The nation’s broadband duopolies scored a major lobbying win last week after the Federal Communications Commission voted to repeal net neutrality. But the 3-2 partisan vote at the FCC is only the beginning of the real fight, and ISPs (and the FCC that’s now blatantly pandering to them) have a steep uphill climb in the coming months if they want the repeal to stick.
Once the net neutrality rules are posted to the federal register in January, the FCC will face a flurry of lawsuits from consumer groups, numerous states, and impacted companies. During that legal skirmish, the FCC will need to prove that the broadband market changed dramatically enough in just two years to warrant a wholesale reversal of the popular rules (it didn’t).
FCC lawyers will also need to explain why the FCC ignored not only the millions of angry consumers who supported the rules, but also turned a blind eye to the rampant fraud and identity theft that occurred during the repeal’s public comment period; an apparent effort to undermine faith in the process and downplay the massive public backlash to the FCC’s plan.
Even if the FCC wins in court, large ISPs still need to find a way to prevent any future FCCs from simply reinstating the rules.
That’s why the same giant ISPs that backed the FCC’s assault on net neutrality are now pushing for a “legislative solution” in Congress. The goal: they want a law that contains so many loopholes as to be effectively meaningless, yet prevents the FCC from crafting any real, tough laws down the road. And they know that with this incarnation of Congress so awash in campaign contributions, that big telecom lawyers will be the ones writing it.
The solution being offered here won’t be real net neutrality, but an effort to codify federal apathy to a lack of broadband competition into law
As such, reader skepticism should be high when Comcast’s top lobbyist David Cohen pens a blog post insisting that it’s “time for Congress to act and permanently protect the open internet.”
“It’s now time for all of us to take advantage of this moment in time and end the cycle of regulatory ping pong we’ve been trapped in for over a decade and put this issue to rest once and for all,” Cohen argues. “And there’s a simple way to do this—we really must have bipartisan congressional legislation to permanently preserve and solidify net neutrality protections for consumers and to provide ongoing certainty to ISPs and edge providers alike.”
Cohen would have readers forget that the only reason we’re currently engaged in “regulatory ping pong” is because companies like Comcast keep suing to overturn the popular and modest (by international standards) rules. Cohen also hopes you won’t realize that Comcast wouldn’t be pushing for a “legislative fix” if it thought the end result would be rules that actually prevented it from misbehaving in the absence of real competition.
Cohen repeatedly tries to argue that the real problem here is everybody not named Comcast.
“Unfortunately, there are others who want to continue engaging in a never ending game of back and forth, creating unnecessary anxiety and contributing to an unneeded level of hysteria,” laments Cohen. “Some will undoubtedly continue threatening litigation that does nothing to protect consumers or freedom of the Internet,” says Comcast, which has played a starring role in suing to overturn both the FCC’s 2010 and 2015 net neutrality protections.
So what would a Comcast-approved net neutrality law look like?
It would likely ban most of the more heavy-handed abuses Comcast knows it couldn’t get away with anyway, ranging from the outright blocking of websites and services, to the blatant throttling of the company’s competitors. Comcast long ago gave up on such efforts to instead focus on more subtle, clever abuses of a lack of competition in the broadband space.
As such, you can be certain a Comcast-approved law wouldn’t cover all of the areas where net neutrality violations are actually currently occurring, whether that’s Comcast’s use of arbitrary and unnecessary usage caps and overage fees (and zero rating of its own content), or the interconnection shenanigans we witnessed when ISPs let peering points congest to drive up costs for content and transit companies.
Keep in mind that net neutrality violations are simply a symptom of the disease that is a lack of competition in both the broadband market.
There’s a universe of ways that companies like Comcast can hide this anti-competitive behavior behind faux-technical jargon, whether we’re talking about the years during which Comcast blocked its broadband customers for using Roku or their Playstation to watch HBO Go for no coherent reason, or how it applied arbitrary and unnecessary usage caps under the guise of fairness, with the real goal of making using competing services more expensive.
All told, expect the ISP push for a new “legislative fix” to ramp up in the new year. The push will likely be cheered by an army of ISP-tied consultants, think tankers, and loyal lawmakers like Senator John Thune, who you should note parroted Comcast’s call for a “bipartisan legislative solution” nearly verbatim in a speech applauding the net neutrality repeal last week.
“As I have stated repeatedly, and I will say again today, Congressional action is the only way to solve the endless back and forth on net neutrality rules that we’ve seen over the past several years,” Thune declared. “If my colleagues on the other side of the aisle, and those who claim to support net neutrality rules, want to enshrine protections for consumers with the backing of the law, I call on you today to join me in discussing legislation to do just that.”
Except supporters of net neutrality need to be wary of a such a legislative trap. The solution being offered here won’t be real net neutrality, but an effort to codify federal apathy to a lack of broadband competition into law. With the express purpose of preventing tough, real rules down the road. If you care about net neutrality, your best bet is to either hope the FCC loses its upcoming court cases, or wait until voters can build a Congress not quite so mindlessly beholden to ISP campaign contributions before crafting such a law.
A net neutrality law would be a great idea in a world where Comcast and AT&T don’t literally write and buy awful state and federal telecom legislation on a daily basis. That, if you hadn’t quite noticed yet, isn’t the world we’re currently living in.