We're heading back… to the future! Net neutrality rules on chopping block

FCC parties like it's 1996


As expected, on Thursday America's broadband watchdog, the FCC, voted 2-1 to start the process to gut net neutrality rules.

Also as expected, it was a fiery affair with protestors outside the building and harsh words inside as the only Democrat on the commission, Mignon Clyburn, slammed her fellow commissioners for trying to tear up rules approved just two years ago – a process she said has "every indication of a political rush job."

That criticism of it being a politicized policy process was given unexpected weight as a series of Republican Congressmen gave speeches on the Hill at the same time, praising the FCC's action for "keeping the internet open to consumers." It is just the latest in a long series of coordinated actions between Pai and Republicans in Congress.

FCC chairman Ajit Pai and commissioner Michael O'Rielly were less caustic than Clyburn, although Pai continued with his peculiar habit of interspersing reasoned argument with bitchy comments. Both continue to paint the Open Internet Order, passed in 2015, as an aberration and an anti-competitive move by an over-reaching government regulator.

Perhaps the only thing that the commissioners could agree on was that the notice of proposed rulemaking would take us back to 1996.

In Partisan Pai's eyes, this was a good thing. He holds up the Telecommunications Act of 1996 – which he is planning to roll back to – as a brilliant and incisive document representing the best American thinking when it comes to the internet.

The refusal to regulate the nascent internet like the telephone companies was the start of the internet revolution, he noted. And he quoted several prominent Democrats speaking at the time as supporting the approach of treating internet access as a service rather than a utility.

Amazingly, even this rollback may not be enough: the notice will look at whether the tiny section covering the internet in the 1996 Act – Section 706 – actually gives the FCC authority over broadband providers. Commissioner O'Rielly said during a press conference that he didn't think it did.

Different times

Clyburn's strongest criticism of the proposal argued the same: that it would take us back to 1996. She pointed out that back then, people effectively bought two services: a phone line and an internet provider. The phone was used to connect to the ISP, which then gave you access to the internet. Now, she points out, your broadband provider is both and the vast majority of services that consumers use every day are reliant on that connection.

"The majority claims it has an eye towards the future. But both feet, I'm sad to say, are firmly stuck in the past," she concluded. And in place of quoting Democratic leaders from 1996, she went for a Republican Supreme Court Justice, Antonin Scalia, back in 2004, when he dissented in a critical case for telecom law (NCTA v Brand X) and argued that broadband access was obviously a telecommunication. (Scalia came up with an amusing critique of cable companies by comparing them to pizza delivery.)

None of it matters though, because the issue of net neutrality has fallen down the black hole of partisanship. Pai and O'Rielly were not listening to Clyburn any more than she was listening to them. Commentary on Twitter and elsewhere came thick and fast – almost none of it anything but mockery or cheerleading, depending on their team's position and who was talking.

In short, the whole thing is a farce – seemingly immune to hypocrisy, and bereft of logic or careful analysis – with everyone tying themselves up in knots as they argue their pre-decided position.

Flip-flop

Regardless, it may be worthwhile outlining some of those hypocritical stances for the sake of posterity. And, unsurprisingly, Partisan Pai tops the list.

In fact, Clyburn put out a major burn to Pai in the lead-up to the vote, releasing a PDF through the official FCC channels that contrasted his criticisms of the process in 2014 with what he's advocating this time, three years later. It's not pretty.

"I recommended that the Commission seek guidance from Congress instead of plowing ahead yet again on its own," Pai railed back then. Now that he's in charge, not so much.

"A dispute this fundamental is not for us, five unelected individuals, to decide. Instead, it should be resolved by the people's elected representatives, those who choose the direction of government – and those whom the American people can hold accountable for that choice," he spat. Now he's moving forward with not even five commissioners, but three.

There's another five similar blatant contradictions.

And then there is the issue of economics. Pai was, quite rightly, highly critical of the previous process for not doing decent economic analysis of the rules before they were approved (in actuality, he overstates his case). And he made big play on Thursday about how these rules would come with "actual cost-benefit analysis."

But of course, that doesn't explain why he rushed ahead with this notice of proposed rulemaking without doing exactly that. Considering the rules were put in place two years ago and have been backed up by the courts, anything that seeks to up-end them is going to have a significant economic impact.

Pai has failed to even ask what economic impact another three years of uncertainty would have on the market before launching into a repeal effort.

Clyburn's hypocrisy is evident from her failure to address the FCC's ridiculously secretive approach last time around, where Pai quite rightly points out that the net neutrality rules were written and approved before anyone was able to actually see them. That's fine when you agree with them, not so great when you don't.

So Pai should be congratulated for promising that he will publish the text of anything the FCC will vote on far in advance of that voting. "You may not agree with it, but you will be able to see what we are voting on and why," he said at the meeting. The problem is, he then went on, again, to indicate that he is likely to ignore any comments he doesn't agree with, regardless of how many there are.

You're not listening. What? You're not listening! Huh?

Clyburn also complained in a press conference after the formal meeting about the fact that her two fellow commissioners were not listening to other viewpoints. But one of Pai's most significant and most valid criticisms of the previous FCC administration was that the Democratic majority under chair Tom Wheeler ignored his and O'Rielly's concerns on a while range of issues.

Now that Pai is in charge, he is doing the same thing. They have an expression for this: bad corporate culture.

And as for the argument that the Open Internet Order has led to a massive cutback in investment in internet networks, Partisan Pai has used it consistently as his biggest argument in getting rid of the current rules and quoted figures proving his case.

These figures look increasingly suspect and have already come under aggressive attack.

Clyburn even made a point of flagging that Partisan Pai's investment chart – which he used during his presentation – was created "by a paid telecom analyst who cherry-picked data." She noted that the same analyst had predicted in 2014 that the Open Internet Order would cost business $15bn in taxes and fees. "That never happened," she noted, adding: "There is data, and there is good data."

This isn't going to get any better, folks. ®

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