In Which I Disagree With Reason

Ex-Leaguer James Hanley asked me for my opinion on this piece.  Facebook being Facebook, it doesn’t like the length of my comment.  Since others may be interested, I’ll address it here at OT.

First and foremost: in certain respects, he’s not wrong.

I’ll wholeheartedly agree that a lot of the rhetoric around Net Neutrality has been hyperbolic and destructive to the conversation. However, I think it’s… an interesting decision… to open his piece with his top paragraph-and-a-half if part of his main point is that there’s unnecessary rhetoric coloring the issue.

“veritable state of hysteria”, “incensed supporters”, “so-called ‘net neutrality” “It’s a nasty state of affairs”.

None of those are entirely inaccurate, but it only applies to some folks who are pro-Net-Neutrality and it’s a pretty clear well poisoning for the rest of his article.

Passing that…

“In truth, the Obama administration-era “Open Internet Order” (OIO) that the FCC is overturning has little to with “net neutrality” at all. In fact, the OIO would still allow internet service providers (ISPs) to block content—to say nothing of the many non-ISP tech companies that can and do openly suppress access to content.”

The first half of this isn’t very accurate, and his ending clause is irrelevant to the question at hand.

OIO does have quite a bit to do with Net Neutrality

Now, I’ll readily admit I’m just asserting this, but I don’t really have time to dissect all several hundred pages of the OIO today.  For those curious, I’d suggest folks actually read it and come to their own conclusions.  But while there are indeed carve-outs for ISPs to block content in the OIO, that’s unsurprising given that there’s actual hazards out there on the Internet and one would find it… odd… to suppose that (for example) an ISP couldn’t block a site that was engaged in actually attacking its customers with a known exploit.

As to the end clause… whether or not Google or Facebook can do content curation is completely irrelevant as to whether common communication carriers can/should.

People need to stop hauling this argument out; it’s like saying automobile dealerships aren’t subject to the same regulations that manufacturers of cars are.  That’s (at best) a banal point and at worst a clear distraction.

“Furthermore, repealing the OIO does not mean that the principles of “net neutrality” will not be upheld, nor that ISPs will be “unregulated.” Rather, the RIF will rightly transfer oversight of ISPs to other regulatory bodies in an ex post fashion.”

This is… somewhat factually correct, but it in-and-of-itself isn’t interesting.

One, there’s an argument to be made that oversight of ISPs belongs elsewhere, but you have to make that, not just assert it (“rightly” tips your hand, here).

Two, there’s definitely an argument to be made that removing one set of regulations will in fact result in *some* “principles of net neutrality not being upheld”.

I mean… that’s the ostensible point of revoking the regulation, right? Why would Time Warner be advocating for the removal of this regulation if the regulation had no effect? One can argue that the results are better the other way, but it’s a serious misdirection to claim that “everything’s going to be okay/better this other way” without engaging in that conversation.

Three, there’s an argument to be made (more on this later) that the FCC is in fact the *rightful* place for this to be regulated, not elsewhere.

“One of the biggest misconceptions of the OIO saga is that it achieved “net neutrality.” It didn’t. While proponents like to spin a lot of rhetoric about “treating all traffic equally,” the actual implementation of the Obama administration’s regulations did nothing of the sort.

As my Mercatus Center colleague Brent Skorup has tirelessly pointed out, the OIO did not require all internet actors—ranging from ISPs to content platforms to domain name registrars and everything else—to be content-blind and treat all traffic the same. Rather, it erected an awkward permission-and-control regime within the FCC that only affected a small portion of internet technology companies.

Not even ISPs would be truly content-neutral under the OIO. Because of First Amendment concerns, the FCC could not legally prohibit ISPs from engaging in editorial curation.”

This is a *fascinating* interpretation of the court case that he links to in the sentence immediately following.

And by “fascinating” I mean “clearly is contradicted by the plain text in the court finding”

From the court finding’s majority decision, a few tidbits:

“The upshot of Brand X with regard to the FCC’s congressionally delegated authority over broadband ISPs is unmistakable and straightforward. All nine Justices recognized the agency’s statutory authority to institute “common-carrier regulation of all ISPs,” with some Justices even concluding that the Act left the agency with no other choice. 545 U.S.at 1011 (Scalia, J., dissenting).”

— editorial —

For clarity, this was (at the time) one of those moments where I called out Scalia for agreeing with him; I disagreed with the majority in Brand X and agreed with Scalia, that the law as written made it more or less impossible to distinguish ISPs as anything *other* than a common carrier, and that discretion shouldn’t be left to the regulatory agency (amusingly, if everyone had just signed onto Antonin’s decision we wouldn’t even be having this conversation now because the FCC wouldn’t have the discretion to drop the rule).

And this is why I think the FCC is, in fact, the correct place for this regulation to occur.  The Brand X case is described more fully here.  Scalia’s dissent is here, if you want to skip directly to it.

— close editorial, resume court quotation —

“An ISP has no First Amendment right to engage in those kinds of practices. No Supreme Court decision suggests
otherwise. Indeed, although the two dissenting FCC Commissioners objected to the agency’s adoption of the rule
on multiple grounds, neither suggested the rule poses any First Amendment issue. Similarly, the principal parties
challenging the Order in this court, who collectively represent virtually every broadband provider—including all of the
major ISPs—bring no First Amendment challenge to the rule.”

“Notwithstanding the arguments presented by Alamo and Berninger—and now also our dissenting colleague
—the consensus view is correct: the net neutrality rule raises no issue under the First Amendment.”

I mean, you can go read the decision yourself.

—

Back to the article:

“But importantly, the OIO still allowed the vast majority of internet companies to filter and block away to their heart’s content. Indeed, one could argue that content aggregators and search engines, like Facebook and Google, have proven to be much more draconian in their censorship of controversial but legal content than the ISPs over which so many agonize.”

But this is again just a bait and switch. The heart of the FCC case doesn’t have anything to do with Google or Facebook, because neither Google nor Facebook is a common carrier (with the exception of Google being a common carrier where it actually is one).

You *can* argue that the regulations on Google or Facebook should be more stringent (for the record, I wouldn’t), or you can argue that the ISPs can’t compete with Google or Facebook for reasons that are tied to the content curation capabilities that Google/Facebook have (I wouldn’t, and I would find it a nonsensical argument anyway because ISPs provide a fundamentally different service than Google/Facebook), but it’s (IMO) spurious to be comparing regulations on common carriers to regulations on content providers.

—

“This hypocrisy is relevant for more than just ideological inconsistency. It’s about economic power. By encouraging harsh regulation of ISPs that effectively controls the rates that major tech companies can be charged for bandwidth, these companies are engaging in a kind of regulatory capture. “

I (a) first don’t agree that the regulations are harsh. Secondly, this is still a bad comparison. Why?

An ISP is perfectly capable and able, under existing regulations, to create its own web site that does content provisioning just like Google does, and there is nothing to prevent that ISP from curating content *on that site*. What they can’t do is use their underlying control of the bits going down the pipe to curating content *from everywhere else*.

And neither can Google/Facebook!

Google can certainly curate content on Google’s site, but they can’t affect what you see at Yahoo, nor can they change your ability to interact with Yahoo.

I’ll agree that these companies are seeking regulatory *protection*, but whether or not you’d call that capture depends upon whether or not you classify *all* regulations as capture by default, I guess.