(UPDATE: This whole post was secretly just preparation for my interview with FCC Commissioner Nathan Simington a couple weeks later.)
(TW: net neutrality, pasta racism, NCTA v. Brand X, brief but alarmingly favorable quotation of Justice Breyer, Ted Stevens Dance Remix)
Over on Facebook, some of my friends have asked me to give an update to my 2014 post(s) which laid out a conservative argument for Title II “common carrier” regulation of Internet Service Providers.
But, honestly, not all that much has changed. Title II was imposed soon after I called for it, albeit in a limited and, in some respects, sloppy fashion. It remained in effect until 2018, when the Trump-era FCC repealed it… but the repeal itself got caught up in a legal battle (Mozilla v. FCC) which was only finally resolved in July 2020, when Mozilla decided not to appeal. That left about four months for telecoms to go wild with their newfound freedom to throttle.
Then came the presidential election. With President Biden’s victory came the inevitability of new Title II regulation. Telecoms are now right back on their best behavior, hoping to convince the FCC that they are good little boys and girls and will not put any more firefighters’ lives up for ransom, so the mean old FCC won’t ban zero-rating.
(ASIDE: I’m not really convinced the Verizon firefighter thing was a net neutrality issue, as some have argued, but it was terrible press and at least points to monopoly-like behavior at Verizon. By “monopoly-like,” I mean that only a monopolist or a fool would so abuse a sympathetic, expensive customer during a nationally-televised emergency. I don’t think Verizon is a fool.)
So net neutrality critics have been saying that “we ended net neutrality and the Internet didn’t end,” which is half-true: no, the Internet didn’t end… but, as I noted shortly after the litigation began, net neutrality never really ended, either.
Meanwhile, there have been no grand market disruptions that would tend to change my 2014 analysis. Telecom consolidation has continued apace, as mainstream economic theory predicted, because, as I explained in 2014, telecoms are natural monopolies.
There are still exactly two wired broadband competitors in my zip code (Comcast and CenturyLink). I’ve lived in four homes since 2011, and they were the only two options at all of them.
I only have bills back to 2015, but it looks like I personally pay almost exactly the same amount of money to Comcast ($60 now vs $65 then) for a lower tier of service (Performance Pro+ vs Blast), but that lower tier is apparently just as fast as what I had in 2015 (150mbps vs 150mbps), and inflation exists, so I’m overall in slightly better shape. I only have to call their customer service once a year to lock in a discount (I didn’t used to have to do that, sigh), so, on the whole, I hate Comcast much less than I did in 2014, right after I moved twice and had to spend days on their support line.
So: no news! You can reread my 2014 net neutrality post; I pretty much stand by it. (There’s a couple details I wish I could retract, not because I think I was wrong, but because I didn’t present enough evidence. C’est la vie.)
However, while I was rereading everything that’s happened since 2014, I was reminded of something: Republican FCC commissioners really confuse me. They’re Republicans, they grew up in the same conservative movement I did, confirmed by Republican senators I generally trust, and I really like to think that they are doing their best to follow the law and help American voters. Yet Republican FCC commissioners routinely say things that—it seems to me—clearly aren’t true, and make arguments that—it seems to me—don’t make sense. There were times during the Trump Administration when I wanted to grab Chairmain Pai (who is a super-nice guy, by all accounts) by the shoulders and shake him while shouting questions in all capital letters.
If I ever had a chance to sit down with a Republican FCC commissioner, and time were no object, and he (or she! you never know) didn’t throw a coffee in my face after the first few questions, these are the questions I would have—sans caps lock:
QUESTIONS OF TEXT AND HISTORY
As a conservative, before I talk about public policy, it’s for me important to understand how the public policy evolved, why it did so, and what the governing law means. This matters both because I’m an originalist-textualist disciple of the Federalist Society and because I’m a Chesterton’s Fence conservative. Republican FCC commissioners consistently have what I perceive as bizarre views on the text and history of net neutrality, and their seemingly erroneous conclusions inform the rest of their analysis.
1. Why do Republican commissioners consistently act as though net neutrality regulation of telecoms were unusual?
Telecoms who own the Internet’s physical network (originally including cable telecoms; see, e.g., AT&T v. Portland) were regulated directly as Title II common carriers from the unveiling of the first public ISP in 1989 until 2002, when the FCC launched its experiment in deregulating cable broadband by classifying the physical-network providers as “information services,” not “telecommunications services” in the Cable Modem Order. (Telecommunications services are subject to Title II common carriage rules; information services are not.)
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