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In the days since Ajit Pai, the Federal Communications Commission Chairman under President Trump, announced his plan to reverse the wildly popular (and court-affirmed) Open Internet Order, there’s been a lot of strange rhetoric coming from Internet Service Providers. While celebrating the proposed death of the only net neutrality rules to prevail against ISP court challenges, these monopolistic, noncompetitive companies keep insisting they love net neutrality and have no intention of doing any of the things the net neutrality rules prohibit. They’re celebrating the death of the rules, insisting that the rules aren’t needed because they weren’t going to do any of those things anyway, so we should trust them.
This may be good PR, but it’s not good history. The fact is, the ISPs most loudly insisting they support net neutrality - Comcast and Verizon, for example - are the same companies who’ve been behind the most significant legal and political opposition to any net neutrality rules, and the same companies that have been caught time and again pushing the bounds of permissible behavior, or outright violating net neutrality principles. So, let’s give them a quick fact-check and separate the truth from the “fake news,” at least where ISP positions on net neutrality are concerned.
Verizon: Chairman Pai’s Plan Won’t Eliminate Net Neutrality Rules - FALSE
Verizon released a doozy of a video on Friday. They claim to gotten a “good deal of positive feedback”, per Gizmodo, but for some reason felt compelled to disable commenting on the video on YouTube. In the video, Verizon General Counsel Craig Silliman insisted that “The FCC is not talking about killing the net neutrality rules, and in fact not we nor any other ISP are asking them to kill the open Internet rules.” Every single part of that sentence is false.
First, the FCC is talking about killing the net neutrality rules. Chairman Pai’s proposed Notice of Proposed Rulemaking, in addition to proposing to abandon the only legal structure which Federal judges have thus far verified would support net neutrality rules, explicitly proposes elimination for the general conduct standard meant to provide a framework under which to evaluate whether or not particular ISP practices violate net neutrality. The item goes on to question whether bright-line net neutrality rules against blocking, throttling, and paid prioritization are even needed. Pai’s NPRM opens its discussion of the bright line rules by “seek[ing] comment on whether ex ante regulatory intervention in the market is necessary in the broadband context.” The framing of the Commission’s questions throughout this section, while stopping short of expressly proposing elimination of the rules, hammers repeatedly on an alleged lack of need for rules in the first place.
So, yes, Mr. Silliman, the FCC is actually examining whether there is even a fundamental need for any rules, and is expressly talking about killing at least one of those rules, the general conduct standard. As to the second part of the statement - that neither Verizon nor any other ISP is asking the FCC to kill the rules - well, history isn’t on Verizon’s side here. There have been two major court cases about net neutrality in the past 5 years. The 2010 rules were overturned by a lawsuit and 2014 court decision - Verizon were the plaintiffs in that one, in case you’d forgotten. And 2015’s rules were affirmed by the DC Circuit (and a request for rehearing was just recently refused) in a case brought by USTelecom, a trade association which counts Verizon among its largest and most powerful members. So yes, the ISPs - including Verizon - have tried in the past, and continue to try now, to kill net neutrality rules. Suggesting otherwise is simply false.
Comcast: “We won’t block, we won’t slow, we won’t throttle content” - FALSE
Everyone’s favorite neighborhood cable company, Comcast, hasn’t been shy in recent days, either. They’ve got a couple blog posts and a variety of other promotional material out advertising their strong embrace of net neutrality. One of their posts is anchored by this gif (which I’m pretty sure first made its appearance during their abortive attempt to even more aggressively monopolize the cable industry by buying Time-Warner Cable):
Three simple statements, all of which directly conflict with Comcast’s past behavior.
We Won’t Block: Comcast was a strong supporter of the Stop Online Piracy Act, or SOPA, a piece of legislation that was all about letting content owners force ISPs and websites to block content. Supporters of the bill claimed that it wasn’t a net neutrality issue because the content being blocked wouldn’t have been legal content, but the content industry doesn’t exactly have a great history of only issuing legitimate takedown notices. SOPA would have put all the power with rightsholders and ISPs, not with consumers, creators, or innovators. Comcast may promise not to block in the future, but they’ve never had a problem supporting it when it suited their interests.
We Won’t Slow: Y’know, this one kills me. In 2007, Public Knowledge, with our friends at Free Press, filed a complaint with the FCC in response to Comcast throttling BitTorrent traffic. Comcast was brought to task by the FCC for violating the Internet Policy Statement, and then went to court to defend its right to throttle. Comcast ultimately won, in part because the FCC had not backed up its Open Internet principles with the necessary statutory authority--Title II of the Communications Act. But this at least became the point at which it became clear to many that we needed strong, enforceable rules. This led to 2015’s Open Internet Order, and here we are today, with Comcast promising it won’t throttle anything, but opposing any rules that would actually let the company be held accountable if it did. History really does have a way of repeating itself.
We Won’t Throttle Content: Comcast and other major ISPs have a record of taking steps that amount to throttling--reserving their best-quality interconnection points for those online services that pay a toll to reach their subscribers. We’re not talking about the legitimate costs that are associated with hooking up networks and servers, but fees that are set by how much “value” internet services get from being able to stay in business by reaching Comcast customers. Even though ISPs already charge their customers for internet access, they’re not above letting them twist in the wind if they can make an extra buck charging tolls to internet companies. Sending two bills for providing one service might be a good business to be in, but it’s an abuse of market power, especially when you’re a company that has monopolistic control of millions of households. No one wants ISPs like Comcast to set themselves up as matchmakers that decide what people can see and do online.
So there you have it. Here we are, again. “Once bitten, twice shy,” I think the saying goes. These companies, and others, have again and again violated net neutrality principles (don’t forget, AT&T used to block FaceTime, Comcast bypassed its merger conditions to zero-rate its own video service, and both AT&T and Verizon engage in competitively harmful sponsored data practices to this day). There are finally rules in place, affirmed by the courts, which provide clear, enforceable rules and important consumer protections to promote innovation, investment, competition, and consumer welfare throughout the internet ecosystem and the economy writ large. Insistence by ISPs that this time is different, that they really won’t violate net neutrality this time should fall on deaf ears - we’ve been here before, and learned from the experience.