The Net Neutrality Bait and Switch
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Net neutrality may or may not be a good thing. Title II may even be what's necessary to upend a stagnated telecom market. But it's certainly not a good, modern regulatory infrastructure. Reclassification is at best a hack that's going to have a lot of unintended consequences.
[1] http://www.theamericanconservative.com/cpt/2014/07/30/lean-u...
[2] http://en.wikipedia.org/wiki/History_of_the_trucking_industr...
[3] http://www.nyc.gov/html/media/totweb/taxioftomorrow_history_...
Of course not, but then again, is that even realistically possible these days? Serious question.
It's not that Title II is the ideal option. On a practical level, it's the only option left on the table.
The EFF is well aware of the issues with Title II, which is why it held out for so long (until just six months ago!) before advocating reclassification, and which is why even then the EFF was very clear to advocate forbearance[0] alongside reclassification, not just reclassification no-strings-attached.
Given the current political climate, I really don't see any way of implementing net neutrality other than Title II reclassification that has even a remote chance of both coming into effect and standing up to the courts. Title II reclassification may be an uphill battle, but any other proposal that I can think of has less than a snowball's chance in hell of actually coming into effect, let alone achieving the actual goal.
We've already seen that there's no way that the FCC can regulate a neutral net under its current authorization without classification under Title II - that's almost literally what the federal court ruling last year said. And there's no way that Congress will pass a new law that either expands the FCC's authority or somehow provides for a neutral net independently of the FCC. So repurposing an existing piece of legislation is what we're left with.
[0] https://www.eff.org/deeplinks/2014/07/forbearance-what-it-wh...
Its really not.
> This is common sense: an agency can't just rewrite a statute by ignoring the 90% of it that it doesn't like.
Of course the agency can't "rewrite" or "ignore" the statute -- but forbearance itself is a mandate in the statute, which requires that the FCC "shall forbear from applying any regulation or any provision of this chapter" if the Commission determines that doing so is in the public interests and that enforcement of the provision at issue is not necessary either "to ensure that the charges, practices, classifications, or regulations by, for, or in connection with that telecommunications carrier or telecommunications service are just and reasonable and are not unjustly or unreasonably discriminatory" or "for the protection of consumers". 47 USC chap. 5, subch. 1, sec. 160(a) -- "Title II" of the Communication Act of 1934 is 47 USC chap. 5, subch. 2.
The article is very gloom-and-doom about it, but I'm sympathetic to the view that what's really needed is specific authority for the FCC to regulate that doesn't carry all the POTS baggage from Title II. That outcome seems much less likely than reclassification and trying to "patch" the law with forbearance, though.
Everything they didn't wasn't perfect and it all didn't turn out well, but overall it was better than the return to feudalism that's crept forward since the Reagan revolution. Deregulating the telecoms will create a tiered Internet where telecoms shake down startups for payola and whole realms of innovation are just plain closed to new entrants. The regulations the telecoms will put in place will be every bit as onerous as the government regulations you fear.
It'd be simpler if the telecoms weren't the recipients of substantial public money and land rights, not to mention state-enforced monopolies. These are not purely private companies running with private resources in an open market, so we can't treat them like they are.
Do you think telecoms should enjoy government-enforced monopolies? Are you in favor of abolishing those, opening up the spectrum, etc.?
Do you think that has any chance of happening? If not, are you then in favor of regulating them as the public utilities they are?
--- On the original topic:
The economic malaise of the 70s was the exact opposite of what we have today. It was a supply constrained economy, with high interest rates and not enough money available for investment but plenty available to consumers. The result was "stagflation," rising prices with no growth. Ours is more like the 30s malaise-- demand constrained, with low interest rates and plenty of money for investment but nothing to invest it in. They've been trying to goose inflation for years with no effect (beyond inflating assets) because everyone is drowning in debt and wages are flat. This looks nothing like the 70s.
The "socialists" were right in the 30s, then they were wrong in the 70s. Now they're right again. In 30 years they'll probably be wrong again. In economics nobody gets to be right for very long, because an economic theory creates an incentive structure that rewards people for acting so as to invalidate it. Ecosystems are the same way... full of feedback loops and paradoxes.
They were mostly abolished in the 1996 Telecom Act.
> opening up the spectrum, etc.?
Modern LTE networks are built on auctioned, not gifted, spectrum. Interestingly, spectrum auctions arose out of economic research into the inefficiencies of FDR-era spectrum licensing, which did not charge for spectrum licenses, but rather gave them away with a bunch of "public interest" strings attached. That's why we're still wasting hundreds of prime MHz on broadcast television.
The enforcement was abolished. The monopolies weren't. Nothing has been done to repair the damage done.
It's amazing what war does for you.
First, it directs massive amounts of resources to research and development to kill or not to be killed. Rockets, radar, modern first aid, the internet, GPS, etc, etc.
Next - and even better - is when the war is fought elsewhere. By the end of 1945, Europe was flattened, the Soviet Union had shifted its resources to competing militarily, China was ransacked, and Japan's industrial base was destroyed.
It's easy to have "incredible economic and technological growth" when you're the only one left standing.
War destroys infrastructure and siphons off resources that could be put to more productive use. War is not good for the economy, and it never has been.
But WW2 put the US at a distinct advantage since the rest of the industrialized world was decimated.
In the case of WW2, I suppose you could build a case that the war was a net good for the US, though it certainly was a disaster for the global economy.
"Good" is subjective, and "modern" potentially just as subjective, and both are quite vague. What particularly are your problems with Title II in the specific use? Not "what are problems that conservatives associate with other regulations that have some temporal nexus to Title II", which you've provided an inordinate amount of unnecessary external references to, but what is the specific criticism of the thing actually under discussion in the specific context for which it is being discussed?
Title II is going to make it a lot harder and a lot less profitable to be a telecommunications carrier. And while the knee-jerk reaction to that might be "good!" that's short-sighted. At the end of the day, we need investors to pour money into telecommunications infrastructure, which is very expensive. If you make that unprofitable, they'll spend their money on WhatsApp or Twitter or other things that are less regulated. And when that happens, who is going to build the pipes? Google?
Its entirely unnecessary when there is no specific relationship drawn other than vague temporal associations and references to "mindset".
> They include rate setting, petitioning agencies to make changes to rates or plant, internal cross subsidization (USF), etc, just like Title II.
Title II does not require: (1) The FCC to adopt rate-setting regulations, or (2) The FCC to adopt regulations requiring petition to make changes to rates Title II permits such regulations, and (barring forbearance) requires covered carriers to publish rates, including publishing advance notice of changes.
> Title II is going to make it a lot harder and a lot less profitable to be a telecommunications carrier.
Given that most of what Title II is permit the FCC to adopt certain kinds of regulations, and given that most of the exceptions to that that impose direct statutory rules are also expressly subject to forbearance, I don't think there is any real basis to saying anything about what "Title II" will or won't do in general terms, rather than in the context of a particular package of regulations that come along with a Title II determination. While you don't actually make any specific references to what specific source of this "a lot harder and a lot less profitable" is, everything you've referred to seems to suggest you are operating on the basis that you are assuming both that every "the Commission may issue regulations" in Title II will be exercised with the most onerous possible regulations, and that the Commission will choose not to exercise forbearance for every provisions subject to forbearance. This is out of line with pretty much everything Wheeler has suggested about Title II use, and everything everyone advocating Title II reclassification has suggested the FCC should do as part of that.
These aren't vague associations, it's about taking the same approaches to solving problems. E.g. rate setting was a technique applied to everything from transportation to telecom, and is a part of Title II. In modern regulation, we avoid rate setting, because they are more distortionary than other approaches.
> Given that most of what Title II is permit the FCC to adopt certain kinds of regulations, and given that most of the exceptions to that that impose direct statutory rules are also expressly subject to forbearance, I don't think there is any real basis to saying anything about what "Title II" will or won't do in general terms, rather than in the context of a particular package of regulations that come along with a Title II determination.
Forebearance doesn't give the FCC unbridled authority. In particular, the FCC has built up a large amount of precedent restricting its own ability to forebear from applying regulations: http://www.forbes.com/sites/haroldfurchtgottroth/2015/01/11/...
Also, the FCC isn't entirely in the driver's seat. Reclassification will be a huge opportunity for consumer protection types to push for rate setting, and the FCC will have to defend why forebearance is appropriate.
The article you posted neither claims nor supports that (the article's analysis is also a mess for other reasons, but addressing those would only be germane if you were citing it for the claims it makes.) The only thing that article actually says that relates to FCC "precedent" is repeating a bunch of things about how the FCC has handled forbearance petitions -- and nothing in that about the scope of forbearance powers, just procedural things about the petition process. Since forbearance concurrent with Title II classification isn't handling a forbearance petition, that procedural discussion is all completely irrelevant.
The only thing it says about restrictions on the FCC ability to forbear is referencing the statutory limitation on forbearance on Section 251(c) regarding certain obligations of incumbent local exchange carriers.
(The closest the article comes to your argument that the FCC has "built up a large amount of precedent restricting its own ability to forebear" is the simple and unsupported description that the FCC using forebearance in association with net neutrality would be using "unprecedented and undocumented authority to forbear willy-nilly", which -- even if it was accurate -- fails to support your point, because the absence of precedent isn't the presence of contrary precedent; its inaccurate because the authority to forbear from any regulation or provision of Title II, with a few specific restrictions, is quite well documented at 47 USC Sec. 160(a).)
> Reclassification will be a huge opportunity for consumer protection types to push for rate setting, and the FCC will have to defend why forebearance is appropriate.
Not for rate-setting, because Title II doesn't require rate setting even before considering any application of forbearance. Title II only requires rate publication.
It allows rate setting (specifically, it permits, either upon petition or on the Commission's own initiative, the Commission to engage in hearings on any rate notice change), but does not require it (even before considering any application of forbearance), so no forbearance is necessary for the Committee to decline to engage in rate setting, even for a service determined to be within the scope of Title II.
Maybe, if they find that market growth is limited by infrastructure. Though of course having the end providers get into the infrastructure business has some of the same problems that having infrastructure companies turn the pipes into selective tollways.
Ultimately, though, I'm not sure we want telecom infrastructure itself to be the place for economic profits (meant in the technical sense of the term). We've done a lot better by letting the innovation happen on the ends. Infrastructure should be boring, predictable, low-risk, modest but reliable reward.
And that's not going to happen under the current regime, because the investors get more bang-for-their buck through monopolistic practices instead.
Not long ago, similar cries could be heard about the repeal of Glass-Steagall, leaving us to enjoy the fruits of Gramm-Leach-Bliley... some things never change.
VPNs are already usable by any motivated main-stream desktop user, and point-to-point + next-gen wifi allowing ad-hoc fast networks are only a matter of time.
At best the telcos will be able to squeeze unreasonable rent out of their infrastructure with outrageous data-caps and surcharges, but the writing on the wall even for that.. municipalities are laying their own fiber, and google fiber is likely only going to keep growing.
Just like no amount of raids, laws, scare tactics, pr campaigns, etc were never able to put even a dent in media pirating: an effectively free an open internet is going to be accessible by motivated individuals, period.
I believe most citizens (myself included) live and act with the intent to obey the law. So while a free and open internet may be technically feasible for any individual, if the access techniques are actually illegal, citizens who wish to obey the law will lose access. The law still very much matters, even if it is hard to enforce and easy to circumvent.
Besides, unless I am mistaken (I don't follow it that closely) there is not any whisperings of making things like VPNs or adhoc networks illegal. It is primarily about the "right" of the telcos to favor certain traffic, by increased speed or traffic not counting toward your quota for some sites/services.
This makes no sense. An ISP could block VPN traffic... and there are millions of people with access to only a single ISP.
I guess if "motivated individuals" means they have to uproot their lives and move to another part of the country to get a decent ISP.. then sure, I agree. I guess we all have plenty of choices then.
How? They could block access to a specific IP, which might be a VPN server, but they have no way of differentiating encrypted vpn traffic from encrypted anything traffic.
I would really like a simple technical ruling put into law that talks about peering and traffic shaping. I really wish someone with a bit of legal and technical background wrote a document that could be sent to our Congress People.
1) http://en.wikipedia.org/wiki/Fairness_Doctrine I think they were in favor of it. They did seem to be confusing equal time with it. I was flipping channels on SirusXM while driving and couldn't stand more than 5 minutes of it. You shouldn't drive angry and I think they had seen one too many hacker movies.
Some conservatives seem to believe net neutrality was always about the Fairness Doctrine for reasons that escape even me [1]. I think they tend to hear "neutrality" and stop listening at that point, ignoring the real threat of tiered cable TV-like impositions on Internet services.
I think at this point it might be necessary to abandon neutrality efforts (in name at least) and fight for legislation that would serve to specifically to protect the openness of the Internet. I myself am not especially crazy about pushing for reclassification. And I don't really trust the government to do the right thing at this point. Bills that start off as generally good ideas have a tendency to grow in scope sometimes using language that conflicts with their original intent. The idealist in me would argue for political reform first, then worry about the Internet.
[1] Disclosure: I'm a conservative.
To be fair, that didn't seem clear, but I might've misread your post! Regardless, I do know of a few conservative hosts who have most claimed net neutrality and the fairness doctrine are analogues. Fairness doctrine has been used as a right-of-center zeitgeist for some time (and rightfully so, IMO), but that the current state of net neutrality is beginning to frighten people who don't identify as conservative is a good thing. The problem I have with it, for instance, is similar to your reasoning: It proposes stricter regulations that might transform government-enforced "neutrality" into something far worse than the present alternative. Of course, I'm supportive of the idea that something needs to be done to prevent anti-competitive practices--I just don't think I agree with the current propositions. (At the very least, the bittorrent fiasco with Comcast is suggestive that highly unpopular actions can be reversed if enough people are willing to push back; it just isn't guaranteed and public complacency/apathy works against those of us who wish to do the right thing... then again, when doesn't it?)
> It grates me as a small government conservative (for some definition of all those words) that I cannot find a simple example legislation dealing with peering and traffic shaping that would keep Comcast / Verizon from using a natural monopoly to change what buying internet bandwidth means.
I definitely agree. I think this is a problem that's endemic to government. There are few good reasons why legislation should be more than a dozen pages--and certainly not multiple thousand pages--and all too often reasonable legislation makes it through almost entirely disassociated from the problem it was originally intended to solve. Simple problems are conflated into things that become unsolvable simply on the merit that everyone wants a proverbial piece of pie. But no one actually wants to prepare it.
https://www.youtube.com/watch?v=fpbOEoRrHyU
"Tom Wheeler is [like] a dingo"