back to article There be dragons? Why net neutrality groups won't go to Congress

When Obama pushed the FCC into extending Title II rules over US internet services in 2014, I described the President as "writing out a cheque he knew he couldn't cash". To no one's surprise, that cheque bounced last week, when the FCC chairman formally began the process to replace those rules. Title II has been a dead duck …

  1. Anonymous Coward
    Anonymous Coward

    The contrast between this article and last week's profile of Pai is remarkable.

    1. BillG
      Megaphone

      FTC + Net Neutrality = SUCCESS

      Thanks, Andrew, for a well-written, unbiased article.

      "The FTC has an ANTI-trust hammer which the FCC DOES NOT."... The FTC is far more powerful than the FCC in other ways, too. The FTC spends half its budget policing anti-competitive practices,

      And here is where the FCC fell down. Comcast, AT&T, Time-Warner etc openly admit that they set their territories up so as to not compete with each other, allowing them to overcharge. They knew the FCC was powerless to stop them, while the FTC is not.

      1. Anonymous Coward
        Anonymous Coward

        Re: FTC + Net Neutrality = SUCCESS

        You make it sound like the Obama Administration used the FCC for NN enforcement specifically so that it WOULD be toothless.

        Hmmmmm...

  2. Anonymous Coward
    Anonymous Coward

    Not surprising

    The Net Neutrality movement is hard to distinguish from the "Vote Democrat" movement these days. Making sensible compromises on the former might imperil the latter, so it won't happen, just like anti-war movements go suspiciously quiet when Democrat presidents are in power. The lesson is not to hitch your movement to one party only.

  3. Anonymous Coward
    Anonymous Coward

    Congressional inaction was whole reason the FCC went the Title II route

    Wheeler and Obama both tried to push congress to enact some sort of net neutrality policy, but they refused. So the FCC tried to go it alone with simple rulemaking, but that was shot down by the courts. The only card left to play was trying to pull ISPs under Title II.

    The thinking at the time was that if Title II regulation succeeded in the courts, the cable/telco lobbyists would be forced to come to the table for something less threatening to them (since Title II carries a lot of other baggage)

    Now that the lobbyists have won, you're nuts if you think congress will pass a law. If democrats were 100% behind net neutrality then sure, you could probably scare up enough republicans to pass a law - which Trump would likely veto. But democrats aren't 100% behind it, because some of them are bought and paid for by telco lobbyists too. And if it looked like something was going to pass, they'd buy a few more to insure it didn't.

    1. Anonymous Coward
      Anonymous Coward

      Re: Congressional inaction was whole reason the FCC went the Title II route

      You forget. With a Republican Congress and a Republican President, AND with the power of filibuster weakening by the day, Congress could push through a new Telecommunications act that neuters or even disbands the FCC, President Trump would sign it, and that would immediately put the cablecos in control with no way to stop them (since even if the Democrats retake Congress in 2018, Trump remains President until after 2020). The lobbyists would be pushing for something more ironclad to ensure their power stays even if Congress shifts.

    2. Andrew Orlowski (Written by Reg staff)

      Re: Congressional inaction was whole reason the FCC went the Title II route

      @DougS:

      "Wheeler and Obama both tried to push congress to enact some sort of net neutrality policy, but they refused. So the FCC tried to go it alone with simple rulemaking, but that was shot down by the courts. The only card left to play was trying to pull ISPs under Title II"

      This isn't what happened at all - it isn't even close. Wheeler's FCC had spent months working on a new internet order that everyone could live with (called "the hybrid approach"), but after the midterm elections, Obama pulled the rug from under him, and demanded Title II.

      https://www.theregister.co.uk/2016/03/01/how_obama_captured_fcc/

      more links:

      https://www.hsgac.senate.gov/media/majority-media/chairman-johnson-releases-report-on-how-the-white-house-bowled-over-fcc-independence

      http://www.hsgac.senate.gov/download/regulating-the-internet-how-the-white-house-bowled-over-fcc-independence (pdf)

      That includes the email trail between the White House and the FCC. You'll find the timeline on p5 of the PDF.

      Senate Report:

      "From the timeline presented in this report, a reasonable person could conclude that the FCC would not have ultimately chosen a Title II reclassification but for the President’s support." Wheeler's "Damascus Road" moment was on December 5th.

      1. Anonymous Coward
        Anonymous Coward

        Re: Congressional inaction was whole reason the FCC went the Title II route

        Sure, because Obama knew that with a republican congress he had no hope of getting legislation passed. The republicans were putting up a united front to obstruct even stuff some of them wanted, because that was their whole strategy on dealing with Obama - a strategy democrats hope to copy if they can take back the congress in 2018)

        Regardless of whether there was behind the scenes arm twisting from Obama, after the courts had ruled the FCC didn't have the power to impose net neutrality under the existing framework, re-classifying as Title II was the only way absent legislation. Reclassification might have failed court challenges as well (if for no other reason than not following proper process in doing so) but the "hybrid approach" was always a fantasy. It would either fail court challenges or not accomplish anything of note - the previous court rulings had made that much clear.

        1. Andrew Orlowski (Written by Reg staff)

          Re: Congressional inaction was whole reason the FCC went the Title II route

          "the "hybrid approach" was always a fantasy."

          I don't understand this at all, Doug, it can't be sustained by the evidence base. The Courts had given the FCC a pretty strong roadmap for what would fly. This became the hybrid approach and many people at the FCC spent months working on it. Thune's draft bill indicated what Republicans thought was acceptable:

          - no blocking lawful content and non-harmful devices

          - no throttling

          - no paid prioritization

          - transparent network practices

          So the argument that "we had no option but Title II" is not only unsupportable by the evidence (or only by discarding all the evidence like draft legislation, Court decisions, emails, etc), it's also self-serving. The Democrat netroots marched a lot of people up the hill, knowing full well they would all have to march down again. Maybe they owe those people an apology?

          1. lone_wolf

            Re: Congressional inaction was whole reason the FCC went the Title II route

            in addition to these i would add the following.

            - no blocking lawful content and non-harmful devices

            - no throttling

            - no paid prioritization

            - transparent network practices

            - open up the right of way so that anyone can run physical lines to homes without having to pay $$ to ATT for usage.

            - For spectrum purchases if the owner does not use that freq range in a given time owner ship reverts by to the public to be put up for purchase.

            - QOS requirements for consumer connectivity.

            1. Catfitz

              Re: Congressional inaction was whole reason the FCC went the Title II route

              1) Can you point to any actual cases of when any of these things have been done?

              2) But...why can't they pertain? The way everything else works is you pay more for more usage.

  4. Phukov Andigh Bronze badge

    just wait till midterms

    when the mid term elections come, expect a near Democrat sweep.

    then when both Houses are majority Dem, if there's any inaction, rather than act, the Dems will lay blame. Somehow a filibuster proof majority will still be "blocked by the GOP" as the partisans won't mention the Dems that vote against or abstain.

    Lots of money on both sides. Road Builders and Trucking Companies, both set to make more and more money off the other, while the hard reality that the bloggers and media choose to ignore, is that either way us "commuters" are gonna get run off the road.

    1. Charles 9 Silver badge

      Re: just wait till midterms

      Except that the 2018 Senate elections are heavily weighted against Democrats. 25 Democrats face re-election compared to 8 Republicans, and the latter are more Republican-loyal than the former Democrat-loyal. It's impossible for Democrats to win a Cloture majority and hard to win an outright one while the Republicans could easily improve their majority to Cloture and could even on an outside change get it all the way to Override (two-thirds, which is also the majority needed to pass a proposed Amendment).

  5. EnviableOne Silver badge

    thers always the Openreach root:-

    the USA could put all the infrastructure in the hands of a heavily regulated independant private concern, that would have nutrality in its best intrests, as the more nutral it is the more VNOs it can attract, both big and small. This would also force the cable and telcos to compete over the same customers, and therby drag down prices.

    I love the land of theory where everything works.

    1. Anonymous Coward
      Anonymous Coward

      No one would believe it because a de jure monopoly would be pushed on from all angles. Just as I don't believe an independent voting district commission can remain such: too tempting a target for indirect or other under-the-table shenanigans.

  6. Catfitz

    No, it's not fear -- unless you mean the deep-seated fear of legitimate democracy by anarchists. It's deliberate. These cadres who try to force change by imposing socialism through flash-mobbing one government agency know that their arguments won't stand the test of Congressional review. I agree that anything related to the Internet and scarce resources on it like broadband should be decided by law, not agency regulation, especially not by big bundlers for Obama being appointed to the FCC, which is how you got those rules -- and why they were easily undone.

    But you're not going to like the result if you are for socialist uravnilovka (levelling) that "net neutrality" mandates. In fact, the nay-sayers don't have a case and can't really point to any actual blockage or slowing. Comcast has developed a whole line of rhetoric around this point. You can't force us tax-payers to pay for Google the Ad Agency's last mile. So what law results is not one that is going to serve Google and its lobbyists but be balanced among their interests and their legitimate and natural enemies, the telcos. That's democracy. Compromise. If we pay higher bills for the use of more electricity, the same may have to apply to broadband. Just because Google needs to sell ads on bandwidth-eating YouTube means that we all have to pay the price. You like socialism? Admit that the Internet has to be for everyone, not just Google.

  7. Anne Nonymous

    Competition is the answer. Repeal the regulations and then enable and boost ISP competition. They'll compete to deliver what users want and we can keep the government's meddling, censorious hands off the Net.

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