What Net Neutrality Opponents Are Saying Now — And Why It’s A Lot Of Hot Air

Image courtesy of Steve

While supporters of an open internet are excited about the FCC’s recent net neutrality ruling, some folks in the telecom and ISP world are a whole lot less happy. Many of the big businesses affected by the rule had their say in February when the vote happened, but the recent release of the full rule (all 400 pages of it) this week has become an opportunity for many groups afraid of new regulation to once again put their concerns front and center in the limelight.

It’s always a good idea to take a careful look at, and a deep dive into, the wording of a new regulation to think about the possible consequences. However, some trade organizations and think tanks still have strong concerns about the open internet order that just don’t match up to the actual rule the FCC released.

Take the Telecommunications Industry Association, for example, a trade group that represents dozens of tech companies. Its members run the gamut from tiny and obscure to huge and global, from Apple to ZTE.

The TIA’s CEO, Scott Belcher, said in a statement that Title II is “a trojan horse,” primed to unleash “heavy government control of the internet and create marketplace uncertainty.”

Belcher continued, “With Title II in place, there is little to stop future commissioners from instituting government price controls or other market-distorting regulations. The FCC’s promise of a light-touch approach is just that – a promise. There is too much at stake to allow the future of the Internet to rest upon a simple promise. … The immediate uncertainty created by this plan will produce a slowdown in capital investment. Consumers and small businesses, who have benefited enormously from the existing regulatory landscape, will bear the burden of a less robust network.”

Others have echoed the sentiment. Over on the think tank side of things, TechFreedom, a tech-related organization that has previously explicitly advocated in favor of paid prioritization, focused hard on the argument that the FCC doesn’t actually have the authority to regulate communications.

TechFreedom president Berin Szoka said in a statement that the new rule “effectively destroys nearly 18 years of bipartisan consensus,” calling it “a radical break even from the FCC’s proposed rules.”

After railing against the politicization of the process, Szoka said that the FCC is “effectively, and illegally, rewriting the Communications Act,” and concluded that “the only way to restore sanity at the FCC is for Congress to finally update the Communications Act.”

Several members of the American Enterprise Institute, a major pro-business think tank, also expressed consternation at the rule. Many called back to the original Communications Act of 1934 and the FCC’s early history dealing with a monopolistic telephone environment.

AEI visiting fellow Roslyn Layton said, “The FCC has chosen to classify broadband under the regulations of the monopoly telephone era, a sharp reversal of its policy that allowed broadband to be relatively free from regulation. In so doing, the FCC opens the Internet to hundreds of rules and provisions. Anything that the FCC deems a telecommunications service, ‘transmission between or among points specified by the user, of information of the user’s choosing,’ could be regulated. The FCC has also created the ability to hear disputes and bring actions against companies using a ‘standard of conduct’ clause. Interconnection may be the first battle.”

That part — that interconnection agreements are a battle waiting to happen — is probably true. Tensions have been running high between key players (like Netflix and Comcast) in the interconnection space for many months and those fires are unlikely to douse themselves as time goes on.

However, many of the other claims by net neutrality opponents are, well, more on the side of myth than on the side of fact.

The FCC has itself created a mythbusting, fact vs. fiction rundown of the most popular objections to the open internet rule.

In response to the popular claim that Title II is “utility regulation,” for example, the FCC says: “There is no ‘utility-style’ regulation. The Order bars the kinds of tariffing, rate regulation, unbundling requirements and administrative burdens that are the hallmarks of traditional utility regulation.”

The FCC also addresses the accusations of rate regulation (there is none) and the imposition of new taxes and fees (there are none of those either) before jumping into the most frequent accusation: “government takeover of the internet.”

“The order,” the FCC reiterates, “does not regulate the internet.”

The Commission continues:

As for the repeated accusations that a future FCC could change the rule, to make it either more or less strict? Well, yes. They could, but not without the public knowing about it.

The FCC can undertake the rulemaking  process whenever it sees fit, to amend any of its existing rules, or to create new ones. That’s what regulatory agencies do: they create, amend, and sometimes repeal or overturn regulations.

But it would indeed have to be the rulemaking process. The current order doesn’t have expiration dates built in. There is no note saying, “We forbear from this section temporarily until we no longer feel like it and can change our minds when the political winds blow elsewhere.” The order says: We forbear from this section.

The FCC is in some ways the picture of inertia: when its mind is made up, it stays that way unless acted upon by an outside force — like, say, the Verizon lawsuit that got the 2010 open internet rule thrown out.

Mobile voice service, as members of the FCC often point out, has been regulated under Title II for 20 years, and while control of the FCC has changed hands plenty of times since the mid-’90s — as has the political party in control of the White House — no FCC Chair has spontaneously decided to change the rules to add rate regulation.

If a future FCC wants to change something about the open internet order, they can go through the process again. They always could.

But just because a future regulator might want to endure the onerous process of amending the neutrality rules that is no reason to not have strong consumer and business protections in the here and now.