Tales of the Sausage Factory

I keep being asked by people “Harold, can you please summarize the last 20 years of net neutrality for me while I stand on one foot?” Usually I answer: “do not do unto other packets what you find hateful for your favorite bitstream. The rest is commentary — located at 47 C.F.R. Part 8.” I will now take you on a brief tour of the history of net neutrality at Tales of the Sausage Factory (with a few outside link additions) from my first post on the Brand X case back in 2004 to June 2016, when the DC Circuit affirmed the FCC’s 2015 Reclassification and Net Neutrality Order.

Federal Communications Commission Chairman Ajit Pai has made one of those “break the ‘net” videos — but not in the usual way. In an apparent effort to either pump up his base or win over undecideds, Pai made a video called “Seven Things You Can Still Do On the Internet After Net Neutrality.” I can say unequivocally as someone doing this for 20 years, this video is truly bizarre in the annals of FCC history for a number of reasons.

[Commentary] A comparison of the regulatory regime in place on January 17, 2014 (the day after Verizon v. FCC) and the anticipated regulatory regime as it will exist on January 17, 2018, and the Top 3 Ways They Are Totally And Completely Different In Ways That Make Consumers Worse Off. Even if we take the most literal and favorable interpretation of “we are just rolling things back to what they were before 2015” to mean “specifically, we are setting the regulatory way back machine to that magic day of January 17, 2014, the day after the D.C. Circuit in Verizon v.

Since most folks won’t plow through 5500 words of legal analysis, I’ve gotten some requests to specifically address the claims by Federal Communications Commission Chairman Ajit Pai and others that the Federal Trade Commission can address blocking as easily as the FCC and prevent any Internet service provider from blocking any content or application. My short answer is: “No.

Federal Communications Commission Chairman Ajit Pai and defenders of the draft Order insist that a combination of the Federal Trade Commission (FTC) Section 5 (15 U.S.C. 45), state consumer protection law, and anti-trust law will provide more than adequate protection for consumers and anyone who doubts this is — you guessed it — fear mongering. Happily, we do not need to speculate on this entirely.

Demanding divestiture of either the must have content or the DIRECTV distribution platform is precisely the remedy you would expect if you believe the deal presents significant harm because of the vertical integration issues. That’s been the position of my employer, Public Knowledge, which has opposed the transaction since AT&T announced the deal. (That predates Trump’s election, for those of you wondering.) If you want a more detailed understanding of the theory of the harms, you can find it in my boss Gene Kimmelman’s testimony to Congress here.

[Commentary] In my 20+ years of doing telecommunications policy, I have never seen a Federal Communications Commission Chairman so badly botch a proceeding as Chairman Ajit Pai has managed to do with his efforts to repeal Net Neutrality. For all the fun that I am sure Chairman Pai is having (and believe me, I understand the fun of getting all snarky on policy), Pai’s failure to protect the integrity of the process runs the serious risk of undermining public confidence in the Federal Communications Commission’s basic processes, and by extension contributing to the general “hacking of our democracy” by undermining faith in our most basic institutions of self-governance. Yeah, I know, that sounds over the top. I wish I didn’t have to write that. I also wish we didn’t have a President who calls press critical of him “the enemy of the American people,” triggering massive harassment of reporters by his followers.

What both President Trump and Chairman Pai seem to fail to understand is that when you are in charge, what you say and do matters much more than what you said and did before you were in charge. You either grow up and step into the challenge or you end up doing serious harm not only to your own agenda, but to the institution as a whole. Worse, in a time when the President and his team actually welcomed Russia’s “hacking” of our election, and remain under suspicion for coordinating with Russia for support, Pai’s conduct creates concern and distrust that he will also “pull a Putin” by welcoming (or worse, collaborating with) efforts to de-legitimize the FCC’s public comment system and hack the public debate around net neutrality generally.

[Commentary] As with so many things, I can’t believe we are going to reboot this franchise [network neutrality] once again and run through pretty much the same arguments. But as with repeal of Obamacare, Republicans would rather focus themselves on undoing Obama’s legacy rather than moving on and getting stuff done. Since they run the show, we play this game again.

[Harold Feld is senior vice president at Public Knowledge]

[Commentary] Usually in January, especially with a new Congress of new term, I like to try to do a “this year in telecom” preview. But this year I can’t. Oh, I can list all the issues we’ve been arguing over the last few years and guarantee we’re going to re-litigate them. We’ve already seen most of the Internet service provider industry (joined by the Ad industry) push back on the privacy rules adopted last October. We’ve seen a bunch of the industry submit their wish list for deregulation as part of the bienniel telecommunications regulatory review. And with Rep Marsha Blackburn (R-TN) now Chair of the Telecom Subcommittee, we can expect lots of action on the Hill side on everything from Federal Communications Commission process reform to Telecom Act re-write.

But the Trump Administration itself — its priorities, its possible pick for FCC Chair, and its general direction on telecom policy — remain as much a mystery as when I wrote about it in Dec. So as we count down the days until the Trump inauguration and a new FCC, we have no better idea about the incoming Trump Administration’s ultimate policy goals. We can guess ’til the cows come home. We can assume that the Pai/O’Reilly FCC will do what it can to move as quickly as possible to roll things back — or at least set the table to roll things back. Or will they wait for instructions from the Administration? Or do they already have a green light to go ahead? I guess we’ll find out in two weeks.

[Commentary] The election of Donald Trump has prompted great speculation over the direction of telecommunications policy in the near future. I have now been through two transitions where the party with the White House has controlled Congress. In neither case have things worked out as expected. Oh, I’m not going to pretend that everything will be hunky-dory in the land of telecom (at least not from my perspective).

But having won things during the Bush years (expanding unlicensed spectrum, for example), and lost things in the Obama years (net neutrality 2010), I am not prepared to lay down and die, either. Telecom policy — and particularly net neutrality, Title II and privacy — now exists in an unusual, quantum state that can best be defined with reference to Monty Python. On the one hand, I will assert that net neutrality is not dead yet. On the other hand, it may be that I am simply fooling myself that net neutrality is simply pining for the fjords when, in fact, it is deceased, passed on, has run up the curtain and joined the choir invisible.

[Harold Feld is senior vice president at Public Knowledge]