should Twitter do. Should it take steps to reduce this kind of thing as it sounds like you now want -- or should it filter. And if it filters, then you go back to your complaints from the day earlier that how dare Twitter filter content that Pai and his supporters like.

I guess if Pai's point is to prove that we don't want the internet regulated by the likes of someone like himself, because his viewpoints are nonsensical and contradictory -- well sure. But it's an odd strategy to bet on "I'm so crazy, you don't want me to regulate the internet." And, of course, that, itself, totally misrepresents the 2015 open internet rules -- which again only apply to bad behavior by access providers that harm the public.

Either way, Pai seems to now be channeling his boss, the President. His arguments use his political pulpit to badger anyone who disagrees with him, refuse to address actual issues, and make points that are nonsensical and self-contradictory. The simple fact is that the public wants an open and free internet. And Pai is looking to kill that, no matter how many times he pretends his order helps the internet. The only people who seem to support Pai's plan have connections to the big broadband players, and that should tell you something pretty clearly.

Filed Under: ajit pai, fcc, filtering, first amendment, free speech, intermediary liability, net neutrality, platforms

Absent Facts To Support Repealing Net Neutrality, Ajit Pai Wildly Attacking Hollywood Tweeters

from the well,-that's-one-strategy dept

As the old lawyer saying goes: "When the facts are on your side, pound the facts. When the law is on your side, pound the law. When neither is on your side, pound the table." It appears that FCC chair Ajit Pai has taken that to heart. Neither the law, nor the facts are on his side with regards to his attempt to gut net neutrality, so he's done the modern equivalent of pounding the table: blame Hollywood and the internet companies for the fact that almost everyone disagrees with his plan to kill net neutrality.

The law is against him, because in order to reverse the order from the previous FCC, Pai needs to show that this change is not "arbitrary and capricious." Many people falsely assume that the FCC can just make whatever rule it wants, and thus with every change of the FCC the rules can flip flop. But that's not how it works. While the courts give strong deference to administrative agencies in their decision-making capabilities, one area where the courts will push back is if a regulatory change is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." The courts have already upheld the 2015 Open Internet Order by Tom Wheeler as legitimate, where that FCC showed that reclassifying broadband as a Title II service was perfectly reasonable based on the changes to the market conditions since broadband was declared a Title I information service a decade or so earlier. So, for Pai's plan to actually pass judicial scrutiny, he has to prove that the market has changed so much in the past two years, that an obvious correction is necessary. So far, the only thing he's been able to rely on are clearly bogus studies that are easily debunked by the companies themselves in their statements to Wall Street about the impact of the 2015 rules. Thus, both the rules and the law are against him.

Of course, rather than face up to the fact that the vast majority of Americans (Democrats, Republicans, everyone) support keeping net neutrality rules in place, Pai has spent the last week or so only retweeting his supporters and ignoring detractors entirely. And, now, apparently, his "pounding the table" is to lash out at famous Hollywood stars... and internet companies (note: not internet access companies), as if they're the problem.

On both Tuesday and Wednesday he decided to lash out. In this post, we'll focus on the weird lashing out at famous people, and in a follow up, we'll talk about his misguided attacks on internet companies. But, really, it's kind of frightening that Pai -- who has regulatory power over some actions of the entertainment industry would randomly call out some actors and slam their pro-net neutrality tweets. How dare they do such a thing, according to Ajit Pai.

Next, I’d like to take on the main criticisms I’ve heard directed against the plan and separate fact from fiction—one claim at a time. And given that some of the more eye-catching critiques have come from Hollywood celebrities, whose large online followings give them out-sized influence in shaping the public debate, I thought I’d directly respond to some of their assertions.

He then proceeds to namecheck Kumail Nanjiani, Cher, Mark Ruffalo, George Takei, and Alyssa Milano -- claiming to rebut each of their tweets that he found offensive. Not surprisingly, with each one he either misrepresents what these actors said, or the facts around what his plan will do. It's almost pathological.

For Nanjiani, Pai repeats his big lie that he's just returning things to where they were pre-2015, and that it will be just like the way the internet was from 1996 through 2015.

Perhaps the most common criticism is that ending Title II utility-style regulation will mean the end of the Internet as we know it. Or, as Kumail Nanjiani, a star of HBO’s Silicon Valley put it, “We will never go back to a free Internet.”

But here’s the simple truth: We had a free and open Internet for two decades before 2015, and we’ll have a free and open Internet going forward.

As we've explained in fairly great detail, that's hogwash. Since 2004, every previous FCC chair has sought to put forth and enforce net neutrality rules, and from 2008 on, they've been shot down by the courts every time, saying that to enforce the net neutrality rules the FCC wanted, it had to reclassify under Title II. At no point was the internet under the regulatory regime that Pai is pushing with his order.

Regarding Cher, he stated:

Another concern I’ve heard is that the plan will harm rural and low-income Americans. Cher, for example, has tweeted that the Internet “Will Include LESS AMERICANS NOT MORE” if my proposal is adopted. But the opposite is true. The digital divide is all too real. Too many rural and low-income Americans are still unable to get high-speed Internet access. But heavy-handed Title II regulations just make the problem worse! They reduce investment in broadband networks, especially in rural and low-income areas. By turning back time, so to speak, and returning Internet regulation to the pre-2015 era, we will expand broadband networks and bring high-speed Internet access to more Americans, not fewer.

Except, again, there is nothing in the rules that are onerous. Well, unless you're trying to screw over subscribers. As successful smaller ISP Sonic has noted, the only regulatory burden from Title II is if you're behaving badly towards customers. That's why over 40 small ISPs told Pai that they supported keeping the rules, and that removing the 2015 order gives the giant broadband companies -- Verizon, Comcast and AT&T -- too much power to cut them out of the market. For Pai to argue that this order will magically restore competition and broadband deployment is laughable.

And, on a separate note, for someone claiming to support expanding rural and low-income broadband, Pai has some serious explaining to do. Since taking over the FCC he's eliminated rules that stopped telcos from ditching copper networks, he's argued that a single broadband provider can count as "sufficient competition," has downgraded what counts as broadband to pretend there's more competition when there isn't, and has basically made up out of thin air claims that uncompetitive markets are competitive. In short: Pai is not credible on this. He's done everything to give more power to the giant internet access providers, who have shown little interest in providing broadband to rural and low-income households.

Pai's "responses" to Mark Ruffalo and George Takei were similarly misleading (a key point with Ruffalo is that Pai totally misinterpreted Ruffalo's tweet, which was concerned about giant ISPs controlling the internet, for the government "controlling" the internet -- which it does not), but let's jump forward to his response to Alyssa Milano:

Shifting gears, Alyssa Milano tweeted, “We’ve faced a lot of issues threatening our democracy in the last year. But, honestly, the FCC and @AjitPaiFCC’s dismantling of #NetNeutrality is one the biggest.” I’m threatening our democracy? Really? I’d like to see the evidence that America’s democratic institutions were threatened by a Title I framework, as opposed to a Title II framework, during the Clinton Administration, the Bush Administration, and the first six years of the Obama Administration. Don’t hold your breath—there is none. If this were Who’s the Boss?, this would be an opportunity for Tony Danza to dish out some wisdom about the consequences of making things up.

First off, the reference to "democracy" by Milano isn't specifically about Title I v. Title II, but about how the internet itself works. A weakened internet, controlled by a few giant monopolists, who have the power to block or diminish access to content can absolutely harm democracy. But, even more to the point, the fact that Pai is ignoring the fact that the overwhelming majority (98.5% by one report) of unique -- non-bot, non-pre-filled form -- comments to the FCC on this matter supported keeping the rules.

Meanwhile, one of Pai's mentors and strongest supporters -- who lead the Trump transition team for the FCC and recommended Pai become chair -- Jeff Eisenach showed exactly the contempt he feels towards "democracy" when it comes to the FCC, directly spitting on the idea that the FCC should reflect democratic ideals:

So... maybe Pai and Eisenach should confer on whether Verizon, Comcast and AT&T want them to be supporting democracy this week or undermining it. Because, they seem to be confused.

Meanwhile, it appears that Pai assumed these Hollywood folks didn't understand the issue so they wouldn't possible hit back with facts. Not so with Milano, who responded in fairly great detail about why net neutrality is quite important to democracy, and why Pai is being misleading in his claims.

Either way, the whole thing is weird. Tons and tons of people have been speaking out on this issue. Why Pai decided to pick on five famous actors/singers, when they're hardly a representative sample is anyone's guess. Perhaps he's hoping that his audience would think that the vast, widespread criticism and backlash he's facing was just driven by "liberal" Hollywood. Perhaps he's hoping that by naming famous names it will distract from his lack of facts. But all it really highlights is just how weak Pai's case really is.

Stay tuned for our next post on his even odder decision to attack internet companies.

Filed Under: ajit pai, alyssa milano, cher, fcc, george takei, hollywood, kumail nanjiani, mark ruffalo, net neutrality

The FCC's Attack On Net Neutrality Is Based Entirely On Debunked Lobbyist Garbage Data

from the post-truth-apocalypse dept

For several years now one of the broadband industry's biggest criticisms of net neutrality is that it "utterly devastated" investment into broadband networks. But for just as long, we've noted how every time a journalist or analyst actually dissects that claim, they find it's completely unsupportable. What objective analysts do tend to find is that the telecom sector hires an army of economists, consultants, fauxcademics and lobbyists more than happy to manipulate, distort and twist the data until it supports whatever conclusion they're paid to parrot.

That net neutrality didn't harm sector investment isn't really debatable. Just ask industry executives from Frontier, Comcast, Cablevision, Sprint, AT&T, Sonic and even neutrality public enemy number one, Verizon all of who are on public record telling investors the "net neutrality killed sector investment" claim simply isn't true. That this concept is a canard is also supported by public SEC filings and earnings reports, as well as the billions being spent on spectrum as these companies rush toward the fifth generation (5G) wireless networks of tomorrow.

Most of the sector's dollar-per-holler economists just cherry picked specific windows of time to track CAPEX increases and declines, intentionally ignoring that many of these changes have nothing to do with net neutrality (for example, Charter's CAPEX dipped when it completed its deployment of digital cable converters) as well as numerous large scale fiber deployments (in areas with competition, at least). But no matter how many times this claim is debunked, it has remained the centerpiece of Ajit Pai's facts-optional assault on net neutrality protections.

That said, the claim that net neutrality harmed investment has, of course, once again popped up again this week as the agency tries to defend its extremely unpopular plan to gut the rules. In fact, it was part of a rather fact-optional fact sheet (pdf) provided by the FCC as it tried to convince consumers that giving a giant middle finger to consumers was a really nifty idea. Unfortunately for the FCC, reporters capable of basic fact checking are, again, pointing out that this claim is entirely untrue:

"Hampered by those rules, broadband companies are cutting back on investing in things like expanding their services to new customers or upgrading their networks, Pai, the FCC chairman, argues. If that's really what's been happening, that would be terrible, especially in a country that's ever more dependent on the internet and where the digital divide remains pronounced. But there's no evidence to prove Pai's assertion. In fact, the data Pai points to doesn't show anything close to a marked decrease in broadband investment. Instead, it shows that while broadband investment has risen and fallen a little bit over the years, it's been mostly flat since 2013.

The amusing part is, that when challenged to provide real, objective data proving that net neutrality was an investment apocalypse, the FCC engages in little more than a glorified shoulder shrug. Last week, when pressed to defend its claim, FCC spokespeople simply began directing reporters to long-ago debunked data from telco lobbying organizations like USTelecom, which is majority funded and operated by AT&T:

"During a conference call FCC officials held with reporters last week, I asked about this discrepancy between Pai's assertion that investment is declining and what the actual data shows. The officials dismissed my question, saying I had my facts wrong. But they didn't offer any data that would prove Pai's argument.

Reached later, an FCC representative pointed to the USTelecom data (posted above) that Pai previously referenced. The representative declined to make the chairman or anyone else on his staff available for an interview."

Again, if you're playing along at home, that's a government agency defending its frontal assault on popular consumer protections by telling reporters to go ask lobbyists. And when Ajit Pai's FCC is informed that this data isn't reliable and has been debunked, the agency's staffers will just give inquiring reporters a blank stare, and turn their focus toward news outlets more than happy to prop up this kind of blatant bullshit. The fact that few people even seen to find this strange or distasteful is a pretty solid indication of how far down the post-truth rabbit hole we've fallen. And if you're a reporter that continues to take this dated canard at face value, you're part of the problem.

Filed Under: ajit pai, fcc, investment, net neutrality

Ajit Pai's Big Lie

from the not-at-all dept

I want to start out this post by making a key point: I know that it's become fashionable to launch into personal and ad hominem attacks on people we disagree with politically of late. We've sought to avoid doing that here on Techdirt, even if we often will criticize people and their positions in stark terms. Over the past few days, however, the ad hominem attacks on FCC chair Ajit Pai by some have been absolutely disgraceful -- and absolutely counterproductive. I disagree with Pai quite a lot (as you'll see below). But the venom and attacks he's received from many are not just unfair and misguided, but only serve to bolster the idea that the people arguing against him are unhinged from reality. I've met Pai a few times and have found him to be both thoughtful and intelligent. I still believe that he is deeply misguided about multiple important issues, but we can debate those issues without resorting to personal attacks. I hope that others will follow suit.

Ever since Ajit Pai became chair of the FCC he's been systematically undoing more or less everything his predecessor, Tom Wheeler, accomplished during his (perhaps surprisingly) effective chairmanship. To do that, Pai has engaged in a series of statements and positions that, at best, have involved misrepresentations of reality. There are a number of these that may be worth exploring, but I want to focus on one that I'll refer to as Ajit Pai's Big Lie, because it's the key argument he's made, underlining his reasoning for chucking out the existing net neutrality rules. Here is the opening paragraph from the FAQ that Pai released last week, setting out his reasoning... and also succinctly presenting Ajit Pai's Big Lie:

Over twenty years ago, President Clinton and a Republican Congress established the policy of the United States “to preserve the vibrant and competitive free market that presently exists for the Internet . . . unfettered by Federal or State regulation.” For decades, Commission policies encouraged broadband deployment and the development of the Internet. That ended two years ago. In 2015, the Commission imposed heavy-handed, utility-style regulation on Internet service providers (ISPs). Since then, broadband investment has fallen for two years in a row—the first time that that’s happened outside a recession in the Internet era. And new services have been delayed or scuttled by a regulatory environment that stifles innovation.

You might think that the "Big Lie" is the idea that the 2015 rules killed investment. And that is a lie. Actual evidence from financial reports has proven that completely false repeatedly. But, that's a smaller lie here. Ajit Pai's Big Lie is the idea that gutting all net neutrality protections is somehow returning FCC policy to the way things were two years ago, and that "for decades" the FCC kept out of this debate. All of that is wrong. And, unlike the other lie concerning investment -- where Pai and others can fiddle with numbers to make his claims look right -- Ajit Pai knows that the Big Lie is false.

Pai likes to point back to the Telecommunications Act of 1996 as his starting point in claiming that the internet is free from regulations, and suggests that things just changed with the 2015 FCC order. But he literally knows this is wrong. First of all, for all his talk of using 1996 as the starting date to show "decades" of supposedly unchanged FCC positions on this, he conveniently leaves out that the FCC didn't actually classify cable broadband as an information service... until 2002. That's from the FCC's own announcement about it. And this was fought out in court, eventually leading to the Brand X Supreme Court ruling in 2005 that said the FCC had the right to determine if broadband was an information service or a telco service (which is why the 2015 order has been upheld).

And, even then, telco (i.e., DSL) based broadband was still classified under Title II. It was only in 2005 that the FCC officially reclassified telco-based broadband as an information service, rather than a Title II covered telco service. This move actually stripped broadband of the one feature that had created the most competitive markets: the requirement to share their lines.

So, as a starting point, the idea that there's been a consistent policy position from 1996 until 2015 is simply wrong. The FCC itself changed the classification of broadband providers in 2002 and again in 2005.

Next, the idea that "net neutrality" itself is a new concept that only came about with the 2015 order is complete and utter hogwash. And, again, this is something that Pai knows well. If you go back through the previous four FCC chairs -- under both Democrat and Republican administrations -- they all supported net neutrality. They just struggled with how to implement it. In 2004, then FCC chair Michael Powell presented his "guiding principles" for "preserving internet freedom." In that document, Powell laid out an early argument for net neutrality (before the term had really caught on), noting that it was important that broadband providers offer up full access to the entire internet equally.

In that speech, he actually warned of why it would be dangerous for an internet access provider to block a competing VoIP service, and that the FCC "must keep a sharp eye on market practices that will continue to evolve rapidly." And, indeed, a year later, when Powell discovered that a small ISP named Madison River was blocking VoIP calls via Vonage, Powell's FCC fined Madison River using Title II as the justification (the consent decree refers to 47 USC 208, which is part of Title II).

So we had a Republican FCC chair who clearly supported net neutrality and used Title II to make it happen. How the hell can Ajit Pai square this with his claim of no one using Title II or supporting net neutrality until Tom Wheeler's 2015 order?

And we're just getting started. Powell's successor was Kevin Martin -- another Republican under President George W. Bush. Martin also strongly supported net neutrality and, in many ways, kicked off the process that eventually resulted in Wheeler's order. It was under Martin's watch that it was discovered that Comcast was throttling BitTorrent and the FCC issued an order telling Comcast to knock it off. By that point, the FCC had already (see above) made it clear that broadband was not a Title II service, so it relied on other parts of its claimed mandate to issue the order.

That went to court and the court said that the FCC did not have the proper authority to police such a net neutrality violation under the existing rules. The court said that the FCC was trying to stretch its ancillary authority too far -- that even though the FCC wanted to, it could not enforce net neutrality requirements on information services. Basically, the court was telling the FCC it fucked up in reclassifying broadband away from Title II, even as it still believed in the importance of net neutrality (and, yes, again, as a reminder, this was under a Republican FCC).

That's why the next FCC chair, Julius Genachowski, proposed a different set of rules for net neutrality in 2010. However, under tremendous pressure from the broadband providers, Genachowski punted and tried to craft net neutrality rules without reclassifying broadband companies under Title II. Verizon (who helped write the rules) still sued over these new rules... and won. Basically, the court said (again) "Hey, FCC, you clearly want net neutrality, but the only way to do that is to reclassify broadband under Title II."

It was only then, with the next FCC chair, Tom Wheeler, that the FCC actually did so. And that's why Wheeler's Open Internet order has been held up in court already.

But read through all of this carefully, and try to square this with Ajit Pai's Big Lie -- that since 1996, broadband has been treated one way, and there's been no FCC push for net neutrality. The FCC considered broadband covered by Title II for nearly a decade after the Communications Act of 1996, and even as it was reclassifying broadband to be an information service, every single FCC chair expressed strong support for net neutrality and tried to enforce it against those who violated those principles. It was only because the courts pushed back, and noted that if the FCC wanted to enforce net neutrality, broadband needed to be Title II, that the FCC made that switch, supported with both the backing of the court (in those earlier rulings and following the order) and plenty of evidence for why it was necessary.

For Pai to argue that he's trying to bring things back to how they were from 1996 to 2015, he has to ignore all of that history. He's not taking us back to that era. He's doing something worse. He's wiping out the rules that courts said were necessary to enforce the FCC's long-held position on net neutrality. And, more importantly, he's reversed course on the FCC's long-held position on net neutrality.

And he's doing so with his Big Lie that he's merely reverting back to where things used to be.

Filed Under: ajit pai, broadband, fcc, history, julius genachowski, kevin martin, lies, michael powell, net neutrality, open internet, title ii, tom wheeler
Companies: comcast, madison river, verizon, vonage

As The FCC Guts Net Neutrality, Comcast Again Falsely Claims You Have Nothing To Worry About

from the you're-not-helping dept

As the Trump administration guts oversight of some of the least liked and least competitive companies in America in one of the most brazen examples of crony capitalism in tech policy history, ISPs like Verizon and Comcast seem intent on insisting that none of this is actually happening. Verizon, you'll recall, went so far as to publish a comical video in which the company used a fake journalist to try and construct an alternate timeline; one in which Verizon hasn't been trying to undermine net neutrality and a healthy, competitive internet for the last fifteen years:

Comcast lobbyists and PR reps have also been having grand old time pretending that this blatant example of regulatory capture isn't real, and that the complete dismantling of telecom sector oversight won't have a decidedly-foul impact on already frustrated end users and the internet. The company has penned blog post after blog post stating that sure, the FCC may be gutting already flimsy oversight of one of the least competitive sectors in America, but users shouldn't worry because the company's tireless love of consumers will somehow carry the day:

With the FCC formally confirming its plan to kill existing net neutrality protections December 15, Comcast is back again insisting that you have absolutely nothing to worry about. In a new blog post, top Comcast lobbyist "Chief Diversity Officer" David Cohen once again claims that net neutrality harmed industry investment (independent analysis and executive statements have repeatedly shown this to be a lie), that Comcast will be able to self-regulate in the absence of real oversight, and that gutting the Title II foundation underpinning the agency's rules just isn't that big of a deal:

"As we have said previously, this proposal is not the end of net neutrality rules. With the FCC transparency requirement and the restoration of the FTC‘s role in overseeing information services, the agencies together will have the authority to take action against any ISP which does not make its open Internet practices clearly known to consumers, and if needed enforce against any anti-competitive or deceptive practices. Comcast has already made net neutrality promises to our customers, and we will continue to follow those standards, regardless of the regulations in place."

That's the same, debunked bullshit Cohen has been peddling for years. While the FCC hasn't released its full rule-killing order as of this writing (it foolishly thought it could hide it behind the Thanksgiving holiday), folks I've spoken to who've seen the order say the remaining transparency requirements on ISPs are so loophole-filled as to be utterly useless. As such, Comcast is stating it will adhere to them happily -- since there won't be much of anything to actually adhere to. Yes, that's really impressive, David.

Meanwhile, reversing the classification of ISPs as common carriers under Title II of the Communications Act absolutely destroys the rules. You'll recall that when the FCC tried to impose rather flimsy net neutrality rules in 2010, the courts shot down that effort -- making it clear that for real net neutrality, you needed to return ISPs to their 2002-era classification as "telecommunications services." So that's what it did in 2015. Reverse that classification (again), and you've eroded the FCC's authority to police bad behavior by a sector with a rich history of anti-competitive behavior and predatory pricing.

As we've noted previously, the broadband industry's lobbying plan is to pay lobby the government to dismantle the FCC's ability to protect consumers, then shovel all remaining oversight to an FTC that's ill-equipped to handle it. The FTC lacks the ability to craft new rules as needed, and is so under-funded and over-extended that policing ISP behavior will fall through the cracks. That's something former FCC boss Tom Wheeler explained earlier this year:

"In the Trump administration, people are talking about stripping regulatory power from the FCC, and essentially taking the agency apart (including moving jurisdiction over internet access to the Federal Trade Commission [FTC]). “Modernizing” the FCC is the lingo being used. What’s your thought about that?

It’s a fraud. The FTC doesn’t have rule-making authority. They’ve got enforcement authority and their enforcement authority is whether or not something is unfair or deceptive. And the FTC has to worry about everything from computer chips to bleach labeling. Of course, carriers want [telecom issues] to get lost in that morass. This was the strategy all along.

So it doesn’t surprise me that the Trump transition team — who were with the American Enterprise Institute and basically longtime supporters of this concept — comes in and says, “Oh, we oughta do away with this.” It makes no sense to get rid of an expert agency and to throw these issues to an agency with no rule-making power that has to compete with everything else that’s going on in the economy, and can only deal with unfair or deceptive practices.

And that's not the end of it. AT&T is currently embroiled in a case against the FTC that could erode the FTC's authority even further. AT&T was sued by the FTC after it lied to consumers about throttling their connections in the hopes of driving them to more expensive plans. If AT&T wins that fight, any company with a common carrier component (which extends to everything from parts of Google's business to oil pipelines) could dodge FTC accountability. The FTC warned last year that should this come to pass, companies could buy unrelated common carrier subsidiaries just to dodge regulatory oversight.

So again, the goal here isn't just for "more reasonable regulatory oversight" or "slightly less regulatory oversight," the goal here is almost zero oversight of one of the most predatory and anti-competitive legacy business sectors in America. Any claim to the contrary is utterly disingenuous. And if you believe that letting Comcast run amok with neither competitive pressure nor regulatory oversight ends well for anyone not financially benefiting from it, you've fallen down a very deep, dark rabbit hole and should take a long hard look at history.

Filed Under: broadband, competition, crony capitalism, fcc, net neutrality
Companies: at&t, comcast, verizon

FCC Plan To Use Thanksgiving To 'Hide' Its Attack On Net Neutrality Vastly Underestimates The Looming Backlash

from the there's-no-hiding-from-this dept

Numerous reports have indicated that the FCC intends to try and hide its attack on net neutrality behind the looming Thanksgiving holiday. The agency is expected to either unveil its formal plan on Wednesday while Americans are distracted by holiday preparations, or potentially on Friday, while Americans are busy shopping for black Friday bargains. Regardless of when it's unveiled, the announcement will involve unveiling a formal date to vote to finally kill the rules, currently expected to be December 15:

"It's a devilishly brilliant plan by the FCC and its chairman, Ajit Pai, who has made no secret of his wish to undo the benchmark rules put in place during Barack Obama's presidency. There will inevitably be plenty of people already enjoying their holiday break, and any major coverage on Wednesday will then be lost to a day of turkey, gravy, football, and indigestion, followed by three more days in which people won't be looking at the news."

Except this obfuscation plan isn't "devilishly brilliant," it's a massive underestimation of the brutal backlash awaiting the broadband industry and its myopic water carriers. Survey after survey (including those conducted by the cable industry itself) have found net neutrality has broad, bipartisan support. The plan is even unpopular among the traditional Trump trolls over at 4chan /pol/ that spent the last week drinking onion juice. It's a mammoth turd of a proposal, and outside of the color guard at the lead of the telecom industry's sockpuppet parade -- the majority of informed Americans know it.

Net neutrality has been a fifteen year fight to protect the very health of the internet itself from predatory duopolists like Comcast. Killing it isn't something you can hide behind the green bean amandine, and it's not a small scandal you can bury via the late Friday news dump. This effort is, by absolutely any measure, little more than a grotesque hand out to one of the least competitive -- and most disliked -- industries in America. Trying to obfuscate this reality via the holidays doesn't change that. Neither does giving the plan an Orwellian name like "Restoring Internet Freedom."

It's abundantly clear that if the FCC and supporters were truly proud of what they were doing, they wouldn't feel the need to try and hide it. If this was an FCC that actually wanted to have a candid, useful public conversation about rolling back net neutrality, it wouldn't be actively encouraging fraud and abuse of the agency's comment system. To date, the entire proceeding has been little more than a glorified, giant middle finger to the public at large, filled with scandal and misinformation. And the public at large -- across partisan aisles -- is very much aware of that fact.

Consumers, small businesses, and those interested in keeping the internet open, healthy and competitive will remember this severe of a shafting. It's going to inform policy conversations and voting decisions (especially among Millennials) for years to come. This isn't something that can be hidden between the cranberry sauce and Grandpa Jones' corn bake surprise, and the fact that Ajit Pai's staff thinks that's even possible highlights how absurdly out of touch the current FCC actually is.

Many people obviously believed that the net neutrality conversation was over when the FCC crafted the 2015 rules, and that they could subsequently tune out because the fight had been won.

But net neutrality isn't a conversation that begins or ends when rules are created or destroyed. Since net neutrality is just a symptom of the disease that is a lack of broadband competition, this is a battle that will persist for as long as said lack of broadband competition exists, and for as long as companies like Comcast attempt to abuse it. With Pai at the helm, that's certainly not changing anytime soon. In fact, with the gutting of privacy protections, net neutrality rules, and a blind federal and state eye turned toward cable's growing monopoly over broadband, it's going to get notably worse.

Supporters of net neutrality also need to understand that the broadband industry's assault on net neutrality is a two-phase plan. Phase one is having an unelected bureaucrat like Ajit Pai play bad cop with his vote to dismantle the rules. Phase two will be to gather support for a net neutrality law that professes to be a "long-standing solution to this tiresome debate." In reality, this law will be written by ISP lobbyists themselves as an attempt to codify federal apathy on this subject into law. These weaker protections will be designed to be so loophole-filled as to effectively be useless, preventing the FCC from revisiting the subject down the road. A solution that isn't -- for a problem they themselves created.

It's understandable that the public and press is tired of this debate after fifteen years. But instead of hand wringing and apathy, we should be placing the blame for this endless hamster wheel at the feet of those responsible for it: Comcast, AT&T, Verizon and Charter, and the army of lawmakers, economists, fauxcademics, and other hired policy tendrils willing to sell out the health of the internet -- and genuinely competitive markets -- for a little extra holiday cash. Folks that honestly believe they can lie repeatedly with zero repercussion, and hide a giant middle finger behind the gluten-free stuffing and Aunt Martha's cardboard-esque pumpkin pie.

Make no mistake: net neutrality is likely a permanent battle against telecom duopolists with a vested interest in abusing a lack of broadband competition. It's a battle for a healthy, open internet, truly competitive markets, and the right to innovate without Comcast, Verizon or AT&T interference. The decision to ignore the will of the public and kill existing, popular net neutrality rules is going to pour napalm on that fire, not extinguish it.

Filed Under: ajit pai, fcc, net neutrality, telco fuckery