A Few Reminders Before The Tired Net Neutrality Debate Is Rekindled

from the get-ready-for-another-round dept

Bad news for folks "worn out" by the longstanding debate over net neutrality: it's about to be rekindled in a major way. But for those who are a bit too easily annoyed by having to revisit this well tread path, it's worth remembering that the debate about net neutrality is really about competition, policing monopolization, and having regulators and antitrust enforcers that aren't feckless cowards in dutiful sway to powerful natural monopolies. And either you care about these very real problems, or you don't.

With the Senate falling under Democratic control in the wake of the Georgia run off elections, Mitch McConnell, AT&T, and Comcast's dream scenario -- an FCC perpetually crippled by partisanship by McConnell -- is no longer happening. Big telecom had hoped that the rushed appointment of unqualified Trump sycophant Nathan Simington would bring the agency to a 2-2 partisan Commissioner tie. It's extremely clear McConnell then planned to block the appointment of a new FCC boss to ensure the agency was crippled and lacked the majority to reverse Trump's lengthy list of handouts to the telecom sector.

That's no longer possible, meaning the Biden administration, with a 3-2 Commissioner majority, should be able to pick their preferred FCC boss and get back to at least occasionally pretending that monopolistic behavior and consumer protection is something we take seriously. Net neutrality activists are, as you might expect, excited to reverse a lot of Trump era policies like the factually dubious and hugely unpopular repeal of net neutrality:

"Already, net neutrality advocates are barely containing their excitement. Reached for comment, Fight for the Future’s Evan Greer laid out a laundry list of progressive goals that can now be pursued, from overturning FCC Chairman Ajit Pai’s order to implementing more aggressive privacy and connectivity policies.

“If Democrats take the Senate they should move quickly to confirm an FCC chair who will make it their first order of business to restore the Title II open Internet protections,” Greer said in a statement. “But they should also do more than that. The FCC can and should take steps to protect people’s privacy, and to ensure that everyone can afford Internet access during a time when many are working from home and sending their kids to school online."

Granted things could go one of several ways here. Yes, the Biden camp could appoint somebody with a backbone willing to quickly tread back into reclassifying ISPs as common carriers under Title II of the Communications Act, giving the FCC the authority to once again adequately police obnoxious monopolies. The Democratic FCC could just vote along 3-2 party lines to restore net neutrality and FCC authority, given the courts have made it clear now several times it has that right. Even if this risks simply being reversed in 2024 should Democrats lose the White House.

But I can also see the Biden camp taking a far flimsier route, appointing somebody "safe" and unwilling to rock the boat; somebody like Obama's first FCC boss, Julius Genachowski, who was largely incapable of taking tough stands on any issue of substance.

Ideally, to avoid FCC regulatory ping pong, you'd prefer Congress pass a useful, well-crafted, new net neutrality law prohibiting ISPs like AT&T and Comcast from abusing their power as gatekeepers. But there too it's no certain bet that the Biden team genuinely sees holding telecom monopolies accountable as a priority (Biden's first 2020 fundraiser ever was at a Comcast lobbyist's home), wants to spend the time making it a priority with so many other urgent problems, or will be able to secure the necessary votes among heavily lobbied lawmakers who traditionally treat upsetting AT&T, Verizon and Comcast as a cardinal sin.

While Democrats are saying that restoring net neutrality is a top priority, I can see providing COVID relief to low-income Americans consuming most of the oxygen in the room, and quite justly. Under this scenario, a feckless new Democratic FCC boss could use COVID as a shield to justify not taking a tougher stance against telecom monopolies or restoring net neutrality ("there's more important things to do than revisit contentious issues!"), even if the restoration of the FCC's authority would go a long way toward giving the FCC the tools needed to accomplish any COVID-related goals.

Either way, expect all the same arguments to be dusted off for what feels like the eighty-fifth time. And while annoying, it's still a conversation we need to have. 82 million Americans live under a broadband monopoly, usually Comcast. 43 million Americans can't get any service whatsoever. The one-two punch of monopolization and chickenshit lawmakers and regulators is why Americans pay some of the highest prices in the world for broadband service that's routinely mediocre by any metric that matters. Monopolies have cornered the market, closed the door behind them, lobbied endlessly against any threat of disruption, and are now ceaselessly on the prowl for creative ways to nickel-and-dime captive customers.

Net neutrality (read: dumb, anticompetitive ideas only made possible by a lack of competition) gets the focus, but this is really about policing monopolization and driving more competition to market so there's an organic market penalty for bad behavior, whether that's a privacy violation or net neutrality skullduggery.

Again, maybe you really don't like net neutrality as a concept, and that's fine. But if you don't, you'd better be recommending real regulatory and antitrust reform that addresses monopolization and the myriad of problems that creates. If you're whining about how much you hate net neutrality--while downplaying, ignoring, or encouraging rampant monopolization and regulatory capture--you're sure as hell not helping and may even be part of the problem.

For four straight years, the Trump FCC couldn't even admit a lack of market competition is a problem, and went to great lengths to push fabricated data claiming the market was perfectly healthy. So whatever direction the Biden camp goes, it's likely to be an improvement from the fabricated post-truth delusion that has been the highlight of the last four years.

During its tenure the Trump FCC, directed by the telecom lobby, convinced the lion's share of DC that "big tech" is the root of all evil, while effectively gutting most oversight of telecom giants with 30-year track records of predatory, anti-competitive behavior. Whatever solution emerges from the Biden camp, it would be nice if it stems from an understanding that monopolistic jackassery is not somehow the exclusive domain of big tech, and we need more consistent, and far less pathetic antitrust and regulatory enforcement across the board.

And before the dumb hyperbole and decades-old arguments emerge anew, let's be clear about something: folks who argue that net neutrality didn't matter because the rules were killed and the internet didn't immediately explode (and there's a lot of them) are only advertising their own ignorance. As we've been covering for years, the Trump FCC's net neutrality repeal didn't just kill net neutrality. It hamstrung the FCC's ability to police telecom monopolies on a wide variety of fronts, whether that's recent bullshit attempts by ISPs to charge consumers "rental" fees for modems they already own, to policing the sneaky, bullshit fees cable TV giants and ISPs use to covertly jack up your bill and falsely advertise a lower price.

In short, anybody who thinks that gutting most meaningful oversight of monopolies like Comcast and AT&T resulted in "innovation," new investment, or free market Utopia has fallen into an ideological mud puddle. That said, it also remains true that if the broadband industry saw meaningful competition at scale, you wouldn't need net neutrality in the first place. A company in a competitive market can't engage in ham-fisted throttling or other bullshit, because consumers would flock to a (gasp) competitor.

But in a country where there's virtually no competition at modern speeds, our regulators are usually feckless chickenshits, and we're intent on rubber stamping every job and competition-killing merger than comes down the pike -- that can't happen. Net neutrality is an imperfect stopgap measure until we figure out how to fix this mess. And fixing this mess requires some backbone and standing up to politically powerful telecom monopolies welded to our intelligence-gathering apparatus. No easy feat.

Hopefully, whatever happens, a Biden FCC will at a minimum make better real-world data a priority so we can, for the first time, accurately measure the least competitive and most disconnected areas of the country, then embrace creative solutions that drive competition to market. Instead of what we've long been doing for thirty years, which is to use bad ISP data to blindly guess which areas of the country need help, then throw billions of dollars at giant companies for networks that (mysteriously!) always wind up half deployed.

Again, it's not yet clear how much backbone a Biden FCC boss will be have, or just how serious the Biden FCC will be about restoring net neutrality and FCC authority. But whatever the future of the FCC looks like, it might be nice if we stopped our generation-long trend of letting monopolies like AT&T and Comcast dictate the lion's share of state and federal policy, then standing around with a dumb look on our collective faces wondering why US broadband is a mediocre mess.

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Filed Under: congress, fcc, joe biden, net neutrality

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  • identicon
    Anonymous Coward, 11 Jan 2021 @ 5:32am

    like ping pong

    -one regime institutes laws in favor of net neutrality
    -the other regime repeals those same "pro net neutrality" laws
    what's the difference?

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

    • icon
      Koby (profile), 11 Jan 2021 @ 6:13am

      Re: like ping pong

      The core problem is that congress often abdicates its duty to make the rules, and instead allows the executive branch to manufacture the rules. Policies, especially major ones, were supposed to be crafted by congress. There ought never be a ping pong without legislation.

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

      • identicon
        Anonymous Coward, 11 Jan 2021 @ 8:17am

        Re: Re: like ping pong

        I must be out of the loop because I thought Corporate America wrote the legislation in this country, congress is simply a rubber stamp as most of its members do not read what they sign.

        How could they read the bill before signing it when the bill's hundreds of pages with barely readable scribbling in margins is delivered to congress for approval a few hours before it is scheduled.

        Congress needs to start doing their friggin jobs.

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

  • identicon
    Anonymous Coward, 11 Jan 2021 @ 5:42am

    This is a bipartisan problem. Blackburn and Pelosi live in the ISP pigopolists' left and right pockets, respectively. Wheeler was a surprise, an honest man--nobody expected that.

    And so the solution will have to be bipartisan also. I don't know how that might be accomplished.

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

    • identicon
      Rocky, 11 Jan 2021 @ 6:29am


      Wheeler is an interesting fellow, a lot of people where very disappointed when he was put in charge of FCC because of his history as a lobbyist for the cable and wireless industry. But what we can learn from his tenure at FCC and what he did there is that the man seems to be someone who takes his job seriously. The US needs more people who take their jobs seriously instead of being beholden to vested interests and partisan power grabs.

      I may be wrong in my observation, but I don't think so.

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

  • This comment has been flagged by the community. Click here to show it
    seedeevee (profile), 11 Jan 2021 @ 8:06am

    Nothing Will Fundamentally Change

    "The truth of the matter is, you all, you all know, you all know in your gut what has to be done. We can disagree in the margins but the truth of the matter is it’s all within our wheelhouse and nobody has to be punished. No one’s standard of living will change, nothing would fundamentally change. Because when we have income inequality as large as we have in the United States today, it brews and ferments political discord and basic revolution. Not a joke. Not a joke. I’m not (inaudible) revolution. But not a joke. It allows demagogues to step in and say the reason where we are is because of the other, the other.” You’re not the other. I need you very badly. I hope if I win this nomination, I won’t let you down. I promise you. I have a bad reputation, I always say what I mean. The problem is I sometimes say all that I mean.” -- Fearless Joe Biden on Your Hopes and Dreams For a Better Future

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

  • icon
    Thad (profile), 11 Jan 2021 @ 8:51am

    What's the current status of the rule reversal?

    Last I heard, the court said "We have to defer to regulatory agencies, but you still have to provide [i]some[/i] kind of justification for a rule change; go back and write one up," and Pai was like "Nah" and resubmitted the same justification the court had already determined was inconsistent.

    What happened with that? Did the court issue a final ruling? Could a new FCC just back off the rule change if it's still tied up in the courts?

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

    • identicon
      Anonymous Coward, 11 Jan 2021 @ 9:32am


      Did the court issue a final ruling?

      Are you referring to Mozilla v FCC (D.C. Cir 18-1051)?

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

    • identicon
      Anonymous Coward, 11 Jan 2021 @ 10:04am


      Last I heard, the court said…

      Via Wikipedia references…

      FCC reaffirms order rolling back net neutrality regulations”, by By Rebecca Klar, The Hill, Oct 27, 2020

      In a ruling last year, the court asked the FCC to evaluate the order’s effects on public safety, on the ability to regulate pole attachments and on the ability to support broadband.

      Obviously, The Hill's characterization of the D.C. Circuit's ruling in that case does not quite seem exactly consistent with whatever you're describing.

      I don't have a search engine that looks inside your memories and mental impressions.

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

  • icon
    Nilt (profile), 11 Jan 2021 @ 9:24am

    It's well worth noting that net neutrality hasn't been completely dead all this time. Washington State enacted a statute which has been in force for several years now and shockingly the Internet still works just fine here in Seattle.

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

  • identicon
    Stephen, 22 Jan 2021 @ 10:11am

    I kind of wish this was as wide-ranging and focused as you think it might be?

    BUT your adorable net neutrality law, within 20 years, like all laws will be expanded and used as a cudgel by the Karen's in government.

    The logical fallacy of believing EVERYTHING would remain equal is quaint.

    So why isn't techdirt then actually trying to get more competitive practices? It actually wouldn't be as hard as you pretend. But your elected officials would have to give up a lot of power and we all know that's not happening.

    maybe if you just voted better in the first place we wouldn't need hamfisted HAMFISTED laws like net neutrality ( which by the way, means about as much as pro life does. It has nothing to do with neutrality just like pro life has nothing to do with life) .

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

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