THE INTERNET SERVICE PROVIDERS
ARE LYING AND AJIT PAI IS LYING!
Posted on November
24, 2017 by Lambert Strether
By Lambert Strether of Corrente.
The day before Thanksgiving, November 23, the FCC dropped its
proposal “Restoring Internet Freedom,” FAQ and Declaratory Ruling,
Report and Order, and Order (PDF); they hope to schedule a vote on it for December 14. (Honestly. Why don’t they just go whole hog
and schedule the vote for December 24?) Let me start out by drawing attention
to this remarkable passage in the FAQ:
What the Order Would Do:
• Find that the public
interest is not served by adding to the already-voluminous record in this
proceeding additional materials, including confidential materials submitted in
other proceedings.
What could those “confidential
materials submitted in other proceedings” possibly be? Let’s speculate. New
York State Attorney General Eric Schneiderman writes in an open letter to (former Verizon
lawyer and) FCC chair Ajit Pai:
[F]or six months my office has
been investigating who perpetrated a massive scheme to corrupt the FCC’s notice
and comment process through the misuse of enormous numbers of real New Yorkers’
and other Americans’ identities
Long story short: Bots[1]
organized by some unknown entity filed enormous numbers of often identical
comments on the proposal with the FCC. This matters, because as Schneiderman
points out:
Federal law requires the FCC
and all federal agencies to take public comments on proposed rules into
account — so it is important that the public comment process actually enable
the voices of the millions of individuals and businesses who will be affected
to be heard.
Which is hard to do when the
organic comments are drowned out. As a legal matter, Schneiderman seems
concerned with the theft of the identities that putatively signed the comments,
and to that end:
We made our request for logs
and other records at least 9 times over 5 months: in June, July, August,
September, October (three times), and November.
To which the FCC has so far
been unresponsive. As
Yves pointed out:
The Trump Administration says
it plans to ignore public comments, which would seem to open up the ruling to a
procedural challenge by anyone who had standing.
And what I would speculate is
that the “confidential materials submitted in other proceedings” bear on
Schneiderman’s request, which the FCC intends to stiff, since not taking pubic
comments into account would certainly open the FCC to procedural challenge.
With that detour into the
weeds out of the way, in this post I will answer the following questions:
1) What is “Net Neutrality”?
2) What would a “Packaged
Internet” look like? (I needed a phrase that implies the opposite of “Net
Neutrality,” which “Packaged Internet” seems to do. “Rigged Internet,” my
second choice, didn’t incorporate the cable-like package business model; see
below.)
3) What are the real and
theoretical harms of a “Packaged Internet”?
And I’ll conclude with some
thoughts on action to secure net neutrality, past and present. (I will also add
an Appendix on how the Democrats helped create this mess, because of course
they did.)
What is “Net Neutrality”?
In the shortest posssible
form: You are surfing the net at your browser, and your ISP is delivering bits
that build the pages that you read (or watch (or listen to)). All bits are
treated equally, no matter what (“neutrality”). The ISP must treat the bits
that build this page at Naked Capitalism exactly as it treats the bits that
build the Google search page or the Washington Post front page or whatever. So
they can’t cripple us to boost WaPo.
In somewhat longer form, FCC
commissioner Jessica Rosenworcel writes in the Los Angeles Times:
Net neutrality is the right to
go where you want and do what you want on the internet without your broadband
provider getting in the way. It means your broadband provider can’t block
websites, throttle services or charge you premiums if you want to reach certain
online content.
Without it, your broadband
provider could carve internet access into fast and slow lanes, favoring the
traffic of online platforms that have made special payments and consigning all
others to a bumpy road. Your provider would have the power to choose which
voices online to amplify and which to censor. The move could affect everything
online, including the connections we make and the communities we create.
And in long form, as
I wrote earlier this year:
Although the Obama
administration initially set
the table for net neutrality’s abolition — its choice for FCC Commissioner,
Tom Wheeler, was a tube cable lobbyist — a
successful grassroots campaign — which, besides
online activists, also included corporate heavweights that benefit from net
neutrality, like Google — ultimately led in 2015 to net neutrality’s adoption,
as the FCC decided to regulate ISPs under Title II of the Communications Act as
common carriers. (This is like treating ISPs as public
utilities, and the issue is often framed that way, but the two are not identical in function or law). Tim Wu
explains “common carrier”:
The concept of a “common
carrier,” dating from 16th century English common law, captures many similar
concepts [to open access and anti-discrimination remedies for “threats to the
end-to-end nature of the Internet”]. A common carrier, in its original meaning,
is a private entity that performs a public function (the law was first
developed around port authorities).
Taxis,
for example, are common carriers.
So, if taxis were no longer
common carriers, but worked the way Ajit Pay — sorry, Pai — wants the Internet
to work (and incorporating Rosenworcel’s verbiage), taxis wouldn’t have to pick
you up if they didn’t want to (“choose which voices”), wouldn’t have to take
you where you asked to go if they didn’t want to (“blocking”), could take the
slow route to the airport unless you offered to pay extra (“throttling”), could
charge you a fee to turn off the sound for that [family blogg]ing TV on the
back of the driver’s seat (“charge you premiums”), or even charge you extra for
picking you up at Penn Station as opposed to the Port Authority (“favoring the
traffic of online platforms”). The taxi companies would love this. Nobody else
would. ISPs would love a Packaged Internet. Nobody else would.
What Would a “Packaged
Internet” Look Like?
In short form, the Packaged
Internet would look like cable[2]. Ro Khanna tweets:
The FCC is
getting ready to overturn #NetNeutrality.
If they succeed, ISPs will be able to split the net into packages. This means
that you will no longer be able to pay one price to access any site you want.
A more concrete portrayal:
https://twitter.com/Pikminister/status/933020244997693440/photo/1
Here's the man
directly responsible for killing #NetNeutrality , Ajit Pai @AjitPaiFCC
Soon the net will become a #CableTV like money-pit for consumers. Where providers like @verizon @ATandT and @comcast will charge consumers with high prices to visit their favorite websites.
Soon the net will become a #CableTV like money-pit for consumers. Where providers like @verizon @ATandT and @comcast will charge consumers with high prices to visit their favorite websites.
And good luck trying to change
the terms of your package:
ME: I’d like to
negotiate this term of your boilerplate service contract
ISP: Why certainly, let me get our counsel on the line. We are, after all, equally powerful bargaining partners
ISP: Why certainly, let me get our counsel on the line. We are, after all, equally powerful bargaining partners
What Are the Real and
Theoretical Harms of a “Packaged Internet”?
The ISPs say they’ll behave:
We do not and
will not block, throttle, or discriminate against lawful content. We will
continue to make sure that our policies are clear and transparent for
consumers, and we will not change our commitment to these principles.
Too funny. The
Rice-Davies Rule applies to what they say: “They would, wouldn’t they?”
And the FCC agrees with the
ISPs. From the Order:
“Because of the paucity of
concrete evidence of harms to the openness of the Internet, the Title II Order
and its proponents have heavily relied on purely speculative threats. We do not
believe hypothetical harms, unsupported by empirical data, economic theory, or
even recent anecdotes, provide a basis for public-utility regulation of
ISPs.428 Indeed, economic theory demonstrates[3] that many of the practices
prohibited by the Title II Order can sometimes harm consumers and sometimes
benefit consumers; therefore, it is not accurate to presume that all
hypothetical effects are harmful.
The ISPs are lying, and the
Ajit Pai is lying. Stanford’s Barbara van Schewick has a long list of the legal maneuvers the ISPs have deployed to
circumvent net neutrality. And Techdirt has an excellent compilation of real harms where
ISPs blocked, throttled, and generally gamed the net to their advantage.
You know, speculative
instances like that time AT&T blocked customer access to Facetime in order
to drive them to more expensive mobile data plans. Or the time
AT&T throttled users then lied about it (something AT&T’s still fighting a lawsuit over). Or that time Comcast applied
arbitrary and completely unnecessary usage caps and overage fees to its
broadband service (again, thanks to a lack of competition), then exempted the company’s own content from those caps while
still penalizing competitors. Or how about that time Verizon blocked competing mobile wallets from even working on its
phones to give its own payment platform an advantage?
There’s plenty more very real, very non-speculative examples where that
came from, and the problem gets worse if you look at the bad behavior by
ISPs on the privacy front (also caused by a lack of competition). Like when
AT&T decided to charge users hundreds of extra dollars a month just to opt out of
snoopvertising, or the time Verizon was busted covertly modifying user packets to track users around the
internet without telling them — or letting them opt out.
If you think these very real
market harms are “speculative” you’ve been in a coma for the last decade. Yet
this argument that net neutrality is an entirely theoretical problem sits at
the heart of the FCC’s order.
“We do not and will not block,
throttle, or discriminate against lawful content” my sweet Aunt Fanny.
And here is a list of
theoretical harms that a cursory survey of the Twitter provides:
Bitcoin
throttling: “Loss of ‘Net Neutrality’ means US government will be able to
throttle traffic to #Bitcoin exchanges…” (presumably by asking the ISPs to do
so)
Search
engine packaging: If FCC dismantles [net neutrality], and you get internet
from Verizon, they may force you to use Yahoo as your search engine (because
they own it), but PAY to use GOOGLE.
Free speech suppression: From The Nation:
[The FCC proposal] would “rig
the internet,” according to Congressional Progressive Caucus co-chairs Mark
Pocan of Wisconsin and Raúl Grijalva of Arizona, who say, “If [Pai] is
successful, Chairman Pai will hand the keys to our open internet to major
corporations to charge more for a tiered system where wealthy and powerful websites
can pay to have their content delivered faster to consumers. This leaves
smaller, independent websites with slower load times and consumers with
obstructed access to the internet—a particularly harmful decision for
communities of color, students, and online activists. This is an assault on the
freedom of speech and therefore our democracy.”
Crippled activism: From Tim Karr of Free Press on Democracy Now:
The Internet was created as
this network where, where there were no gatekeepers. Essentially, anyone who
goes online can connect with everyone else online. And that’s given rise to all
sorts of innovation, it’s allowed political organizers, and racial justice
advocates to use this tool to contact people, to organize, to get their message
out.
Conclusion
Net Neutrality is important to
Naked Capitalism. As
I wrote:
Naked Capitalism is a small
blog. It’s in our interest — and we like to think it’s in your interest too,
dear readers, and in the public interest as well — to be just as accessible to
the public on the Internet as a giant site like the Washington Post or the New
York Times (or Facebook). If you agree, please support Naked Capitalism and all
small blogs by vociferously supporting network neutrality in every venue
available to you. Help Naked Capitalism stay unthrottled!
(And if you think the battle
is hopeless, see this must-read by Matt Stoller on the fight that got
the FCC to treat the Internet as a common carrier in the first place.) The
Verge has an excellent article on all the venues where Net Neutrality is
being supported; the tactic that particularly appeals to me is protests at
stores also owned by Ajit Pai’s owner: Verizon. And, as ever, I recommend a
Letter to the Editor in your local newspaper.
NOTES
[1] Via Motherboard:
This one was sent to the FCC
1.2 million times:
The unprecedented regulatory
power the Obama Administration imposed on the internet is smothering
innovation, damaging the American economy and obstructing job creation.\n\nI
urge the Federal Communications Commission to end the bureaucratic regulatory
overreach of the internet known as Title II and restore the bipartisan
light-touch regulatory consensus that enabled the internet to flourish for more
than 20 years.\n\nThe plan currently under consideration at the FCC to repeal
Obama’s Title II power grab is a positive step forward and will help to promote
a truly free and open internet for everyone.\n
Yes, the “\n” was really
there. (I say “unknown entity” because although the New York Post blames “Russians,” they give no source,
and attribution is hard.)
[2] Market fundamentalists
argue that competition will keep the ISPs honest. Which might be true if competition were a thing:
[The FCC] argues that
customers offered a two-speed internet will defect to other ISPs, and that
beefed-up antitrust enforcement will prevent the worst offences. These are not
strong arguments. Only half of American households have more than one ISP to
choose from. Most of the rest are served by lazy duopolies.
[3] “Economic theory
demonstrates.” Stop it, Ajit. You’re killing me!
APPENDIX: The Role of the
Democrats
Ajit Pai, the FCC Commissioner
leading the charge to rig the internet, was appointed by Obama. Wikipedia:
He has served in various
positions at the FCC since being appointed to the commission by President
Barack Obama in May 2012, at the recommendation of Mitch McConnell. He was
confirmed unanimously by the United States Senate on May 7, 2012,[1] and was
sworn in on May 14, 2012, for a five-year term.
Before his appointment to the
FCC, Pai held positions with the Department of Justice, the United States
Senate, the FCC’s Office of General Counsel, and Verizon Communications.
Another Flexian slithers
through the revolving door. Obama no doubt asked McConnell for his very
valuable opinion to maintain partisan balance among the FCC commissioners (one
of those “norms” liberal Democrats are always yammering about). But actually:
Only three commissioners may
be members of the same political party
In other words, Obama could
have nominated a pro-Net Neutrality independent, and chose not to. When Trump
was elected, he nominated Pai for FCC Chair, and that only happened because
four Democrats — remember when Trump used to be a fascist? Good times — went
along and helped him out. Politico:
DEMOCRATS FOR PAI? — FCC
Chairman Ajit Pai locked down his reconfirmation Monday evening in a largely
party-line 52-41 vote. But Pai did win votes from four of the six Democrats who
voted in favor of last week’s procedural vote on his confirmation: Gary Peters
(D-Mich.), Joe Manchin (D-W.Va.), Claire McCaskill (D-Mo.) and Jon Tester
(D-Mont.)….
— So why did these four buck
Democratic colleagues? “I disagree with him on net neutrality, but the
president has a right to the chairman because he won the election,” McCaskill
told John. “I have worked with him closely on the Lifeline issues and found him
to be easy to work with on those issues — and he’s
qualified.” [credentialism!] Peters echoed her on Pai’s
qualifications and also cited his interest in working with Pai to address the
Lifeline program./p>
— The senators like his
broadband views. “I just need a lot of help in West Virginia, and he’s been
moving in that direction,” former Commerce Committee member Manchin said,
lauding Pai’s work in “trying to get the rural broadband fund moving.” Pai is
“working with us,” Manchin said. Peters also mentioned rural broadband,
singling out Michigan’s Upper Peninsula as an area in need: “I found him very
receptive to ways to expand broadband access.” But like McCaskill, Manchin is
“still very concerned about net neutrality,” as is Peters, they told POLITICO.
Pai’s move to roll back net neutrality regulations dominated the Democrats’
opposition on the floor in the last week. Peters said
he “will hold him accountable” and try to ensure “the internet is free and open.”
Uh huh. Let me know how that
works out, Gary.
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