Public's View of Title II Net Neutrality Sparks Clash at TPRC Telecom Conference
The public's sentiments on net neutrality and broadband regulation were disputed among panelists and audience members at the Telecom Policy Research Conference Friday. There was more agreement Congress is unlikely to legislate a solution soon and that increased broadband ISP competition would be helpful. Some said such competition wouldn't affect common-carrier regulation under the FCC 2015 net neutrality order that reclassified broadband as a Communications Act Title II service .
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About 60 percent of public comments to the FCC favor keeping Title II regulation, said New York University media technology professor Russell Neuman, citing a recent Emprata study of 21.76 million comments in docket 17-108 (see 1708300050). He said the study found eliminating the vast majority of comments that were mass-produced and duplicative yielded 1.77 million unique comments favoring Title II regulation versus only 24,000 unique comments backing repeal. He noted the study was commissioned by pro-ISP group Broadband for America.
NCTA Vice President Rick Cimerman, from the audience, disputed that analysis. He noted Broadband for America said the study showed about 70 percent of the comments supported FCC-proposed repeal of Title II regulation when fake comments and unverifiable international comments are discarded. Neuman pushed back and said Emprata accounted for comments from illegitimate addresses, but it didn't matter because FCC Chairman Ajit Pai didn't seem interested in public opinion. Cimerman said the FCC's job wasn't to do a plebiscite.
The FCC ignores public opinion "at its peril" even if regulators are seen as "technocrats," said Tim Wu, Columbia University law professor credited with coining the term "net neutrality." Acknowledging many people don't understand Title II, he said public comments backing net neutrality and opposing gatekeepers have become a "proxy" for concerns about cable rates and broadband data speeds and service. "This in some sense is how democracy works," he said.
Net neutrality resembles environmental and labor battles -- it's "almost like a religious war," said Eli Noam, a Columbia Business School professor, lamenting the plethora of "fake" comments as raising questions about the administrative process. He said the Republican-run FCC is likely to "re-reclassify" broadband as a Title I service, but suggested a future Democratic-run commission would reinstitute heavier Title II regulation, making the situation "not stable." The better course is to promote competition to telco and cable ISPs that would allow regulation to be eased, he said. "Technology is actually coming to the rescue" with small-cell wireless broadband, he said, urging spectrum and other policies to promote "independent" competitors. Some audience members were skeptical wireless would resolve the competition concerns.
An expected commission repeal of Title II regulation will likely be challenged in court, possibly by state attorneys general citing "vertical foreclosure" objections, said economist Tom Hazlett, a Clemson University professor. He said "vertical coordination" between market players generally is beneficial for innovation and consumers, and he expects such deals to continue with little regulatory pushback for now. Wu doubted state AG's would bring a case based on "vertical" antitrust arguments that are "hopeless," struggling to prove innovation harms. Hazlett agreed such a case would be difficult, but said it's good that courts rely more on empirical evidence than politics.
Hazlett backed efforts to foster competition, but agreed with an AT&T audience member who said the 2015 Title II net neutrality regulation was grounded in a belief ISPs are "terminating monopolies," regardless of broadband competitors. Wu agreed and also said there's a "massive graveyard" of parties that tried unsuccessfully to compete with cable. He predicted government scrutiny of provider broadband speed claims will increase and interest in broadband price regulation will make a comeback. He also said interconnection "is where the real action is."
Noam suggested there could be a "grand bargain," with ISPs getting certainty that Title II regulation would be relaxed or not return, and being required to ensure interconnection for wireless competitors. Cimerman said Congress is the proper venue for setting basic policy. Noam didn't expect a congressional solution soon, given the difficulty of making tough decisions and the "profitability" of lobbying battles. Hazlett agreed net neutrality disputes are "going to be around" for some time because "the equilibrium is to argue, not settle."