Net Neutrality Does Not End Today. We Still Don’t Know When It Will. Which Is Weird When You Think About It.

There is a lot of confusion on the effective date for the 2017 Net Neutrality Repeal Order, aka “Restoring Internet Freedom — Which Is Not In The Least Overdramatic Unlike You Hysterical Hippies.” This is not surprising, given the rather confusing way the Federal Register Notice reads.

 

You can see the Federal Register Notice here. If you look at the section labeled dates, you will see it says the following:

“Effective dates: April 23, 2018, except for amendatory instructions 2, 3, 5, 6, and 8, which are delayed as follows. The FCC will publish a document in the Federal Register announcing the effective date(s) of the delayed amendatory instructions, which are contingent on OMB approval of the modified information collection requirements in 47 CFR 8.1 (amendatory instruction 5). The Declaratory Ruling, Report and Order, and Order will also be effective upon the date announced in that same document. (Emphasis added.)

 

Which is a very confusing way of saying the following: ‘Before net neutrality gets repealed and the new, much weaker disclosure obligations go into effect, we are going to wait for the Office of Management and Budget (OMB) to review the much weaker transparency rule under the Paperwork Reduction Act and other legislation that is supposed to make it harder to pass rules. Once OMB signs off, we at the FCC will publish a second notice in the Federal Register announcing when everything goes into effect. But until we do that, nothing actually happens. Zip. Nadda. Zero. Total psyche!’

 

This is, to say the least, highly unusual. There is absolutely no reason for FCC Chairman Ajit Pai to have stretched out this process so ridiculously long. It is especially puzzling in light Pai’s insistence that he had to rush through repeal of net neutrality over the objections of just about everyone but the ISPs and their cheerleaders because every day — nay every minute! — ISPs suffer under the horrible, crushing burden of Title II is another day in which Princess Comcast Celestia, Princess Twilight Verizon Sparkle, and all the other Broadband Equestria Girls must endure the agonies of a blasted regulatory Hellscape rather than provide us all with wonderful new innovative services at even lower cost than they do now. Because Broadband Is Magic.

 

So yeah, if Pai thought it was a total emergency that he take his vote in December, why did he basically extend the current Title II regime indefinitely? We hasn’t Pai restored our Internet Freedom? Why has Pai instead forced us to languish here in the terrible regulatory Hellscape that is the merely “open Internet” rather than the private sector controlled de-regulatory paradise he and his fellow Republican Commissioners have promised us? Hell, the FCC didn’t even submit the new rule to OMB for approval until March 27. For a guy who was all on fire to repeal Title II and free his Broadband Ponies, Pai sure has taken his time making it actually happen.

 

An excellent question. Somebody who is an actual reporter might want to ask him about that. I have some guesses and rank speculation — but they are just that, guesses. It’s like wondering why Number 6 resigned, or why the Minbari surrendered at the Battle of the Line. Unless we get a big reveal, we’ll never know.

 

But one thing is clear. For whatever reason, Ajit Pai is taking his own sweet time restoring that Internet freedom he claimed to be so obsessed about back in December. Whenever the net neutrality appeal does happen, it won’t be Monday, April 23.

 

Stay tuned . . .

Better Privacy Protections Won’t Kill Free Facebook.

Once upon a time, some people developed a new technology for freely communicating with people around the world. While initially the purview of techies and hobbyists, it didn’t take long for commercial interests to notice the insanely popular new medium and rapidly move to displace the amateur stuff with professional content. But these companies had a problem. For years, people had gotten used to the idea that if you paid for the equipment to access the content, you could receive the content for free. No one wanted to pay for this new, high quality (and expensive to make) content. How could private enterprise possibly make money (other than selling equipment) in a market where people insisted on getting new content every day — heck, every minute! — for free?

 

Finally, a young techie turned entrepreneur came up with a crazy idea. Advertising! This fellow realized that if he could attract a big enough audience, he could get people to pay him so much for advertising it would more than cover the cost of creating the content. Heck, he even seeded the business by paying people to take his content, just so he could sell more advertising. Everyone thought he was crazy. What? Give away content for free? How the heck can you make money giving it away for free? From advertising? Ha! Crazy kids with their whacky technology. But over the course of a decade, this young genius built one of the most lucrative and influential industries in the history of the world.

 

I am talking, of course, about William Paley, who invented the CBS broadcast network and figured out how to make radio broadcasting an extremely profitable business. Not only did Paley prove that you could make a very nice living giving away content supported by advertising, he also demonstrated that you didn’t need to know anything about your audience beyond the most basic raw numbers and aggregate information to do it. For the first 80 or so years of its existence, broadcast advertising depended on extrapolated guesses about total aggregate viewing audience and only the most general information about the demographics of viewership. Until the recent development of real-time information collection via set-top boxes, broadcast advertising (and cable advertising) depended on survey sampling and such broad categories as “18-25 year old males” to sell targeted advertising — and made a fortune while doing it.

 

We should remember this history when evaluating claims by Facebook and others that any changes to enhance user privacy will bring the digital world crashing down on us and force everyone to start paying for content. Setting aside that some people might actually like the option of paying for services in exchange for enhanced privacy protection (I will deal with why this doesn’t happen on its own in a separate blog post), history tells us that advertising can support free content just fine without needing to know every detail of our lives to serve us unique ads tailored to an algorithms best guess about our likes and dislikes based on multi-year, detailed surveillance of our every eye-muscle twitch. Despite the unfortunate tendency of social media to drive toward the most extreme arguments even at the best of times, “privacy regulation” is hardly an all or nothing proposition. We have a lot of room to address the truly awful problems with data collection and storage of personal information before we start significantly eating into the potential revenue of Facebook and other advertising supported media.

 

Mind you, I’m not promising that solid and effective privacy regulation would have no impact on the future revenue earning power of advertising. Sometimes, and again I recognize this will sound like heresy to a bunch of folks, we find that the overall public interest actually requires that we impose limits on profit making activities to protect people. But again, and as I find myself explaining every time we debate possible regulation in any context, we don’t face some Manichean choice between libertarian utopia and a blasted regulatory Hellscape where no business may offer a service without filling out 20 forms in triplicate. We have a lot of ways we can strike a reasonable balance that provides users with real, honest-to-God enforceable personal privacy, while keeping the advertising-supported digital economy profitable enough to thrive. My Public Knowledge colleague Allie Bohm has some concrete suggestions in this blog post here. I explore some broader possible theoretical dimensions of this balance below . . . .

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