4 Misleading Things ISPs And The FCC Need To Stop Claiming About Net Neutrality

Image courtesy of angela n.

Net neutrality is a handy name for a pretty simple principle: the idea that the company providing your internet access should deliver you the online content of your choosing, when you choose it, without interfering. And since 2015, it’s been the law of the land. Now we stand to lose it once again — but the arguments that industry and some regulators are making against it are disingenuous at best, and a pack of lies at worst.

Industry and the FCC alike seemed surprised in 2014 when Americans — encouraged by John Oliver’s coverage of “cable company f*ckery” — reacted en masse to rally for net neutrality. This time around, however, they’re prepared.

Acting in lock-step, with the same set of talking points, companies like Comcast and AT&T, trade groups like USTelecom and the NCTA, and Chairman Ajit Pai himself have all been bombarding the public with lines from the same script about how terrible the existing rule is and why it needs to be reversed to “restore freedom.”

We’ll give credit where it’s due: This particular group of credulity-straining half-truths is a slightly different set than the ones the industry trotted out in 2014. What they still are, however, is rubbish — so let’s debunk a bunch of them.

Claim: Net neutrality has hurt investment and the broadband industry.

This is one we hear over and over from FCC chairman Ajit Pai, as in his speech where he introduced his new proposal:

“So what happened after the Commission adopted Title II? Sure enough, infrastructure investment declined. Among our nation’s 12 largest Internet service providers, domestic broadband capital expenditures decreased by 5.6% percent, or $3.6 billion, between 2014 and 2016, the first two years of the Title II era. This decline is extremely unusual. It is the first time that such investment has declined outside of a recession in the Internet era.”

Pai keeps making this claim, so we’ll keep debunking it. For one thing, the FCC didn’t vote to approve net neutrality until Feb. 2015 and it didn’t officially become law until June 2015 — so unless someone’s using a time machine, at least half the period Pai is talking about was not affected by the change in law.

For another thing, every time we look at the publicly available numbers for the big ISPs, the drop isn’t there. In both 2016 and 2017, the large, publicly-traded ISPs all gave glowing quarterly reports to investors, claiming high levels of investment in their networks and singing the praises of their own growth.

In fact, just this week, in its Q1 earnings report, Comcast said that 2017 is “off to the fastest start in five years.” Revenue from its broadband business increased more than 10%, and the company picked up another 397,000 residential broadband customers so far this year.

During the company’s April 27 results call, one analyst specifically asked about Pai’s plan to scrap Title II. “If [the reversal] goes as described,” he asked, “can you quantify any sort of investment opportunity you might see that would open up?”

Comcast CEO Brian Roberts deflected, however repeating only the tired line that Title II “puts a damper on ability to invest and react to change,” and generates “real dark clouds for the investment community” without actually saying how, where, when, or to what degree his company would be better able to spend money if the law changed.

Claim: “We support net neutrality, but just want to get rid of Title II.”

This has been a common refrain from AT&T, Charter, Comcast, and Verizon, as well as from industry lobbying groups.

Comcast has gone farthest to stress this particular point though, with an 1,100-word corporate blog post patiently explaining that “net neutrality and Title II are not the same thing.”

In fact, completely coincidentally we’re sure, several Consumerist staffers (as well as many readers, friends, and family) started seeing a Comcast ad campaign on Twitter in the hours immediately after Pai’s speech to promote and share that blog post and profess the company’s deep and abiding love for net neutrality.

In the post, Comcast mouthpiece David L. Cohen writes:

While some try to conflate the two issues, Title II and net neutrality are not the same. Title II is a source of authority to impose enforceable net neutrality rules. Title II is not net neutrality. Getting rid of Title II does not mean that we are repealing net neutrality protections for American consumers.

Half of this is completely, inarguably true: Title II classification, in and of itself, has nothing to do with net neutrality. It merely decides whether internet services are treated under the same kind of common carrier rules that phone services are, or whether they’re considered “information services” (Title I) instead of infrastructure.

AT&T similarly blasts the FCC for using Title II to put the new rule in place, pointing to the 1990s and then saying, “Unfortunately, in the Wheeler era, politics trumped good policy and the Order ultimately adopted by the Wheeler FCC abandoned the careful balance that the Genachowski FCC [2009-2013] had struck.”

But it’s not as though former FCC chairman Tom Wheeler woke up one day in 2014 and suddenly thought, “I know! I think I’ll rewrite net neutrality today!”

The Commission might have left well enough alone except that Verizon sued to have the 2010 rule, which imposed basic net neutrality rules without invoking Title II classification, overturned — and won.

A federal court ruled in early 2014 that the legal underpinning for the FCC’s rules was no good, and strongly implied the best way to square that circle would be common carrier classification. Without it the FCC did not have the legal authority to make ISPs adhere to rules about blocking, throttling, or paid prioritization of content. The 2015 Open Internet Rule was crafted after nearly a year of back-and-forth legal wrangling and public comment, directly in response to that 2014 ruling.

In short: Been there, done that. Absent a major change to the Communications Act or some other law, the FCC literally cannot impose or enforce net neutrality rules that stick without using Title II.

Claim: You can’t use old law because the internet is new technology.

This is where we get to outright, bald-faced hypocrisy, instead of disingenuous misdirection.

Net neutrality opponents like to say that because the Communications Act dates to 1934 — a time when mass communication meant the nascent technologies of radio and wired telephones, not even TV and certainly not the internet — it cannot possibly still apply.

For example, Pai said in his speech:

Going forward, we cannot stick with regulations from the Great Depression meant to micromanage Ma Bell. Instead, we need rules that focus on growth and infrastructure investment, rules that expand high-speed Internet access everywhere and give Americans more online choice, faster speeds, and more innovation.

Aside from the fact that early regulation did not so much “micromanage” Ma Bell as it did allow a monopoly system to continue — the Bell breakup wouldn’t happen until 1983 — there are two big problems with this.

For one thing, the Communications Act was significantly overhauled in 1996. Even aside from that, however, several ISPs — including Comcast, Verizon, and AT&T — have all been completely happy to accept Title II designation for some or all of their services when doing so protects their interests or their bottom line.

The companies are all also happy to rely on old law to protect them from you. Every major ISP you can think of, home and mobile, is on the ever-growing list of companies that imposes mandatory binding arbitration on its customers, and strips you of your right to sue if wronged.

The Federal Arbitration Act, which makes all that possible, was passed in 1925 and took effect on Jan. 1, 1926. If law from eight years later is too outdated for our modern era, surely this one is, too?

Claim: “We should leave this to Congress.”

This is a popular one: Every one of the biggies seems to want Congress all up in its business.

AT&T: “The question is also whether Congress will commit on a bi-partisan basis to adopt a balanced and durable statutory framework that will enshrine reasonable rules for the digital road with specificity and clarity. That, in the end, is the only way to resolve the open internet debate once and for all.”

Charter: “To ensure certainty in the marketplace and to cement protections for consumers, Charter supports Congress passing bipartisan legislation that sets forth clear, enforceable and permanent rules to preserve an open internet within a modern regulatory framework that encourages infrastructure investment and innovation.”

Comcast: “In our view, there is no better way to put in place an enduring set of enforceable Open Internet protections than for Congress to act.”

Verizon: “We continue to believe that the right answer is for Congress to move forward on legislation that once and for all adopts clear, enforceable, and strong net neutrality protections.”

In the hyper-partisan, hyper-polarized, frankly completely bonkers political world of 2017, getting Congress to act on anything is an uphill battle, to put it mildly. Getting them to do it in a bipartisan way is like herding unicorns.

Beyond that, though — Congress already did pass a law that gives the FCC a way to protect net neutrality both seamlessly and robustly. It’s called the Communications Act of 1934, which got a refresh with the Telecommunications Act of 1996, and internet service providers are currently regulated under the terms of Title II of that law.

Because that’s the way law and regulation work, in this country: Congress comes up with an idea, writes and passes a bill, gets it across the President’s desk … and then it’s some agency’s job to hammer out the details and enforce it.

Not every one of the dozens of agencies in the nation has the authority to pass its own rules, but the FCC is one of the ones that does. And so when Congress passes a law about telecommunications, it specifically directs the FCC to handle the details in whatever way best meet the goals Congress has laid out.

As the Commission did, already, in 2015.