So net neutrality has officially expired. Now what do we do?
More fighting of course!
Six months after the FCC voted to kill off its net neutrality rules, today – Monday June 11 – it has finally happened.
And everyone has responded in the exact same way, using the exact same arguments as multiple previous times:
- Net neutrality advocates warn that cable companies will eventually start abusing their position and suck us all into the cable TV model for the internet.
- Cable companies say they won't do what people fear they will and that the rule changes will end up being great for consumers.
- The FCC's Republican arm – currently in the majority – say that the old rules were "heavy-handed regulation" and this is a better, more free market approach that will lead to "better, faster, cheaper broadband."
- The FCC's Democratic arm says it will keep fighting to reintroduce the rules.
- Congress will say and do whatever they think will get them votes at the mid-terms in November and/or garner them more cash from lobbyists.
So, rather than reiterate the same news all over again, let's look at three key questions:
- What's going to happen in reality for the average consumer and is it a good/bad thing?
- What's going to happen in reality to the rules and the ongoing political and legal fight?
- What's the best end solution to this increasingly tedious and partisan battle?
Impact on the average consumer
So, you would imagine, given the continued massive support for net neutrality in the public – anywhere between 75 and 85 per cent – that cable companies and politicians would be wary about supporting the removal of the rules.
But they aren't, although they are being very careful about not becoming a target by either saying nothing or talking solely about the positives i.e. not engaging with angry advocates.
And there is a good reason for that, which no one is keen to tell you. Because the truth is that over time, people will simply get used to what the cable companies do now that these rules are no longer in force – and may even prefer what they get.
In theory, everyone can agree that cable companies shouldn't be able to control what content you see. "What about the next YouTube or the next Netflix?" bellow net neutrality advocates. But the truth is that most people don't really care. If they can get what they want, then it is what it is.
And the cable companies – who are multi-billion-dollar companies that have done this for a living for a long time – are very, very good at giving people just enough of what they want while charging as much as they can for it.
So what we will see are lots of corporate link-ups: AT&T and DirectTV is already happening – you get cheaper cable if you go with AT&T. There is T-Mobile and Netflix. There is Spotify and Hulu.
Basically, yes, the internet will be set up the way cable companies are most comfortable: deals done with content providers that they then promote to consumers.
Sign a two-year contract with Comcast Xfinity and get 12 months of HBO and Hulu for free!
Of course, you'll get screwed after those 12 months, the price will jump by $20 a month and you'll have to get on the phone when the contract is up to try to get a better deal. Such has it always been. It is maddening and infuriating but it's what America has seemingly always done.
And, the truth is, most people will be happy with that. They get what they want – the shows they crave and fast internet access – for a monthly fee. Done and done.
Meet the new boss
We can also expect to see cable companies doing targeted advertising using the data it has on your internet and viewing habits. Some advocates are up in arms over this but, again, the truth is that this is already what Google, Facebook et al already do. Now the cable companies are getting in on the game because it's so profitable.
The unpalatable reality is that people will actually kinda like more personalized ads, so long as they don't stray into too creepy – like when Facebook shows you ads for something that you literally just looked at online. But cable ads are unlikely to be that creepy for one simple reason: they will have to show you videos, not static ads.
Videos take much longer to produce and cost more to make, and so they are developed with a broader demographic in mind. Which means that they are actually likely to be of interest to consumers.
Rather than seeing endless car commercials when you don't want a car, or grease-dripping meat-based food ads when you're a vegetarian, you are likely to be shown ads that more closely fit your demographic.
Yes, they are harvesting your data; yes, we should be opposed to that. But the only way to stop it is to get privacy laws passed in Washington like Europe's GDPR. And the truth is that most people will actually prefer the end result.
That is what cable companies are banking on.
What will happen with the ongoing fight over the rules?
So, the FCC's reversal may take effect today but there remain lots of potential hurdles that may see them flipped, reversed or bent in a different direction.
Broadly there are three things going on:
- Congressional action
- Federal lawsuits
- State legislation
Last month, the Senate narrowly passed a resolution of "disapproval" under the Congressional Review Act (CRA). It has now moved to the House. And if it passes the House, it would go to President Trump's desk where, if he signed it, would have the effect of invalidating the FCC order and so going back to the original net neutrality rules.
This whole process is indicative of the endless partisan infighting that results in Congress never getting anything done. So much time and effort is put into largely pointless fights just to rub the other side's nose in it; all of which serve to further undermine the idea of elected representatives working for the country as a whole rather than their own party's narrow interests.
The use of the CRA is itself something that should be nipped in the bud, but with the Republicans having used it repeatedly to overturn Obama-era rules, the Democrats have now thrown away any political high ground by trying to do the same.
The CRA is now just one more weapon in the anti-progress arsenal.
But all that aside: what's the likelihood of it passing and hence a return to the old FCC rules? It's very low.
Speaker of the House Paul Ryan is currently refusing to even let there be a vote on the CRA resolution. Which has of course lead to lots more shouting and recrimination and so on.
Democrats believe that a net neutrality vote could be useful in the mid-terms. They could highlight Republicans in potential swing districts and possibly get a few more votes to tip it over to the Democrats. That is enough of a risk for Ryan to block the vote.
But even if, in the best case scenario, the fear of losing their seats sees enough Republicans agree to the CRA resolution that it actually passes – and that remains quite unlikely – no one seriously believes that Trump would sign it.
The whole thing is just one more reason to hate Washington politics.
More than 20 states have sued the FCC to stop the repeal. That case will be heard in the Washington DC appeals court at some point in the next few months.
It's impossible to know how that will turn out. The whole issue of net neutrality has ended up in the courts so may times, sometimes overturned, sometimes not, that no one is comfortable predicting the outcome.
The original net neutrality rules were overturned following a Verizon legal challenge, prompting the new set of rules that actually stood up to a legal challenge but as of today have been reversed. Will the new, new, new rules stand up to challenge? Who knows? It really is 50-50.
In addition, there is another net neutrality case that has been sent to the Supreme Court that we are waiting to see whether it will accept. The likelihood is that the Supreme Court won't choose to hear it, but it could. We will have to see.
Quite a few states are preparing their own net neutrality legislation.
There was an initial wave of governors signing executive orders insisting on ISPs following net neutrality rules – but those rules only apply to local government and don't impact the broader civilian populace.
The second wave of legislation is coming – led in large part by legislation in California which aims to use very specific state powers to effectively force ISPs to follow net neutrality rules.
That whole approach will itself be put under serious legal scrutiny. Cable companies have been lobbying extremely hard to undercut those proposed laws and if they are passed, they will almost certainly challenge them.
The big question will be whether the FCC joins in on those challenges by arguing that it sets the rules for interstate activities as the federal telecoms regulator. Internet access is generally seen to something that crosses state lines, so there is a strong argument there.
On the other hand, states are only too aware of that legal position and so have gone out of their way to craft legislation that they believe will not fall foul of it.
Again, it's impossible to know where this effort will end up. But the fact that the whole thing is becoming so fractious risks adding net neutrality to the list of subjects that have become entrenched in partisan warfare, like guns and abortion.
This is not a good result on any level.
All of which leads to…
What's the actual best end solution to this mess?
The solution is actually pretty obvious although both sides are so caught up with furiously jabbing at one another that they refuse to either see it or consider it.
And it is this: a clear, differentiated service.
The US has lived with this dichotomy of free market versus protecting citizens from corporate overreach for decades. And the answer to which everyone should theoretically be able to agree on is to let the market decide, and let people vote with their wallet.
It is perfectly possible for ISPs to be required by law to offer a net neutrality offering alongside one that does not follow net neutrality rules. Consumers can then be left to decide for themselves which to go with.
The net neutrality offering would definitely cost more – and that cost would reflect the additional money that cable companies can make from cutting deals and selling user data. Our best guess would be an additional $20 a month.
It would not be the most efficient solution but it would solve an increasingly intractable problem – and one that could go back and forth for another decade. Give everyone the choice.
We have already seen a version of this. For example, with the introduction of Europe's GDPR privacy legislation, The Washington Post offered a new service on May 25 called "Premium EU subscription" that offered "no on-site advertising and no third-party ad trackers" for $90 a year.
The basic subscription is $60 a year. So that's how much money it has calculated GDPR is worth to it: $30 a year.
There is no reason why AT&T, Comcast, Verizon etc couldn't offer the same thing: a subscription for people who want their privacy protected and their internet access open and free from blocking or throttling. Then people will literally have to put their money where their mouth is.
Net neutrality advocates are likely to hate this idea because they know the sad truth that most people will put money ahead of principles. And cable companies will hate it because they will be forced to set up systems that make it possible.
But with net neutrality becoming such an impossible and entrenched topic, it is a compromise that would leave everyone equally unhappy and put the solution back in the hands of the consumer and the real free market.
We'd pay extra for such a service. Would you? ®