Biden’s New Net Neutrality Rules Don’t Prevent Anti-Competitive “Fast Lanes”

Broadband

from the half-assery dept

One of the key reasons the net neutrality fight even became a thing was widespread concern that big ISPs would abuse their power to behave anti-competitively, picking winners and losers across the internet ecosystem, and nickel-and-diming consumers in a variety of obnoxiously creative ways.

Verizon, for example, charges you extra if you want 4K video to work properly. T-Mobile spent years letting some key partners and services (namely large companies) bypass usage caps and network throttling restrictions. It’s not complicated: these kinds of gatekeeper decisions give historically unpopular telecoms power they shouldn’t have under the principle of an open, competitive internet.

We’ve noted how the Biden FCC will vote on April 25 to restore popular net neutrality rules stripped away during the Trump administration. Though we’ve also indicated there are some concerns among experts that the rules may wind up being weaker than the original 2015 edition.

Stanford law professor and net neutrality expert Barbara van Schewick has written a blog post noting that while the Rosenworcel FCC has shored up some concerns on this front (the FCC’s rules won’t “pre-empt” tougher California rules, for example), there’s still room for concern. Most notably surrounding the new rules’ treatment of so-called “fast lanes”:

“There’s a huge problem: the proposed rules make it possible for mobile ISPs to start picking applications and putting them in a fast lane – where they’ll perform better generally and much better if the network gets congested.”

Wireless carriers have made it clear that they plan to use “network slicing” to create 5G fast lanes for certain apps such as video conferencing, games, and video. The FCC’s new net neutrality rules allows such behavior, providing the service or app isn’t charged for them. So they can’t, say, extort a company into paying more if it wants its service or app to see baseline performance, which is good.

But the rules still allow ISPs to charge consumers all manner of fees if they want the most popular apps and services to work their best. And van Schewick notes, the rules still allow big ISPs to determine which companies and services get priority. That inherently creates a system whereby less popular and successful apps and services (as well as academia-related services and nonprofits) are relegated to second-class network status, putting them at competitive and performance disadvantage:

“And as we’ve seen in the past, programs like this favor the most popular apps, even when the program is supposedly open to all apps in a category and no apps are paying the ISP. So the biggest apps will end up in all the fast lanes, while most others would be left out. The ones left out would likely include messaging apps like Signal, local news sites, decentralized Fediverse apps like Mastodon and PeerTube, niche video sites like Dropout, indie music sites like Bandcamp, and the millions of other sites and apps in the long tail.”

van Schewick provides some potential illustrative examples, several of which already exist in various forms:

So again, the problem is that big and influential services or games like Disney or ESPN will see network priority during periods of 5G wireless network congestion. While smaller competitors, nonprofits, and others get relegated into a sea of “best effort” network scenarios.

van Schewick notes the original Obama-era 2014 proposal restricted this stuff. As did, in her legal opinion, the 2015 final rules. Even the half-assed proposals floated by Republicans at various points prohibited ISPs from speeding up different apps and services arbitrarily. But she notes these new 2024 rules include an obvious silence on this front that seems clearly lobbied for by industry:

“The no-throttling rule that the FCC proposed in October explicitly prohibited ISPs from slowing down apps and classes of apps; it was silent on whether the rule also applies to speeding up. “

The original Rosenworcel FCC proposal unveiled last October didn’t include those restrictions, so public interest groups, startups, and members of Congress all reached out asking why. April came, and the FCC’s draft net neutrality order still didn’t restrict the speeding up of specific apps and services, outside to say it would address so-called “fast lane” issues on a “case by case basis.”

Opponents of net neutrality like to pretend that the rules are a “solution in search of a problem,” but industry has made it extremely clear that this kind of fractured internet, which consumers face ever-escalating nickel-and-diming, and the most popular apps and services get network priority over everybody else, is precisely the sort of future they have in mind.

Like any publicly-traded company, telecoms are obligated to shareholders to boost quarterly revenues at any cost. In telecom this routinely comes in the form of direct price hikes, cuts to service quality and broadband deployment, or substandard customer service. But it also increasingly comes in the forms of obnoxious monetization efforts that create entirely new obstacles you’re then charged extra to overcome; efforts you can’t avoid because you either have no competing broadband alternatives to flee too (market failure) or all of the competitors on offer are engaging in the same bad behavior (regulatory capture).

FCC bureaucrats have generally prioritized “not stifling innovation” (as if telecom giants have meaningfully innovated any time in the last quarter century) over protecting markets and consumers, and there’s evidence that kind of thinking is once again at play. I’d suspect, quite intentionally, none of this will be addressed by the time the final net neutrality rules are voted on at the FCC’s April 25th meeting.

Filed Under: 5g, broadband, fast lanes, fcc, high speed internet, net neutrality, open internet, throttling, wireless

New Net Neutrality Rules Won’t Harm Telecom Giants In The Slightest

Broadband

from the cry-more dept

The FCC is expected to vote to restore net neutrality rules on April 25. And while there’re early indications that the rules may be slightly weaker than those stripped away by the Trump administration — and absolutely no indication the rules could meaningfully impact telecom revenues — telecom giants have already begun their whining about “burdensome regulation” in earnest.

Revolving door poster child Michael Powell, who once led the FCC but now lobbies for the cable industry, was quick to once again insist that the basic net neutrality rules would result in a parade of horribles:

Powell, the CEO of cable lobby group NCTA-The Internet & Television Association, was the FCC chairman under President George W. Bush. Powell said the FCC must “reverse course to avoid years of litigation and uncertainty” in a reference to the inevitable lawsuits that industry groups will file against the agency.

The NCTA said in another statement that the FCC “is pushing unnecessary regulation that will slam the brakes on Internet for all and deny millions—especially in rural areas—the important opportunities that high-speed Internet brings.”

As is usually the case with net neutrality fights, none of that is actually true. The courts have already ruled that it’s well within the FCC’s right to impose or repeal net neutrality rules provided their arguments are based in factual reality. The only thing the FCC can’t do is abdicate its federal consumer protection authority, then try and tell states what to do (something the Trump FCC tried and failed to accomplish).

Meanwhile, the rules generally give ample leeway for big ISPs to engage in dodgy and anti-competitive behavior — if they’re just slightly creative about it. And the FCC, regardless of party, has a very shaky track record as it pertains to standing up to industry on any issue of substance, meaning the idea they’d even enforce the rules with any consistent vigor is largely performative.

Derek Turner, a sector analyst over at consumer group Free Press, told me that while big ISPs put on a big show about being concerned about the rules via their trade groups, actual executives aren’t worried about the rules in the slightest. To the point where they’re not even mentioned in investor-facing statements, because they know it’s not going to impact broadband investment — or anything else:

“The impact of FCC regulation is simply a non-factor in the minds of ISP executives and investment analysts,” he told me. “Title II and Net Neutrality were not mentioned, or even hinted at, by a single ISP on any full-year 2023 investor calls or at other investor conference appearances following these calls, and no analyst asked any question about or related to this proceeding.”

Long time telecom sector analyst Blair Levin is making similar observations:

“Like its predecessors, this policy debate will generate significant headlines and commentary, [but] is unlikely to generate significant changes in how the ISPs operate, nor material changes in their revenues, margins, or opportunities,” New Street Research policy analyst Blair Levin explained in a research note (subscription required) issued earlier in the week.”

So why then are big ISP trade organizations constantly lying and freaking out about the rules’ impact?

The real worry for big providers like Comcast and AT&T is that this could result in, someday in some distant theoretical future, actual efforts by the FCC to hold them accountable for things like exploitative market rates only made possible by monopolization and corruption. You know, stuff like rate caps, or real punishments for ripping subscribers off with bullshit fees and predatory charges.

But again, there’s not much of a real worry here. The FCC at this point is largely a laughable non-factor when it comes to U.S. consumer protection. It’s generally staffed by some of the most politically feckless revolving door regulators imaginable; folks more worried about their next political post or think tank gig than protecting consumers (the Gigi Sohn fiasco shows what happens should you challenge this).

The kind of folks who currently staff the FCC can’t even acknowledge that monopoly power is a problem in public-facing statements, much less propose any sort of market remedy for it. Big ISPs like AT&T and Comcast are mostly just whining because they very much want things to remain exactly as they are: unchecked monopoly power, limited competition, and feckless oversight. Same as it ever was.

Telecom monopolies like their regulators cowed, feckless, and powerless. Even the faintest pretense that they might engage in anything else makes their well-funded policy groups cry like a colic baby.

Filed Under: broadband, consumer protection, fcc, gigabit, high speed internet, investment, michael powell, net neutrality, regulation, title ii

FCC Prepares To Restore Net Neutrality, But The New Rules Might Be Weaker Than The Ones Discarded By Trump

Broadband

from the we're-doing-this-again? dept

The FCC has announced that it will vote to restore the net neutrality rules stripped away by the Trump administration during an agency meeting on April 25.

A reminder: net neutrality rules prevent giant telecoms from abusing their market power to disadvantage competitors and consumers alike. Either by degrading the performance of a service that competes with a telecom’s own offerings; or by preventing ISPs from charging consumers more money to access specific services and apps that have struck cozy deals with giant ISPs.

While years of debate have muddied the goal, the rules are a sloppy but necessary attempt to ensure level competition across U.S. broadband networks. With the vote, the FCC also intends to restore its Title II authority over broadband providers stripped away by Trump Incorporated (an effort you might recall involved no shortage of bullshit and fraud by telecoms and the GOP).

“A return to the FCC’s overwhelmingly popular and court-approved standard of net neutrality will allow the agency to serve once again as a strong consumer advocate of an open internet,” FCC boss Jessica Rosenworcel said in a statement.

As always, there’s a catch: Stanford Law Professor and net neutrality guru Barbara van Schewick notes the new rules are technically weaker than the ones stripped away by the Trump administration, with several loopholes apparently lobbied for by industry (her FCC filing has more detail). My email inbox is filled with consumer groups lauding the move, yet none of them apparently thought this was worth a mention.

The 2015 rules already went well out of their way to “forbear” (render inapplicable) vast swaths of the Telecom Act that usually apply to utilities, because the telecom industry is absolutely terrified that the FCC could ever use rate regulation to cap their exploitative market rates (that’s never actually been a problem, as the FCC has never really had the political backbone to seriously challenge industry).

The loopholes could give ISPs leeway to engage in all manner of dodgy behavior on subjects like throttling (remember when AT&T imposed an invisible cap, harassed and throttled the connections of users who crossed it, then lied about it repeatedly?) and interconnection (remember when Verizon and Comcast intentionally slowed everybody’s Netflix traffic to force Netflix to pay more for interconnection?).

van Schewick also expressed concerns that the FCC’s rules could pre-empt tougher state-level net neutrality rules in the seven states that have passed state level net neutrality protections (California, Colorado, Maine, New Jersey, Oregon, Vermont and Washington).

Every so often you’ll see somebody advertise their ignorance by insisting the original net neutrality rules must not have mattered because the internet didn’t immediately explode after the repeal. That ignores the fact that ISPs largely behaved because a swath of states (including much of the west coast) implemented their own state-level protections that ISP lawyers failed to successfully undermine.

It’s possible these loopholes could be addressed before the April 25 meeting.

But I suspect they may not be, and the politically timid Rosenworcel FCC would simply like this whole effort to be in the rear-view mirror. At which point you’ll never see the agency so much as mention (much less enforce) the rules, unless an ISP engages in the kind of ham-fisted, ridiculous behavior they’d probably have avoided in the first place (like, say, just overtly blocking a direct competitor’s service).

The irony of course is that even with loopholes likely built for and by industry, the telecom industry and GOP are already gnashing their teeth in synchronicity, falsely claiming the rules are a radical power grab aimed at stifling innovation and network investment. Their ideal world is unchecked authority for big companies like AT&T and Comcast to literally do whatever they’d like, to whomever they’d like.

My skepticism isn’t to say the broader fight over FCC authority doesn’t matter. The restoration of Title II reclassification restores much of the FCC’s consumer protection authority stripped away by the Trump administration.

For now.

The rules, as they were by Trump, can simply be gutted again by the next telecom-industry-cozy administration that secures control of the FCC. The Supreme Court’s looming plan to turn all U.S. regulators into the equivalent of decorative gourds could also undermine the efforts.

Ideally you’d have Congress enshrine basic net neutrality protections into law, but much like our nonexistent internet-era privacy law, it’s much too corrupt to ever actually do that. So instead you get this sort of oversight simulacrum and multi-decade game of regulatory patty cake.

With basic regulatory autonomy on the ropes, I tend to think broadband policymakers need to focus their fire. Namely at the politically powerful telecom giants tethered to our domestic surveillance systems that have monopolized broadband access across much of the U.S., resulting in expensive, spotty, substandard access. And the grotesquely feckless and corrupt regulators and lawmakers that make this possible.

The Trump FCC and GOP did everything in its power to coddle and protect companies like Comcast and AT&T. The Biden FCC puts on a good show about caring about these issues, but can’t even candidly acknowledge that telecom monopolization is a real problem in public facing statements, much less propose meaningful solutions (like strong, vocal support for community broadband networks).

The FCC at this point has been so hammered by regulatory capture, lobbying, and dodgy court rulings that it’s largely become irrelevant on issues of meaningful consumer protection. Its reputation is so shaky, even the Biden admin didn’t trust it to manage the $42.5 billion in broadband subsidies included in the infrastructure bill, instead offloading that responsibility to the NTIA and the states.

Most of the Biden FCC’s consumer protection efforts have been years late, performative, and heavily decorative, and I suspect the agency’s renewed interest in net neutrality will be no exception. That’s not to say it won’t be an improvement over Trumpism, but when it comes to federal broadband policy making, AT&T, Comcast, Verizon and friends always get what they want in the end, something that’s simply not going to change until we take creative, aggressive aim at corruption and regulatory capture.

Filed Under: broadband, consumer protection, level playing field, net neutrality, title ii

The Net Neutrality Fight Will Soon Return, And The Bickering Will Be As Stupid As Ever

Broadband

from the here-we-go-again dept

I know people are bored to death after years of infighting over net neutrality. But the FCC’s attempts to impose something vaguely resembling oversight upon a bunch of shitty regional telecom monopolies that have bludgeoned U.S. broadband into uncompetitive rubble still matters, no matter how tired the press and public might be of the debate, or what telecom industry lobbyists might say.

Last September the Biden FCC announced it was planning to restore net neutrality rules stripped away during the Trump administration amidst a lot of bullshit and fraud. It, of course, didn’t take long for the telecom industry, with GOP allies in lockstep, to whine to the FCC in writing about how imposing baseline oversight of giant telecom monopolies is “unlawful”:

“This proposal is unlawful. Regulation of broadband is undoubtedly a major question of economic and political significance. Under the major questions doctrine, articulated in West Virginia v. EPA, an agency must wait for Congressional authorization before acting. In other words, if broadband needs to be regulated as a utility, that is a decision for Congress to make, not the FCC. Congress has not spoken on this issue.”

The courts have already ruled several times that the FCC is currently well within its right to impose (and strip away) net neutrality rules within its authority embedded in the Communications Act, it just has to do a reasonably solid job justifying the decision with, you know, data.

But telecoms (just like every other industry looking to lobotomize what’s left of federal corporate oversight), are really hopeful that the looming Supreme Court Chevron deference ruling curtails regulators from doing much of anything beyond what’s deemed acceptable by corrupt judges with lifetime appointments and a Congress too corrupt to pass any new reforms (you saw what happened when people recommended Congress pass a net neutrality or broadband privacy law: jack shit).

As a refresher: net neutrality as I define it is an often murky attempt to prevent giant telecom monopolies from abusing their internet gatekeeping power to unfairly rip off consumers or disadvantage competitors, especially competitors that compete with an ISP’s own services.

While there’s often a lot of misinformed chatter about how “net neutrality must not matter because the internet didn’t explode upon repeal,” that ignores that a major reason big ISPs didn’t misbehave is because numerous big states rushed in to pass state-level laws they don’t want to violate.

Even if you think net neutrality rules are stupid, cheering for their demise of FCC authority is counterproductive and stupid, given the lack of competition and regulatory oversight (the preferred outcome for AT&T and Comcast) is directly and documentably responsible for high broadband prices, spotty access, slow speeds, and some of the worst customer service ever conceived by man.

If there has to be new net neutrality rules, cable giants like Comcast and Charter are already hard at work lobbying to shape what those rules will look like, ensuring that pretty much anything they choose to do on their networks falls well outside of the FCC’s oversight umbrella.

Big telecoms don’t want the FCC to ban usage caps (a technically unnecessary price-gouging restriction designed exclusively to goose revenues). They don’t want the FCC to ban “reasonable network management” (the term “reasonable” giving broad latitude to do pretty much whatever). They don’t want the FCC to prohibit “zero rating” (a form of paid preference that Mozilla and EU regulators have long criticized as telecoms playing field tilting, often under the guise of helping low income Americans).

Importantly, they also want to make sure the rules pre-empt any tougher state net neutrality rules like those passed in California and Washington state. And, of course, they want the FCC to “forbear” telecoms from any of the parts of Title II classification that would allow the FCC to engage in things like “rate regulation” (which, even under Democratic control, has long been deemed “radical” and off the table, but is routinely trotted out by the GOP and telecoms as a sort of scary bogeyman, even if it never happens).

At this point, I tend to think that if this FCC passes net neutrality rules, they’ll be so filled with loopholes as to be largely useless outside of egregious stuff telecoms never wanted to do anyway (like the outright blocking of websites). And if new rules are passed, I strongly doubt they’ll be enforced with any consistency by an FCC that’s generally timid when it comes to standing up to industry giants.

But in a few weeks or months, as the debate starts to rekindle, you’ll see all kinds of missives seeded in the press by industry about how these net neutrality rules are akin to a “socialist takeover of the internet.” They’ll, once again, be framed as unreasonably radical, even if the loophole-filled rules don’t actually accomplish much and will never be enforced with any meaningful zeal.

The FCC has never done a particularly good job holding companies like AT&T and Comcast accountable. And as the rightward-lurching Supreme Court steadily chips away at regulatory independence, I highly doubt that’s going to change anytime soon. The FCC is struggling to even map broadband or get Comcast to stop ripping consumers off with bullshit fees, much less tackle market failure.

It’s why I tend to think that as the net neutrality fight returns to telecom policy conversation (deemed passé and irrelevant in the era of big tech debates), it remains important to keep the focus centered on market failure caused by regional monopolization and muted competition, resulting in the spotty, expensive, and slow broadband networks Americans have come to know and love so dearly.

With sagging regulatory authority coming up fast in the rear view mirror courtesy of the Supreme Court, it’s going to be more important than ever to carefully pick battles and focus very specifically on the foundational problems that matter. And when it comes to broadband, it’s unchecked monopoly power.

Filed Under: broadband, competition, fcc, high speed internet, net neutrality, telecom, title ii, usage caps, zero rating

Netflix Suddenly Cares About Net Neutrality Again After Comcast’s Peacock NFL Success

Broadband

from the oh-so-now-you-give-a-shit dept

You might recall that back during the net neutrality wars Netflix was a notable supporter of the concept, arguing that big ISPs shouldn’t be able to pick and choose winners and losers on their networks, or use their monopoly over broadband access to undermine competition over their networks.

Then, you might recall that as Netflix became bigger and more powerful, it basically stopped caring about the concept, CEO Reed Hastings even going so far as to brush off the Trump administration’s fraud prone reversal of the popular rules as largely unimportant to the now-successful company.

Now that the Biden administration is on the cusp of once again restoring the rules, Netflix apparently cares again. Maybe. In a recent filing with the FCC (spotted by Policyband), Netflix noted that net neutrality was important because ISPs are incentivized to abuse a lack of broadband competition to undermine competitors in streaming (duh):

“It is very difficult for a person to change ISPs: Switching costs are high and competition is insufficient to thwart non-neutral behavior. If an ISP blocks or throttles content requested by a subscriber, that subscriber cannot immediately access the content from another ISP.”

So what got Netflix to care again about a subject it clearly stopped caring about? Apparently it got nervous watching Comcast host its first-ever exclusive NFL game on Peacock a few weekends ago, which it references in the filing both specifically, and more broadly:

“Many ISPs have affiliated Pay TV and/or streaming content services that directly compete with independent, online content companies. ISPs with affiliated services have a clear incentive to advantage their affiliated services by either degrading the quality of their competitors’ content or increasing their competitors’ costs.”

That’s quite a tonal shift from Hastings’ comments back in 2018, when he stated they weren’t really worried about it because Netflix was now wealthy enough to afford telecom troll tolls. Since then, Netflix has faced considerably more competition in the streaming space, and has shifted from innovation and disruption to, as all big companies do eventually, nickel-and-diming users and turf protection.

While Netflix’s positions here are clearly both vacillating and self serving, that doesn’t mean net neutrality still isn’t important.

Restoring the Title II classification of ISPs that underpins net neutrality restores the FCC’s ability to protect consumers from the monopolistic whims of Comcast or AT&T. And, regardless of the uninformed opinions of folks who don’t think that matters, it remains important to have a federal regulator with the authority to meaningfully police bad actors in the very broken U.S. broadband space.

Big ISPs didn’t abuse the Trump-era repeal of the rules because they didn’t want to violate the numerous state laws that popped up in the wake of the federal repeal. That doesn’t mean they still aren’t keen to find creative new ways to price gouge consumers or undermine online service competitors, whether it’s a giant like Netflix or some smaller company just getting its footing.

That said, I’d still argue that the net neutrality debate at this point tends to obfuscate the real underlying cause of net neutrality, privacy, or other violations in the first place: consolidated telecom monopoly power, the muted competition it creates, and the federal and state corruption that protects it.

Most U.S. lawmakers and regulators (across both parties) not only don’t have policy solutions for this problem, they’re very often not even capable of admitting the sector’s very obvious monopoly/duopoly problem even exists.

Filed Under: cable, competition, net neutrality, streaming
Companies: comcast, netflix

Big Telecom Allied GOP Lawmakers Pretend New FCC Net Neutrality Push Is ‘Unlawful’

Legal Issues

from the here-we-go-again dept

As noted last month, the Biden FCC is finally getting ready to restore net neutrality rules stripped away during the Trump administration amidst a lot of bullshit and fraud. And unpopular telecom giants, with the usual support of the GOP, are already busy trying to undermine the effort with a whole new list of manufactured grievances they’ve been seeding in a lazy U.S. press.

You’ll recall that the courts have repeatedly ruled that not only was the Obama FCC well within its legal authority to impose net neutrality rules, they’ve repeatedly shot down the industry’s attempt to sue state-level protections into oblivion. There’s no real debate over the legality of what’s happening.

Yet in a new letter to the FCC written by 29 Republican members of Congress, the lawmakers proclaim that the FCC’s looming attempt to restore net neutrality is somehow “unlawful.”

Their reasoning? Because the corrupt right wing brunchlords at the Supreme Court could possibly defang some regulators via looming rulings in January, they think the FCC just, gosh, shouldn’t try to protect consumers or implement very popular policies:

“This proposal is unlawful. Regulation of broadband is undoubtedly a major question of economic and political significance. Under the major questions doctrine, articulated in West Virginia v. EPA, an agency must wait for Congressional authorization before acting. In other words, if broadband needs to be regulated as a utility, that is a decision for Congress to make, not the FCC. Congress has not spoken on this issue.”

This is an idea the telecom industry has been seeding in the press for a few weeks via assorted covert policy and lobbying proxies. But you’ll surely be surprised to learn the GOP lawmakers aren’t being honest.

Yes, the Supreme Court is poised to deliver the GOP its long desired killing blow to regulatory authority via two cases it will likely rule on in January. Those cases will take aim at a longstanding legal doctrine dubbed Chevron deference, which gives regulators the authority and latitude to make decisions for themselves, provided it’s generally within the authority given them by Congress.

If successful, the ruling would dramatically scale back the ability of regulators to make decisions for themselves and interpret statutes using their specific subject-matter expertise. The goal: to ensure regulators can’t do much of anything without the explicit approval of a Congress industry knows it lobbied into apathy and dysfunction decades earlier (it’s of course dressed up as something far more noble).

What happens to Americans if industry and the GOP succeed in hamstringing already shaky regulatory authority really hasn’t been discussed enough. The ruling will effectively put labor, public safety, consumer protection, and environmental regulators on their heels, ensuring these already long-understaffed and under-funded agencies can’t do their fucking jobs.

And when these regulators fail to do their jobs, industry giants will insist it simply proves the inherent untrustworthiness of government, and somehow wasn’t the direct result of a generation of successful lobbying by self-serving billionaires and giant monopolies like AT&T.

The goal has long been: zero meaningful oversight of corporate power. While it’s dressed up as serious adult policymaking and some noble deference to the sanctity of Congress and constitutional balance, it’s basically just part of the endless and wildly successful American quest for utterly unconstrained greed.

But here’s the thing: that ruling hasn’t happened yet. It’s still possible it doesn’t happen. Telecom policy gurus like Harold Feld have noted he’s not sure the Supreme Court has the votes, and even if it does, the FCC’s legal history should make it more resilient to the change than other regulators:

“One of the most important rulings relied upon by the courts regarding this doctrine is a 2005 case Gonzales v. Oregon, which blocked the Attorney General via the Drug Enforcement Agency from regulating doctors’ prescriptions under the public interest standard. In that ruling, the Court went out of its way to note that, while Congress delegated limited powers to the DEA, the FCC was an example of an agency that had far more expansive powers via its writ from Congress.

In other words, the court said that the FCC possesses a much stronger “Chevron deference,” a related legal standard that holds that when there’s ambiguity the courts should defer to the administrative bodies’ interpretation.”

The fight is important but complicated, ensuring it doesn’t see much traction among headlines about nonexistent billionaire fist fights. I’d highly recommend reading this American Prospect piece on how the telecom industry is seeding this stuff in a lazy press. I’d also recommend this post by the Natural Resources Defense Council or this piece over at Vox on the broader issues at play.

The telecom industry has long argued that it should be up to Congress (and Congress only) to craft net neutrality rules. But again, the industry knows they’ve lobbied Congress into a corrupt bowl of pudding long ago, ensuring any such effort could never pass. Now they’re arguing because a corrupt Supreme Court might make future rulings in industry’s favor, the FCC shouldn’t bother trying.

It’s all bad faith bullshit, well in line with the kind of bad faith bullshit we saw the last time net neutrality was consistently making headlines. Remember, at its core net neutrality is actually about how to counter the impact of harmful, concentrated monopoly power. Big telecom and its GOP BFFs, unsurprisingly, would prefer regulators sit on their hands like obedient toddlers, public interest and impact be damned.

Filed Under: big telecom, broadband, chevron deference, fcc, ftc, general questions, monopolies, net neutrality, telecom

Trump FCC Pick Nathan Simington Wants You To Think Net Neutrality Is A Secret Cabal By Big Tech To ‘Censor Conservatives’

Broadband

from the things-just-keep-getting-dumber dept

The modern authoritarian GOP knows its radical policies are widely unpopular, which is why it increasingly needs to rely on propaganda. That’s also why the party pretends that absolutely any effort to moderate online political propaganda is “censorship.” With young voters turning away from the GOP in record numbers, propaganda, gerrymandering, and race-baiting anti-democratic bullshit is all the party has.

It’s an argument that bleeds into pretty much everything these days, even net neutrality.

After the Biden FCC last week announced it would be restoring net neutrality, Trump FCC pick Nathan Simington came out with a rambling missive claiming that efforts to keep Comcast from screwing you over is, you guessed it, somehow an attempt to censor conservatives. Net neutrality is, Simington claims, secretly a way to help “big tech” censor poor, unheard right wingers:

“The leaders of Big Tech companies have anointed themselves the arbiters of which ideas are allowed to be expressed and which are not. These companies are, without a doubt, the biggest threat against freedom of speech that our country has faced in decades.”

So one, you’ll notice that Simington is incapable of talking honestly about telecom monopoly power and his party’s 40 year track record of coddling it. But his core thesis, that this is all secretly a favor to “big tech,” simply isn’t true. Why not? Because “big tech” companies documentably stopped caring about net neutrality a long time ago.

While Google used to care about net neutrality, it stopped somewhere around 2010. Once Netflix became successful, it too vocally stopped caring about net neutrality somewhere around 2017. While these companies originally supported net neutrality, once they became big and powerful they simply stopped caring. Facebook never cared, and long actively opposed net neutrality.

The GOP knows this, they just think (or hope) that you’re stupid.

Simington also tries to argue that because the internet didn’t explode into a rainbow of bright colors after the 2017 repeal of net neutrality (which required the use of fake and dead people to pretend the repeal had public support), that the consumer protection rules must not have mattered:

“It has now been nearly six years since we repealed the net neutrality rules, and as far as I know, no one has died yet, nor have any other of the solemnly predicted catastrophes come to pass.”

Folks opposed to basic consumer protection love to make this claim, but they’re actively ignoring that big telecom didn’t behave worse post repeal because numerous states rushed in to pass state level laws. Companies like Comcast didn’t want to implement major anti-competitive practices on their network, because they now risk running afoul of state net neutrality laws all along the west coast.

This gets conflated into “gosh, our removal of federal guidelines must not have mattered,” which is misleading bullshit. The FCC repeal of net neutrality didn’t just kill net neutrality rules, it gutted much of the FCC’s consumer protection authority. The GOP’s repeal even tried to ban states from protecting broadband consumers entirely, an effort the courts have subsequently shot down.

Focus on what matters: Net neutrality rules were imperfect, stopgap efforts to keep giant telecom monopolies from using their power over internet access to harm consumers and competitors. If you don’t support net neutrality, what’s your solution for concentrated telecom monopoly power? The GOP actively supports concentrated telecom monopoly power. There are 40 years of documentable evidence.

From Simington’s missive, do you gather he cares one fleeting shit about the problems created by telecom monopoly power? The high costs? They slow speeds? The patchy access in rural markets? The comically terrible customer service? The refusal of ISPs to upgrade poor, minority neighborhoods?

Simington can’t even be bothered to actually discuss the actual issue he’s trying to counter. Because what the modern GOP cares about is protecting its own power, and, at the moment, that requires propping up the delusion that anything the GOP doesn’t like is somehow “big tech censorship.” Even some basic, popular consumer protections designed to protect the public from big telecom.

Filed Under: big tech, broadband, fcc, high speed internet, nathan simington, net neutrality, propaganda

Bloomberg Lazily Helps Telecom Lobby Seed The Press With Bullshit Claims About Net Neutrality

Broadband

from the here-we-go-again dept

With the Biden FCC now having a voting majority, the telecom industry is clearly worried about the agency’s plans to restore popular net neutrality rules stripped away by the Trump administration.

To prep the lobbying field, the industry has started using its various proxy groups to seed the press with a bunch of bullshit arguments about net neutrality. Like this piece over at The Hill by the telecom-industry-funded “Innovation and Technology Policy Center,” which claims that dismantling net neutrality “saved the internet,” and that restoring the rules would harm the “vibrant and competitive” U.S. broadband market.

Or this story and associated telecom industry funded white paper by “two former Obama-era solicitors general” (who coincidentally now lobby for the telecom industry at their respective law firms) falsely claiming that the FCC lacks the authority to pursue net neutrality (courts have repeatedly stated they do).

The study basically argues that because the Supreme Court wants to lobotomize all federal regulatory authority via its looming Chevron deference ruling (something the telecom industry lobbied in favor for), the FCC shouldn’t even bother to try to restore net neutrality rules. It’s industry-funded bullshit, pushed by an industry that wants the FCC to remain a toothless marionette to monopoly power.

Numerous news outlets run this kind of industry propaganda without disclosing the authors’ financial ties to the telecom industry. But Bloomberg ran the op-ed, and then for good measure “reported” on their own op-ed as if it was factual, objective news. Only days later, after Bloomberg was criticized by outlets like The American Prospect, did Bloomberg reveal the study was funded by industry in a correction:

Bloomberg editors still somehow didn’t note that both study authors work for law firms that do policy and lobbying work for the telecom industry.

This is, of course, a fairly tried and true tactic by the telecom lobby. Make up some stuff, then get lazy or editorially feckless news outlets to seed the ideas in the public discourse without important context (like, oh, that the whole white paper is a policy and PR ploy designed to confuse everyone, or that it’s directly funded by telecom monopolies with zero credibility on public interest policy).

While it’s true that ruling Supreme Court cases could (further) lobotomize U.S. regulatory power, long time telecom policy guru Harold Feld is quick to point out that when the courts have discussed the “major questions doctrine” or Chevron deference, they’ve specifically given the FCC more leeway than other federal regulators when it comes to expertise-based rulemaking authority:

“One of the most important rulings relied upon by the courts regarding this doctrine is a 2005 case Gonzales v. Oregon, which blocked the Attorney General via the Drug Enforcement Agency from regulating doctors’ prescriptions under the public interest standard. In that ruling, the Court went out of its way to note that, while Congress delegated limited powers to the DEA, the FCC was an example of an agency that had far more expansive powers via its writ from Congress.”

So yes, the FCC should still pursue net neutrality, especially if it’s not going to bother to try and tackle telecom industry monopoly power more directly. And yes, net neutrality still matters, despite what the uninformed folks in the cheap seats like to suggest. Telecom giants like AT&T, Verizon, Comcast, and Charter are just seeding the press with bullshit in the hopes of killing any reform before it begins.

Filed Under: bloomberg, broadband, consumers, digital divide, fcc, lobbying, net neutrality, telecom

Biden FCC Prepares To ‘Restore Net Neutrality,’ But The Details Will Matter

Broadband

from the here-we-go-again dept

Hey, remember when a bunch of unpopular broadband monopolies convinced a corrupt reality TV star to dismantle most oversight of their very broken industry? And remember how to accomplish this companies like AT&T, Verizon, and Comcast spread endless lies about what was actually happening, going so far as to use fake and even dead people to try and pretend the idea was broadly popular?

Good times.

Anyway, now that the FCC finally has a fifth Commissioner and Democrats finally have a voting majority after almost seven years of lobbyist-fueled bullshit, reports are emerging that indicate the agency is preparing to finally restore net neutrality rules. The FCC clearly leaked word to Bloomberg that the FCC will vote to begin the process of restoring net neutrality rules at an October 19 agency meeting:

“Remarks by Chairwoman Jessica Rosenworcel will center on the FCC’s role in net neutrality, two people briefed on the topic said, pointing toward a possible renewed fight over US regulations of broadband providers. Rosenworcel is expected to announce plans to restore the rules, according to two of the people, who asked not to be identified because the details aren’t yet public.”

As noted previously, what those rules will look like matters. A lot. Given this FCC’s lack of backbone, I had concerns that the agency would propose something that very much looks like real net neutrality, but doesn’t fully include the Title II reclassification required to ensure the FCC can actually enforce it. Something designed with ample industry input to pre-empt tougher, state level rules.

But in comments made before the National Press Club, FCC boss Jessica Rosenworcel hinted that the restoration of net neutrality will involve a restoration of the agency’s Title II authority under the Communications Act. A separate fact sheet circulated by the FCC also states that restoring the agency’s Title II authority will be key:

“The proposed rules would return fixed and mobile broadband service to its status as an essential “telecommunications” service.”

Rosenworcel noted that restoring the agency’s authority under Title II won’t just aid in the enforcement of net neutrality, but will also help the agency’s quest to impose stricter cybersecurity requirements on network operators. Rosenworcel also stated the FCC’s actual order will be made publicly available on Thursday.

Why does any of this matter? The Trump-era net neutrality repeal not only killed net neutrality rules, it actively gutted the FCC’s consumer protection authority over broadband giants. The Trump repeal even tried to ban states from being able to protect broadband consumers. The courts have frowned upon that last point, noting the FCC can’t abdicate its consumer protection authority then tell states what to do.

I routinely see misinformed folks try to claim that net neutrality must not have mattered because the internet didn’t fall apart post repeal, but that’s ignorant gibberish. A growing roster of state net neutrality rules have helped keep ISPs from implementing truly stupid ideas. They don’t want to implement some anti-competitive idea that runs afoul of regulators across the entire west coast.

The actual rules aside, either you want predatory giants like AT&T and Comcast to see some type of real oversight, or you don’t. The attack on net neutrality was really part of a decades-long assault on the FCC and all meaningful telecom consumer protection authority. Not some of it, all of it.

That kind of mindless fealty to monopoly power doesn’t benefit innovation, competition, or consumers, and folks that claim otherwise are lying to you.

There’s a reason U.S. broadband is slow, patchy, and expensive: unchecked monopoly power and regulatory capture (and the corruption that enables it). The one-two punch of limited competition and little to no meaningful government oversight have proven utterly corrosive to quality, affordable broadband. Contrary to claims by the telecom industry, it’s not something that’s debatable.

The telecom lobby is already seeding the press with bullshit about net neutrality before consumer groups can even fire up their messaging machines. Mainstream news outlets are already giving sterile historical primers on net neutrality that weirdly exclude most of the telecom industry’s bad behavior, leading credence to long-debunked industry claims (like the false claim net neutrality hurt industry investment)

It’s all going to get very stupid. Again.

As we once again descend down this rabbit hole I think it’s important to remember that the real problem is unchecked telecom monopoly power. If you’re opposed to attacking monopoly power directly or less directly (net neutrality), what’s your solution? If it involves handcuffing government regulators in the belief that AT&T and Comcast will suddenly become magically innovative, or waiting for “free market competition” to magically fall from the sky without some kind of real reform, you’re part of the problem.

To be clear: neither party has a great track record of standing up to concentrated telecom monopoly power. These are companies now bone grafted to our intelligence gathering and first responder networks, and when genuine reformers attempt to stand up to them it’s usually politically painful. The current Rosenworcel FCC generally avoids making telecom giants mad; so hopefully there are no strange loopholes or caveats included in the final order to appease Comcast, AT&T, Verizon and friends.

Filed Under: broadband, competition, fcc, high speed internet, jessica rosenworcel, net neutrality, telecom, title ii

Net Neutrality’s Dead: Time To Focus On The Real Issue: Telecom Monopolization

Broadband

from the this-is-why-we-can't-have-nice-things dept

Earlier this month a homophobic smear campaign seeded in the press by the likes of AT&T, Comcast, and News Corporation successfully killed the FCC nomination of popular reformer Gigi Sohn. The goal: to keep the FCC in perpetual partisan gridlock, preventing the agency from making any decisions deemed even remotely controversial by the media and telecom giants the agency is supposed to regulate.

With Sohn’s nomination killed, it could take the better part of the rest of the year to appoint and confirm a third Democratic FCC Commissioner, assuming one gets appointed at all. If and when that candidate does get seated, they’ll have very little time before the next presidential election to implement any major policies. As such, the FCC will very likely focus on politically safer fare.

That means meaningful reforms that are popular among consumers, like the restoration of net neutrality, or the restoration of media consolidation limits, are all but doomed (for now):

Now, the White House has been forced to start over, prolonging a vacancy that continues to obstruct the administration’s broadband agenda. The White House hasn’t announced a new nominee or when they’re hoping to confirm someone, but it’s unlikely that Biden would pick someone as critical of cable companies as Sohn. Republicans and “dark money” groups have already proved that they’re willing to spend millions to block progressive nominees. With so little time left in Biden’s first term, stakeholders may even try to thwart a more moderate nominee, especially if there’s an opportunity to continue the stalemate past the 2024 election.

Even if Sohn was appointed, I wasn’t entirely sure that FCC boss Jessica Rosenworcel actually had the backbone to revisit the net neutrality fight. If you’re a career politician with an eye on a lucrative post-FCC career, there’s not a lot of political upside in upsetting top telecom donors. Former FCC boss Tom Wheeler embraced net neutrality only in part because he was retiring and had nobody left to impress.

With the FCC effectively lobotomized, states and municipalities have effectively given up on coherent federal leadership on issues like telecom policy. Instead they’re redirecting the conversation back to where it probably should have been all along: the perils of unchecked telecom monopolization, and the need to build cohesive, locally-owned and operated alternatives to monopoly power.

As we’ve long noted, net neutrality rules were just imperfect, stopgap protections to try and protect consumers (and competitors) from monopoly power. If you bring real competition to bear on entrenched monopolies like AT&T and Comcast, net neutrality rules become less important as unethical ISPs would be punished by customer defections to competitors.

(That’s not to say federal consumer protection isn’t important, but it’s hard to watch the agency over the last twenty years and not come away with the sense that the activist battle against entrenched telecom giants has been a profound failure, and is in dramatic need of new, creative tactics.)

The problem: with state and federal policymakers under the sway of entrenched monopolies, it’s very difficult to implement cohesive federal policies that bring competition to bear against monopolies.

Enter a huge boom in community-owned and operated broadband networks, whether they’re cooperatives, municipalities, city-owned utilities, or public/private partnerships. These projects are an organic, grass roots response to federal regulatory capture and monopolization, which is why monopolies have tried so hard to outlaw them with shitty, protectionist state laws.

Again, net neutrality was important. Title II classification of ISPs (which provides the FCC the authority to hold Comcast accountable) remains important. Having competent federal regulators step in to address widespread market harms in the wake of market failure is important.

But in the absence of that, and given the public’s weariness in retreading the complicated, wonky world of net neutrality policy, it’s probably time to shift the policy focus back to the roots of the real problem: mindless consolidation and unchecked telecom monopoly power.

83 million Americans live under a broadband monopoly. It’s clear the federal government is too corrupt and captured to do much about it. As a rightward-lurching court system seeks to lobotomize the federal regulatory state entirely, the onus will increasingly be thrown at the feet of state and local leaders to build meaningful alternatives to monopoly power on a block by block basis.

Filed Under: broadband, community broadband, fcc, high speed internet, municipal broadband, net neutrality, telecom