Is Net Neutrality (And Everything Else) Not Dead Yet or Pining For the Fjords? Contemplating Trump’s Telecom Policy.

The election of Donald Trump has prompted great speculation over the direction of telecom policy in the near future. Not surprisingly, everyone assumes that the primary Republican goal will be to completely roll back net neutrality and just about every other rule or policy adopted by the Wheeler FCC — perhaps even eliminating the FCC altogether or scaling back it’s authority to virtual non-existence. Why not? In addition to controlling the White House, Republicans have majorities in the Senate and the House.  Jeff Eisenach, the head of Trump’s FCC transition team (now called “Landing Teams”), has been one of the harshest critics of the FCC under both Wheeler and Genachowski. So it is unsurprising to see a spate of articles and blog posts on the upcoming death of net neutrality, broadband privacy, and unlicensed spectrum.


As it happens, I have now been through two transitions where the party with the White House has controlled Congress. In neither case have things worked out as expected. Oh, I’m not going to pretend that everything will be hunky-dory in the land of telecom (at least not from my perspective). But having won things during the Bush years (expanding unlicensed spectrum, for example), and lost things in the Obama years (net neutrality 2010), I am not prepared to lay down and die, either.


Telecom policy — and particularly net neutrality, Title II and privacy — now exists in an unusual, quantum state that can best be defined with reference to Monty Python. On the one hand, I will assert that net neutrality is not dead yet. On the other hand, it may be that I am simply fooling myself that net neutrality is simply pining for the fjords when, in fact, it is deceased, passed on, has run up the curtain and joined the choir invisible.


I give my reasons for coming down on the “not dead yet” side — although we will need to work our butts off to keep from getting clopped on the head and thrown into the dead cart. I expect the usual folks will call me delusional. However, as I have said a great deal over the years: “If I am delusional, I find it a very functional delusion.”


More below . . . .

Let me begin by stating the obvious. The Republicans, who have been sworn enemies of Title II, net neutrality, and just about everything the FCC has done since 2010, now control the White House and both chambers of Congress (or at least they will starting January 20, 2017). So nothing stops the Republicans from having their way and forcing their agenda — right.


Possibly, but let me remind folks of two significant counter examples:


(a) In 2002, after the Republicans took control of the Senate and Michael Powell was Chair of the FCC, everyone was utterly convinced that the media ownership rules were toast. It was an absolute stone cold certainty. We are now in 2016 and the ownership rules remain in place.

(b) When Genachowski became chair in 2009, everyone was utterly convinced we would get massively strong net neutrality rules, a resolution to the Special Access proceeding, and a bunch of other stuff. We got none of that under Genachowski despite the Dems holding both houses of Congress and the White House.


‘But this is a different administration!’ Very true. But let us consider the current debate over repeal of Obamacare. If there was one thing that united all Republicans, it was the need to totally repeal Obamacare and replace it with something awesome. That was one of Trump’s “First 100 Days” agenda items. I’ve lost track of how many times in the last 6 years the House, and then after 2014 the Senate, voted or tried to vote to repeal Obamacare. So you would be justified in thinking that Obamacare was even deader than Title II broadband or net neutrality generally.


Turns out, now that Republicans are totally in charge, not so much. Trump has kinda sorta backed away some from “repeal and replace” to maybe just “amend.”  And while Mitch McConell and some of his colleagues remain keen on full repeal, a number of Republicans are having second thoughts about the “total repeal” thing. Why? Because, to quote the Classic Trek Episode Friday’s Child: “Perhaps to be a Tier is to see things in new ways.” Or, if you prefer Broadway’s Hamilton, “winning was easy, young man. Governing’s harder.


Are all of these different and distinguishable from net neutrality/Title II? You bet! The only thing they all have in common with net neutrality/Title II, or even with each other, is that everyone totally and completely knew with tremendous certainty, based on everything that folks had said before they were in charge, that these things were absolutely going to happen and no one on the other side could possibly stop it because the party that wanted it now controlled Congress and the White House. Why does that matter? Go back and read my blog post on the Black Swan and the principle of falsification.



What Do We Know About Trump’s Telecom Policy So Far?


Trump did not focus much on telecom policy in his campaign, we know fairly little about his priorities. There is his famous 2014 tweet echoing the general Republican line against net neutrality, and his somewhat contradictory statement that he thinks we need to stop media concentration by stopping the AT&T/TW merger and perhaps even dismantling Comcast/NBCU.  He has a passing reference to building telecom infrastructure as part of his overall infrastructure plan. And a very general reference to removing “burdensome regulation.” That’s it.


Unofficially, we know Trump doesn’t like the media very much, especially when they criticize him. He tweeted that he deserves ”equal time” on Saturday Night Live. He has alternated between berating media companies one moment and offering an olive branch the next day. Whether you think Trump is big on technology generally, it is pretty clear that he cares about the media and access to social media platforms.


All of this is, unsurprisingly, wildly inconsistent and unpredictable. Of course, that’s Trump’s signature style. He even boasts about how his unpredictability gives him advantages over everyone else since they can’t guess what he’ll do next. This has not stopped everyone from acting as if Ted Cruz, rather than Donald Trump, won the election.


Why Is Everyone Acting Like Trump Is Going to Deregulate Telecom Rather than Take Apart Comcast/NBCU?


As far as I can tell, the general reaction from the pundits (who have been universally wrong about Trump so far) and the Washington insider class (ditto), is that Trump will basically be what people now think of as “typical Republican,” which is actually “exceedingly far right total dereg tea-party Republican.” This is either because Trump is “really” a Republican or because it is Mike Pence (who is hardcore right-wing Republican) who is “really” running everything and Trump is simply playing with his Twitter account while making America Great Again.


There are a couple of problems with this analysis. First, those of us with memories that go back longer than the last 6 years remember when Republicans were in power they suddenly became rather more reasonable (or at least not so far off the Dems). Yes, on some issues they were whack-job crazy. (Remember the effort to try to privatize social security in ’04?) But on other issues they were not that far right of the Democrats (including on deregulating the financial sector. That’s why progressives were so sore at Hillary and the centrist Ds, remember?)


So not only is Trump branding himself as “not a typical Republican,” but even “typical Republicans” don’t reflect what typical Republicans were like last time they actually had the power to do anything. And while there are plenty of Tea Party conservatives who have been absolutely itching for this moment, they may turn out to be a lot more fringe and a lot less mainstream than when Republicans were out of power. Either that, or we need to take equally seriously the pledges to go back to the gold standard, refusal to raise the debt ceiling when the huge tax cuts don’t pay off in increased revenue, totally repealing Obamacare, and about five dozen other things that will crash the economy well before we get to reversing Title II classification.


The usual response to this is for the same pundits and Washington insiders to decide that Trump (and the Rs generally) don’t “really mean” all the whack job stuff like the gold standard, but are totally and sincerely committed to getting rid of Title II and net neutrality because — that is a very convenient thing to believe.


What About Jeff Eisenach And Friends?


We also know that Jeff Eisenach is heading Trump’s transition team for the FCC, along with fellow AEI alumni Mark Jamison and Roslyn Layton. We know a lot more about Eisenach than we do about Trump on telecom. Eisenach has, for the last several years, been one of the hard right conservatives who consistently argues against spending money on broadband infrastructure (on the grounds that wireless and satellite have solved the rural problem), against net neutrality or any FCC regulation of ISPs, and for generally eliminating the FCC by distributing its functions to the Federal Trade Commission and NTIA. Jamison, who works with Eisenach as a visiting fellow at American Enterprise Institute, likewise has written (and fairly recently) that the FCC as currently constituted ought to be abolished or stripped of most of its authority. Layton, while having a somewhat shorter paper trail (largely due to be younger and earlier in her career), appears similarly minded.


It is clear that Eisenach has gone out of his way to prevent even a different shade of perspective from disturbing what has become an AEI project for the Trump Administration in all but name. We can expect that this will produce a set of recommendations based around what the incoming Chairman should reverse, eliminate and restructure and what functions Congress ought to transfer to other agencies (along, I would hope, with some cost estimates). But such a plan already emerges with one strike against it, absolutely zero in common with the real world.


I am, of course, aware that folks like Eisenach will routinely accuse me, my employer Public Knowledge, and our various allied organizations protecting the Open Internet, promoting competition and generally trying to protect consumers as out of touch. Heck, Eisenach said as much in this interview back in 2013. On the other hand, I would argue that no one is more out of touch than a trinity of free market economists from a far right conservative think tank who have built their own little echo chamber to screen out any contrary evidence or opinion which might disturb their pre-ordained conclusion. Oh, I don’t doubt that they’ll get a handful of the usual suspects to wildly applaud. They may even run it past a few industry buddies. But unlike Trump, who seemed willing to at least listen to Obama’s description of the job of President, it seems rather unlikely that Eisenach and friends will care what the current or previous Chairmen have to say about the agency and the job.


Remember Chairman Michael Powell and the 2002-03 media ownership campaign? One of the biggest reasons it ran into a political buzzsaw was because Powell and his Media Bureau Chief Ken Ferree simply did not believe that there were rational, sustainable arguments against their proposals. In a famous USA Today Op Ed, Powell chastised the opposition to his proposed relaxation of broadcast ownership rules as based on emotion whereas his proposal was based on — invoking the classic police drama Dragent – ”just the facts.” When the FCC received an unprecedented million comments against the the proposed deregulation, the majority dismissed it as the product of people scared by a deliberate misinformation campaign. (I will say that Powell handled ejecting disruptive protesters very graciously, although unlike Wheeler he declined to meet with any of them.)


But Powell was proven wrong on two counts. The first was that in politics emotions matter as much as facts — especially when they are appropriate reactions to the actual facts on the ground. Heck, if there is one lesson from this election, it’s that people respond to emotion far more readily than they do to facts. But in addition to being wrong about the emotions, Powell was also wrong about the facts. As Powell later admitted when he began a separate proceeding on broadcast localism, Powell’s failure to appreciate that media concentration had killed local news and local interest programming led him to underestimate how angry most Americans had become at their radio and television broadcasters. Ultimately, Powell’s effort to lower the national ownership cap was reversed by Congress, and the remainder of the media ownership deregulation was reversed by the 3rd Circuit Court of Appeals.


I expect that a master plan dreamed up by Jeff Eisenach and two-like minded colleagues with similar skills in economics and no contrary opinions or additional disciplines will have similar success in crafting a radical right-wing utterly out of the mainstream plan for a perfect deregulated utopia such as the Gods of The Marketplace  desire of their most fanatical priests at the American Enterprise Institute — a faith that holds that if you sacrifice enough regulations the Gods of the Marketplace shower you with blessings and prosperity. In actual reality, however, people and even most businesses impacted by the FCC are unlikely to perceive the benefits of this aggressive new pseudo-economic faith.


Does Trump Want To Get Rid of the FCC Like Hiring Eisenach Suggests?


It is also unlcear if Trump himself is that interested in eliminating FCC authority over the media — both in terms of their actual media properties and their related businesses like broadband. As I wrote a long time ago during the Bush Administration, big business and big government actually enjoy a synergistic relationship I call “outsourcing big brother.” One of the few points I agree with right wingers like Jeff is the danger that big government will exploit its relationship with big business so that businesses agree to do favors for the government at their request (such as AT&T spying on America’s phone system post-9/11) in exchange for an understanding that when these companies need something (favorable regulatory treatment, or unfavorable treatment for rivals), the government will reciprocate. This is rarely as clear as a quid pro quo, making it all the harder to enforce.


One of the reasons I support clear rules that limit ISP discretion, like Title II, is that it makes it much harder for government to play these games. True, as with AT&T, a company that wants to break the law can do so. But, as with Qwest refusing to go along, a company that wants to say “no” to requests to influence content or spy on customers has strong legal grounds to do so. (I call this the “Duck Dynasty Effect,” after the effort opposed by liberals to get cable companies to punish Duck Dynasty star Phil Robertson for making a bunch of racist statements, and the opposition by conservatives in the name of “viewpoint diversity.” If you have editorial discretion, you will be pushed top use it.) Because ISPs are unable by law to influence the nature and quality of content, for example, the ISP cannot comply with potential requests from government to prioritize “good” news sites while slowing access to “bad” news sites.


As we’ve just seen in the most recent election, a relatively small number of votes in key states can be the difference in winning or losing an election. Prioritization and other “nudges” from ISPs that make it easier to read one version of events, and harder to read opposing explanations or views, can be extremely effective while influencing only a comparative handful of undecided voters.


Radical deregulators like Eisenach think you solve the problem by eliminating regulation, and thus remove the lever of the government to push ISPs to do their bidding. I regard this theory as the equivalent of saying we stop the evolution of drug-resistant bacteria by destroying all antibiotics, in that it goes way overboard in the other direction and substitutes big government for corporate control with no restraint. It also overlooks that the companies themselves may wish to further an agenda of their own. But setting that aside, lets get back to Trump.


Trump has not struck me as the kind of man who wants to get rid of the tools at his disposal to deal with those whom he distrusts, particularly the media. I can’t see Trump or Steve Bannon — both of whom used unfiltered access to social media as a critical tool in their rise to power — want a situation in which the media companies they distrust like Comcast or AT&T can do what they like. While they will certainly be all for deregulating companies, they will want to keep the threat of regulation over their heads.


Which potentially applies to things like net neutrality, privacy and other existing rules. There are lots of things a Trump FCC can do that keep Title II while gutting it’s enforcement. That maximizes the power of the Administration over the industry. Industry understand that their continued freedom of action to price gouge and otherwise leverage monopoly power comes at the grace of the Trump Administration, which gives them lots of incentive to keep that Administration happy.


After years of conservatives crying wolf that the Obama Administration engages in this kind of “crony capitalism” on a regular basis, there seems an utter lack of awareness that Trump has a history of playing these kinds of games for real. He regards leveraging his assets against rivals as “smart business.” Why should he be any different as President?


And Then There Is The Actual Underlying Political Situation.


One of the attributes of the “Washington Bubble” is that you tend to get your own little ideological echo chamber about how the world works. Spoiler alert: Washington DC metro area has more broadband choices than nearly any other place in the U.S.  I have an overbuilder (RCN). I have Verizon FIOS. I have Comcast. And I have a wealth of mobile providers all rushing to deploy systems in the nation’s capital and thus prove their awesomeness to 535 Members of Congress, their staffers, and the thousand or so executive branch decisionmakers and influencers that deal with various aspects of tech and telecom policy for the United States. It helps that we also have some pretty high rate of return areas. Yes, we have our own version of the digital divide. There are plenty of poor neighborhoods in the area that have lousy broadband choices. But I’m willing to bet that the Eisenach’s of the world do not live in neighborhoods like Anacostia.


So a plan to dissolve the FCC, or radically deregulate, because we have so much competition does not reflect the state of reality in most of America, particularly not the “real America” that is looking for Trump to “drain the swamp” and get rid of the “rigged system” that favors big business over ordinary people. That takes regulatory power, or the threat of regulatory power.


Even without the consumer protection issues, we still have a lot of places — particularly rural ones — that lack broadband. As recently as last summer, a lengthy bipartisan list of Senators sent a letter to Chairman Wheeler urging the FCC to use its regulatory powers to “close the rural broadband gap.” I do not think that urban/rural gap has closed much over the last 6 months, at least not enough to justify ending FCC efforts to do something about it (or even track it by collecting data for the annual broadband report).


So if the FCC starts it’s agenda on January 22, 2017 with the announcement that “Our first action will be to roll back every consumer protection rule on broadband (and phone, and video), to get rid of the one existing residential broadband subsidy program (Lifeline; the other funds go to networks for construction and maintenance rather than to consumers to afford service), and to generally dismantle the agency and turn over the nation’s communications infrastructure to some of the biggest and most hated companies in America,” I suspect it will go about as well the 2003 effort to eliminate the media ownership rules.


Additionally, there may be opportunities to find common ground with the Trump Administration. While it definitely looks increasingly unlikely that “populist Trump” is going to be the driving force in telecom policy, there are plenty of places where it is possible to find common ground — notably on broadband infrastructure. Additionally, now that Republicans are no longer being driven by Obama Derangement Syndrome, it may be possible to find productive common ground on things like spectrum policy. We did that in the Senate with the proposed Mobile Now Act, and it seems quite likely we can do that going forward if there is interest.


So Everything Will Be O.K., Then?


Oh Hell no.


Make no mistake, Republicans are still going to do what they can to deregulate industry. That’s their thing. It may not be as radical as Eisenach and other true believers would like, but no one on the list of being appointed Chair of the FCC is going to want to keep Title II, broadband privacy regs, or possibly even Lifeline. Additionally, the agency will start with a very clear pro-industry bias for unresolved issues like zero rating. Given the response of Commissioners Pai and O’Reilly to the recent letters from the Wireless Bureau to AT&T and Verizon over their zero rating practices, we should expect a Trump FCC, at a minimum, to stand down from what has been the FCC’s impressive willingness to actually enforce its rules under the Wheeler FCC.


What I have just spent 3500+ words on is explaining why we should not despair and that resistance is possible — despite the tidal wave of conventional wisdom that the achievements of the last 3 years are doomed. But we are going to have to fight like Hell to preserve whatever we can from what will certainly be a concerted effort by industry and their cheerleaders (inside the Administration as well as outside) to roll back, undermine or outright eliminate every single pro-consumer and pro-competitive policy at the FCC. The most extreme proposals to eliminate or substantially reduce the FCC’s overall authority must be taken seriously, but the true danger lies in “compromises” that are just shy of the most extreme proposals while crippling the FCC from providing genuine consumer protection.


That means that those who care about the future of broadband need to be prepared to organize and fight. I predict we will see not one single plan but a range of offensives designed to wear out resistance, undermine effectiveness, and gradually bring about the worst possible outcome — a world where industry can claim there is government oversight but where the regulator is not merely weak legally, but affirmatively pro-business.


We can stop that world, or at least minimize the damage so that a future FCC interested in protecting consumers and promoting competition can do its job. But it will not be easy. It will require dedication. It will require organization. It will require that the public once again stand up to the radical right wing pro-corporate agenda. It will require a willingness to suffer agonizing defeat, then get back up again to fight another round — because the alternative is total defeat.


I will close with something I wrote a long time ago.


A Reflection on the Peculiar Nature of World Changing Advocacy.


The successful world-changing advocate must believe it is possible to achieve the impossible through passion and perseverance and planning. At the same time, the successful world changing advocate must be a horrible pragmatist, knowing when to cut losses or what evils to tolerate because diverting to tilt at windmills will stop you from ever reaching the dragons — let alone slaying them.


What this means is that the successful advocate exists in a peculiar state of functional delusion and cold calculation. It means having a pair of rose colored glasses but keeping them perched on your forehead, lest they obscure too much. It means spending oneself recklessly and, of necessity, repeatedly losing heartbreaking battles because failure is always, ALWAYS, an option. And despite utter, soul-crushing disappointment, getting back up and going for another round.


But even if one achieves this perverse state of functional madness, the successful advocate faces one last trap — the seductiveness of martyrdom. By this I do not mean true martyrdom of dying for one’s beliefs, or even genuine figurative martyrdom of those willing to endure in the face oppression so as to create an example of resistance or to shame others into action. By martyrdom, I mean struggle with no hope of victory and no goal in defeat.


Martyrdom allows you to define failure as success. Martyrdom converts bone crushing defeat into a sort of sick pleasure, and therefore defeat becomes a self-fulfilling prophecy. Martyrdom is its own reward, and its own prison. After a time, the failure becomes necessary, confirmatory that previous failures were not your fault but the inevitable way of the world.


Those looking for world-changing advocacy should therefore embrace madmen but shun martyrs. The unfortunate history of social movements is that they tend to get this backward.


Stay tuned . . . .

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