Don't Get Fooled: The Plan Is To Kill Net Neutrality While Pretending It's Being Protected

from the pay-attention dept

Back in February, we had former top FCC staffer Gigi Sohn on our podcast and she laid out the likely strategy of Ajit Pai and Congress to kill net neutrality while pretending that they were protecting net neutrality. And so far, it's played out exactly according to plan. Each move, though, seems to be getting reported by most of the tech press as if it's some sort of surprise or unexpected move. It's not. There's a script and it's being followed almost exactly. So, as a reminder, let's go through the exact script:

Step 1: Set fire to old net neutrality rules

New FCC boss Ajit Pai announces that he's going releasing a plan to roll back the Open Internet rules that his predecessor, Tom Wheeler, put in place two years ago. This has been done, and Pai has released what's called an NPRM (a Notice of Proposed Rulemaking) which opens up a comment period. Once the comment period is over, the FCC can release its new rules and vote on them. The problem -- as basically everyone in telco knows (but which almost never gets mentioned in the press coverage) is that the FCC almost certainly will lose in court if it rolls back the rules that Wheeler put in place. This is important. Contrary to what you may have heard, the FCC isn't allowed to just willy nilly flip flop the rules.

Indeed, the FCC is barred by statute from putting in place "arbitrary and capricious" rule changes. Basically, every lawsuit challenging any FCC rulemaking includes claims that they were "arbitrary and capricious." And, to get over that burden, the FCC can't just change the rules willy nilly, but have to lay out clear evidence for why a change in policy is necessary. That's why the Wheeler Open Internet rules have been upheld by the DC Circuit (who shot down previous rules). Wheeler effectively laid out the clear reasons why the market had changed drastically in the decade plus since the FCC had declared broadband to be an "information service" rather than a "telecommunications service" (under Title II).

For Pai to successfully roll back those rules, he'd need to show that there was some major change in the market since the rules were put in place less than two years ago. That's... almost certainly going to fail in court. Again, this is important: Pai can change the rules, but that rule change will almost definitely be shot down in court. While many are assuming that the Pai's new rules are a done deal, they are not. I mean, he's almost certainly going to ignore the public outcry about how rolling back these rules will harm the internet. And he's almost certainly going to continue to blatantly misrepresent reality and (falsely) claim that investment in broadband has dropped because of these rules (despite tons of clear evidence that he's wrong). And, then he will pass new rules. But those rules will be challenged and he will almost certainly lose in court, and the old rules would remain in place.

Again: basically everyone in the FCC (including Pai) and in Congress know this. The press not reporting on this is a shame.

Step 2: Congress to the "rescue"

Congressional net neutrality haters (e.g. those receiving massive campaign contributions from big broadband players...) are well aware that Pai's plans have no chance in court. Yet, they want there to be this kind of uproar over the plans. They want the public to freak out and to say that this is bad for the internet and all that. Because this will allow them to do two things. First, they will fundraise off of this. They will go to the big broadband providers and act wishy washy on their own stance about changing net neutrality rules, and will smile happily as the campaign contributions roll in. It's how the game is played.

The second thing they will do... is come to "the rescue" of net neutrality. That is, they will put forth a bill -- written with the help of broadband lobbyists -- that on its face pretends to protect net neutrality, but in reality absolutely guts net neutrality as well as the FCC's authority to enforce any kind of meaningful consumer protection. We've already seen this with a plan from Senator Thune and this new bill from Senator Mike Lee.

Unfortunately, some reporters will buy this argument and pretend that these bills will "save net neutrality." The article at that link is correct that a change in administrations can lead an FCC to try to flip flop again on net neutrality, but totally ignores that any such attempt would totally flop in court as arbitrary and capricious, without actual evidence of a changed market. The article is also correct that Congress should fix this permanently, but misses two key factors: (1) Congress is way too beholden to broadband lobbyists to come up with anything that actually protects neutrality and (2) the plans presented so far are designed to kill net neutrality while pretending to "protect" it.

This latter point is why Verizon's General Counsel can say with a straight face that no one wants to kill net neutrality. Because he's going to be supporting Congress' plan that pretends to save it. That's because the Congressional plans do put in place a few bright line rules that seem important to net neutrality -- saying that it bars "paid prioritization," throttling and the like. The problem is that those are last decade's net neutrality issues. The big broadband providers have already said they're fine with those kinds of rules because they've found ways around them.

Specifically, the big broadband providers are doing things like deliberately overloading interconnect points to force large companies like Netflix to pay not to be throttled. Or they're putting in place totally arbitrary and low data caps, and then offering to "zero rate" certain services, pretending that this is a "consumer friendly" move. Again, as we've said dozens of times, you're not a hero if you save people from a fire that you set yourself. And that's exactly what zero rating is. Access providers set low data caps themselves and then "save" their customers from having to pay for going over those caps... but, only if you use approved services (often ones owned by the access provider themselves).

And this is the problem. Under the existing Wheeler rules, the FCC was able to adjust and respond to efforts by the telcos to continue to abuse net neutrality and block the open internet, while pretending they were doing something else. The Congressional proposals for "net neutrality" actually take away that authority from the FCC. In other words, they are opening the floodgates for the big broadband access providers to screw over customers, by saying (1) you can't do the obviously bad stuff, but you can do the hidden bad stuff that's effectively creates the same problems and (2) the FCC can no longer stop you from doing this.

That's not a plan to save net neutrality or an open internet. It's a plan to bless the access providers' plans to start walling off the internet and getting to double and triple charge companies for offering services. This is a plan to put tollbooths on the internet, but in ways that are less obvious than people were first worried about.

Step 3: Leverage the Controversy

Meanwhile, everyone who wants to kill net neutrality knows what's going to happen here. They will use the fact that Pai's rules absolutely can't withstand scrutiny in the courts to step up and push for the Congressional "rescue." Even more likely: they'll say that we need Congress to step in to "prevent uncertainty" from the inevitable lawsuits. Believe it or not: they're happy that this will get tied up in courts for years, because that gives Congress extra cover to push through this pretend "compromise." You'll hear lots of tut-tutting about "uncertainty" that has to be stopped. But, like zero rating and the fact that it's not heroic if you rescue people from your own fire, the fire here is being set by Ajit Pai and big broadband's key supporters. They're setting this fire of rolling back Wheeler's rules solely to whine about the uncertainty that will be caused by their own unnecessary rule change... and then will say that "only Congress can settle this."

So, what does all this mean? It means people who are mad about this (as you should be) need to be direct in what they're talking about here. Don't pretend that Pai's rule change is the real problem. It's not. It's just a mechanism to get to new regulations from Congress that will cause real problems. Don't let anyone say that the Wheeler rules have harmed the internet or investment. They have not. Don't let anyone (especially supporters of killing net neutrality) launch into self-pitying cries about "uncertainty." Remind them that the uncertainty is coming from them and their supporters. And, most importantly, don't pretend that a bill from Congress pretending to "save" net neutrality will actually do so, when it's quite obvious that the bills being offered will undermine our internet, help big broadband screw over users, and diminish competition.


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  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 3 May 2017 @ 9:47am

    Too late!

    "Don't Get Fooled"

    We voted in Obama, got fooled and loved it!
    We voted in Trump, getting fooled and loving it too!

    What else you got for me?

    O yea right I keep forgetting... here here... this is not my fault, I did not vote for THIS bastard I voted for that OTHER bastard. The fact that I only ever vote FOR a bastard is immaterial here. I am guiltless because this is not from MY bastard!

    Trump spoke sweet sweet regulatory bullshit into my ears and I bit!

    This has been the game of government since forever. It works, and it works damn good! Hopefully TD will help make a difference here but it will not. People can only speak through their party sycophancy and nothing else.

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

    • identicon
      Anonymous Coward, 3 May 2017 @ 10:49am

      Re: Too late!

      Trumps campaign was anything but how the game has been run forever. It is not unique, but nevertheless not how the political game has been played historically.

      That he acts as all other presidents is another matter. Most of it based on the fact that USA is ruled by cooperation with congress and by SCOTUS and constitution...

      As for sycophancy, it is always problematic to only flatter one side and reject any other sides on its own. But structurally the larger problem is that as soon as a problem becomes a dichotomy, the issue has already lost its meaning in a philosofical sense and we are at a zero sum game where two cavemen measures sizes...

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

      • identicon
        Anonymous Coward, 3 May 2017 @ 11:42am

        Re: Re: Too late!

        Well said, but I guess because I was "brutally honest" my post is the one that got flagged.

        This speaks to a very serious problem of today. It matters more how something was said, than the truth of it. This is why Obama is just as evil as Trump is but sounded a lot better when going about it. The fruits of Obama's labors proved that he did not believe in anything he said to the American People.

        {"It is not unique, but nevertheless not how the political game has been played historically."

        Do tell, Trump is nothing new to our political history. The game has been played like this many times. The only thing that has changed is some of the rhetoric being said and the rhetoric being tolerated. But you base what has changed based on rhetoric alone than a lot of things look new and different.

        Trump is super rich. Has not had to suffer the problems of a common person. Has loads of money and sycophants that respect or follow him just because he has a lot of money. The only real difference with Donald is the loud mouth and willingness to go for the drivers chair instead of buying off traditional drivers like Obama and Bush. Presidents in the past had enough respect to keep their diarrhea of the mouth in check, but not trump. this is hardly a new game however.

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

        • identicon
          Thad, 3 May 2017 @ 2:19pm

          Re: Re: Re: Too late!

          Well said, but I guess because I was "brutally honest" my post is the one that got flagged.

          Yeah, that must be it.

          This speaks to a very serious problem of today. It matters more how something was said, than the truth of it. This is why Obama is just as evil as Trump is but sounded a lot better when going about it. The fruits of Obama's labors proved that he did not believe in anything he said to the American People.

          Maybe your post got flagged because vague false equivalence and knee-jerk both-sides-do-it-ism are a tedious waste of time and everybody's sick of reading them.

          There are certainly cases where Obama did some things that I consider truly reprehensible. Net neutrality is not one of them. The Obama Administration was not remotely equivalent to the Trump Administration on the subject of net neutrality, the subject we are actually talking about here. Not even close. Obama supported net neutrality, Trump opposes it.

          Do you have any examples to the contrary? Any argument that is relevant to the conversation that everyone else is having? If so, feel free to share. If not, you're just making off-topic noise, and people are going to flag you for it.

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

        • identicon
          Anonymous Coward, 3 May 2017 @ 2:47pm

          Re: Re: Re: Too late!

          False equivalence ... again.
          Defense of the indefensible ... again.

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

        • icon
          PaulT (profile), 4 May 2017 @ 1:11am

          Re: Re: Re: Too late!

          "Well said, but I guess because I was "brutally honest" my post is the one that got flagged."

          No, it's because you were acting like a child again, while inserting false equivalency and ranting about something only tangentially related to the subject of the article in question.

          It's possible to be "honest" without being a dickhead or trying to derail the conversation before it's even begun. If you decide to do so anyway, it's the being a dickhead part that gets you flagged, not the "honesty".

          "It matters more how something was said, than the truth of it. "

          This has always been the case. If I say "I respectfully disagree with your opinion for the following reasons..." or I say "you're wrong, you fucking moron" with no explanation why, both statements may be true but you're going to respond very differently depending on how it was said.

          That's one of the problems with Trump. His ranting on Twitter is derailing international relations at the very least, and has already led directly to the Supreme Court revoking one of his orders (his travel ban on Muslims may have worked if he weren't so solidly on record as intending to target religion). Forget for a moment that his behaviour really isn't how you want a head of state to act in the first place, he's actively undermining his own leadership. That's not a positive quality in a leader, no matter how you want to spin it.

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

  • identicon
    Baron von Robber, 3 May 2017 @ 9:58am

    "Net neutrality is the principle that Internet service providers and governments regulating the Internet should treat all data on the Internet the same, not discriminating or charging differentially by user, content, website, platform, application, type of attached equipment, or mode of communication"

    Yea! Who in the f*#* would want that?! DERP!

    /s

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

  • identicon
    Anonymous Coward, 3 May 2017 @ 10:17am

    The ironic part is that what Pai is asking for Wheeler attempted and was shot down by a lawsuit from Verizon. In the closure, the Federal court system suggested to Wheeler that Title II was the only way forward, so we now have Title II thanks to the telco's lawsuit. Sadly, the only reason we have it is because the broadband providers have repeatedly violated the concept of net neutrality in the first place. Comcast blocking BitTorrent protocol, River communications blocking competing VoIP services, unreasonable broadband data caps effectively barring competing online video services, et al... Sadly in a free market with open competition, this wouldn't even be a discussion, but the Telco/Cable industry again block any attempts at competition, look at the lawsuits on municipal broadband efforts, and even the roll-out of Google fiber.

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

  • icon
    Oblate (profile), 3 May 2017 @ 10:21am

    Former President Andrew Jackson was very much against net neutrality, according to Trump. Trump is following in the footsteps of his hero by making this a priority for his administration.

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

  • identicon
    jgoi, 3 May 2017 @ 1:53pm

    Except the part about it happening in the summer (it's frickin spring, this bs bill popped up at the beginning of may) your prediction came true. God tell me why couldn't I have two more months to enjoy things?

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 3 May 2017 @ 2:55pm

    Step 1: fuel the fire with rhe faithful

    Step 2: masnick to the rescue

    Step 3: sell lots of t-shirts.

    The song remains the same.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Brett Glass, 3 May 2017 @ 4:09pm

    Good riddance!

    The regulations, which go against the very nature of the Internet, are the result of corruption; they were bought by Google campaign contributions and written by Google lobbyists. Their purpose: to harm ISPs and Internet users while fattening the wallet of Google, the world's richest corporation. They SHOULD be repealed -- not replaced, simply repealed. There was no problem for them to solve, and they have created problems: They've slowed broadband investment and deployment, discouraged innovation, raised bills, slowed speeds, and threatened Internet users' privacy (by exempting the Internet's worst spies -- including Google). So, why does this publication say otherwise? And why does it libel ISPs (who, unlike the one person it attacked directly, have been nice enough not to sue it but would have a good case)? Because it gets money from Google. Unethical journalism at its worst.

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

    • icon
      Rapnel (profile), 3 May 2017 @ 4:47pm

      Re: Good riddance!

      What're you trying to do, crowd-sploosh you're own reality? You smell funny.

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

      • identicon
        Anonymous Coward, 3 May 2017 @ 5:09pm

        Re: Re: Good riddance!

        Brett Glass runs his own ISP and has been known to have vested interests in Pai for years. It's why he got embarrassed off Ars Technica.

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

        • icon
          Brett Glass (profile), 3 May 2017 @ 6:06pm

          Re: Re: Re: Good riddance!

          I see you're afraid to post abusive comments under your own name. Fact: Yes, I am an ISP. A damned good one who cares about his customers. The regulations are bad for them and for the Net and must be repealed.

          As for Ajit Pai: I have no "vested interest" in him, but do respect him as a very capable and knowledgeable lawyer and a man of principle.

          As for Arse Technica: They're merely a clone of Techdirt, or maybe vice versa. They also get money from Google to lie about, and libel, ISPs.

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

          • identicon
            Anonymous Coward, 3 May 2017 @ 9:49pm

            Re: Re: Re: Re: Good riddance!

            Brett Glass runs his own ISP and has been known to have vested interests in Pai for years. It's why he got embarrassed off Ars Technica.

            If that's your benchmark for abusive your mother must not have hugged you very much as a child.

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

          • icon
            PaulT (profile), 4 May 2017 @ 1:12am

            Re: Re: Re: Re: Good riddance!

            So, anyone capable of dealing with reality is paid off by Google? Got it.

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

          • icon
            PaulT (profile), 4 May 2017 @ 1:15am

            Re: Re: Re: Re: Good riddance!

            "Fact: Yes, I am an ISP."

            One that's embarrassed to link to, name check or advertise his business in these rants. That's interesting, isn't it? You'd think that a business owner taking a principled stand in something that directly affects his customers would want to have that stance associated with his business.

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

    • identicon
      Thad, 3 May 2017 @ 5:34pm

      Re: Good riddance!

      which go against the very nature of the Internet

      That's not what Vint Cerf and Tim Berners-Lee think, but hey, what the fuck would those guys know about the nature of the Internet?

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

    • identicon
      Anonymous Coward, 3 May 2017 @ 6:24pm

      Re: Good riddance!

      Please explain how the regulations:

      - "go against the very nature of the Internet"
      - "slowed broadband investment and deployment, discouraged innovation, raised bills, slowed speeds, and threatened Internet users' privacy"

      Thanks.

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

    • identicon
      Anonymous Coward, 3 May 2017 @ 6:31pm

      Re: Good riddance!

      "Good riddance!

      The regulations, which go against the very nature of the Internet, are the result of corruption; they were bought by Google campaign contributions and written by Google lobbyists. Their purpose: to harm ISPs and Internet users while fattening the wallet of Google, the world's richest corporation. They SHOULD be repealed -- not replaced, simply repealed. There was no problem for them to solve, and they have created problems: They've slowed broadband investment and deployment, discouraged innovation, raised bills, slowed speeds, and threatened Internet users' privacy (by exempting the Internet's worst spies -- including Google). So, why does this publication say otherwise? And why does it libel ISPs (who, unlike the one person it attacked directly, have been nice enough not to sue it but would have a good case)? Because it gets money from Google. Unethical journalism at its worst."

      Best comedy I've read in a while. thanks, and good riddance to you too, sir or madam.

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

    • identicon
      Anonymous Coward, 3 May 2017 @ 9:22pm

      Re: Good riddance!

      Seriously, what part of Title II did the rules actually impose on WISPs? About the only thing I can think of is blocking competing traffic? There was nothing about rates, QoS was basically just blocking paid prioritization and I don't think that was even enforced if you simply put it in a vlan seperate from the link. The only paperwork that increased was regular FCC crap about frequencies, which had nothing to do with Title II in the first place. Perhaps you're upset because people can't watch Netflix on your network and are leaving for another provider?

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

    • identicon
      Anonymous Coward, 4 May 2017 @ 12:32am

      Re: Good riddance!

      Would you be happy if your phone company decided which carryout you could buy a meal from, especially when they also own a restuarant.? If not why should ISP's be allowed to decide what content you can access over the Internet?

      That is all net neutrality is about, ensuring that the communications provider cannot decide who you communicate with.

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

    • icon
      PaulT (profile), 4 May 2017 @ 1:11am

      Re: Good riddance!

      That's a nice slice of fiction. Do you have anything form this reality to report?

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

    • identicon
      Anonymous Coward, 19 May 2017 @ 12:23pm

      Re: Good riddance!

      Wait, so requiring you to treat all traffic equally is bad for customers??... How does throttling internet from certain websites allow for greater competition??

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


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