Net Neutrality: The Coming Battles in the Congress and the Courts

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.

The holiday season has not, however, prevented the ISPs from using their monopoly power to muscle through rate hikes. Digital Music News:

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 negative public reaction to these acts.”

Moody’s said “at least in the near term, the cost of negative publicity 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, this is essentially the bill that the ISP monopolies have been calling for all along,” 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.

And here is the Internet Associaton on Blackburn’s bill:

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.

Now let’s turn to the state Attorneys General. Eric Schneiderman (of blessed memory) at once issued a press release:

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?

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About Lambert Strether

Readers, I have had a correspondent characterize my views as realistic cynical. Let me briefly explain them. I believe in universal programs that provide concrete material benefits, especially to the working class. Medicare for All is the prime example, but tuition-free college and a Post Office Bank also fall under this heading. So do a Jobs Guarantee and a Debt Jubilee. Clearly, neither liberal Democrats nor conservative Republicans can deliver on such programs, because the two are different flavors of neoliberalism (“Because markets”). I don’t much care about the “ism” that delivers the benefits, although whichever one does have to put common humanity first, as opposed to markets. Could be a second FDR saving capitalism, democratic socialism leashing and collaring it, or communism razing it. I don’t much care, as long as the benefits are delivered. To me, the key issue — and this is why Medicare for All is always first with me — is the tens of thousands of excess “deaths from despair,” as described by the Case-Deaton study, and other recent studies. That enormous body count makes Medicare for All, at the very least, a moral and strategic imperative. And that level of suffering and organic damage makes the concerns of identity politics — even the worthy fight to help the refugees Bush, Obama, and Clinton’s wars created — bright shiny objects by comparison. Hence my frustration with the news flow — currently in my view the swirling intersection of two, separate Shock Doctrine campaigns, one by the Administration, and the other by out-of-power liberals and their allies in the State and in the press — a news flow that constantly forces me to focus on matters that I regard as of secondary importance to the excess deaths. What kind of political economy is it that halts or even reverses the increases in life expectancy that civilized societies have achieved? I am also very hopeful that the continuing destruction of both party establishments will open the space for voices supporting programs similar to those I have listed; let’s call such voices “the left.” Volatility creates opportunity, especially if the Democrat establishment, which puts markets first and opposes all such programs, isn’t allowed to get back into the saddle. Eyes on the prize! I love the tactical level, and secretly love even the horse race, since I’ve been blogging about it daily for fourteen years, but everything I write has this perspective at the back of it.


  1. Whoa Molly!

    Is it coincidence that repeal of Net Neutality happens a year after first successful Internet fundraising campaign that reaches small ( populist) donors in a presidential campaign?

    1. Daryl

      I hadn’t even considered this angle. Good luck donating to Bernie (or whomever) on a connection throttled to 56k.

    2. Whoa Molly!

      I hadn’t thought of donations at 56K. I was thinking more of someone starting from scratch and building a national audience from a website or blog,

      I have no doubt such a person will now be faced with:
      – throttling so that his/her website takes forever to load.
      – fewer sites link to his/her political blog because the site takes so long to load. Suddenly he/she is on the fifteenth page of Google search.
      – higher costs for starting up (“Want a 1 G Internet connection? Sure. That’s only $XXXX per month.)
      – censoring at the ISP level and/or search engine level. (See World Socialist website search results for recent example)

      This stuff makes my head hurt. Back to Christmas Eve with the family.

      1. Daryl

        > I hadn’t thought of donations at 56K.

        I’m imagining throttling candidates websites to prevent web-based donations. They could even do it equally to all candidates to create a sheen of neutrality, since the neoliberal establishment candidates rely on giant corporate/individual donations which, I assume, are not entered on a website with a credit card. Eventually, people will just get bored and go away.

  2. grayslady

    Excellent analysis. Covers all the bases. Sufficiently cynical, with a soupcon of hope at the end. The only other question, in terms of influence on an open net, is whether failure by Congress to reverse the FCC’s decision will result in a strong movement to more municipal broadband. Maybe that’s what we should all be doing anyway–applying pressure at the state and local level.

    I already told my state representative that I would never vote for him again after he voted to allow AT&T to discontinue landlines in Illinois; and I was a member of his advisory committee when he was first elected. It wasn’t just that I value my landline. It’s that the Illinois legislature received nothing in return–no lower rates, no free caller ID, no prohibition on spoofing phone numbers–nothing!

  3. kees_popinga

    My coming $5 per month increase for basic internet from Comcast is brazen — usually they try to sneak by the unnecessary increases in lesser increments of $2 a month. Obviously they are feeling cocky.
    I wonder if the lack of public outrage is due to “everyone being on Facebook.” That service is already non-neutral. No Facebook user will feel the slightest pinch in their ability to stream worthless videos of pets and Hollywood product. Where the pinch will be felt will be with individual businesses, government branches, and hobbyist/collectors who “put up a website,” under the assumption that “the public” will be able to find and get to them quickly. I do research for a living and am pondering a future where Secretary of State entity searches, law firm memos, and SEC filings all take longer to “load” because the budgets of these sites are too limited to pay for “fast access.”
    Lastly, how come Wikipedia didn’t go dark this time? That was enormously effective in a previous challenge to internet freedom.

    1. perpetualWAR

      I haven’t had internet access at my home for approximately 2 years. Can’t afford it. There is a bar down the street I can go have a beer and do my internet business or there’s always the library.

  4. perpetualWAR

    Ferguson’s track record on foreclosures was abysmal. He may have won some court battles against Trump, but the people of Washington know this is just Ferguson’s ruse to gain the governorship. At my Democrat endorsement meeting there were three of us standing up to demand no endorsement for Ferguson for various reasons (mine, abysmal record on foreclosures). That’s when the neoliberals were sent to the mic saying, “it would be a terrible message for the 36th to not endorse Bob when he doesn’t even have a Republican opposition in the race for re-election.”
    Our response: “Precisely.”

  5. David

    Back in 2007, the FTC published the Broadband Connectivity Competition Policy, a staff report examining broadband Internet connectivity in general and network neutrality in particular. In the report they describe enforcement avenues for the issues noted above. The FTC Chairman reaffirmed this report in her statement before Congress in November. An excerpt:

    It appears that the competitive issues relating to last-mile access to consumers that have been raised in the network neutrality debate largely can be addressed through antitrust enforcement. Depending on the particulars, blocking access to the Internet by content or applications providers or discriminating in favor of a supplier with whom the broadband provider has an affiliated or contractual relationship would be analyzed, for example, under either Section 1 of the Sherman Act, as an exclusive dealing relationship, or under Section 2 of the Sherman Act, as a unilateral refusal to deal.
    Vertical integration into content or applications by acquisition would be analyzed under the merger laws. In addition, unilateral conduct on the part of broadband providers – including, for example, the degradation of Internet access service to force buyers into paying more for higher-quality service – would be analyzed under Section 2 of the Sherman Act.

    The proposed laws, lawsuits, and CRA action described above seem, to me, to be more of an attempt to block FTC enforcement and possible anti-trust actions against the ISPs.

  6. jgordon

    Not everyone in the public is necesssrily in favor of network nuetrality; I’d be perfectly happy with old school DSL speeds and could probably even get by with a 56k modem–yet under the net neutrality setup I’m subsidizing people who binge-watch 4k Netflix. To me, this is exactly analogous to Obamacare, where young and healthy people are forced by fiat to subsidize the healthcare of the sick and elderly. As high minded and “prosocial” as the idea seems, it’s fundamentally unfair and so it can’t work for long.

    As for startups not being able to afford bandwidth, this is an example of the tragedy of the commons. Internet infrastructure is very expensive to expand and maintain. By forcing ISPs to backdoor subsidize every hair-brained, bandwidth-hogging startup the government is creating a situation where ISPs must quickly and continuously raise rates on all their customers just to provide a basic level of service–while the startups themselves are incentivized to create profligate and unsustainable products (since someone else is paying) that choke networks. And who do the customers blame when they see their bills skyrocketing?

    This severing of responsibility (to maintain the network) from authority (to exercise control over the network) is exactly the kind of perverse situation that causes families/systems/governments to collapse. Net neutrality going away is ultimately a good thing for everyone and it might even prolong the internet as we know it for a bit longer and that’s why I fully support doing away with net neutrality.

      1. jgordon

        The first link you have goes to a post outlining an elaborate chain of logic that equates the prisoner’s dillema to the tragedy of the commons, and then draws conclusions based on that comparison. You then apply this questionable analysis to how computer networks function in the real world. This is like a philosopher reasoning out with impeccable logic that eels don’t reproduce, but meanwhile we have a bunch of biologists readily available who would beg to differ.

        I would conveniently also use this appeal to empirism as above to refute Hudson’s definition of the commons with a real world example of the tragedy of the commons: unrelenting growth of internet. Although perhaps this example is a bit off since people can invest energy and resources to immediately expand this commons when needed, with the caveat that the more this commons expands, the (radically) more expensive it becomes to maintain.

        The internet infrastructure today is vastly larger, more complex and resource hungry than it was in 1995. This growth is expensive to produce and did not occur from out of nowhere. Demand from many, but not all, users caused it. Today however, because of net neutrality, there is no good method for directly tying cost to demand/use, and thus the cost of growth and maintenance is spread out to everyone in a unfair manner. This upsets me.

        Of course, I think we could compromise here. Just make me King of Internet and I would decree that from now on everyone must have 56kbs internet speeds max. In return, all services and users would be treated equally. No need to unfairly spread out the costs for endless growth, maintenance and energy use to all. Everyone can just be satisfied with the same bandwidth that I need and everything would then be equal and fair. Since the left is in favor of equalizing the outcomes of everyone in this sort of way, I think it’s a solution we can agree on.

        1. jgordon

          By the way, I’m a gender non-comforming, non binary masculine presenting transexual lesbian. When I say that I’ll accept the position of “king” I mean that only in the sense that since gender a construct the position of “king” is an arbitrary social position of the dominant masculine-presenting (usually also white-presenting) party who victimizes everyone else in a social hierarchy. I only meant the statement ironically and would not actually take the position if offered since that would be contrary to my identity as an oppressed minority.

          1. perpetualWAR

            BTW, your chosen gender should have zero to do with an internet discussion. I would never think of explaining I am a straight, black man to make a point. My gender and my sexual preferences make zero difference to my intellectual arguments.

        2. Lambert Strether Post author

          > You then apply this questionable analysis to how computer networks function in the real world.

          This is silly. You chose to appropriate a debunked concept and apply it to networks, not me. And do you really think that calling a chain of logic “elaborate” is enough to refute it?

    1. Webstir

      You do realize, of course, that there is a better option. An option that always solves market inefficiencies. It’s called letting the public run it. Repeat after me: Capitalize the luxuries, socialize the necessities. It appears you have contracted a bad case of the (i) Because markets, and (ii) Go die, contagion that seems to be going around.

      And while I’m at it, we figured out the solution a long time ago when we invented rural electrical and telephone cooperatives:

      1. Oregoncharles

        The ISP we used for years, still our email provider, is owned by a local phone co-op. A good combination, but our access to it is poor because we aren’t in the co-op’s territory. We switched to a wireless system, also a local business. The dish is way up in a douglas fir. A neighbor has his in a sequoia!

    2. Grebo

      You do not understand net neutrality.
      You are not subsidizing anybody. Everyone is paying through the nose.
      Its nothing like Obamacare.
      Internet infrastructure is not a commons, unfortunately.
      ISPs are not subsidizing anybody, backdoor or otherwise. They charge money.
      Customers blame ISPs for raising their rates, quite correctly.
      Net neutrality does not sever ISPs from authority to control their network, only control over your data.
      You do not understand net neutrality.

      1. jgordon

        In an interview on the Max Keiser Report E130, Michael Betancourt talked about agnotology and there elucidated the concept of “the aura of the digital”. This is the illusion, caused by the obiquity of information technology and file reproduction, that intellectual property has near zero production value and that there is no moral dillemma in freely reproding and sharing it; it looks like a costless community resource that’s free for all.

        I believe that the existence of the internet itself fosters a similar delusion in people, and I view your reply as proof of that. You do not understand just how expensive and difficult it is to keep the internet going, viewing it as a near-free public good that magically appeared from the ether. But that’s not how it works. if you all keep pushing bad policies like net neutrality it’s going to suffer the same sort of distopian collapse that eventually happens whenever the left is in charge.

        1. Kurtismayfield

          You do not understand just how expensive and difficult it is to keep the internet going, viewing it as a near-free public good that magically appeared from the ether.

          Who is asking for free internet? Everyone pays for their internet access, especially Netflix, Google, Facebook, et al. No one is getting a “free lunch”. What we don’t want is companies like Comcast, Verizon, etc. controlling or putting any bias on what packets travel through the parts that they give access to.

          For example of what happened a few years ago between Comcast and Netflix see this link:

          Comcast wanted to be treated as T1, even though they aren’t

        2. Lambert Strether Post author

          If you indeed you are correct, then what we should to is:

          1) Nationalize the backbones;

          2) Municipalize the ISPs

          3) Co-operativize the platforms.

          The Internet wouldn’t even exist without public funding, and if you believe in intellectual property, we’d only be reclaiming what’s rightfully hours.

        3. Jack

          It isn’t that expensive and it is not that difficult. Many localities are looking to set up their own system. The ISP oligarchs are vehemently opposed to that, going so far as to lobby state legislatures to forbid local municipalities from setting up their own ISP system. Look at Chattanooga, TN for instance. $70 a month for 1 gig speed. Or how about the 100’s of billions of dollars in grants (some sources say $200, some $400) that have been given to the ISP’s to wire the country for broadband but somehow that just has not happened? The reading I have been doing on this issue points more towards the telecoms concern for losing control of the infrastructure due to net neutrality, and not so much the issue of throttling or being able to charge more for better access.

    3. Carolinian

      I don’t entirely disagree with you. If the web was still a 56k web then the potential for commercialization would be much more limited and we wouldn’t be having this discussion.

      However that’s not the web we have now, a web which is an increasingly a big business and therefore in need of regulation. The alternative would be a web run by the government itself but that has its own dangers as seen in China. Perhaps the best solution would be a web run by local governments or even neighborhoods–atomized into too many parts to become Big Brother.

      I do think discussions of this issue are much too simple and do not account for the cost of infrastructure For example during the previous year ATT has strung gigabit fiber throughout my neighborhood and obviously expect to rewarded with high fees to access all those new “killer apps” available via premium broadband. The notion that broadband is an unalloyed good could be wrong.

      One useful exercise for this site or some other might be to publish a complete explanation of how the internet works, who owns what parts, how they make their money. I don’t believe that lay people–including yours truly–know nearly enough.

  7. Vico

    As high minded and “prosocial” as the idea seems, it’s fundamentally unfair and so it can’t work for long.

    I’m not even sure how you believe health insurance companies work. In health insurance systems, the young and healthy always subsidize in some form older people and people who have become sick. Even prior to Obamacare, you were being forced to pay for them indirectly as hospitals have to take in everyone, regardless of insurance or ability to pay.

    Most people would also find the alternative of forcing the sick and elderly to shoulder immense debt or die morally repugnant.

    the government is creating a situation where ISPs must quickly and continuously raise rates on all their customers just to provide a basic level of service

    Many ISPs raised rates almost immediately after net neutrality was repealed, so they hardly need the pretext of “government interference” to do so.

    Moreover, the actual cost of data transfer is negligible and still decreasing, and expenditures as a percentage of revenue by the major ISPs have been on a generally downward trend for more than a decade, the most significant decreases occurring many years prior to the Obama-era net neutrality rules. If these companies are struggling to maintain “a basic level of service,” it is entirely their own fault.

    1. Code Name D

      Power and phone grids are also subsided in a similar way. This helps keep instillation and maintenance rates affordable for every one, Not just for those who live in profitable markets.

      1. redleg

        The whole point is to ensure the unprofitable areas get service. That is what public utilities do, and why they are public.

  8. Fraibert

    Couple of points. Sorry to be late to the party.

    First, I don’t believe any action at all can be taken directly against the repeal until publication of the new rule in the Federal Register, because the rule legally can’t go into effect without that publication. (The point of the Register is to ensure that the “public” notionally has “notice” of new rules and their content.) With one exception: Congress could always pass legislation that specifically overrides the rule (i.e., not a CRA Resolution).

    Second, I feel like there is more uncertainty in the concept of “net neutrality” than I had first appreciated. defines the idea as:

    “Net Neutrality is the basic principle that prohibits internet service providers like AT&T, Comcast and Verizon from speeding up, slowing down or blocking any content, applications or websites you want to use. Net Neutrality is the way that the internet has always worked.”

    And Wikipedia’s definition is:

    “Net neutrality is the principle that Internet service providers must treat all data on the Internet the same, and not discriminate or charge differently by user, content, website, platform, application, type of attached equipment, or method of communication. For instance, under these principles, internet service providers are unable to intentionally block, slow down or charge money for specific websites and online content.”

    But I feel in practice different people are talking past each other when they refer to “net neutrality.” Is it the concern about fast lanes and slow lanes? Or the concern that ISPs will make it practically impossible to access certain content by throttling it to the point of nonexistence unless fees are paid? I take there to be elements of both.

    Taken literally, the above definitions of “net neutrality” appear to preclude even the ability of an ISP to exercise Quality of Service ( measures. Suppose there’s an unexpected surge of Netflix usage on a holiday–does “net neutrality” mean that the ISP cannot limit the amount of data being transferred to and from Netflix servers so that other users can also enjoy some non-Netflix internet content?

    In other words, I assume that some level of network service measures must be consistent with “net neutrality” or otherwise the concept is not practically implementable. I’m not sure what the line is here, but I feel like it’s something that gets overlooked to a degree in the discussion.

    Moreover, it seems to me that the big internet companies are focusing on this fast lane vs. slow lane business and paid prioritization, because they don’t want to have to pay ISPs for priority or lose users. (This is especially important for Netflix, which responsible for huge amounts of bandwidth use.) ISPs don’t really care about what content users access, but would like to maximize profits using paid prioritization of popular content or by offering limited plans, etc.

    Meanwhile, citizens should care because the overall idea of net neutrality would prevent ISPs from limiting access to content of substance. (Not everyone likes Netflix, Youtube, etc., but preservation of the internet as a medium for the transmission of ideas should always be an important public interest.)

    In short, the idea of “net neutrality” to me feels a bit “loose.” I guess that’s inevitable to a degree, but it’s been bothering me for a while and I wanted to talk through it.

    1. Grebo

      You’re right that there are some gnarly details which don’t feature in the headlines.

      There are legitimate QoS measures that ISPs can take without violating net neutrality. For instance it would be legitimate and desirable for them to prioritise VoIP packets over bulk data transfers. It would not be legitimate for them to prioritise their own VoIP service over those of third parties, nor to charge extra for not doing so.

      Companies which shift a lot of data, like Netflix, can and do take measures to reduce their impact on the backbones by distributing servers widely, including within ISPs’ networks. This eliminates the peering charges which ISPs complain about. However, what the ISPs really want is to charge twice for each byte, both the sender and the receiver, even when only one of them is their customer. This would severely hamper new or small content providers.

      The ISPs are the gatekeepers of the internet. Net neutrality stops them from extracting economic rent, competing unfairly, taking a cut of third parties’ profits, and controlling what we can and can’t do on the internet. It does not prevent them from managing their networks impartially.

      1. Fraibert

        Doesn’t QoS in the form you describe violate net neutrality as defined by the sources I quoted? I agree that VoIP needs higher priority but that is favoring one kind of service over another.

        Or does net neutrality really mean like an equal protection clause for classes of data? In other words, all data of a given type should be treated equally?

        Just feels a bit slippery and am thinking it through…

    2. redleg

      As a small business – independent consultant type, I see the problem as extortion, where the ISP charges a premium for data to come from and/or go to your your site. The big players will pay as the cost of doing business where the price may be too much for a small business. Worse and most likely, the big boys will pay a fat price to the ISPs with the condition that small businesses are disappeared from the internet.
      It’s not about speed, or price. It’s about monopolies and monopsonies doing what they inevitably do to stifle competition. This is exactly why the Sherman and Clayton Acts exist, and net neutrality is functionally no different than railroads behavior in the 1880s, which is one big reason these acts were enacted.

      1. drumlin woodchuckles

        Perhaps we can put our history-based concerns about ISP monopoly behavior into easily understood history-based context by not referring to the internet as the “Information Superhighway” any more. Perhaps we should start calling it the “Information Railroad”.

      2. Fraibert

        I’m really glad you raise this perspective. I think the net neutrality discussion feels somewhat impoverished to me because there’s a lot of ideas packed into those two words and it isn’t easy to spell it out in brief terms.

    3. drumlin woodchuckles

      Your concern appears well founded on the face of it. Here is my problem with Ajit Pai’s decree that Net Bias will now be the Rule. If the ISPs don’t like Naked Capitalism’s politics, the ISPs can charge Naked Capitalism a thousand dollars a day to be graciously permitted onto their networks. If Naked Capitalism can pay the ISPs a thousand dollars a day to run on the networks, the ISPs can raise the “permission to run’ charge to a million dollars a day. If that is not enough to keep Naked Capitalism off the net, the ISPs can raise their “permission to run” charge to a billion dollars a day. They can set the permission-to-run fee as high as they like in order to keep Naked Capitalism off of their networks.

      That is what Ajit Pai has just decreed the ISPs can do.

  9. drumlin woodchuckles

    Dear Mr. jgordon,

    Here is a fair method for charging for internet use, then. Charge users for the amount of data they use. Let all data travel equally unimpeded over the ISP tubes. Let the ISP subscriber decide which site’s data heeshee uses by picking the URL or other Site Locator heeshee pleases.

    Your concern about use-based fairness in paying to recieve data over the internet is answered and satisfied while our concern about ISP discrimination and persecution against certain data is met.

  10. World Guy

    Ajit Pai was nominated by Barack Obama in 2012, to the FCC, senate passed by unanimous vote
    Tom Wheeler was nominated by Barack Obama’s for chairman of the FCC, 2013, again unanimously voted in.
    2014 the FCC voted to end net neutrality, but was later overturned by public opposition
    2017 Ajit Pai was nominated for chairman of the FCC by Donald Trump, voted in along party lines.

    How much difference is there really between the two parties?

    1. Anon

      Only 3 of the 5 members of the FCC may be from the same party. The tradition is for the president to nominate 3 members from their own party and allow the Senate leader from the opposing party to choose the remaining 2 nominations. There’s plenty of things Obama did wrong, but this wasn’t one.

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