In my ongoing series debunking the nonsense from Pai & Friends on what the draft net neutrality repeal/reclassification Order does and doesn’t do, I will now take on yet another cherished talking point that gets repeated ad naseum. “We are just winding back the clock to before 2015, when the Internet flourished and — to paraphrase a popular song of the time from a different Lord Business — everything was awesome! Everything was cool when you were part of the team (cable)! ”
Like “the FTC, antitrust law and state law can handle net neutrality” and “the FTC can stop ISPs from blocking content/services,” this talking point is intended to be a “technically true but totally not the way you think/we imply” statement that lawyers, politicians and demons selling you wishes in exchange for your soul love to tell you to get you to sign on the dotted line. In this case, however, this statement turns out to be literally false to fact as well as false by implication. Below, I compare the regulatory regime in place on January 17, 2014 (the day after Verizon v. FCC) and the anticipated regulatory regime as it will exist on January 17, 2018, and explain the Top 3 Ways They Are Totally And Completely Different In Ways That Make Consumers Worse Off.
Mind you, even assuming it were true that all the Pai Order did was reverse us back to 2014, that would still be pretty scary for consumers. 2014 involved the two most infamous incidents of ISPs behaving badly in a manner subsequently addressed by the adoption of the 2015 rules and Title II reclassification — the Netflix v. the 4 biggest ISPs “peering dispute” and the Verizon (and to some degree, AT&T, but they quite on their own) “Supercookie.” Why Pai, et al. believe “let us return you to a time when ISPs felt totally free to mess with your traffic and render your Internet connection so slow that it was constantly buffering and dropping so they could pressure a popular company into paying them extra moola for interconnection” is a selling point, I’m not sure. Nor do I understand the appeal of “lets strip away the privacy protection that finally forced your mobile carrier to stop including a unique identifier in your bit stream so they could track your web-browsing habits and accidentally make your online behavior visible to third parties in the process.” But that’s just me. Perhaps, going forward, instead of simply nodding, some intrepid reporter might ask this as a follow up question. But I digress.
However, even if we take the most literal and favorable interpretation of “we are just rolling things back to what they were before 2015” to mean “specifically, we are setting the regulatory way back machine to that magic day of January 17, 2014, the day after the D.C. Circuit in Verizon v. FCC struck down the FCC’s non-discrimination rule but not the transparency rule,” this statement is still false to fact in 3 fairly important ways.
The FCC Always Asserted It Had Authority To Protect Consumers Online and Present Blocking of Content, Even When It Did Not Have Rules In Place. Pai Is The First FCC Chariman Ever To Reverse This Bipartisan Consensus.
On January 16, 2014, the D.C. Circuit affirmed that Section 706 of the 1996 Communications Act gave the FCC authority to regulate broadband service and protect consumers. Tom Wheeler embraced that authority the exact same day, and then promptly used to investigate the aforementioned “peering dispute/interconnection fight” between Netflix and the ISPs. The Pai Order completely reverses this and says Section 706 provides no authority. That is a fairly significant difference in the legal landscape. It is one thing to say “OK, we don’t have specific rules at the moment, but we have full authority to go after you if your try something funny!” It is quite another thing to say: “Do as thou wilt shall be the whole of the law — give or take possible FTC or antitrust action.”
In fact, the FCC and FCC Chairmen, Republican and Democratic, have been absolutely consistent until now that the FCC had both the power and the responsibility to act to prevent blocking or other bad behavior by ISPs – regardless of whether the FCC actually had rules in place. (Check out, for example, this unanimous 2007 statement Yeah, I know, people who don’t deal with Administrative Law regularly don’t understand that the FCC (or other admin agency) can choose to enforce the plain language of the statute through prosecuting enforcement actions rather than through rulemaking. Indeed, that is precisely how our good buddy the FTC proceeds. It has no rules, and is prohibited from making any. It does case-by-case adjudication of Section 5. This is also how the FCC proceeded to prevent Madison River from blocking VOIP calls, and how the FCC proceeded against Comcast for blocking Bittorrent. (And no, that is NOT why the DC Circuit reversed the FCC. Please go read the frigging case if you tried to give that as a response.)
Likewise, at least since 2005 when the FCC adopted the “Internet Policy Statement,” the FCC has consistently declared and enforced the right of consumers to access any lawful content of their choice, to run any service or application of their choice, and to connect any device to the network that does not harm the network. Let me stress that again. Since 2005, and therefore on January 17, 2014, I and every other broadband subscriber have had an enforceable right, protected by the Federal Communications Commission that prevented ISPs from blocking any legal content or prohibiting me from running any application or accessing any service.
On January 17, 2018, I will have absolutely no enforceable right to anything. As I described extensively here and here, what the FTC gives me is a general protection from “unfair” or “deceptive” practices. That is not the same as an enforceable right. Mind you, according to Pai, you may not have any actual rights, but you will have plenty of [Braveheart Mode] freeeeeedoooommm!!!! [/Braveheart Mode]. But none of the enforceable government mechanisms that morons like Thomas Jefferson said in the Declaration of Independence were necessary to secure that freedom.
But whether you prefer enforceable rights and an FCC committed to protecting them or Internet Freeeeeedddddooooooommmm!!! Swapping enforceable rights for Internet Freedom is a pretty big change between January 17, 2014 and January 17, 2018.
Since The FCC Classified Broadband As An “Information Service” In 2002, Every FCC Chairman – Republican and Democratic – Has Stated That The FCC Will Enforce Consumer Protection Aganst Broadband Providers. The PAI Order Explicitly Reverses This 15 Year Bipartisan Consensus.
Ever since the Cable Modem Order of 2002, the FCC has explicitly maintained its authority to enforce consumer protection against broadband providers under it’s ancillary authority. The FCC got even more explicit on the subject in the Wireline Framework Order and Notice of Proposed Rulemaking in 2005. (“We emphasize that we will not hesitate to adopt any non-economic regulatory obligations that are necessary to ensure consumer protection and network security and reliability in this dynamically changing broadband era.” at Par. 111) Ironically, given how much Chairman Pai appears to loath the FCC privacy jurisdiction, the FCC prior to Pai has been most explicit about the FCC protecting the privacy of broadband and VOIP subscribers. But the FCC has not limited itself to claiming jurisdiction to protect broadband subscriber privacy. The FCC explicitly invoked its ancillary authority over DSL in 2006 when it started an investigation into initial plans from SBC and Verizon to continue to charge the USF contribution fee after the fee was eliminated by reclassifying DSL as an information service (the providers promptly backed down, so the FCC did not have to enforce).
I could go on with other examples, but I think I made my point. The FCC always maintained that it did consumer protection on broadband, particularly privacy — which was true in that magic year of 2014. Under the Pai Order, the FCC will not, under any circumstances, enforce any sort of consumer protection other than compliance with the now-weakened transparency rules — and especially not privacy, which for some reason Chairman Pai loathes above all other consumer protections despite it being a responsibility of the FCC since the Federal Radio Act of 1927.
So, January 17, 2014, I could expect the FCC to at least take an interest in my getting abused as a broadband subscriber and hope they would do something. On January 17, 2018, I can expect the FCC to have absolutely zero interest in my consumer protection problems — but promises in the new FTC/FCC MOU to refer any complaint to the FTC, which will (to judge by every other complaint I and other consumer colleagues have filed at the FTC) will disappear into a black hole from which no information on enforcement will emerge.
There Was Absolutely No FCC Preemption of State Law WRT Broadband On January 17, 2014. On January 17, 2018, The FCC Will Preempt Any State Law “Inconsistent” With the “Deregulatory Policies” The FCC Adopts in The Order.
Finally, in 2014, no one was preempting the states. Given that we have at least one state (NY) is trying to sue Charter (formerly TWC) for conduct relating to the Netflix v. ISP peering dispute fight from that magical year of 2014. According to the State of New York, during the happy, halcyon days when TWC felt free to mess with interconnection traffic to mess up your video subscription services [fun times!], TWC told their customers that if they would get an even more expensive high-capacity connection their Netflix buffering problems would go away. Since TWC knew that the congestion was entirely of their own making and that getting a more expensive plan would not help in any way, shape or form, the NY State Attorney General has filed a lawsuit claiming that Charter’s conduct in 2014 violated its state consumer protection laws.
Nor was this the first time that consumers or state AGs used state laws to deal with ISP shenanigans. In 2008, the state of Florida forced Comcast to stop terminating subscriber contracts on the amorphous claim they used “too much” bandwidth without specifying any limit. In 2009, Comcast settled a class action law suit brought under state law for blocking peer-2-peer services. In 2010, RCN settled a similar class action. So while having state law available as a remedy hasn’t been a replacement for net neutrality, it has certainly been useful in getting consumers compensated after the fact.
Some months back, Charter attempted to get the case dismissed on the grounds of federal preemption – which the court rejected. Now Charter has gone back to federal court, arguing that the broad preemptive language in the Pai Order covers NY State’s effort to hold Charter accountable for lying to consumers about why their Netflix wouldn’t work.
Whether the court ultimately buys the argument that the FCC’s decision to reduce the disclosure requirements from 2015 combined with the preemption language kills New York State’s lawsuit or not, this illustrates a very important difference between July 17, 2014 and July 17, 2018. Prior to 2015, the FCC wasn’t preempting the states. I could use state law to go after blocking, degrading or other forms of consumer abuse. On July 17, 2018, that option will be either severely limited or non-existent.
So, once again, we see that the talking points floated by Pai & Friends to defend this rather radical departure from the last 20 years of bipartisan consensus is simply false to fact – and no chanting over and over again the sacred mantra of “heavy handed government regulation” v. “light touch” changes the basic facts. For 20 years, Republicans and Democrats alike, while disagreeing on the details to be sure, have all said: “hey, the Federal Communications Commission, the agency charged explicitly by Congress to oversee ‘all communications by wire and wireless’ for the benefit of “all people of the United States” ought to maintain some oversight of the single most important communications platform of the 21st Century. You know, the one critical to our commerce and our democracy. Broadband! That’s it.”
Chairman Pai, Commissioner O’Reilly and Commissioner Carr are the first three FCC Commissioners to ever say “eh, not so much.” Frankly, the only way they get away with this is that no one else other than me has been doing this for long enough that I remember what it was like back when we first started arguing about how to classify broadband and I wore an onion on my belt – which was all the style at the time. However, thanks to the magic of hypertext linking, I can share all my rambling reminiscences with you all. But if you happen to be in a postion to actually ask any of the above about the major contradictions between how they claim the world worked in 2014 v. how it actually worked in 2014 v. how it will work in 2018, please do. I would be most interested in hearing their response.
Stay tuned . . . .