Senator Wyden To FCC Chair Pai: Hey, Stop Lying About What I Said To Undermine Net Neutrality

Yesterday we posted our comments to the FCC on net neutrality. Tons of others did as well, but I wanted to call out the comment submitted by Senator Ron Wyden. For two decades, Wyden has been a leading advocate of keeping the internet free from burdensome regulations, thus allowing tremendous innovation to occur. This echoes our position as well. However, both of us have advocated strongly for keeping the net neutrality rules in place. As we've pointed out, such rules are actually necessary in keeping the internet free and open -- because access to the internet has become dominated by just a tiny handful of giant companies with a history of bad behavior towards consumers, and repeated statements about plans to defy the internet's end-to-end principles.

However, Wyden is particularly annoyed that FCC chair Ajit Pai uses Wyden's own words out of context to support his plan to do away with the open internet rules. You see, in Pai's Notice of Proposed Rulemaking (NPRM), he quotes a letter that Wyden sent back in 1998 about internet regulations:

Congress weighed in again two years later. Five Senators—John Ashcroft, Wendell Ford, John F. Kerry, Spencer Abraham, and Ron Wyden—wrote the Commission that “[n]othing in the 1996 Act or its legislative history suggests that Congress intended to alter the current classification of Internet and other information services or to expand traditional telephone regulation to new and advanced services.” These five members further warned that if the Commission “subject[ed] some or all information service providers to telephone regulation, it seriously would chill the growth and development of advanced services to the detriment of our economic and educational well-being.”

Later in the NPRM he quotes Wyden's letter again.

This success wasn’t an accident. In 1996, President Clinton signed the Telecommunications Act of 1996 and established a national policy “to preserve the vibrant and competitive free market that presently exists for the Internet . . . unfettered by Federal or State regulation.” In 1998, Senators Ron Wyden and John Kerry, among others, said that if the FCC “suddenly subject[ed] some or all information service providers to telephone regulation, it seriously would chill the growth and development of advanced services.” The next year, Democratic FCC Chairman Bill Kennard said that it “is not good for America” to “just pick up this whole morass of [telephone] regulation and dump it wholesale on the [Internet] pipe.” This wasn’t controversial. It was the consensus.

Except there's a big problem here. The quotes a completely out of context and misleading. What Wyden was talking about then -- and which he still supports today -- is that it doesn't make sense to apply telecommunications regulations to services on the internet. That is, we shouldn't apply such rules to VoIP and streaming services and websites. Because those are highly competitive markets where anyone can jump in and they don't need such regulations. But that's entirely different than the market for internet access providers and specifically broadband internet access providers.

This is a key point that too many people are conflating -- including Ajit Pai and other anti-net neutrality folks. They insist (some in our comments) that putting in place very limited restrictions on broadband access providers, like those in the 2015 open internet rules, is somehow "regulating the internet." It's not. It's putting in place very limited regulations for internet access. Access is not the internet. Access is the way onto the internet.

Wyden, it appears, is none too pleased with Pai misrepresenting his words, and using them to pretend that Wyden supports undoing the open internet rules:

The purpose of this comment is to specifically refute the Chairman’s willfully ignorant mischaracterization of a letter I signed in 1998, which this NPRM improperly claims as justification for classifying broadband service providers as an information service in 2017.

In the late 90’s, I led the charge against government over-regulation of the content of the internet, including by authoring Section 230 of the Communications Decency Act, a law which maintains free speech on the internet. Similarly, I wrote the Internet Tax Freedom Act, which prohibits internet access taxes and disallows discrimination between digital goods and services and their physical counterparts. My priorities from 1998 to 2017 have not changed. Then, as today, I fought for telecommunications policies deeply rooted in a philosophy of openness, transparency, nondiscrimination, competition, and freedom online. In 1998, that meant working to make sure third-party Internet Service Providers (ISPs) continued to grow from “walled-garden” services to the services we have today. In 2017, that means protecting the internet from the balkanization — from sponsored content and zero rating to paid prioritization and blocking — that will arise from removing the protection of the 2015 Title II Order.

The internet and internet access service today both are wildly different than they were in 1998. Back then, large numbers of consumers were starting to take advantage of the whole internet, rather than just a walled-garden service. The key difference, however, was that in 1998 consumers largely accessed the internet through third-party ISPs like AOL, or Prodigy, and those consumers used the infrastructure of the common carrier telephone system to connect to that third-party ISP.

Today, those third-party ISPs are few and far between, and the same company that provides the customer with internet service owns the broadband telecommunications infrastructure used to transmit online content. While the Internet Service Providers referenced in the 1998 letter provided what was an information service “over the top” of common carrier facilities, today’s ISPs offer a transmission service to their broadband internet access customers.

This key difference means that without the strong protections of common carrier regulations, the broadband providers of 2017 have both the means and motivation to discriminate and profit from playing the internet gatekeeper, for example by turning off content from certain sources or competitors. If we lived in a world where effective broadband competition existed, and a functioning market worked to balance these incentives, that might impact the analysis if — and only if — internet users once again had dozens or even hundreds of ISPs from which to choose. Unfortunately, far too many Oregonians only have access to a single broadband provider for their home. Broadband providers that control their customers’ pathway to the entire internet cannot be permitted to interfere unreasonably with the transmission of content that those customers send and receive.

He concludes by asking Pai to "refrain from continuing disingenuous rhetoric intended to deceive Americans about the net neutrality debate." Indeed.

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