FCC’s Net Neutrality Myths

We’ve been having the policy debate over creating net neutrality since at least 2005. During that time there have been a lot of arguments made on both sides of the issue. But overall it’s been a policy debate that is similar to the many other issues discussed in the telecom regulatory world. Both sides make their arguments and eventually a decision is made to regulate or not regulate according to the arguments. Politics has always played a role in these debates and issues tend to slew a bit according to the political leanings of the FCC at any given time.

FCC Chairman Ajit Pai recently released a document that argues strenuously for the end of net neutrality. This document lists various ‘myths’ associated with net neutrality and then describes why each myth is untrue. If you look back at the history of the net neutrality debate you’ll see that his list is a summary of the arguments being made over time by the big ISPs. This is a document that one would expect from AT&T, Comcast, USTA or ALEC – but not from the Chairman of the FCC.

I have a problem with the Chairman’s list because most of the conclusions drawn are factually incorrect. It’s expected for the big ISPs to make arguments in their favor, even if those arguments are not wholly true – but it’s disturbing to see these same arguments coming from the FCC, which is supposed to be the arbiter for telecom policy issues.

I don’t think I have any bias that makes me see these statements as false. Anybody whose been reading my blogs knows that I am as biased as anybody else in the industry. My bias is towards policies that allows smaller ISPs to compete. And I am strongly in favor of policies that try to solve the rural broadband gap and the overall digital divide. But other than that I am largely neutral on other telecom policies and am receptive to hear all arguments on the various issues. Other than as a consumer I have no strong bias in the net neutrality debate because I don’t believe that small ISPs will violate net neutrality even if there aren’t any rules. The net neutrality argument really only concerns the behavior of the largest and most powerful ISPs in the telecom market. I could go through the document and discuss each ‘myth’ – but that doesn’t lend itself to a blog-length discussion. But I think every one of the Chairman’s arguments is stretching the truth.

For example, the document rolls out the old big-ISP argument that broadband investments have dropped due to Title II regulation. This argument goes back to shoddy work done by one researcher on the big ISP payroll and has been debunked numerous times. The numbers tell a different story and investments have not dropped. So do the actions of the big ISPs – AT&T, Verizon, Comcast and most of the other big ISPs are all undertaking aggressive expansion and upgrades. Look at what each of these companies is telling their stockholders and you don’t see an industry in retreat. Title II regulation has had almost zero impact on investment decisions (and regulation rarely has ever done so).

Chairman Pai also argues that the Internet was free and open before we had Title II regulation. That’s not the way I remember it. The net neutrality debate has been going on since 2005 and the ISPs have been held in check by the threat of net neutrality regulation. Even without Title II regulations in place the FCC was able in the past to pressure the ISPs on practices like data caps and zero-rating by the threat of future regulation – and for the last decade this has largely worked. Title II regulation didn’t just appear out of thin air with the FCC order in 2014 – the net neutrality principles were the backbone of FCC regulation and actions for a decade before then.

This FCC document also argues that the Federal Trade Commission is well equipped to police unfair, deceptive and anticompetitive behavior from ISPs. That gives the FCC cover to duck out of regulating broadband. What this doesn’t mention is that the big ISPs are now attacking the FTC’s right to regulate broadband (a blog will be coming on this soon). I find it extraordinary that the FCC would declare that it should have no role in regulating broadband – the most important telecommunications product. Regulating broadband seems to be their role in the industry almost by definition.

I guess more than anything else this document disappoints me. While there have always been some politics involved in the decisions made in our industry, past FCCs have largely decided issues on their merits. My own business was founded largely due to the Telecommunications Act of 1996 which unleashed much-needed competition into the industry. But I look at this current FCC and see that the pendulum has swung to one far extreme and the merit of issues aren’t even part of policy discussions. That saddens me.

Small ISPs and Net Neutrailty

Network_neutrality_poster_symbolLast week a small ISP asked me if they should be concerned about the potential end of net neutrality. It’s clear that the new FCC chairman is either going to reverse the net neutrality order completely or hobble it significantly. My response to the question comes in several parts.

First, net neutrality has had virtually zero impact on small ISPs. It is inconceivable to me that a small ISP could somehow find a way to violate the basic principles of net neutrality. It’s not something a small ISP can do on their own and they would have to somehow make a deal with a content providers that would give them the ability to discriminate against customers or against other carriers.

If anything, not having any real market power can be turned into a marketing advantage. Small ISPs should be advertising the fact that they are the one ISP in the market that does not spy on customers. Small ISPs generally offer bandwidth with few strings attached – customers are free to use what they buy in almost any manner.

If net neutrality goes away the real impact is going to come when the big carriers begin offering products that give them an unbeatable market advantage. We already have a hint at what such products are like by looking at the cellular carriers. It’s clear that AT&T and Verizon are each heading down a path where they can offer cellular customers free access to certain video content while charging all other data use against stingy data caps. And, with net neutrality going away, industry analysts expect them to step this up and begin offering exclusive content to their cellular customers that they can’t get elsewhere.

But that’s not the end game. The product that net neutrality is aimed to protect us from is what is called a curated web. Consider, for example, that some of the content providers join together to partner with AT&T. This could be traditional programmers like ESPN or newer content providers like Facebook or YouTube. These companies could help to subsidize customer data plans to entice people to buy a curated web product.

Such subsidies could mean cell plans that significantly less expensive than normal cellular service, but which comes with all of the web access baked-in. The content providers would encourage you to only use their portal. They would control which browser you use. They would control your search engine. And they would advertise specifically to you and collect everything they can about your preferences, buying habits, social contacts, etc. A curated cellphone product would severely curb a user’s ability to get to other content.

Such a product could become popular if it bundles in things people already like such as Facebook, YouTube and other popular web sites. The upside to the content providers is that they have exclusive control of you for purposes of data gathering and advertising – and they ought to be willing to pay for that right. And customers are going to love the savings.

You might ask, “Why worry about cellphone plans? I don’t compete against them.” Well, there is nothing to stop curated web plans from coming to landline broadband as well. Comcast might have a normal broadband product at $60, but a curated one at half that. A company like Comcast could offer multiple curated web products – perhaps one from Facebook, a sports package from ESPN, another that focuses on Star Trek and science fiction, and so on.

These curated plans don’t sound bad if somebody comes out with one that you would find of interest – and that is the danger. People are likely to want such plans if it saves money and has a lot of the content they already use.

But curated web access has several big problems. First, they give the ISP that offers them a major market advantage over any competition in the market. It’s hard for anybody else to compete against a web product that has been paid down to be under market rates by a content provider like Facebook. Second, the curated web will stifle new web content providers. It’s easy to think that companies like Facebook and Google are so large on the web that they can’t be supplanted by something else. But it has only been a few years since when the web was dominated by companies such as AOL, Yahoo and others. It’s almost in the nature of the web that people’s tastes in web content changes over time, sometimes rapidly. The next Google or Facebook is never going to get traction if a huge chunk of the web is curated by the current content giants. In that environment we might still be seeing a Facebook-curated web a century from now – and that would be an innovation killer.

But, to circle back to the original question: Small ISPs are not harmed today by net neutrality. But if it’s taken away, the big ISPs have already given us hints on what they’ll do – and it is those actions that will ultimately disadvantage small ISPs along with anybody else that wants a web which constantly innovates rather than one that would stagnate.

Free Broadband from Facebook

freebasics_facebook_thumbFacebook is talking to the FCC about launching a free Internet service in the US. This would provide a subset of the Internet for free to anybody with a smartphone and would provide such things as news, health information, job sites, and of course Facebook.

This would obviously benefit many people that can’t afford access to the web. Today the national broadband penetration of households that have some kind of access to the web is around 82%. Some of those without broadband live in rural places that don’t have access. Some don’t want Internet access. And the rest would like web access but can’t afford it.

Facebook has launched a similar product around the world in 53 emerging markets in the Middle East, Asia Pacific and Latin America. This is offered under the name Free Basics.

But the free product ran into problems and has been banned in India due to the fact that it violates net neutrality. The Indian net neutrality laws aren’t too different than our own laws and the service is what called zero-rated, meaning that any use of this plan is not counted against a data plan from a participating ISP.

In India the biggest complaint about the product was that it was restricted only to those things that Facebook wanted customers to see and not to the wider Internet. But in Facebook’s favor, it was free.

For this to work in the US, Facebook will need to find a US cellular partner which would not count usage of the app against a data plan. I recall that Facebook was close to this a few years ago in a partnership with T-Mobile that would have provided free access to a suite of products called GoSmart.

But more importantly, Facebook needs to convince the FCC that this is not a violation of net neutrality. The FCC has not formally made any pronouncements about zero-rating of wireless content, but it has talked to the major wireless carriers about the zero-rating they are already doing today.

This is the kind of situation that is really tough for regulators. With this kind of product Facebook could be providing some sort of free access to the web for millions of people in the country that might otherwise not have it. Even if it’s a scrubbed and sanitized piece of the web, it’s hard to find anything wrong with the results of that. People could buy a smartphone with no data plan and have access to parts of the web.

But the downside to the FCC is the same one faced by the Indian regulators. Once you let Facebook do this then the genie is out of the bottle and there doesn’t seem to be any way that the FCC could stop other kinds of zero-rating.

The dilemma is that Facebook is not quite like other companies. I am sure that somehow this isn’t costing Facebook too much and they might even make a little money from the idea. But Mark Zuckerberg seems to be on an altruistic mission to bring broadband access to the whole world. He has already used this idea to bring free broadband to many millions, and his goal is to bring it to billions.

But even with the altruism, this has certainly been good for Facebook – they had 1 billion users in 2015 and are now are reported to have over 1.7 billion users. That’s a lot of people to advertise to and to gather data from, which is how Facebook makes its money.

And of course, no matter how altruistic Facebook might be, nobody would expect the same motives from other large companies like Comcast, AT&T or Verizon. One of the main fears that drove the creation of net neutrality is that we could end up with a web that is filtered by the biggest ISPs and that the openness of the web would be killed by deals like the one Facebook wants to do. The web brought to you by Comcast is not the same web that we know today – and I think it’s a web that we don’t want as a society. But if we take the first step and let a big company like Facebook filter the web, we could be headed down the path where almost all future web access is filtered.