March 7, 2021

A Few Reminders Before The Tired Net Neutrality Debate Is Rekindled

By Karl Bode
Bad news for folks “worn out” by the longstanding debate over net neutrality: it’s about to be rekindled in a major way. But for those who are a bit too easily annoyed by having to revisit this well tread path, it’s worth remembering that the debate about net neutrality is really about competition, policing monopolization, and having regulators and antitrust enforcers that aren’t feckless cowards in dutiful sway to powerful natural monopolies. And either you care about these very real problems, or you don’t.

With the Senate falling under Democratic control in the wake of the Georgia run off elections, Mitch McConnell, AT&T, and Comcast’s dream scenario — an FCC perpetually crippled by partisanship by McConnell — is no longer happening. Big telecom had hoped that the rushed appointment of unqualified Trump sycophant Nathan Simington would bring the agency to a 2-2 partisan Commissioner tie. It’s extremely clear McConnell then planned to block the appointment of a new FCC boss to ensure the agency was crippled and lacked the majority to reverse Trump’s lengthy list of handouts to the telecom sector.

That’s no longer possible, meaning the Biden administration, with a 3-2 Commissioner majority, should be able to pick their preferred FCC boss and get back to at least occasionally pretending that monopolistic behavior and consumer protection is something we take seriously. Net neutrality activists are, as you might expect, excited to reverse a lot of Trump era policies like the factually dubious and hugely unpopular repeal of net neutrality:

“Already, net neutrality advocates are barely containing their excitement. Reached for comment, Fight for the Future’s Evan Greer laid out a laundry list of progressive goals that can now be pursued, from overturning FCC Chairman Ajit Pai’s order to implementing more aggressive privacy and connectivity policies.

“If Democrats take the Senate they should move quickly to confirm an FCC chair who will make it their first order of business to restore the Title II open Internet protections,” Greer said in a statement. “But they should also do more than that. The FCC can and should take steps to protect people’s privacy, and to ensure that everyone can afford Internet access during a time when many are working from home and sending their kids to school online.”

Granted things could go one of several ways here. Yes, the Biden camp could appoint somebody with a backbone willing to quickly tread back into reclassifying ISPs as common carriers under Title II of the Communications Act, giving the FCC the authority to once again adequately police obnoxious monopolies. The Democratic FCC could just vote along 3-2 party lines to restore net neutrality and FCC authority, given the courts have made it clear now several times it has that right. Even if this risks simply being reversed in 2024 should Democrats lose the White House.

But I can also see the Biden camp taking a far flimsier route, appointing somebody “safe” and unwilling to rock the boat; somebody like Obama’s first FCC boss, Julius Genachowski, who was largely incapable of taking tough stands on any issue of substance.

Ideally, to avoid FCC regulatory ping pong, you’d prefer Congress pass a useful, well-crafted, new net neutrality law prohibiting ISPs like AT&T and Comcast from abusing their power as gatekeepers. But there too it’s no certain bet that the Biden team genuinely sees holding telecom monopolies accountable as a priority (Biden’s first 2020 fundraiser ever was at a Comcast lobbyist’s home), wants to spend the time making it a priority with so many other urgent problems, or will be able to secure the necessary votes among heavily lobbied lawmakers who traditionally treat upsetting AT&T, Verizon and Comcast as a cardinal sin.

While Democrats are saying that restoring net neutrality is a top priority, I can see providing COVID relief to low-income Americans consuming most of the oxygen in the room, and quite justly. Under this scenario, a feckless new Democratic FCC boss could use COVID as a shield to justify not taking a tougher stance against telecom monopolies or restoring net neutrality (“there’s more important things to do than revisit contentious issues!”), even if the restoration of the FCC’s authority would go a long way toward giving the FCC the tools needed to accomplish any COVID-related goals.

Either way, expect all the same arguments to be dusted off for what feels like the eighty-fifth time. And while annoying, it’s still a conversation we need to have. 82 million Americans live under a broadband monopoly, usually Comcast. 43 million Americans can’t get any service whatsoever. The one-two punch of monopolization and chickenshit lawmakers and regulators is why Americans pay some of the highest prices in the world for broadband service that’s routinely mediocre by any metric that matters. Monopolies have cornered the market, closed the door behind them, lobbied endlessly against any threat of disruption, and are now ceaselessly on the prowl for creative ways to nickel-and-dime captive customers.

Net neutrality (read: dumb, anticompetitive ideas only made possible by a lack of competition) gets the focus, but this is really about policing monopolization and driving more competition to market so there’s an organic market penalty for bad behavior, whether that’s a privacy violation or net neutrality skullduggery.

Again, maybe you really don’t like net neutrality as a concept, and that’s fine. But if you don’t, you’d better be recommending real regulatory and antitrust reform that addresses monopolization and the myriad of problems that creates. If you’re whining about how much you hate net neutrality–while downplaying, ignoring, or encouraging rampant monopolization and regulatory capture–you’re sure as hell not helping and may even be part of the problem.

For four straight years, the Trump FCC couldn’t even admit a lack of market competition is a problem, and went to great lengths to push fabricated data claiming the market was perfectly healthy. So whatever direction the Biden camp goes, it’s likely to be an improvement from the fabricated post-truth delusion that has been the highlight of the last four years.

During its tenure the Trump FCC, directed by the telecom lobby, convinced the lion’s share of DC that “big tech” is the root of all evil, while effectively gutting most oversight of telecom giants with 30-year track records of predatory, anti-competitive behavior. Whatever solution emerges from the Biden camp, it would be nice if it stems from an understanding that monopolistic jackassery is not somehow the exclusive domain of big tech, and we need more consistent, and far less pathetic antitrust and regulatory enforcement across the board.

And before the dumb hyperbole and decades-old arguments emerge anew, let’s be clear about something: folks who argue that net neutrality didn’t matter because the rules were killed and the internet didn’t immediately explode (and there’s a lot of them) are only advertising their own ignorance. As we’ve been covering for years, the Trump FCC’s net neutrality repeal didn’t just kill net neutrality. It hamstrung the FCC’s ability to police telecom monopolies on a wide variety of fronts, whether that’s recent bullshit attempts by ISPs to charge consumers “rental” fees for modems they already own, to policing the sneaky, bullshit fees cable TV giants and ISPs use to covertly jack up your bill and falsely advertise a lower price.

In short, anybody who thinks that gutting most meaningful oversight of monopolies like Comcast and AT&T resulted in “innovation,” new investment, or free market Utopia has fallen into an ideological mud puddle. That said, it also remains true that if the broadband industry saw meaningful competition at scale, you wouldn’t need net neutrality in the first place. A company in a competitive market can’t engage in ham-fisted throttling or other bullshit, because consumers would flock to a (gasp) competitor.

But in a country where there’s virtually no competition at modern speeds, our regulators are usually feckless chickenshits, and we’re intent on rubber stamping every job and competition-killing merger than comes down the pike — that can’t happen. Net neutrality is an imperfect stopgap measure until we figure out how to fix this mess. And fixing this mess requires some backbone and standing up to politically powerful telecom monopolies welded to our intelligence-gathering apparatus. No easy feat.

Hopefully, whatever happens, a Biden FCC will at a minimum make better real-world data a priority so we can, for the first time, accurately measure the least competitive and most disconnected areas of the country, then embrace creative solutions that drive competition to market. Instead of what we’ve long been doing for thirty years, which is to use bad ISP data to blindly guess which areas of the country need help, then throw billions of dollars at giant companies for networks that (mysteriously!) always wind up half deployed.

Again, it’s not yet clear how much backbone a Biden FCC boss will be have, or just how serious the Biden FCC will be about restoring net neutrality and FCC authority. But whatever the future of the FCC looks like, it might be nice if we stopped our generation-long trend of letting monopolies like AT&T and Comcast dictate the lion’s share of state and federal policy, then standing around with a dumb look on our collective faces wondering why US broadband is a mediocre mess.