from the well,-that’s-one-strategy dept
As the old lawyer saying goes: “When the facts are on your side, pound the facts. When the law is on your side, pound the law. When neither is on your side, pound the table.” It appears that FCC chair Ajit Pai has taken that to heart. Neither the law, nor the facts are on his side with regards to his attempt to gut net neutrality, so he’s done the modern equivalent of pounding the table: blame Hollywood and the internet companies for the fact that almost everyone disagrees with his plan to kill net neutrality.
The law is against him, because in order to reverse the order from the previous FCC, Pai needs to show that this change is not “arbitrary and capricious.” Many people falsely assume that the FCC can just make whatever rule it wants, and thus with every change of the FCC the rules can flip flop. But that’s not how it works. While the courts give strong deference to administrative agencies in their decision-making capabilities, one area where the courts will push back is if a regulatory change is found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” The courts have already upheld the 2015 Open Internet Order by Tom Wheeler as legitimate, where that FCC showed that reclassifying broadband as a Title II service was perfectly reasonable based on the changes to the market conditions since broadband was declared a Title I information service a decade or so earlier. So, for Pai’s plan to actually pass judicial scrutiny, he has to prove that the market has changed so much in the past two years, that an obvious correction is necessary. So far, the only thing he’s been able to rely on are clearly bogus studiesthat are easily debunked by the companies themselves in their statements to Wall Street about the impact of the 2015 rules. Thus, both the rules and the law are against him.
Of course, rather than face up to the fact that the vast majority of Americans (Democrats, Republicans, everyone) support keeping net neutrality rules in place, Pai has spent the last week or so only retweeting his supporters and ignoring detractors entirely. And, now, apparently, his “pounding the table” is to lash out at famous Hollywood stars… and internet companies (note: notinternet access companies), as if they’re the problem.
On both Tuesday and Wednesday he decided to lash out. In this post, we’ll focus on the weird lashing out at famous people, and in a follow up, we’ll talk about his misguided attacks on internet companies. But, really, it’s kind of frightening that Pai — who has regulatory power over some actions of the entertainment industry would randomly call out some actors and slam their pro-net neutrality tweets. How dare they do such a thing, according to Ajit Pai.
Next, I’d like to take on the main criticisms I’ve heard directed against the plan and separate fact from fiction—one claim at a time. And given that some of the more eye-catching critiques have come from Hollywood celebrities, whose large online followings give them out-sized influence in shaping the public debate, I thought I’d directly respond to some of their assertions.
He then proceeds to namecheck Kumail Nanjiani, Cher, Mark Ruffalo, George Takei, and Alyssa Milano — claiming to rebut each of their tweets that he found offensive. Not surprisingly, with each one he either misrepresents what these actors said, or the facts around what his plan will do. It’s almost pathological.
For Nanjiani, Pai repeats his big lie that he’s just returning things to where they were pre-2015, and that it will be just like the way the internet was from 1996 through 2015.
Perhaps the most common criticism is that ending Title II utility-style regulation will mean the end of the Internet as we know it. Or, as Kumail Nanjiani, a star of HBO’s Silicon Valley put it, “We will never go back to a free Internet.”
But here’s the simple truth: We had a free and open Internet for two decades before 2015, and we’ll have a free and open Internet going forward.
As we’ve explained in fairly great detail, that’s hogwash. Since 2004, every previous FCC chair has sought to put forth and enforce net neutrality rules, and from 2008 on, they’ve been shot down by the courts every time, saying that to enforce the net neutrality rules the FCC wanted, it had to reclassify under Title II. At no point was the internet under the regulatory regime that Pai is pushing with his order.
Regarding Cher, he stated:
Another concern I’ve heard is that the plan will harm rural and low-income Americans. Cher, for example, has tweeted that the Internet “Will Include LESS AMERICANS NOT MORE” if my proposal is adopted. But the opposite is true. The digital divide is all too real. Too many rural and low-income Americans are still unable to get high-speed Internet access. But heavy-handed Title II regulations just make the problem worse! They reduce investment in broadband networks, especially in rural and low-income areas. By turning back time, so to speak, and returning Internet regulation to the pre-2015 era, we will expand broadband networks and bring high-speed Internet access to more Americans, not fewer.
Except, again, there is nothing in the rules that are onerous. Well, unless you’re trying to screw over subscribers. As successful smaller ISP Sonic has noted, the only regulatory burden from Title II is if you’re behaving badly towards customers. That’s why over 40 small ISPs told Pai that they supported keeping the rules, and that removing the 2015 order gives the giant broadband companies — Verizon, Comcast and AT&T — too much power to cut them out of the market. For Pai to argue that this order will magically restore competition and broadband deployment is laughable.
And, on a separate note, for someone claiming to support expanding rural and low-income broadband, Pai has some serious explaining to do. Since taking over the FCC he’s eliminated rulesthat stopped telcos from ditching copper networks, he’s argued that a single broadband providercan count as “sufficient competition,” has downgraded what counts as broadband to pretend there’s more competition when there isn’t, and has basically made up out of thin air claims that uncompetitive markets are competitive. In short: Pai is not credible on this. He’s done everything to give more power to the giant internet access providers, who have shown little interest in providing broadband to rural and low-income households.
Pai’s “responses” to Mark Ruffalo and George Takei were similarly misleading (a key point with Ruffalo is that Pai totally misinterpreted Ruffalo’s tweet, which was concerned about giant ISPs controlling the internet, for the government “controlling” the internet — which it does not), but let’s jump forward to his response to Alyssa Milano:
Shifting gears, Alyssa Milano tweeted, “We’ve faced a lot of issues threatening our democracy in the last year. But, honestly, the FCC and @AjitPaiFCC’s dismantling of #NetNeutrality is one the biggest.” I’m threatening our democracy? Really? I’d like to see the evidence that America’s democratic institutions were threatened by a Title I framework, as opposed to a Title II framework, during the Clinton Administration, the Bush Administration, and the first six years of the Obama Administration. Don’t hold your breath—there is none. If this were Who’s the Boss?, this would be an opportunity for Tony Danza to dish out some wisdom about the consequences of making things up.
First off, the reference to “democracy” by Milano isn’t specifically about Title I v. Title II, but about how the internet itself works. A weakened internet, controlled by a few giant monopolists, who have the power to block or diminish access to content can absolutely harm democracy. But, even more to the point, the fact that Pai is ignoring the fact that the overwhelming majority (98.5% by one report) of unique — non-bot, non-pre-filled form — comments to the FCC on this matter supported keeping the rules.
Meanwhile, one of Pai’s mentors and strongest supporters — who lead the Trump transition teamfor the FCC and recommended Pai become chair — Jeff Eisenach showed exactly the contempt he feels towards “democracy” when it comes to the FCC, directly spitting on the idea that the FCC should reflect democratic ideals:
So… maybe Pai and Eisenach should confer on whether Verizon, Comcast and AT&T want them to be supporting democracy this week or undermining it. Because, they seem to be confused.
Meanwhile, it appears that Pai assumed these Hollywood folks didn’t understand the issue so they wouldn’t possible hit back with facts. Not so with Milano, who responded in fairly great detailabout why net neutrality is quite important to democracy, and why Pai is being misleading in his claims.
Either way, the whole thing is weird. Tons and tons of people have been speaking out on this issue. Why Pai decided to pick on five famous actors/singers, when they’re hardly a representative sample is anyone’s guess. Perhaps he’s hoping that his audience would think that the vast, widespread criticism and backlash he’s facing was just driven by “liberal” Hollywood. Perhaps he’s hoping that by naming famous names it will distract from his lack of facts. But all it really highlights is just how weak Pai’s case really is.
by Mike Masnick
Thu, Nov 30th 2017 10:50am