Slippery Net Neutrality

by Mike Wendy on September 20, 2014

The concept known as Net Neutrality is essentially a creature of the Left – a vessel into which it has poured all of its societal or other angst, framing a “problem” – which purposely has no defined edges – and then creating a “solution” to “fix” it.  If one has to generalize, Net Neutrality means the “non-discrimination” of content, applications, services or devices as they run over / attach to various points of the Internet.  In application (at this point in time), Net Neutrality “makes sure” that all the stuff flowing over the Internet from edge providers to end users gets treated equally and unmolested by the network providers.  When this occurs, the world is a better place.  So, we must have Net Neutrality, for without it, no one will ever be able to live freely again.  Ever.

It’s settled science.

Anyway, with the FCC Net Neutrality rule comment period over, the Commission’s work is cut out for it as it fashions its new (and needless) regulation in response to the DC Circuit’s ruling of last January. Now the real horse trading begins, meaning that after over a decade of “knowing” what Net Neutrality is, it seems that the slippery concept is, well, still pretty darned slippery, gelatinous and lugubrious.  And subject to negotiation.

Cut and dried it was never meant to be.  That would be easy.  Binary.  On, off.  But of course, how can one extort rent from that?

Pictured below are some of the characters in this debate and their versions of Net Neutrality.  Each of these versions, or combinations thereof, are still in-play as the FCC goes about figuring out how to “protect the Internet” from the “evil” ISPs through Net Neutrality.


This Philadelphia activist wants Net Neutrality to make the local cable provider pay more in taxes for schools, etc.


This Minnesota Senator wants “simple” Net Neutrality.


This lawyer wants Net Neutrality to strip away the First Amendment rights of  ISPs.


This Free Press lobbyist (left) and edge company lobbyist (right) want Net Neutrality rules which mean their clients never have to pay a single dollar to ship their offerings over the Internet to end users.


This woman wants Net Neutrality to screw her cable company.


 This Netflix lobbyist wants free “interconnection” as part of Net Neutrality.


 This activist wants Net Neutrality to bring about social justice.


This Washington reporter (middle) wants to use Net Neutrality to rub elbows with powerful edge company lobbyists, and also write exciting stories about “good” vs. “evil” companies.


 This activist wants Net Neutrality to make the Internet free.


 These guys want Net Neutrality so they can do what they want on the Internet anonymously, while wearing cool masks.


 This Etsy lobbyist wants Net Neutrality to make all web pages load at exactly the same speed and quality under all circumstances.


 This Net Neutrality activist just wants to cook something at the Net Neutrality rally.


This lawyer wants “user-controlled quality of service” agreements to give the appearance that Net Neutrality via Title II is legal.


This lawyer wants to win his next run for political office, and in the meantime coin new phrases like Net  Neutrality, which create more jobs for lawyers, lobbyists and edge company freeloaders.


 This Free Press advocate (middle, speaking), wants Net Neutrality to result in “media reform.”


This activist wants corporations off of the Internet, while sipping $4 cups of Starbucks coffee.


 These activists want to use Net Neutrality rallies to look ironic.


 This former edge company lobbyist, now FCC official, (likely still ) wants the FCC to adopt most of Title II to give “teeth” to Net Neutrality.


 This Free Press lobbyist wants the “light touch” rules of Title II applied to Net Neutrality to “promote” robust infrastructure development.


 This Jumbotron wants to lobby the FCC on Net Neutrality with pirated HBO videos.


 This rally organizer wants Net Neutrality to protect her free speech, especially when she’s playing “angel.”


 ‘Nuff said.


 These activists want Net Neutrality to “save the Internet.”


The FCC’s Chairman just wants to get out of this Net Neutrality mess he’s created for himself without the Left putting his head on pike.


All of this, and so much more (like 3 million “comments” more), is being poured into the new Net Neutrality rule – one that will look more like a Jackson Pollock painting, or Oscar Mayer sausage, than “settled science.”  This will not result in good or sound public policy, however.  It took a decade to get to this point.  The Internet changes every year-and-a-half.  No “artful” rule can meet this challenge, especially for something that ain’t broke.


Since mid-May reports have circulated that FCC Chairman Tom Wheeler is under such immense pressure from the Left to regulate the Internet via FDR-era rules that he’s about to squirt out a diamond from one of his orifices. Consequently, to reduce some of that pressure, especially as the Net Neutrality comment period deadline approaches, he’s gone out of his way to assure the Left that he’s really looking under the hood on the issue to make sure Google, er, consumers don’t get screwed by the “duopoly” broadband providers. And, you know, the resulting rule is going to be bad-ass tough on them.

He wants everyone to know that. Really.

But, lordy, for all his talk of late to clarify what this means, I’m just as confused as ever (maybe that’s the point).   So, I have five questions I’d love to hear Tom Wheeler answer to clear up the messaging mess he’s created.

Dear Chairman Wheeler:

1.  Some groups – like Free Press and EFF – believe that the FCC can “simply” reclassify information services as telecommunications services, thus allowing Title II POTS regulation of broadband providers. They believe further that the Commission can easily forbear from numerous Title II  provisions if it so wishes, thereby minimizing the law’s spread, and thus mooting from a political standpoint its potentially deleterious effect on the entire ecosystem. At the same time, the Commission has seemingly concluded that broadband providers are “terminating monopolies,” with you yourself saying last week that “meaningful competition” does not exist for these services. How, then, can the FCC forbear from any provisions of Title II when forbearance only works where competition exists – competition which you imply is plainly absent for wired broadband providers? Is this forbearance dance a chimera designed to get the FCC into the full metal jacket of Title II?

2.  What limits the FCC from using its 706 or Title II authority to regulate beyond broadband providers, to companies like Google, Facebook, Netflix, or even the average end user? Isn’t that the real aim of Net Neutrality – that is, getting the camel’s nose into the regulatory tent so that the Commission can someday regulate the medium much as it does with radio and TV?

3.  In one breath you praise the competitive zeal of the wireless industry. That the FCC and DoJ helped protect the industry’s competitive well-being by thwarting various mergers. That it’s the envy of the world in terms of technology, innovation and investment. That whole new competitive industries have been born as a result. Yet in another breath you seem to believe that Net Neutrality rules should apply.  So, what is it – is the market competitive, or is it not?  And if it is, how is the full version of Net Neutrality justified for these competitive services?

4.  You say that wireless is an “important pathway to the Internet” for many Americans. That it’s perhaps important enough to impose Net Neutrality rules. That “mobile first” (i.e., mobile trumps fixed broadband) espoused by numerous Internet edge companies is what’s driving the marketplace.  Yet you then decry that mobile broadband is not a “full substitute” to wired broadband. That it’s somehow a lesser technology, and always will be.  But, isn’t the broadband market just one market – one not arbitrarily broken into “better” and “lesser” technologies? Doesn’t consumer choice indicate as much?  If so, shouldn’t that take you out of the job of regulating because all these flavors of broadband abound, clearly revealing that the marketplace is healthy and doesn’t merit Net Neutrality (or other) regulation to serve consumers?

5.  All lawyer wiggle-words aside, isn’t the real trigger for Internet / Net Neutrality regulation something like, “I’m going to regulate whatever I want until SCOTUS or Congress, or both, specifically shut this racket down. Until then, hasta la vista, baby! Come and get me if you can.”? Stated differently, even when the competition you’ve protected or “created” (as in the wireless broadband space) still demands Net Neutrality regulation, isn’t this “standard” no better and arbitrary as “I know it when I see it”?  As you noted last week, “The work of the Commission to implement this Agenda will never be done.” I’ll say.  Beholden to no check on authority, doesn’t this more nearly approach tyranny than adherence to the rule of law / due process?

 Chairman Wheeler, thank you for your prompt attention to these important questions. Comments are due September 15; Reply Comments due September 21.

Sincerely, Mike Wendy – MediaFreedom


Progressive-oriented Sunlight Foundation came out with a deep-dive of the approximately one million Net Neutrality rulemaking comments sent to the FCC in July. In its new study, Sunlight asks: “What can we learn from 800,00 public comments on the FCC’s net neutrality plan?”

Well, of the 800,000 comments it examined, Sunlight estimates that fewer than 600 came from “experts” / or those who actually penned comments longer than 200 words.

Perhaps more interesting, Sunlight also found that at least 60% of all the comments they looked at came from just 20 letter writing campaigns and their pre-formatted letters. These “filings,” which all pretty much repeat the same pro-Net Neutrality memes, are essentially blackbox, e-mailed robo-comments. Nice sounding groups like Free Press, Public Knowledge and EFF (which, not surprisingly, also take funding from many of the same pro-Net Neutrality funders as Sunlight does) directed the “grassroots” campaigns, and were largely responsible for placing the robo-comments at the FCC in the rulemaking.

Since the mid-2000’s, this blunt force tactic has been a tool of the Left to show “real consensus” has emerged on any given public policy matter.   I’ve long been skeptical about robo-comments, and have written about this in the past – that is, the FCC’s porous comment-taking process, which “considers” all comments it gets in some manner, but which is also ripe for gaming.

As I noted three years ago (here):

“All it takes is a well-organized group with a large membership base like Free Press to automate comment submissions, and then through the quick accumulation of comments, you have an idea– i.e., ‘Consumers overwhelmingly say X, Y, Z on…’ – become ‘truth,’ amplified by ‘horse-race’ press reports, Google searches and blogs…

The tactic is designed to deceive, not illuminate. And, in that same blog post three years ago, I posited this:

“…If the technique isn’t credible, then any assumptions built on that can’t be either. Consequently, web submissions, though part of the ‘open government’ movement, should be taken with a grain of salt. Sure, the comments of thousands of ‘average citizens’ look impressive for news headlines and blogs. But looks can be deceiving.  When you peer into the numbers, one often finds ‘truths’ peddled by well-organized special interests with agendas, and nothing more.”

To be sure, the FCC can’t control the comments sent to it. Still, it has a duty to maintain the integrity of its decision-making by ensuring its processes are fair, open and transparent. The FCC would do well to break out its salt-shaker, helping all understand the real probative value of robo-comments in the rulemaking process (whatever that value is, or isn’t).

Will that happen, especially when the robo-comments seemingly “justify” the FCC’s own plans for “real” Net Neutrality?

It must. An independent, expert agency like the FCC should be guided by the experts, not by tainted comments written with dark-money. The public interest, and the creation of sound public policy, deserve no less.


In late July, Chattanooga broadband provider, EPB, and the City of Wilson, North Carolina, asked the FCC to preempt their state laws, which limit where they can serve customers. This matter was put up for public comment by the FCC, and MediaFreedom filed the attached comments with the agency on Friday.

In this filing, we urge the FCC to reject the request of EPB and the City of Wilson because:

  • The FCC lacks the authority to preempt such state laws;
  • The states have a constitutional right to protect taxpayers by limiting muni-provided broadband;
  • Muni-provided broadband runs contrary to the pro-competition goals of the Communications Act;
  • The FCC can effectuate the rollout of broadband in a less constitutionally offensive manner, with present authority and regulatory reforms; and
  • Government’s spotty IT track record urges caution for the FCC in promoting government-provided broadband.



On July 24, 2014, the Electric Power Board of Chattanooga, Tennessee, and the City of Wilson, North Carolina (herein Petitioners) filed petitions asking that the Federal Communications Commission preempt pursuant to Section 706 of the Telecommunications Act of 1996 (‘96 Act) portions of Tennessee and North Carolina state statutes, which limit their ability to provide broadband services. On July 28, 2014, the FCC established a pleading cycle for these proceedings, putting the matter out for public comment. MediaFreedom[1] believes the FCC lacks the proper authority to preempt state law as urged, and thus respectfully asks that the Commission reject the Petitioners’ request.

MediaFreedom would like to briefly outline its core concerns on the present proceeding: [click to continue…]


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