The FCC’s Myths vs. Facts sheet defending its plan to reverse net neutrality, annotated

Immediately after FCC Chairman Pai announced his intention to remove the net neutrality rules set in place in 2015, the agency issued a little preemptive strike against detractors. “Internet Regulation: Myths vs. Facts.” I’ve annotated it with a few extra facts.

Myth: Title II regulations are necessary to preserve a free and open internet.

Fact: The internet was free and open prior to the FCC adopting Title II regulations in 2015.

Additional Fact: Internet providers before 2015 also attempted to monitor, modify, block and throttle internet traffic depending on the content, user or application. The internet is free and open post-2015, but with the additional security of these intrusions being illegal, not addressed reactively once discovered, sometimes after years.

Myth: Title II regulations haven’t reduced infrastructure investment and broadband deployment.

Fact: Among our nation’s 12 largest internet service providers, domestic broadband capital expenditures decreased by 5.6 percent percent, or $3.6 billion, during the first two years of the Title II era. Title II also has hurt smaller providers’ ability to get financing and reduced infrastructure investment. In short, Title II has slowed broadband deployment and hampered the FCC’s efforts to close the digital divide.

Additional Fact: One could have said the same thing after the FCC classified cable internet as Title I in 2002: investment fell then, too. The statistics above, however, are rather misleading. Many major internet providers have increased spending, or projected the decreases mentioned years ahead of time. This article puts some of the numbers in context, and has the bonus of coming from Free Press, an outlet Pai attempted to discredit today by pointing out that it was a socialist publication — yes, really.

Myth: Title II regulations are good for broadband competition.

Fact: Title II is a regulatory framework designed to regulate the Ma Bell telephone monopoly, not to encourage new entrants into the marketplace. And a regulatory framework designed for a monopoly will tend to push the marketplace toward a monopoly. Smaller, competitive broadband providers do not have the same resources as larger companies to cope with increased regulatory costs and have scaled back broadband deployment as a result of Title II.

Additional Fact: Title II was indeed created a long time ago in a different age — of course, you could say that about practically any law written more than 20 years ago. Laws are made to last for decades, even centuries, with the help of judicial interpretation (in this case, the Supreme Court supported Title II classification) and legislative amendment (in this case, the 1996 Telecommunications Act). It also already applies to many of the companies involved in some fashion; companies like AT&T and Verizon have built their mobile networks under Title II oversight and thrived. Also, as the 2015 order points out, very few sections of Title II are actually being applied. There is also an exemption for smaller ISPs with up to hundreds of thousands of subscribers to avoid exactly this outcome.

Myth: Title II regulations are good for online privacy.

Fact: Title II put Americans’ online privacy at risk by stripping the Federal Trade Commission of its jurisdiction over broadband providers’ privacy and data security practices. Ending Title II will restore the FTC’s authority and return to a tried-and-true approach that successfully protected consumers’ privacy prior to 2015. It will put our nation’s most experienced and expert privacy agency back on the broadband beat.

Additional Fact: Title II did shift authority for privacy and security practices from the FTC to the FCC, which then put stronger rules in place to address some internet provider-specific vulnerabilities. Those stronger rules were repealed before taking effect last month, an action Chairman Pai approved of. Now neither agency is protecting consumers and that isn’t likely to change any time soon.

Myth: Title II regulations are good for innovation.

Fact: The Commission’s 2015 Title II internet regulations have deterred internet service providers from offering new and innovative services to consumers. For example, 22 small providers, each of which has fewer than about 1,000 customers, has told the FCC that because of Title II “each of us has slowed, if not halted, the development and deployment of innovative new offerings which would benefit our customers.”

Additional Fact: There is no conceivable “innovative new offering” that could be brought by an under-1,000-subscriber ISP that would be blocked by the Open Internet Order, which bans paid prioritization, throttling, traffic interference and misleading commercial terms. If it was yet another zero-rating plan, then, as I’ve pointed out, the truly innovative offering would be removing data caps.

Myth: Title II regulations are good for free speech and free expression.

Fact: Government regulation is not the friend of free speech, but an enemy. For example, the First Amendment doesn’t give the government power to regulate. It denies the government that power. Additionally, greater government regulation of the internet is strongly supported by many who are fundamentally hostile to free speech.

Additional Fact: The preceding is not a fact.