Ex-FCC Staffer Says FCC Authority Given Up In Net Neutrality Repeal Sure Would Prove Handy In A Crisis

from the self-sabotage-is-our-forte dept

It's worth repeating for the folks in the back: the FCC's hugely unpopular, facts-optional and fraud-slathered repeal of net neutrality did a lot more than just kill "net neutrality." It gutted the FCC's already dwindling authority over giant telecom monopolies, shoveling any remaining authority to an FTC that lacks the authority or resources to police the US telecom sector (the whole goal of telecom lobbyists). As a result, you've now got ISPs free to engage in problematic behavior (like bullshit fees, or charging people "rental fees" for modems they already own) that the government is incapable and unwilling to address.

And the government's decision to ignore the public and pander to the telecom lobby has deeper ramifications as well. As telecom lawyer and former FCC staffer Gigi Sohn writes in an editorial at The Verge, there has been a multi-decade effort to kill telecom oversight under the (clearly false) claim that the miracle of the free market will somehow magically fix a sector that's been clearly broken for decades:

"This digital divide did not happen by accident. It is the result of years of scorched-earth deregulation and consolidation pushed by large cable and broadband companies and a government that, despite mountains of evidence to the contrary, believes that somehow the so-called “free market” will take care of the unconnected."

Of course the telecom Utopia that's promised never actually arrives despite decades of this game of deregulatory theater. Deregulated telecom monopolies, too big to fail, fused to the NSA, and constrained by neither government oversight nor competition, just wind up doubling down on the same bad (or worse) behaviors. There's a segment of telecom policy "experts" who enjoy denying this factual reality, but the facts on the ground (more than 50 million Americans lack access to more than one ISP at speeds of 25 Mbps, and US consumers pay some of the highest prices for data in the developed world) don't lie.

Deregulation can certainly spawn innovation when you're talking about functioning, competitive markets. But U.S. telecom, where a handful of giants dominate most U.S. markets and all but own state and federal lawmakers, has never been that. That we keep pretending otherwise is a stunning level of denial driven largely by partisan ideology. Sohn goes on to note that the FCC's decision to neuter itself at telecom lobbyist behest left the FCC to adequately police the sector during a pandemic:

"One might think that during a national emergency, the chairman of the FCC wouldn’t have to plead with broadband providers to do what is necessary to ensure that every American is connected. But in 2017, at the behest of cable and broadband companies, the Trump FCC abdicated its responsibility to protect consumers and promote competition in the broadband market when it repealed its network neutrality rules. Not satisfied with simply eliminating the rules, which prohibited broadband providers from blocking, throttling, and otherwise favoring certain internet content and services, the Trump FCC blithely threw away its legal power to oversee the activities of these companies by reclassifying them as unregulated “information services” rather than regulated “telecommunications services."

So while certain folks like to make claims like "the internet didn't implode therefore repealing net neutrality wasn't important," that's a simplistic, dumb, or just plain disingenuous way of framing what actually happened. This is what actually happened: the FCC ignored the public, ignored rampant fraud, and ignored all hard data to neuter itself at the behest of giant telecom monopolies. That should never, ever get lost in the partisan bickering over policy.

With less authority than ever, the FCC was forced to recently resort to a sort of stage play to try and keep ISPs from ripping off financially-constrained broadband customers during a pandemic. That included a recent FCC "Keep Americans Connected Pledge" that involves ISPs pinky swearing that they won't kick U.S. telecom customers suffering from financial hardships offline during the COVID-19 quarantine for 60 days. But while the promise isn't necessarily a bad thing, it's entirely voluntary, and the FCC has no real authority to police ISPs that don't behave. It's policy theater, Sohn notes:

"A voluntary pledge isn’t adequate to ensure that Americans can work, learn, have access to health care, and communicate during this trying time. Without legal authority over broadband providers, the agency cannot hold any of those companies to their promises — they can simply walk away after 60 days or before. Nor can the FCC require broadband providers to take critical steps beyond the pledge, like relaxing data caps, providing low-cost or free connectivity, or other steps that would help those desperately in need during this crisis, if even on a temporary basis. The Communications Act of 1934 gives the FCC a great deal of flexibility to ensure that the public is protected during a national emergency. But when it comes to broadband internet access, this FCC is powerless."

On the Libertarian end, this neutering of the FCC is usually applauded alongside ample fear mongering that a potent FCC would run amok. But decades of U.S. broadband policy has never supported this empty assertion. For a generation now the U.S. FCC, under both parties, has (with a few exceptions like Wheeler) almost uniformly pandered to the interests of U.S. telecom monopolies, stripping away authority and consumer protections under a steady parade of promises that never materialize. For most of us (especially the less affluent), the end result of feckless telecom oversight and ceaseless pandering should be fairly obvious.

Again, with neither competition (a problem opponents of Sohn's arguments simply ignore or downplay at their convenience) nor regulatory oversight, telecom giants like AT&T and Comcast have been free to charge some of the highest rates in the developed world, engage in clear and repeated billing fraud, deliver some of the worst customer service in history (with no pressure or incentive to fix it), be utterly non-transparent, crush or acquire competitors through mindless consolidation, engage in rampant privacy abuses (again with little or only tepid repercussions), and so much more.

Folks claiming it's the FCC that is running amok or has too much power in this equation are engaged in some potent head-in-the-sand denialism. These companies are so powerful they're literally writing state and federal telecom law with an exclusive eye on protecting their revenues from accountability and competition. That was a problem during the best of times, but it's going to be doubly so as America enters a protracted crisis where broadband connectivity has shifted from "nice to have" to utterly essential to survive.

Pretending the U.S. broadband market isn't broken, and that regulatory capture and rampant corruption didn't play a massive role in that dysfunction, is disingenuous, dangerous folly whose multi-decade tenure as a dominant policy paradigm needs to be put out to pasture.

Filed Under: broadband, competition, covid-19, fcc, gigi sohn


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  • identicon
    Anonymous Coward, 2 Apr 2020 @ 2:52pm

    somehow magically fix a sector that's been clearly broken for decades

    More like a century. The market started out broken. Businesses might have 3 or 4 telephone numbers, so that subscribers from any of the local companies could call them. Telcos have been trying to appease and/or control regulators since the 1910s.

    Remember that in the 1980s and early 1990s, the telcos had their own ideas about how data networking should work, and nobody bought that stuff. Telcos were pulled into the consumer internet market grudgingly. Nobody was going to pay per-minute ISDN rates when they could make a local unlimited-length modem call for free.

    reply to this | link to this | view in chronology ]

    • icon
      sumgai (profile), 2 Apr 2020 @ 4:28pm

      Re:

      You're almost correct, AC, in that buying government regulators has been a sport for over a century. (The first such regulatory act was in 1912, the Radio Act (simple titles were all the rage, back then). And no, the Wireless Ship Communications Act of 1910 doesn't count. That was to require all ships registered with US ports to carry functional radios, it had nothing to do with regulating them.)

      However, it wasn't until 1934 that FCC was setup, and invested with powers to regulate not only radio, but telecommunications of all kinds. At the time, this was meant to include not only radio, but wired telecommunications, as in telegraph carriers. But it would seem that the courts have always interpreted that word to include all manner of non-face-to-face communications, excepting the Postal Service. Thus, the telcos banded together, and started waging war, pitting the states against the FCC where it benefited them, and vice-versa where needful (in their eyes).

      To my understanding, unless there's a part of the Act that I can't find, then the FCC really does not have the authority to dissolve itself, nor to cast aside any of it's duties or responsibilities. Insofar as I can discern, the courts still haven't decided whether the FCC acted within the bounds placed upon it by Congress.

      However, I do know this: Any time a government sets up a body for controlling something in order to protect the population from abuse, the people that stand to benefit the most from such regulation are exactly the ones who are not placed anywhere near that position of power. IOW, there's not even a semblance of balance to be seen betwixt and between the regulators, the regulatees, and the public at large. Raise your hands if you can spell "MONEY".....

      sumgai

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  • identicon
    Anonymous Coward, 2 Apr 2020 @ 3:57pm

    All that seems pretty much accurate except "fused to the NSA" should real "fused to a foreign cyberterrorist attack".

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Apr 2020 @ 4:12pm

    I'm not confident the author has fair understanding of the arguments in favor of repeal. This article appears to suggest that the reasons for repeal is fear of an over-zealous FCC, but I don't think fear that "a potent the FCC will run amok" this is the best argument from that perspective.

    to me, this is the strongest libertarian perspective:
    As the this author and the Libertarians lambasted in this article would both likely agree, large telco's wield a lot of influence over bureaucrats. The FCC is un-elected and relatively un-accountable. They have the power deferred to them by congress to write and enforce their own laws. That is to say that the FCC is a vehicle by which large telco's can stifle their smaller and less politically connected competition. Reducing capture which would prevent new entrance is the goal from this libertarian perspective. This article points out correctly that large telcos write telco law. From the libertarian perspective, why then would you want to give this organization more power?

    So the deeper question from the this libertarian perspective is -- without capturing the FCC and the ability for large companies to write laws for the industry, would it be possible for large telco's to maintain their dominance? To defeat Libertarian argument, the author should seek to prove that the nature of telephone companies is that they tend toward natural monopolies, and that despite the ease with which it is captured, the FCC is able to fairly write and administer its regulations and apply them harshly to its biggest captors. If the article would was written against the strongest perspective it would be a stronger article.

    A weaker libertarian perspective
    The other argument -- one which I think is not as strong, but I want to mention it anyway -- is that the law when properly applied should be as liberal as possible and should only restrict when there is a problem. As it turns out, the types of activities the net neutrality regulation sought to prevent was not happening before it was enacted and hasn't happened after its repeal, so any effort, compliance officers, taxes, time spent filling out forms, etc. hinders new entries and subtracts from incumbent firms ability to focus on their primary work, making network improvements, etc. Through this line of thinking, for every chief-of-compliance the company is made to hire, the company doesn't hire a line worker. If the overall benefit of compliance turns out to be nothing, then better to hire more regular workers.

    The weakest libertarian perspective
    This is the perspective which this article seems to target. And I definitely get it, I have heard this a lot. The weakest perspective is just to shout "government bad" or that the FCC has a dictator. This is the perspective found in the twitter feed linked in the article. You've definitely heard someone make this style of argument, but arguing against lame statements like these doesn't make the article seem very strong.

    My personal view is that most of the capture isn't with the FCC. The FCC is a fairly feckless organization for internet companies regardless of whether they have net neutrality rules. This is more frequently local cities which have various licenses for cabling. In many places it is illegal to run new cables or difficult to get licenses, so while there might not be an official city policy that there be only one or two ISPs, there may be only one or two who can make it through the process of getting operational. In my city, we have three ISPs, and they are all AT&T. One is actually AT&T and the others lease lines which are owned by the city and AT&T holds exclusive rights. The city has an administrative board to give certificates for new lines, but they have never approved certificates to anyone but AT&T. So my personal view is who cares about the net neutrality laws? If you are in a city which has has entered into a contract like the one my city has, It seems to make no difference in the outcome whether the rules exist or don't exist. The net neutrality regulation would do little, if anything at all to improve the situation. Net neutrality has nothing to do with COVID-19.

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 2 Apr 2020 @ 4:58pm

      Re:

      I recommend you go and read a large number of articles about the FCC or net neutrality that discuss why net neutrality is actually important. Take note that those reasons aren't based upon ideology (i.e. libertarianism), but on the impact on the market (monopolies) and the marketplace (consumers). Take politics as you will, but note that net neutrality was implemented under a Democratic administration and much of the FCC's power was given over under a Republican administration, neither of which is likely to have libertarian leanings.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 2 Apr 2020 @ 10:32pm

        Re: Re:

        Thanks for the links. Yeah it was all over the news a couple of years ago, and it was a FCC guideline before it was encoded into law.

        I am the anonymous coward who wrote the original comment. I didn't mean for my comment to be supportive or unsupportive of libertarians. My intention was to point out that the article attacks libertarians, but the particular perspective they chose to attack was the weakest. If you were a libertarian, this article wouldn't convince you to change your mind because it doesn't attack the things they care about

        If the article had been attacking democrats because gweneth patltrow tweets something silly about the power of goop, surely this would not convince a democrat to change their position on anything, right? Okay maybe that's not a perfect analogy... but hopefully you get my gist. The article attacks a caricature of libertarianism without addressing their core concerns.

        if you started the article thinking the FCC should be smaller because it is a vehicle for capture, you would end the article thinking the same thing. If you started the article thinking that de-facto net neutrality didn't need to be encoded into law, you would end the article thinking the same thing. This article says that companies write the law -- if you were a libertarian this would re-enforce your worldview that the FCC should be diminished -- See what I mean? The article seems to have the opposite of its intended effect.

        And yes, it's obviously the case that anti-government folks don't typically work in high levels of the government. The article indicates that libertarians are responsible for the repeal, so I chose to attack the article by pointing out libertarian viewpoints. These are certainly not the perspective of Republicans or Democrats, even liberty-leaning ones.

        The connection to COVID-19 is, I think, pretty contrived. But if it turns out that ISPs use the COVID-19 pandemic as an opportunity to implement "fastlanes" and other worries from a couple of years ago, that would be pretty good proof that the law was useful. This article doesn't point out any instances of this happening. It should, though. it would make the point a lot stronger.

        reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 2 Apr 2020 @ 5:11pm

      Re:

      That's a lot of words to carry so little substance.
      All you've really said is that libertarians are delisional idiots with no understanding of how things work in the real world - something obvious to many already.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Apr 2020 @ 5:36pm

      Re:

      large telco's wield a lot of influence over bureaucrats.

      Not in Europe, where the regulators largely look after the public interest. Regulatory capture is a US problem, largely caused by campaign contributions and political patronage.

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 3 Apr 2020 @ 7:45am

      Re:

      "This article points out correctly that large telcos write telco law. From the libertarian perspective, why then would you want to give this organization more power?"

      Erroneous argument - if the FCC's job is to implement net neutrality then that switches the FCC from being a pseudo-legislative body to being a monitoring one. At which point the large telcos will have to spend a lot more money buying senators and congressmen rather than half a dozen glorified bureaucrats if they want to make an impact.

      It has to be said that in europe net neutrality is usually written into basic telecommunications acts and it's still a wonder to me that the US somehow hasn't managed to do this. Legacy of Ma Bell?

      "...the law when properly applied should be as liberal as possible and should only restrict when there is a problem."

      Strictly speaking this is why net neutrality regulation is required. It removes the ability of a telco to extort downstream markets and opens the generic market to the concept of choice. Today we "socialist" europeans tend to point and laugh whenever an irate american talks about broadband and choice in the same sentence sentence.

      Libertarianism - or even basic capitalism - assumes that there is a level playing field. When what you have is entrenched monopoly capitalism - let alone libertarianism - gets to walk the plank, supplanted by a "market" closely resembling what you'd find in a totalitarian communist dictatorship.

      In order to fix this the FCC needs to be - forcibly - switched from a deciding role to one whose job is to simply uphold legislated infrastructure regulation. And that regulation must include net neutrality, or what you have isn't a free market anymore.

      "If you are in a city which has has entered into a contract like the one my city has, It seems to make no difference in the outcome whether the rules exist or don't exist."

      It does. Net neutrality doesn't stipulate which supplier holds a given supply contract. It stipulates that the supplier may not use it's overwhelming monopoly market advantage to perform the equivalent of racketeering -as happened in the netflix/comcast debacle.

      reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 3 Apr 2020 @ 11:37am

      Re:

      "net neutrality regulation sought to prevent was not happening before it was enacted and hasn't happened after its repeal,"

      Umm, HISTORY denies your comment.
      And your legalese seems abit stretched and over burdened, read it while you are more cognizant.

      reply to this | link to this | view in chronology ]

  • icon
    Bloof (profile), 3 Apr 2020 @ 1:54am

    Well, it's just another in a long line of things the Trump Whitehouse have broken with little thought as to what will happen in a crisis. Right wing policy in general is built on breaking government through underfunding and outright sabotage so people don't fight so hard to stop them they slash, burn and sell to their rich patrons.

    reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 3 Apr 2020 @ 11:43am

      Re:

      This is a problem..
      How does Trump know all these people to fill all these offices, as when he was elected he acted as if "What, Huh?", and it seems more likely that Someone or other group, Told him Who to place in positions.

      Trump didnt understand that he had 2000 positions to fill. and if he had, I would suggest, that he would have installed persons as he would his HOTELS..Subservient and those that would talk to him with the problems.(I WOULD HOPE)

      reply to this | link to this | view in chronology ]


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