We can all rest easy. Ajit Pai is going to restore the free and open internet we’ve been pining for, lo these past two years.
In his speech at a FreedomWorks event this week, the FCC chief lamented the lost golden age of broadband, which we lived in before onerous net neutrality regulations were passed that mandated ISPs treat all internet traffic equally and forbid them from blocking or throttling users’ access to content.
In the two years since the “serious mistake” of Title II classification was foisted upon the telecommunications industry, the country has been plagued by a decline in infrastructure investment, according to Pai. The consequences are dire: Fewer Americans will have access to high-speed internet, there will be fewer jobs, less competition, and declining test scores—no wait, he failed to mention that last one. Regardless, net neutrality is the culprit.
But fear not. Pai reassured that going forward, the FCC will take a “light touch” approach to regulating the broadband market. Unburdened by heavy-handed government interference, ISPs will be moved to build out their infrastructure, bringing “faster and better broadband” to more Americans, creating a massive amount of jobs, and increasing competition and choice.
Reclassifying internet as an “information service” rather than a “telecommunications service” will also make it possible to better protect Americans’ online privacy and ensure our First Amendment rights—both of which were threatened by net neutrality. Who knew?
Reality check: Can you hear me now?
OK, let’s get back to reality. The state of American broadband was dismal before and after net neutrality. Over the past 20 years, telecom giants like Comcast, AT&T, and Verizon have been paid hundreds of billions in taxpayer dollars to build out and update their infrastructure, and they have repeatedly reneged on their promises to do so. The United States lags in rankings of the world’s fastest internet speeds, coming in 20th for average speed and 22nd for average peak connection speed. So much for the good old days of broadband before net neutrality.
Pai’s promise that repealing the regulations “will boost competition” is also laughable. As a commissioner, he voted against the former FCC chair’s attempts to force greater broadband competition, and earlier this year revoked a condition of Charter’s merger with Time Warner that would have required the cable giant to expand into areas where it would have to compete.
The FCC chief goes so far as to deny that American broadband is monopolistic, even though the FCC’s own statistics show that in areas where broadband internet access (defined as at least 25Mbps) is available, 78 percent have only one provider to “choose” from.
Don’t fix what’s not broken
Monopolies aren’t the only thing that don’t exist in Pai’s alternate reality. “Nothing about the internet was broken in 2015,” he said. “Did fast lanes and slow lanes exist? No. The truth of the matter is that we decided to abandon successful policies solely because of hypothetical harms and hysterical prophecies of doom.”
Let’s examine a few of those “hypothetical harms.” Back in the good old Title I era:
- Comcast was throttling BitTorrent traffic.
- AT&T argued it should be allowed to charge companies to deliver traffic to their sites. “There’s going to have to be some mechanism for these people who use these pipes to pay for the portion they’re using. Why should they be allowed to use my pipes?” its CEO said.
- Verizon bankrolled a news service that banned stories on U.S. mass surveillance and net neutrality that were contrary to its interests.
- AT&T had a secret agreement with Apple to block iPhone users from making Skype calls over its network.
- AT&T also intentionally blocked some mobile users from Apple’s FaceTime, unless they signed up for a more expensive data plan.
- AT&T, Verizon, and T-Mobile all blocked users from Google Wallet, acting as gatekeeper in an attempt to prop up their own mobile payment services.
- And lest you think only telecom giants misbehave, a small ISP in North Carolina deliberately blocked VoIP provider Vonage.
So much for hypothetical harms. “ISPs don’t oppose net neutrality and Title II because it makes investing harder; they oppose Title II and net neutrality because it prevents them from abusing the uncompetitive s#*tshow that is the broadband last mile,” TechDirt writes.
Show me the (lack of) money
Pai’s initiative to repeal net neutrality will face a hard fight, not only in the court of public opinion, but in actual courts. “The FCC successfully argued in favor of Title II reclassification in federal court just last summer,” Wired writes. “That effort means Pai might have to make the case that things have changed enough since then to justify a complete reversal in policy.”
To do so, he has been building the case that regulations have led to decreased investment in infrastructure, though there’s little evidence of that. In recent quarterly earnings presentations, executives at AT&T, Comcast, and Verizon touted their network investments, and the CEO of Verizon specifically told shareholders that Title II didn’t affect the company’s investment plans.
“Some telecom industry-funded think tanks cherry-picked data to make it appear that investment had foundered, then repeated the fabrication they’d created, apparently believing that repetition forges truth,” TechDirt writes. “But if you spoke privately to most ISPs, they’d be telling you they saw no investment reduction under Title II.”
Return to Oz
The FCC chief’s proposal for “Restoring Internet Freedom” would return ISPs to “information service” status, and in the process strip the agency of authority to police their behavior. But that’s OK, Pai says, because the FTC will be returned to its rightful place as watchdog. That’s an argument he made when broadband privacy rules were repealed as well. “In short, we will return to the tried-and-true approach that protected our digital privacy effectively before 2015.” This is clearly a “Return to Oz”-style escape from reality caused by Pai’s net-neutrality-induced trauma.
That promise of continued consumer protection under the old regulatory regime doesn’t hold water—Pai, a former lawyer for Verizon, knows that well. A federal appeals court ruled last year that a company can’t be the subject of FTC action if any part of its business is a common carrier. If your ISP also offers telephone service, the FTC can’t touch it, even if it’s deliberately duping customers. Some watchdog.
Let the games begin
Not surprisingly, the telecom industry is cheering the sea change at the FCC. Pai’s “initiative [will] remove this stifling regulatory cloud over the internet,” applauded AT&T chief executive Randall Stephenson. But tech companies have urged the FCC to keep the rules in place, and startup incubator Y Combinator and 800 startups sent a letter to Pai on Wednesday:
Without net neutrality, the incumbents who provide access to the Internet would be able to pick winners or losers in the market. They could impede traffic from our services in order to favor their own services or established competitors. Or they could impose new tolls on us, inhibiting consumer choice. Those actions directly impede an entrepreneur’s ability to “start a business, immediately reach a worldwide customer base, and disrupt an entire industry.
Pai hasn’t said what will replace Title II-based net neutrality rules. Privately he’s floated the idea of ISPs voluntarily committing to follow the spirit of the rules. “Light touch” regulation apparently involves pinkie promises.
Asking the American people to simply trust that companies like Comcast, AT&T, and Verizon will keep the internet free and open is like “asking the fox to behave as you let him into the hen house,” tweeted former FCC Commissioner Michael Copps.
TechDirt speculates that Pai knows the odds for repealing the regulations are long and is instead playing a game of good cop/bad cop. “Under this plan, Pai saber rattles for a few months about his intent to kill net neutrality, at which point the GOP shows up with some ‘compromise’ legislation (likely this summer) that claims to codify net neutrality into law, but is worded in such a way (by the ISP lawyers that will inevitably write it) so the loophole-riddled ‘solution’ is worse than no rules at all.”
Pai’s Notice of Proposed Rulemaking will be voted on at the FCC’s May meeting, after which the agency will seek public input. Be sure to give it to him.
“The internet has won this fight before, and we can win it again,” the Electronic Frontier Foundation says. “The best way you can help now is to tell Congress to stop the FCC from throwing internet users and innovators to the wolves.”