316: Should the FCC Repeal the Open Internet Order (a.k.a. Net Neutrality)?

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Broken Net Neutrality

Next week the FCC will vote to repeal the Open Internet Order (a.k.a. Net Neutrality). Matthew and I get into a hot debate on whether or not the FCC should and what would be the ideal outcome. It’s a great show with a ton of notes from the show below.

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Net Neutrality Show Notes

From Dell Cameron of Gizmodo:

“In roughly two weeks, the FCC’s three Republican commissioners, led by its chairman, Ajit Pai, will vote to adopt what’s known as the Restoring Internet Freedom Order… This order will replace and reverse the Open Internet Order, which was passed in 2015 and reclassified broadband internet service under Title II of the Communications Act—the legal foundation upon which the former administration established the “open internet” regulations imposed on internet service providers (ISPs).”


Pro-Neutrality, Anti-Title II by Ben Thompson, Stratechery


  1. “Regulation incurs significant costs, both in terms of foregone opportunities and regulatory capture
  2. There is no evidence of systemic abuse by ISPs governed under Title I, which means there are no immediate benefits to regulation, only theoretical ones
  3. There is evidence that pre-existing regulation and antitrust law, along with media pressure, are effective at policing bad behavior”
  4. Zero-rating could be a bigger issue
  5. What we need is competition of the ISPs. Easy to say, hard to do b/c of the fixed costs
  6. Finally, Google & Facebook are bigger problems than ISPs

“The net effect of this reclassification would be the elimination of FCC rules restricting the ability of ISPs to block or throttle sites or apps or offer paid prioritization of any Internet content. That is certainly a worthy goal!

“So to recount: one Portugal story is made up, and the other declared that a 10GB family plan with an extra 10GB for a collection of apps of your choosing for €25/month ($30/month) is a future to be feared; given that AT&T charges $65 for a single “Unlimited” plan that downscales video, bans tethering, and slows speeds after 22GB, one wonders if most Americans share that fear.”

“I am absolutely in favor of net neutrality. Indeed, as I explained in 2014’s Netflix and Net Neutrality, I am willing to make trade-offs (specifically data caps) to achieve it. The question at hand, though, is what is the best way to achieve net neutrality? To believe that Chairman Pai is right is not to be against net neutrality; rather, it is to believe that the FCC’s 2015 approach was mistaken.”

“A classic example of this phenomenon is restaurants: who could possibly be against food safety? Then you read about how San Francisco requires 14 permits that take 9 months to issue (plus a separate alcohol permit) and you wonder why anyone opens a restaurant at all (compounded by the fact that already-permitted restaurants have a vested interest in making the process more onerous over time). Multiply that burden by all of the restaurants that never get created and the cost is very large indeed.”

“To put it another way, given the stakes, the benefit from regulation must be massive, which is why the “net neutrality” framing is so powerful.”

“opportunity costs are a reason to not regulate; clear evidence of harm are the reasons to do so despite the costs. What is so backwards about this entire debate is that those in favor of regulation are adopting the arguments of anti-regulators — postulating about future harms and foregone opportunities — while pursuing a regulatory approach that is only justified in the face of actual harm. The fact of the matter is there is no evidence that harm exists in the sort of systematic way that justifies heavily regulating ISPs; the evidence that does exist suggests that current regulatory structures handle bad actors perfectly well.”

“Again, zero-rating is not explicitly a net-neutrality issue: T-Mobile treats all data the same, some data just doesn’t cost money. Net neutrality advocates, though, have railed against zero-rating as violating the “spirit” of net neutrality… if competition and the positive outcomes it has for customers is the goal, then it is difficult to view T-Mobile’s approach as anything but a positive.

“Regulation incurs significant costs, both in terms of foregone opportunities and regulatory capture

There is no evidence of systemic abuse by ISPs governed under Title I, which means there are no immediate benefits to regulation, only theoretical ones

There is evidence that pre-existing regulation and antitrust law, along with media pressure, are effective at policing bad behavior”

“I believe that Ajit Pai is right to return regulation to the same light touch under which the Internet developed and broadband grew for two decades. I am amenable to Congress passing a law specifically banning ISPs from blocking content, but believe that for everything else, including paid prioritization, we are better off taking a “wait-and-see” approach.”

“What is worth far more attention is the state of competition in broadband generally: ISPs have lobbied for limits on public broadband in 25 states, and many local governments make it prohibitively expensive for new ISPs to challenge incumbents (and Title II requirements don’t help either). Increasing competition would not only have the same positive outcomes for customers that T-Mobile demonstrated, but would solve the (mostly theoretical) net neutrality issue at the same time: the greatest check on an ISP is the likelihood of an unsatisfied customer leaving.”

“And, I’d add, if neutrality and foreclosed competition are the issue net neutrality proponents say they are, then Google and Facebook are even bigger concerns than ISPs: both are super-aggregators with unprecedented power and the deepest moats ever seen in technology, and an increasing willingness to not be neutral.



The FCC asked for net neutrality opinions, then rejected most of them by Aja Romano, Vox


  1. 21.7 Million comments.
  2. Less than 6% were unique.
  3. Only 3% had verified emails.
  4. The FCC also required the responses to be unique and contain “new” facts, not opinions.
  5. Therefore, the FCC will effectively ignore the responses.
  6. Spambots ruined the ability to use websites to send notes for you.

“FCC received a staggering 21.7 million comments during its open comment period.”

“the most popular single comment was a pro-net neutrality statement, which was submitted nearly 3 million times via a form on battleforthenet.com… nearly all 2.8 million comments submitted through the website are effectively null and void because they all used the same text — even if they were theoretically submitted by 2.8 million different people who all fervently support net neutrality.

“the majority of those duplicate comments were the same seven emails being repeated over and over again. Pew researchers found that 94 percent of the comments submitted to the FCC were duplicates, and that the seven most frequently duplicated comments made up nearly 40 percent of the total comments submitted. Less than 6 percent of the comments fell into the category of the “unique” comments the FCC was looking for.

“Only 3 percent of comments had emails that were verified, according to the FCC’s verification process — and in addition to the plethora of suspiciously common or obviously fake names used, 7,500 comments were submitted from users identifying themselves only as “The Internet.””

“spambots have effectively dismantled that click-and-submit system, and have helped to justify the FCC’s decision to dismiss all of the advocacy-based duplicate emails that might have come from real people with opinions. Essentially, the FCC’s decision to reject duplicate comments means that a system of website autogeneration that was intended to make democratic participation easier has ultimately made it moot.”


All the Different Ways You Can Lobby to Save Net Neutrality by Jacob Kleinman, LifeHacker

  1. Submit a Filing to the FCC
  2. Email the FCC Leadership Directly
  3. Contact Your Representatives In Congress
  4. Go to a Rally
  5. Help Spread the Word


What Actually Happens the Day Net Neutrality Is Repealed by Dell Cameron, Gizmodo


  1. Democrats file a minority report and republicans will respond
  2. Organization will sue. They have 10-60 days to file. If within 10 days, they can pick the circuit court via a lottery system.
  3. After it’s picked, people can make motions to transfer to another court.
  4. Someone will ask for an injunction (aka. The rules don’t go into effect) until the court makes a decision.
  5. The ISP won’t make any changes to prove than an injunction is needed.
  6. The FCC order could be repealed.
  7. It could go up to the Supreme Court… YEARS from now

“The two Democrats on the commission, Mignon Clyburn and Jessica Rosenworcel, will likely file dissents, or minority reports detailing why, specifically, they disagree with the 200-page order (a draft of which was released last week.) And when they do, Pai and his two fellow Republican commissioners, Michael O’Rielly and Brendan Carr, will likely take some time to counter those concerns in print, if only in preparation for the long legal battle that lies ahead. Afterwards, a brief period of legal chaos will ensue. Or at least, it will appear that way to anyone who hasn’t spent a decade with their face buried in legal textbooks.”

“Organizations that want to be involved in the suit will have 60 days to file, but they’ll have only 10 days to get involved if they want a say in where the case will be heard. You’re not allowed to file until the order is ‘final’ so if you file too soon it doesn’t count, but if you miss the deadline you lose your opportunity to choose the court… The reason for this 10-day window—during which all filings are considered to have been filed simultaneously—is pretty simple: In days past, jurisdiction was determined by whomever filed first. But with lawyers filing in multiple states simultaneously, the process for deciding which attorney crossed the finish line first became unrealistic. And so the courts decided to leave it up to chance. After the 10-day window, each circuit district in which a lawsuit has been filed is entered into a lottery”

“Even then it’s not over… People can make motions to the court that it lands in to transfer it to another court.”

“When we eventually get to court, one or more of the litigants, perhaps one of the smaller tech companies that joins the suit, may ask the court to issue a preliminary injunction, or what the appellate courts called a “stay.” If granted, this would prevent the FCC’s order, or perhaps just portions of it, from going into effect until the court renders a decision. The challenge for anyone seeking a stay, however, lies not in demonstrating long-term harm from the rules, but imminent and irreparable injury. For this reason, many experts believe it is unlikely the ISPs will jump at the opportunity to launch any new business plans taking advantage of their newfound freedom.”

“If the FCC order is consistent with what has been reported, and what the chairman statements suggest, it is likely to be very vulnerable on appeal. So while it may take a long time, that’s the key fact about the appellate process. At the end of a long tunnel, there may well be a decision that disagrees with the order.”

“And there’s always the chance this ends up in the hands of the Supreme Court, whose makeup by that time may be entirely different. The judicial review of Pai’s order could very well extend into the next White House administration. The war for net neutrality in other words has only just begun.”

FCC Chairman Ajit Pai blasted everyone from Twitter to Cher for opposing his efforts to repeal net neutrality rules by Tony Romm, Re/Code