John Oliver had the right idea last month when he noted that we shouldn't be discussing "net neutrality," but rather "preventing cable company fuckery."
I've been sorting through a bunch of the hundreds of thousands of "comments" on the FCC's proposal, and it's amazing how nearly all of them basically say "we support a free and open internet..." but then totally diverge
on how to accomplish that -- with people basically insisting that either reclassifying under Title II would protect an open and free internet, or destroy an open and free internet.
But if the goal is to honestly prevent "cable company fuckery," it's not difficult to figure out which plans make sense, because all of the major broadband players are pretty clear that they really, really like the FCC's plan -- and we already know that they also tend to like "fuckery." AT&T had already kicked this off last month by insisting that Section 706 was a lovely way to keep the internet open and free
and Title II would damn us all to the 9th circle of hell (or something close to that). Yesterday, Comcast said something similar
in its blog post and actual FCC filing. Though, as you dig deep into Comcast's filing, you get weasely language like the following:
Comcast supports the application of such a standard [the "commercially reasonable" standard for paid prioritization]. Comcast also would not be opposed to a rebuttable presumption that "paid prioritization" arrangements are commercially unreasonable. This presumption could be interpreted to preclude, among other things, exclusive arrangements and arrangements that prioritize a broadband provider's own affiliated Internet content vis-a-vis unaffiliated content. A broadband provider seeking to justify any "paid prioritization" arrangement could be required to bear the burden of showing that the arrangement is commercially reasonable and fair to consumers and edge providers. Comcast believes that few arrangements would be deemed to overcome the presumption.
However, the Commission should not establish a policy that would preclude all experimentation in this area. Arrangements could emerge between broadband providers and edge providers that could have widely varying implications for competition and consumer welfare based on the terms of an individual arrangement, the parties involved, and the markets affected. As FCC General Counsel Jon Sallet recently explained, "[c]ase-by-case enforcement offers a potentially more dynamic approach, permitting the Commission to respond to and learn from the rapid pace of change in the communications market."
This is sneaky in the extreme. Beyond being somewhat mealy-mouthed, that first paragraph pretends to say these rules would stop fast lanes. But what it really says is that broadband providers would be totally free to experiment with paid prioritization agreements, and might then have to defend them in front of the FCC later if and only if those who are screwed over (generally smaller players who have neither the cash nor the lawyers necessary) complain loudly enough to the FCC that it investigates the issue. The second paragraph makes it quite clear that the broadband companies have every intention of "experimenting" with fast lanes. They're just going to look for ways to pretend that they're beneficial to customers -- such as by first setting artificially low "broadband caps," and then letting big internet companies pay them to have those caps ignored for their content only
Meanwhile, NCTA, the lobbying arm of the cable industry (which current FCC Commissioner Tom Wheeler used to run, and which is currently run by former FCC Commissioner Michael Powell), has also weighed in on just how great it thinks the proposed plans are
. Just like AT&T and Comcast, it insists that (1) Section 706 is just dandy and (2) Title II would be horrific. It insists that Section 706 gives the FCC the power to deal with any problems, while Title II would just likely lead to litigation. This is self-contradictory. As both Comcast and NCTA make clear, part of their support for Section 706 is that it allows the FCC to pick and choose what to declare problematic on a "case-by-case" basis. But you (and those lobbyists) know that any such attempt by the FCC to declare something commercially unreasonable will lead to a lawsuit as well.
In other words, either plan is likely to lead to lawsuits and uncertainty. Anyone claiming that one plan won't is being misleading.
Finally, the mega filing came from Verizon late last night
, and may be the most interesting and
ridiculous. It too is quite happy with the FCC's plan, and Verizon's view is best summarized as "there's no reason to put rules on anything we do!" But... at the same time, it's rather passive aggressive in attacking internet companies like Netflix, Google and Amazon, pretending that if the FCC wants to regulate anyone, it might want to look at those guys. In other words "hands off of us, look at those guys who actually provide the services people like
." But, when it comes to Title II classifications -- the very same one that Verizon begs to have
its fiber lines classified under to get subsidies and tax breaks -- Verizon insists that it would be a total disaster for its broadband access to be regulated under that system. Because it says so. But, when it comes to actually creating fast lanes, like Comcast, Verizon is excited by the "commercially reasonable" standard and all the fuckery it allows, though of course it couches it in language pretending to be about "protecting consumers."
...consumer welfare is best protected if
the Commission allows broadband Internet access service providers to manage their networks
and—if they so choose—offer differentiated services or implement sophisticated pricing
strategies as long as those practices do not harm competition.
In assessing whether a practice harms competition, it is essential not to confuse harm
to competitors with harm to competition. The Commission has stated “We believe that
consumers of broadband access service should have the ability to exercise meaningful
choices.” Those choices should include services offered by edge providers that have chosen
to enter arrangements for differential treatment in order to offer more desirable services to
their customers. Such options will benefit consumers, even as they reduce rival edge
providers’ economic welfare by increasing the competitive pressure they face.
In other words, give us our fast lanes and fuck the internet companies.
So, really, if you go back to the basic idea that John Oliver made clear: if the goal here is to prevent [broadband provider] fuckery, which do you think is really going to do that? The plan that the broadband providers claim to love, or the one that they're all scared to death the FCC might actually put in place?