One year on after US repealed net neutrality, policymakers reflect soberly on the future

Don't be daft, of course they haven't, we're still in Crazytown USA

business meeting, debate over data. Photo by shutterstock

Analysis One year ago today, the FCC passed a controversial measure that undermined its own rules, passed just two years earlier, over net neutrality.

That anniversary has sparked a series of articles, interviews and tweets today from policymakers that highlight a critical fact: The issue remains so toxic that sober analysis and objective policy making are effectively impossible.

In what looks to be a coordinated effort, lawmakers, FCC officials and academic-lobbyists have adopted the same false logic: Claims of the damage that rejecting the rules would have on internet access have not come true and so therefore, by extension, the rule change was good.

"On this day last year, the FCC voted to restore Internet freedom. Some suggested the Internet would cease to exist… But these claims were proven false," tweeted an advisor to FCC chair Ajit Pai.

Academic fig-leaf and "non partisan" think tank, the American Enterprise Institute, repeated the same line – as it has done repeatedly with controversial FCC matters – in a blog post headlined: "Despite the media’s prophecies of doom a year ago, the internet is alive and well."

Senator Bill Cassidy kept the echo chamber alive, tweeting: "One year ago this week, after the Trump administration and Ajit Pai reversed anti-innovation internet regulations instituted by the previous administration in 2015, CNN falsely reported 'the end of the internet as we know it.' The internet's still working just fine."

And that tweet was used as the basis of an article by alt-right website Breibart to stir up more partisan resentment by leaping from net neutrality to CNN to President Trump. "We all know how much CNN hates Trump," the article notes, in lieu of policy analysis.

Sneer, bluster and partisan point-scoring

As ridiculous as it to see policymakers debate serious telecoms policy issues by sneering at their own misrepresentations of others' views, it shouldn't come as a surprise: the repeal of the rules was notable for its embrace of Trumpian bluster and zealous promotion of partisan talking points.

At the time we noted that the FCC under its chair Ajit Pai had "abandoned foundational policymaking steps" in pushing through the decision. It didn't hold a single public hearing, and allowed for millions of fake comments to be lodged, which it then refused to analyze. The actual policy analysis used to move the issue forwarded was transparently biased. And the process alternated between urgent and not urgent depending on expediency.

Worse, the arguments for the change were threadbare at best, forcing Pai and his supporters to rely on tribal politics to jam the measure through. And while some will no doubt argue that the ends justify the means, a failure to consider how to measure the effectiveness of the new policy has meant there is no way to objectively assess the impact of the decision because there is no agreed baseline on which to build a discussion.

Instead of balanced reports, we have mockery. In place of metrics, we have straw-man arguments. And with depressing inevitability, opponents have in turn resorted to name-calling and finger waving. It is a sorry state of affairs for federal rulemaking.

All of which raises some serious questions:

  • How can the situation be turned around to focus policy analysis on objective measurements?
  • What steps can be taken to put a stop to partisan name-calling in place of real debate?
  • What is the end solution to the issue of net neutrality?

Answers of a sort came in a Reddit AMA with the only FCC Commissioner still at the regulator that opposed the rule-change: Jessica Rosenworcel.

Solutions?

Rosenworcel suggests two main solutions: Competition and greater impact of public input on FCC decisions.

"I think we have to up our efforts to increase competition. Take broadband. Too few Americans have a meaningful choice of high-speed internet provider at home. I know, I'm one of them. Without competition, we see higher prices and less innovation. That's a problem - and we need to do something about it," she argued.

Under the current rules for internet provision, ISPs are legally entitled (as opposed to being banned from) to block and prioritize content but they are required to post what they are doing on their website.

The argument put forward by advocates of the current rules is that such transparency will enable the market to decide how much interference with internet access and content users are willing to put up with. If, say, Comcast announces it is going to throttle Netflix video streams then customers who want untouched Netflix streaming can vote with their feet.

Of course the counter-argument to this is that the United States is notoriously uncompetitive and so customers aren't free to jump between suppliers. But that in itself is also an argument for greater competition.

It is not impossible to imagine a situation where, thanks to competitive pressures, your ISP offers two tiers of internet access: throttled and unthrottled. The "net neutrality" version of its service – called something enticing to do with openness – would cost more but you would have the choice. Or you can get the ISP-controlled version for less.

It would be an imperfect solution but one that everyone could agree gives them what they want.

Moving onto public input and impact, that is a more complex but equally important aspect. "I think it's essential for this agency to listen to the public first and always," wrote Rosenworcel. "But here's what has me concerned: The rulemaking process at this agency is increasingly crowding the public out."

She goes on to reference the controversial flooding of the public comment process with fake comments and the FCC leadership refusal to investigate, or make its internal discussions on the issue public.

Agree to agree

The issue is quite clear, even though people seem unlikely to state it clearly and openly: the current FCC made it quite clear it wanted to pass the repeal of net neutrality rules and the mess that was the public comment process served its purposes.

But the federal regulator can prevent itself from going down the same path as Congress where lawmakers have undermine their own traditions for short-term gain. After all when the "other side" gets in, they can rely on the same short-circuiting.

The FCC at its heart knows that it needs a viable and proper functioning public comment process and so – so long as everyone doesn't insist on dragging out past disagreements – it can build credibility and goodwill by focusing efforts internally to build a more robust and effective comment system.

It is difficult but far from impossible to develop a system that allows people to comment both broadly and precisely while maintaining confidence that the system itself has not been abused. Shutting down the ability to submit tens of thousands of comments through an API would be the first step. And then engaging internet companies to develop systems that give people the ability to respond in whatever depth they wish, complete with an essential feedback component where the regulator responds back to those comments.

Such an approach would result in better and more stable policy decisions and everyone should be able to get on board with it, so long as the discussions is focused on the system and not on dragging up old battles.

What steps can be taken to put a stop to partisan name-calling in place of real debate?

This is a tougher topic given the current atmosphere and level of debate in the United States. But for the FCC at least, it is made easier by the fact that we are still talking about telecoms policy.

Net neutrality is not gun control and it is not abortion rights, despite what it may feel like right now. It is actually pretty dry and most telecoms policy subject matter experts are still, given the right impetus, willing to engage on substantive matters rather than revert to name-calling and false logic.

Well earned promotion

The high-level answer is: Ignore those that sully debate and promote those offer nuance and open-mindedness. This can be difficult when the chair of the FCC himself often engages in misleading rhetoric. And of course, many social media platforms are currently geared toward conflict. But it can – and will – happen.

Another way to limit the impact of divisive debate is to simply not accept flawed arguments. There is no doubt that the debate over net neutrality got out of hand, but drawing attention to those ill-advised and often angry responses rather than engaging in contemporary debate is counter-productive.

Before responding to any comment, especially on social media, it is worth considering:

  • Whether the person is expressing their view or attempting to speak for others; if the latter, they will be inaccurate.
  • If the message is focused on reaching agreement or if it seeks to inflame; if the latter, it has no real value
  • If the message points to something objective, like metrics or facts, or merely comments on someone else's opinion; if the latter, it is simply a house-of-cards of opinion.

It is also worth reviewing a message for logic when considering whether to reply to, or amplify, a message. For example, the argument that because someone was wrong about something that means that they are always wrong, or that the other side is right is not logically coherent, especially if it does not come with a rationale or some form of objective assessment.

It is, for example, not surprising that ISPs have not engaged in wholesale blocking or throttling of content in the past year for two main reasons:

  1. The rules themselves are still subject to multiple legal challenges
  2. The issue remains so divisive and bitter that the benefit of introducing such controls would be far outweighed by the blowback

There is nothing wrong with accepting that reality; it is one everyone should be able to agree on. And if people really want to be proven right, they should accept that it won't be possible until there are some agreed measurements and metrics.

Good question

To that point, it is worth pointing out a question send to Rosenworcel on her AMA from an economist. Although the comment does stray too far into implicit accusation, its content nonetheless contains the seed for what could be a useful debate: The actual economic benefit of loose regulations over strict rules.

"I am a professional economist on the faculty at a Big 12 University," the commentor notes. "Only 11 per cent of leading economists support Net Neutrality? Opposition to Net Neutrality has been particularly pronounced among regulatory economists. At least six former FCC chief Economists have publicly opposed Net Neutrality."

He then lists the economists and quotes directly from them over their concerns with the original net neutrality rules. And then asks a series of reasonably worded questions:

  • "Did you consult with any of the FCC in-house economists or any other economists before voting on Net Neutrality? Why or why not? If you did consult with them, what insights did they provide?
  • What do you believe the role of experts should be in the setting of government policy? Do you support Chairman Pai's creation of an Office of Economics and Data at the FCC to better integrate economic analysis with the FCC decision-making process?
  • Should FCC rules be subject to benefit-cost analysis?

These are good, solid start points for debate from which people can learn and, yes, encourage and promote expert voices. Unfortunately, Rosenworcel did not response to that question, no doubt sensing a laid trap.

But here's what we should do: Ask Rosenworcel to answer the questions. Because she is, after all, an FCC Commissioner. And we should hold those responsible for making the decisions and devising the policies to a higher standard.

Solution?

As for the final question: What is the end solution to the issue of net neutrality?

Well, the largest part of the answer is actually in the process for getting there. There will be no solution while people continue to hurl insults at one another and rely on stirring up partisan resentment instead of engaging in actual policy debate.

The real answer is that at some point Congress and the FCC need to recognize that we need new categories of telecommunications to cover our modern lives: Things like text messages and broadband. We can't seriously expect the modern digital world to be squeezed into rules develop in a completely different era.

We should all be able to agree on that one. And we should all be smart enough to realize that Congress is not going to be the body to make sense of what new digital rules need to look like. That debate has to happen between consumers, corporations and telecoms policymakers – and the FCC should be the perfect spot.

Once everyone has pretty much agreed the best approach, it is then up to Congress to turn it into law. That's how the system works and if you aren't helping it along that path, then the issue is you, not the people you are arguing with. ®




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