By Lambert Strether of Corrente.
Since this is the holiday season, everything in the Beltway has ground to a halt, including the net neutrality battle. In this post, I’ll survey the state of play in Congress, and the Courts. Note that Chair Pai’s FCC rule abolishing net neutrality will only come into force 60 days after it’s published in the Federal Register, which so far it has not been, and that could take a couple of months.
Comcast, Cox, Frontier All Raising Internet Access Rates for 2018
In all cases, these are increases for essentially the same services, with [Karl Bode of DSLReports] noting that American will be stuck paying ‘significantly more money for the same service in the new year’. In many cases, the changes are padded into existing bills, with most consumers failing to see the changes.
In the case of Comcast, increases are happening across the board… Another major ISP, Cox, is increasing the rates for all of its internet service packages…. Similarly, Frontier Communications is tacking on a sneaky surcharge for internet customers…. Similarly, Frontier Communications is tacking on a sneaky surcharge for internet customers.
Now, those rate increases are about as crass and heavy-handed as you can get, especially considering the timing. Consider that, when Moody’s makes the argument that the threat of reputational damage will prevent the ISPs from (say) throttling traffic:
Moody’s Investors Service said in a note Friday the FCC vote was “credit positive” for internet service providers that could have faced rate regulation under the 2015 rules that would have treated them like public utilities.
Moody’s said providers “will tread lightly when it comes to engaging in paid prioritization and throttling, as there could be significant to these acts.”
Moody’s said “at least in the near term, on their existing businesses far outweighs the benefit of additional revenue streams these companies can generate from paid prioritization agreements.”
Really? At any rate, let’s now look at actions in the Congress, and the Courts. Mostly, I’ll be laying out the actions Congress critters and potential plaintiffs may take, without doing anythiing more than speculating on the likelihoods of success. It’s worth noting that the only people who really like Pai’s rule are the ISPs, not the public:
The idea of net neutrality remains far from universally-known, although it’s become more familiar to the public in recent years. Two-thirds now say they’ve heard of the concept, up from just 46 percent in 2014. Just under a third say they’ve heard a lot about the FCC decision earlier this month.
Among those who’ve at least heard of the concept, just 20 percent support the decision, while the majority, 57 percent, are opposed. And opponents of the decision are considerably more spirited about the issue. Of those who know what net neutrality is, 45 percent strongly oppose the decision to repeal the rules, while just a tenth are strongly supportive.
Of course, in an oligarchy, public opposition to a policy doesn’t necessarily translate to that policy’s repeal, suggesting the public opposition will only gain traction if there are splits among the oligarchs, which has happened in the past.
Challenging Pai’s FCC Rule in Congress
There are two tracks in Congress: Rolling back the rule through a Congressional resolution under the Congressional Review Act (CRA); and the charmingly named “Open Internet Preservation Act,” introduced by Representative Marsha Blackburn (R-TN). The CRA track is, so far, the main focus of attention. Minority Leader Chuck Schumer explains some of the benefits of the CRA approach:
Senate Minority Leader Charles Schumer (D-N.Y.) is also vowing to force a vote on net neutrality in the upper chamber using the Congressional Review Act (CRA).
The act allows Congress to repeal agency rules with just a simple majority in the House and Senate. Republicans used the act frequently in the early days of the Trump administration to undo a slew of Obama-era rules.
“This CRA doesn’t need the support of the majority leader,” Schumer said Friday. “We can bring it to the floor and force a vote. So, there will be a vote to repeal the rule that the FCC passed.”
Democrats will use a bill introduced by Markey to restore net neutrality into law. Rep. Mike Doyle (D-Pa.), the top Democrat on the Energy and Commerce Committee Subcommittee on Communications and Technology is introducing similar legislation in the House.
(Here is a copy of Markey’s resolution; as you see from the blanks that are to be filled in, the bill cannot be introduced until after the FCC rule is published in the Federal Register.) For the CRA strategy to work, Schumer would need a majority in the Senate, which (given Moore’s accession) he could achieve with Susan Collins plus one other. The House would be a more uphill climb, given its composition: 239 Republicans, 193 Democrats. I don’t know how steep the climb would be: 132 House Republicans did not sign a letter advocating the end of net neutrality; and net neutrality, as Collin’s opposition shows, is good for rural states, which are disproptionately Repubican. Nevertheless, if the CRA passes, Trump will certainly veto it, and a two-thirds majority in both houses would be needed to repeal it. Which won’t happen. So it’s hard to see a CRA as doing anything other than providing Democrats with “an issue” for the midterms and 2020.
Now let’s look at Blackburn’s bill. The ISPs have shown a certain crude cunning in their footwork on this one, since who, after all, could be against a bill named “Open Internet Preservation Act”? Well, anybody who looks at the detail. Scientific American:
One of the biggest concerns to emerge from the years-long debate over government regulation of the internet has been that loosely regulated ISPs would set up tiered internet service. This would potentially let deep-pocketed companies pay to have their content load faster than content produced by startups with more modest means. Blackburn’s bill, which seeks to amend Title 1 of the Communications Act of 1934, would not prevent that from happening. The proposed act would also make permanent the distinction that broadband internet access is a Title 1 information service—rather than a more tightly regulated Title 2 utility service, as the FCC had decided in 2015.
The bill states that ISPs may not “impair or degrade lawful internet traffic,” with the caveat that they are allowed to perform “reasonable network management.” This does little to allay concerns that ISPs would be able to play a larger role in deciding winners and losers online. “From what I can tell, ,” says Nathan Schneider, a media studies scholar in residence at the University of Colorado Boulder. “It prohibits blocking access to certain sites, which the big ISPs are fine with. But the reasonable network management provision appears to be capacious enough that it would allow fast lanes, variable service packages and pay-to-play conditions.”
A bill like Blackburn’s, that enables a “tiered Internet” — which is not a matter of speed, as in the deceptive slow- and fast-lane metaphor, but access — does not preserve net neutrality.
Challenging Pai’s FCC Rule in the Courts
Challengers can be found from corporations that benefit from net neutrality, and from state Attorneys General.
Let’s begin by looking at splits among the oligarchs: Godzilla vs. Mothra, or in this case, Google vs. Comcast. The Internet Assocation (IA)– “the only trade association that exclusively represents leading global internet companies on matters of public policy” would take point on any court challenge (backed by the enormous financial resources of its members). Here is the Internet Association on Pai’s Rule:
“The draft ‘Restoring Internet Freedom Order’ under consideration by the FCC undoes decades of bipartisan agreement on net neutrality principles and ends net neutrality as we know it. This draft Order ignores the wishes of tens of millions of Americans who, like us, have voiced their support for the 2015 Open Internet Order,” the letter states.
Internet Association supports the 2015 Open Internet Order that enshrined bright-line net neutrality rules that ban paid prioritization, blocking, throttling, and apply equally to mobile internet connections.
“IA and its members will continue our fight to preserve the 2015 Order and its strong, enforceable net neutrality protections. On behalf of our companies, their employees and, most importantly, millions of users, we ask that you delay or vote against the draft Order,” the letter concludes.
The proposal circulated today does not meet the criteria for basic net neutrality protections – including bright-line rules and a ban on paid prioritization – and will not provide consumers the protections they need to have guaranteed access to the entire internet. Net neutrality in name only is not enough to protect our economy or the millions of Americans that want and rely on these rules. Real net neutrality legislation should be bipartisan and have input from other stakeholders, including the user community, public interest groups, and industry. Internet Association has and will continue to work with all stakeholders in every relevant venue to ensure consumers are protected.
Which is all good, but fine words butter no parsnips. From Michael Beckerman, the president and CEO of Internet Association:
Internet Association is currently weighing our legal options in a lawsuit against today’s Order, and remains open to Congress enshrining strong, enforceable net neutrality protections into law.
Which again, sounds great, and I await the filing of an actual court challenge with interest (although, to be fair, perhaps IA, like everyone else, need to wait for the actual rule to be published in the Federal Register). I have no way of assessing the likelihood of a IA suit succeeding, save to note that they will obviously have the best lawyers money can buy.
Today’s rollback will give ISPs new ways to control what we see, what we do, and what we say online. That’s a threat to the free exchange of ideas that’s made the Internet a valuable asset in our democratic process.
Today’s vote also follows a public comment process that was deeply corrupted, including two million comments that stole the identities of real people. This is a crime under New York law – and the FCC’s decision to go ahead with the vote makes a mockery of government integrity and rewards the very perpetrators who scammed the system to advance their own agenda.
(Schneiderman, with “the very perpetrators,” seems to be saying he’s got the attribution problem solved. We shall see.) Washington Attorney General Bob Ferguson also issued a press release:
“We are 5-0 against the Trump Administration because they often fail to follow the law when taking executive action. There is a strong legal argument that with this action, the federal government violated the Administrative Procedure Act — again.
“Allowing internet service providers to discriminate based on content undermines a free and open internet. Today’s action will seriously harm consumers, innovation and small businesses.
Both press releases are strong on the goodness of net neutrality, and a little light on theories of the case. So speculation is all we have. Schneiderman’a focus on the millions of bot-created comments filed at the FCC. Speculating freely: But even if the law was broken in filing the comments, is there a doctrine under which that would invalidate the rule? Is Schneiderman saying that the FCC needs to sort through all comments, toss out the bot-generated ones, and react to the genuine ones? How is that to be done? And to what level of accuracy must it be done? Crudely summarizing, I believe that Pai’s response would be that the comments didn’t need to be read, since they were all repeating the arguments that everyone already knew anyhow, and so reading them would be a waste of the FCC’s time. Ferguson’s focus is not on the comments, but on the Administrative Procedure Act. This post summarizes those issues; I concluded:
it’s hard to imagine that business, especially big business, would welcome election cycle-driven regulatory regimes
So here again splits in the oligarchy are important. If any large, regulated businesses or trade associations have bought into the concept of a coming “wave election,” they might wish to keep the regulatory environment stable, rather than not, even if the ISP CEOs didn’t dine so well.
In the long run, I’m confident. Stoller writes:
The Trump FCC and the telecom barons think that once the rule has been changed, we will simply forget about it. But they are wrong. If they eliminate net neutrality, it will end up being the downfall of the telecom barons. Americans will soon conclude that the only possible way to address the damage Pai has wrought is to finally and fully break the power of the giants.
Americans have been here before. The power of Standard Oil once seemed unbreakable. But it wasn’t. Neither are today’s telecom barons.
In the short run, I don’t know how to handicap this (though it will help of the ISPs keep up their egregious behavior). The CRA seems like political theatre, to me. Blackburn’s bill seems transparently bad, and is one more kick in the teeth for the Republican base (though people might understand a cable bill for Facebook only a lot better than they understand tax reform, say). Schneiderman’s track record on foreclosure was poor; Ferguson, by contrast, has a winning record. But who can tell anything from a press release? One big wild card is the Internet Assocation; and a second is the net neutrality activists. So far, they’ve done an excellent job of education, but will their movement catch fire?