Blame It On The Barcelona (Or Alternative Titles To Celebrate Alternative Facts)

Submitted on March 2, 2017

Blame It On The Barcelona
(Or Alternative Titles To Celebrate Alternative Facts)

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Robbie's Round-Up for the Week of February 27 - March 3, 2017

“The torch of the FCC has been passed to a new generation, dedicated to renewal as well as change." -- FCC Chairman Ajit Pai

Federal Communications Commission Chairman Ajit Pai delivered his first major address on the global stage at the Mobile World Congress in Barcelona. Chairman Pai outlined a policy agenda aimed at bringing faster and cheaper broadband to all Americans: promoting infrastructure investment, fostering innovation, and expanding next-generation networks. The key ingredient, from Pai’s perspective, is a light-touch regulatory approach.

Pai Takes Credit for Unlimited Wireless Offerings
Wireless Data Plan Pretzel Logic

A majority of Pai’s speech was spent extolling the virtues of a light-touch regulatory approach and the free market. Just five weeks into his Chairmanship, he took credit for spurring competition in wireless data offerings. Pai noted his move to end the FCC’s investigation into “zero-ratings” – free data offerings by wireless providers for content the carriers select – and the moves by carriers to launch or improve unlimited data offerings. In ars technica Jon Brodkin writes, "If carriers don't limit the amount of data mobile customers can use each month, there's no reason for online content providers to pay the carriers for zero-rating. While data caps are hated by customers, they create a scarcity that can be monetized by carriers as long as the FCC allows paid zero-rating."

And, importantly, there were already unlimited data plans before Pai became Chairman -- three of the four major carriers were selling unlimited data plans before Donald Trump won the 2016 election.

Pai Reiterates His Views on Title II: ‘The FCC Made a Mistake’
Pai Reiterates His Debunked Claims on Net Neutrality

In Chairman Pai’s view, the FCC’s decision to reclassify broadband internet access service under Title II of the Communications Act in order to legally enforce network neutrality rules was a mistake. He said:

[T]wo years ago, the United States deviated from our successful, light-touch approach. The FCC decided to apply last-century, utility-style regulation to today’s broadband networks. Rules developed to tame a 1930s monopoly were imported into the 21st century to regulate the Internet. This reversal wasn’t necessary to solve any problem; we were not living in a digital dystopia. The policies of the Clinton Administration, the Bush Administration, and the first term of the Obama Administration had produced both a free and open Internet and strong incentives for private investment in broadband infrastructure. Two years later, it has become evident that the FCC made a mistake.

Of course, Chairman Pai is ignoring over a decade of government concern and action to ensure the Open Internet:

During the Bush Administration, FCC Chairman Michael Powell challenged the broadband industry to preserve Internet freedom in 2004.
In August 2005, the FCC approved an Internet policy statement reflecting Powell’s “four freedoms.” The policy statement, which does not have the force of regulation, says broadband users are entitled to run Web applications and services of their choice and connect their choice of legal devices to the network.
In 2005, Ed Whitacre, CEO of SBC (soon to be AT&T), complains to BusinessWeek about companies like Google and Vonage. “Now what they would like to do is use my pipes free, but I ain’t going to let them do that because we have spent this capital and we have to have a return on it.”
In 2006, AT&T pledges to maintain a “neutral network” in exchange for U.S. government approval of its proposed acquisition of BellSouth.
In 2008, FCC Chairman Kevin Martin says Comcast’s slowing of peer-to-peer traffic appears to be more widespread than the company had disclosed. Later that year, the FCC orders Comcast to stop its “invasive” interference with peer-to-peer traffic on its broadband network and to create a new network management plan. Comcast appeals the FCC’s anti-throttling order, arguing that the commission had no hard rules against the company’s network management practices.
In 2010, the U.S. Court of Appeals for the District of Columbia Circuit overturned the FCC’s Comcast ruling, saying the agency lacks “any statutorily mandated responsibility” to enforce network neutrality rules. The ruling is a big blow to “light-touch” approach to regulation.
In December 2010, the FCC approves net neutrality rules, but chooses not to use Title II authority.
In 2014, the U.S. Court of Appeals for the D.C. Circuit overturned the FCC’s 2010 Open Internet rules. The court rules that since the FCC had previously classified broadband providers under Title I of the Communications Act of 1934, the FCC had relinquished its right to regulate them like common carriers. The second blow to the “light-touch” regulatory approach led to the FCC’s 2015 open Internet rules based in Title II authority, rules that the Appeals Court later upheld.

In Barcelona, Pai went on to make some pretty flimsy arguments about network neutrality rules. “Our new approach,” he said, "injected tremendous uncertainty into the broadband market. And uncertainty is the enemy of growth. After the FCC embraced utility-style regulation, the United States experienced the first-ever decline in broadband investment outside of a recession.”

Free Press Policy Director Matt Wood responded to these claims:

Pai keeps repeating the utterly debunked claim that the FCC’s Net Neutrality rules are utility-style regulations that are hurting broadband deployment. This is false on the law and false on the facts. It ignores not just the actual language of the FCC order, which explicitly forbears from the bulk of Title II, but the actual impact that Title II reclassification has had on the market.

Pai’s claim that Net Neutrality protections have created great uncertainty in the marketplace is a flat-out lie, as is his notion of flatlining investment by internet service providers. We long ago discredited these claims.

Pai’s frequent charge that investment has declined is based on the claims made by one industry-paid analyst, who selectively edits the figures reported by some of these companies. But if you take account of the industry’s spending as a whole, you’ll see that broadband-industry investment was nearly 9 percent higher in the two years following the FCC’s 2015 Open Internet Order than it was in the two years prior.

What’s more, these industry aggregate totals don’t tell the whole story. Individual companies large and small significantly increased their broadband-infrastructure investments following the rules’ adoption. Comcast, the nation’s largest ISP, has invested far more in the two years following the FCC's order as the company has rolled out the next generation of cable-modem service. Smaller providers like Cincinnati Bell have increased their investments in fiber-to-the-home technology. And all wireless carriers have invested in completing their 4G deployments and preparing for 5G.

Reporters shouldn't let Trump's man at the FCC spread easily debunked falsehoods like these. Pai’s relentless spin and his inaccurate numbers beg the question: What else is Pai misleading us about? People need to take a moment to double check the alternative facts coming from this FCC chairman.

The Future of Net Neutrality: ‘Open Internet’ Without Title II?
How Do We Have an Open Internet Without Title II?

The rhetoric around net neutrality often muddies the issue. An example can be found in Pai’s speech. He said, “Going forward, the FCC will not focus on denying Americans free data or issuing heavy-handed decrees inspired by the distant past. Instead, we will seek to advance the networks of the future and the innovative new products and services that take advantage of those networks. And as we do so, we will preserve a free and open Internet.”

This raises questions: Can Pai be logically consistent by supporting a “free and open Internet” while scaling back the legal, Title II protections and enabling paid prioritization by ISPs? What do he mean by “free and open Internet”? How does he plan on enforcing net neutrality rules ? Since Pai supports sponsored data programs, does he also support Comcast throttling home connections? Or charging edge providers premium prices for an Internet fast lane?

Chairman Pai claims to support the open Internet, but opposes the manner in which it was ultimately enacted, through Title II reclassification. Those who claim to support net neutrality, but oppose Title II, have the obligation to provide an alternative, enforceable framework.

Often, the answer is "see Congress." If Congress were to pass legislation around net neutrality, the issue would be solved. But there’s little consensus -- even within the Republican majority -- on how to tackle the problem.

On February 8, House Communications Subcommittee Chairman Marsha Blackburn (R-TN) was asked what she thought the timetable would be for a net neutrality bill. She said, “Let’s let the FCC go in and do what they are able to do, make the first move on that. I think we allow them to take those first steps.” Asked how the FCC's and Congress's role in addressing the rules would dovetail, she said that after Chairman Pai takes whatever actions he takes "the opportunity that we will have as a legislative body will be to take action that will move forward on some principles and definitions and make sure we don't end up in the situation again where we had agency overreach and an agency that decides they want to go off script..." (Of course, the Courts did not agree with Blackburn’s characterization, as the rules were upheld last year).

Blackburn’s position of letting the FCC make the first move differs from GOP tech policy leaders in the upper house. Senate Commerce Committee Chairman John Thune (R-SD) is pushing forward with plans to draft legislation that would codify net neutrality -- including prohibitions against paid prioritization, blocking and throttling -- into law. Thune doesn’t agree with the FCC’s move to reclassify and has said he wants to ensure Congress avoids “rate regulation and other things that the commission could do under Title II reclassification.”

We’re left with Chairman Thune, Chairman Blackburn, and Chairman Pai sending different messages on net neutrality. They all agree they are opposed to the FCC’s Title II decision, but disagree as to who should initiate action, and whether to allow paid prioritization.

Net neutrality is sure to be a continuing battle. We’ll be covering all of the developments in Headlines.

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