John Oliver is rallying to save Obama's 'net neutrality' rules, but it may not matter much this time around
The concept of net neutrality is a paradox. It is both crucial to the future of the internet, yet profoundly, insufferably boring. To immerse yourself in the topic is to become inundated with legal jargon, marathon C-SPAN sessions, and arguably the least enchanting people in American government.
So when Oliver took up the subject of net neutrality on his late night TV show three years ago, the fact that he made it not only comprehensible, but actually entertaining, is borderline miraculous.What's more, he was effective: Five months after Oliver raised the cause on his weekly program, then-President Obama suggested the Federal Communications Commission adopt the kind of brick-wall authority over internet service providers (ISPs) that Oliver had called for. The agency soon followed suit, and by early 2015, ISPs were reclassified as "common carriers" under Title II of the Communications Act.
This, most notably, gave the FCC the legally enforceable ability to preemptively stop ISPs from blocking, slowing down, or prioritizing certain websites and apps in exchange for financial gain. Along the way, nearly 4 million public comments were filed on the topic. Not all were in favor of the FCC's new powers, but the outcry was unprecedented.
So with those same net-neutrality rules now on the brink of reversal, the fact that Oliver has jumped into the fray again is significant. Sure enough, the number of comments filed has skyrocketed since Sunday night, when Oliver revisited the controversial issue.
This time, though, the flood of comments is unlikely to matter as much. Or at least, volume alone isn't likely to sway a Republican FCC majority that's convinced, sure as the sun, that the Obama-era rules are a mistake.
To be clear, you absolutely should voice your opinion on this. I'm not saying commenting is aimless. Wherever you stand, if you care about the concept of net-neutrality, now is a good time to not be silent. And if you don't care, it's an even better time to learn why this is significant. (Here's a good place to start!)
For instance, in late April senior FCC officials held a call to discuss Pai's rollback proposal with the press. When asked what would happen if another barrage of comments rolled in, one official stressed that the agency would evaluate those comments based on "the merits of their arguments," not on the sheer amount they receive.
More to the point, here's Pai response to a similar question from Recode's Tony Romm (emphasis mine):
"Well, look, that's part of the process. I wanted to make sure that we had a chance for the public to have its say. After that's over, after that period is over, the agency takes stock of what's in the record. Under the law, as enunciated by the D.C. Circuit Court of Appeals here, we have to have what's called substantial evidence. We have to find in the record sufficient facts to justify what course of action we are going to take. There's no numerical threshold that the courts have applied. They don't say, "Okay, 51% say yes and 49% say no, then the decision is clear," or any proportion greater than that. They've said substantial evidence is the standard, so that's the legal standard we're going to apply going forward."
In the context of the net-neutrality debate, though, that means anyone commenters in support of the current Title II framework can't just say, "I support the current Title II framework," and leave it at that. Pai and like-minded Republicans have argued against that over and over and over again, even as the current rules rode a wave of support to become law in the first place.
More specifically, Pai has repeatedly said that the more stringent Title II rules have depressed ISPs' willingness to invest in their networks, and that they were never necessary to begin with.
For an advocate of the current rules to have a better chance at making an impact, they'll have to make an argument that digs a little deeper.
If you're on that side of the fence, here are some things that might have a little more bite:
- Again, Pai's core argument is that the Title II classification has directly weakened ISPs' willingness to invest in their networks. And if you look purely at the capital expenditure numbers for the major ISPs over the past few years, a bunch of them are down, or at least flat, since 2014. If you wanted to counter, though, you could question how he's definitively extrapolated the effect of Title II alone from the wider macroeconomic trends of the telecom industry since 2015.
- Or, with less jargon, you could press him on how Comcast, the nation's largest cable and broadband company, has spent more on infrastructure each of the last two years. Or you could note how Charter and T-Mobile have also spent more since then, too. You could bring up how Verizon, which slowed the rollout of its wireline internet service from early 2010 to about mid-2016, has invested 26% more on wireless-specific infrastructure over the same time frame.
- A key tenet of Pai's argument is the idea that "we were not living in some digital dystopia" prior to the Title II rules. You could point to Oliver's example of carriers blocking Google Wallet to push their own alternative, or AT&T's partial blocking of FaceTime in 2012 as examples that run counter to that spirit.
- Or you could argue the stricter rules are more necessary now, since the likes of Comcast, AT&T, and Verizon have paid big money to become content companies in recent years, thus giving themselves reasonable incentive to use their networks to gain a better return on their investments.
- Or you could point to the loophole the rollback would create by giving the Federal Trade Commission regulatory power over ISPs' online-privacy practices. An appellate-court decision from last year has made it unclear if the FTC has any regulatory authority over ISPs in nine states. The FTC and FCC are currently trying to reverse this, and there are bills in Congress that seek to do the same, but you could say it's a hole that should be patched before any changes are made.
- Or you could question how capable the FTC would be in regulating ISPs at all, and point to how a member of President Trump's FCC transition team told us that the FTC "would probably need some additional resources" before taking on the consumer protection responsibilities the FCC has today.
There are others. None of this is to say these arguments are correct, nor that they'll sway Pai and other Title II opponents in a more moderate direction.
But if you steadfastly believe that the FCC needs to regulate ISPs the way it does now, don't be surprised if sheer numbers aren't enough to sway the agency's policy this time around - as unfair as that may feel. If nothing else, the next few months are likely to test how far this kind of protest can go.