Why I’m Neutral (for now) on Net Neutrality

Let me start by saying I hate this issue. It’s exhausting to research and hardly a page-turner.  Still, I opened my big, cyber maw, suggesting to friends on Facebook that they might calm down about the news that FCC Chairman Ajit Pai intends to reverse the 2015 Open Internet Order, so I feel obligated to dig a little deeper and follow up. But the net neutrality story overflows with complexly tedious details—a potpourri of policy wonks and technical jargon dating back to the 1960s—that not only betray any attempt to identify an engaging starting point, but which also summon Macbeth’s ode to vanity as a tale told by an idiot, full of sound and fury, signifying nothing. 

Because the neutrality story is complicated, nuanced, and dry, it is ideally suited to manipulation through the glib shorthand of social media.  If nothing else, it would be grand if people would stop trying to make policy by meme. On any issue. Ever.  After all, there is little point in coming to terms with Russia’s role in hacking our political process when we are clearly willing to hack ourselves on a daily basis.  The absurdity of sharing “neutrality” woes, which are largely misinformed, on a highly-manipulated platform like Facebook cannot be overstated.

The neutrality narrative doesn’t truly offer any good guys to cheer or bad guys to boo—just huge corporations (think of them all as bad guys if need be) that are variously at odds one moment and in collaboration the next. And though the issue has unquestionably been politicized, it is not a story with any clear lines that can be accurately drawn around the contours of party or ideology. (e.g. How many Dems would guess that their biggest judicial ally favoring the 2015 OIO is the late Justice Scalia?)  In the broadest sense, the debate is not about whether broadband internet access services (BIAS) should be held accountable for non-neutral practices; but rather a question as to whether they should be regulated in anticipation of potential malfeasance by the FCC or responded to upon evidence of malfeasance by the FTC.

In 2007, both agencies agreed that instituting “neutrality” regulation was premature, that the market was too nascent and fast-developing to know whether such regulation would have unintended negative consequences.  For what it’s worth, over the subsequent ten years, none of the major concerns, which are now being described as imminent, manifest in any substantive way.  For instance, many people share the talking point that (also in 2007) Verizon once blocked NARAL’s use of its platform for a mobile text campaign.  But, the salient details in that story are first, that Verizon’s original policy was not ideological—many corporations try to remain neutral on hot-button issues—and second, that Verizon actually backed down rather quickly under public pressure.  This market-based response to Verizon lends credence to the wait-and-see approach adopted ten years ago by both the FTC and the FCC.

Neither the telcos (AT&T et al) nor the major platform providers (Google et al) deserve any benefit of our doubt. Companies operating in both sectors have been guilty at one time or another of non-competitive and non-neutral practices.  The simple way to view these players (and this includes popular platforms like Netflix) is that they’re all vying for our time and money (and personal data) and all looking for an edge over one another. Having said that, the 2015 Order by the FCC presently tilts the regulatory landscape in favor of the Googles of the world, and everyone spreading the word to “save neutrality” is doing the big platforms a big favor. This is folly.  As argued in older posts, I see no reason why Google and Facebook should be free to manipulate our web experiences, which they do almost constantly, while we pretend to have achieved “neutrality” by preemptively regulating BIAS providers, which have not been shown to substantively engage in non-neutral practices to date.

If we are going to have a coherent regulatory framework that protects consumers while encouraging investment in a bigger, better, and faster internet, this will almost certainly require bi-partisan leadership from a Congress willing to engage both the FTC and the FCC in the proposal of new guidelines based on the internet we have—and may realistically have in the foreseeable future. By contrast, there is an extent to which classifying BIAS providers under Title II in the 2015 Order was a politically expedient attempt to shoehorn the unprecedented and dynamic digital ecosystem into early 20th century regulatory guidelines by way of analogy.  And unfortunately, most analogies don’t apply.

Andrew Orlowski, who has been following the neutrality debate for a decade, describes in a 2015 article how unhelpful the usual analogies are to a sensible discussion about the way packet networking (i.e. data flow) actually functions.  “…the assumption that traffic management is the cause of service differentiation is itself a narrow and misleading assumption. If you take away traffic management from a network, the network wouldn’t suddenly become a Garden of Eden-like paradise. It probably wouldn’t work at all,” Orlowski writes.

In short, the network is never neutral.  Or to put it in prosaic terms, when your video stream hitches up, which happens from time to time, how would you know if it’s due to malfeasance on the part of the ISP or the imperfection of data traffic management somewhere on the network—or for that matter, wind in the wires?  Meanwhile, the position of the telcos, with which Ajit Pai agrees, is that the 2015 Order dissuades investment in broadband expansion that would not only make your video stream more reliable, but would bring still-needed connectivity to underserved regions of the country.

Write that off as corporate/Republican double-talk if you want, but stranded, private investment is a tricky animal; and in the U.S., we don’t build public, even in circumstances where perhaps we should. So, the reality we have is that nobody is going to invest billions in a better, faster internet without knowing how that investment will be recouped. In the early 20th century, when the country was first being fully electrified, those stranded investments were guaranteed a return by the government granting monopoly control of power distribution to the handful of investing corporations.

So, if the 2015 Title II Order cuts off certain revenue streams for BIAS providers, which it does, might the incentive to make stranded, broadband investments have come at the cost of some new form of monopolistic guarantee?  I have no idea, and we won’t likely find out; but there is historic precedent for that kind of arrangement. Meanwhile, as a company like Google diversifies to provide access via fiber, which would not be covered by the 2015 Order (even if it were to remain in place), what form of protection do consumers hope will emerge in a model in which a single company is simultaneously ISP and the largest advertiser/data-miner in the world?  Answer:  We’re nowhere near addressing that question.

And of course, the pervasiveness of the network will soon exceed our present experience, as we seem destined for better or worse to live among the “internet of things.”  I doubt there is any kind of reasonable, statutory framework that empowers either the FTC or the FCC to adequately protect consumers in a world where every aspect of daily life is networked through systems built by private enterprise. Perhaps, that’s an argument for the 2015 Order as a first step, but even if that were the case, the “debate” raging on social media is largely looking backward at what never occurred over the past 20 years, rather forward at what might occur over the next 20 years.

Admittedly, the epicenter of this debate is a matter of statutory interpretation with regard to the way ISPs function and the meaning of “information service” vs. “common carrier.”  Until the 2015 Order, BIAS providers (and only cable providers) were classified as “information services” under Title I of the Telecommunications Act.  At the same time, there are reasonable, common-sense arguments (including Scalia’s dissent in the Brand X case of 2005) for reclassifying these services as “common carriers” under Title II.  My own view, after reading Chairman Pai’s 50+ pages of legal argument on this matter, is that because he probably has the statutory argument on his side, this says more about the inadequacy of existing frameworks for effective cyber policy than it does about the current debate over neutrality.  Maybe that’s the issue we should address.

There is much more to this epic tale of mind-numbing minutiae, so the above is just a snapshot of why I’m neutral (for now) about the likelihood that the 2015 Order will be reversed.  Behind the political rhetoric and scary memes, the truth is that nobody really knows what the effects of the Order might have been, but we do know the Order wasn’t in place for the first two decades of our using the internet, and neutrality principles were largely sustained by other forces.  In short, the Title II Order is not in itself net neutrality, so its reversal does not end net neutrality.

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