Ajit Pai has announced, expectedly, that he intends to vote to kill the FCC's Title II net neutrality regulations on December 14.
As I've discussed previously, this was a foregone conclusion, but the point was never to change Pai's mind; there are, after all, two whole branches of government besides the one he serves in.
Tim Wu (the man who coined the phrase "Network Neutrality") discusses one of those branches in a recent op/ed in the New York Times called Why the Courts Will Have to Save Net Neutrality.
The problem for Mr. Pai is that government agencies are not free to abruptly reverse longstanding rules on which many have relied without a good reason, such as a change in factual circumstances. A mere change in F.C.C. ideology isn’t enough. As the Supreme Court has said, a federal agency must “examine the relevant data and articulate a satisfactory explanation for its action.” Given that net neutrality rules have been a huge success by most measures, the justification for killing them would have to be very strong.
It isn’t. In fact, it’s very weak. From what we know so far, Mr. Pai’s rationale for eliminating the rules is that cable and phone companies, despite years of healthy profit, need to earn even more money than they already do — that is, that the current rates of return do not yield adequate investment incentives. More specifically, Mr. Pai claims that industry investments have gone down since 2015, the year the Obama administration last strengthened the net neutrality rules.
Setting aside whether industry investments should be the dominant measure of success in internet policy (what about improved access for students? or the emergence of innovations like streaming TV?), Mr. Pai is not examining the facts: Securities and Exchange Commission filings reveal an increase in internet investments since 2015, as the internet advocacy group Free Press has demonstrated.
A popular argument I've seen from anti-Title II trolls on sites like Ars Technica and Techdirt is "Well if we need these rules, how did the Internet do so well before 2015?" (This rhetorical question is usually coupled with sarcastic remarks about former president Barack Obama.)
That question is disingenuous, for a couple of reasons. First, as Wu notes, that's the opposite of how FCC rules get passed and repealed. We already asked and answered the question of why we needed Title II regulations during the public comment period in 2014. The question isn't "Why did we need these rules in 2015?" It's "Why do we no longer need them in 2018?" It's the oldest forum troll trick in the book: "I'm not going to provide supporting evidence for my argument, I'm going to demand that you provide supporting evidence for yours, even though the burden of proof is on me."
The other reason the "How did the Internet ever survive before 2015?" question is disingenuous horseshit is that Pai's not merely rolling back FCC rules to pre-2015 levels, he's rolling them back to pre-2005 levels. Wu's article continues:
But Mr. Pai faces a more serious legal problem. Because he is killing net neutrality outright, not merely weakening it, he will have to explain to a court not just the shift from 2015 but also his reasoning for destroying the basic bans on blocking and throttling, which have been in effect since 2005 and have been relied on extensively by the entire internet ecosystem.
This will be a difficult task. What has changed since 2004 that now makes the blocking or throttling of competitors not a problem? The evidence points strongly in the opposite direction: There is a long history of anticompetitive throttling and blocking — often concealed — that the F.C.C. has had to stop to preserve the health of the internet economy. Examples include AT&T’s efforts to keep Skype off iPhones and the blocking of Google Wallet by Verizon. Services like Skype and Netflix would have met an early death without basic net neutrality protections. Mr. Pai needs to explain why we no longer have to worry about this sort of threat — and “You can trust your cable company” will not suffice.
So let's, just for a moment, play the trolls' game and explain why we need Title II regulations to protect net neutrality.
There's a convenient list of net neutrality violations making the rounds; I don't know where it originated, but I've seen variations on it in a couple of different places: by a poster named JoeDetroit on Techdirt and a poster named Happysin on Ars Technica. Here are both those versions of the list combined and lightly edited:
2005 - Madison River Communications was blocking VOIP services. The FCC put a stop to it.
2005 - Comcast was denying access to P2P services without notifying customers.
2007-2009 - AT&T was having Skype and other VOIPs blocked because they didn't like that there was competition for their cellphones.
2011 - MetroPCS tried to block all streaming except YouTube. They actually sued the FCC over this.
2011-2013 - AT&T, Sprint, and Verizon were blocking access to Google Wallet because it competed with their own wallet apps. This one happened literally months after the trio were busted collaborating with Google to block apps from the Android marketplace.
2012 - Verizon was demanding Google block tethering apps on Android because it let owners avoid their $20 tethering fee. This was despite guaranteeing they wouldn't do that as part of a winning bid on an airwaves auction.
2012 - AT&T tried to block access to FaceTime unless customers paid more money.
2013 - Verizon literally stated that the only thing stopping them from favoring some content providers over other providers were the net neutrality rules in place.
2014 - Netflix & Comcast sign a deal where Netflix will pay Comcast to stop throttling the service. The very next day, streaming problems vanish.
That is, needless to say, not an exhaustive list.
Meanwhile, there's another kind of forum troll, making the rounds like clockwork on every article I've ever seen on this subject: the "What does it matter? Pai's just going to do it anyway; he doesn't care what we think!" troll.
I've already responded to that argument at length (and up at the top of this post -- "two whole branches of government"). Wu reinforces my point:
Moreover, the F.C.C. is acting contrary to public sentiment, which may embolden the judiciary to oppose Mr. Pai. Telecommunications policy does not always attract public attention, but net neutrality does, and polls indicate that 76 percent of Americans support it. The F.C.C., in short, is on the wrong side of the democratic majority.
That's why people left comments on the FCC website. It's why people are writing articles protesting it now, and planning in-person protests for December 7. Lawsuits are inevitable, and clear and constant reminders that Pai threw out the Title II classification against public opinion makes his weak case weaker.
And that's not the only thing. Come back tomorrow for more.
