As US cable companies push to eliminate or change net neutrality rules, the industry's primary lobby group today released the results of a survey that it says shows "strong bipartisan consensus that the government should let the Internet flourish without imposing burdensome regulations."
But proponents of keeping the current rules can find plenty to like in the survey conducted by NCTA—The Internet & Television Association. A strong majority of the 2,194 registered American voters in the survey support the current net neutrality rules that prohibit ISPs from blocking, throttling, or prioritizing online content in exchange for payment. While most opposed price regulation, a majority supported an approach in which regulators take action against ISPs on a case-by-case basis when consumers are harmed—the exact same approach the Federal Communications Commission uses under its existing net neutrality regime.
Full results of the NCTA survey conducted with Morning Consult are available here.
About 61 percent of respondents either "strongly" or "somewhat" support net neutrality rules that say ISPs "cannot block, throttle, or prioritize certain content on the Internet." Only 18 percent oppose net neutrality, as the rest don't know what it is or had no opinion.
Technically, this doesn't contradict the official position of major cable companies like Comcast and Charter. These companies say they support the core net neutrality rules, while merely opposing the FCC's use of its common carrier authority under Title II of the Communications Act to enforce them. But the net neutrality rules imposed in 2015 depend on Title II because of a 2014 court decision that prevented the FCC from enforcing the rules without reclassifying ISPs as Title II common carriers.
Support for protecting consumers
The first slide in the NCTA survey results trumpets broad support for "light touch" regulation. But instead of signaling broad opposition to Title II, the wording of the question shows that Americans support an approach that's consistent with the one taken by the FCC's then-Democratic leadership in 2015 (and which the FCC's current Republican leadership wants to overturn).
The survey asked, "When it comes to the role of the federal government in regulating access to the Internet, which of the following comes closest to your view, even if none are exactly right?" Just 12 percent answered that "the government should have the ability to set specific prices, terms, and conditions for Internet access," while 53 percent said, "the government should have a light-touch approach to the Internet that allows regulators to monitor the marketplace and take action if consumers are harmed." The only other option people could choose was, "the government should not regulate the Internet at all."
The problem with the "ability to set specific prices" and "take action if consumers are harmed" survey answers is that both of them accurately describe the current federal system. The FCC does have the ability to set specific Internet prices, but it doesn't do so and has no intentions of doing so. The FCC's 2015 net neutrality order did not set specific prices for home and mobile Internet service but used Title II authority to let consumers complain about prices and practices that are unjust or unreasonable. In other words, the FCC's current approach is to "monitor the marketplace and take action if consumers are harmed," the approach supported by the majority of people in the cable survey.
NCTA spokesperson Brian Dietz defended the survey, claiming that the FCC actually "didn't forbear from price regulation." To prove his point, he linked to an article which notes that the "Commission declined to forbear from Sections 201 and 202, which prohibit 'unjust or unreasonable' charges, practices, and classifications, and which prohibit 'unjust or unreasonable discrimination.'"
But the same article points out that the FCC did "forbear from pre-existing tariffing requirements and its rules governing rate regulation," meaning the FCC did not impose rate regulation. The FCC uses Section 201 and 202 to take action if consumers are harmed, but has not "set specific prices, terms, and conditions for Internet access." While the Title II order enables a complaint system for consumers to object to unjust or unreasonable prices, we're not aware of any cable company being ordered to lower its prices as a result of that process. Even if companies were occasionally forced to lower prices in response to complaints, that would be consistent with the case-by-case system supported by the majority of people in the cable industry survey.
Fear of price regulation based on hypotheticals
NCTA's concerns about price regulation thus have nothing to do with the current FCC system. Instead, they are focused on what a hypothetical future FCC leadership might do. Dietz said that the NCTA is worried that "Any FCC can decide to use preemptive price reg[ulations] allowed by Title II. Just because [former Chairman Tom] Wheeler said he wouldn't, others can easily."
That's true, but that was also true before the 2015 decision to reclassify ISPs as common carriers.
Dietz argued that the FCC "couldn't use [price regulation] authority on broadband until it was reclassified to Title II in 2015." But the authority to use Title II and impose price regulation doesn't come from decisions made by the FCC. The authority to classify telecommunications companies as common carriers comes from Congress, via the Communications Act of 1934, and was upheld by a federal appeals court last year when the NCTA and others unsuccessfully sued the FCC to overturn the current net neutrality rules. The FCC's legal authority to reclassify Internet service however it wishes is exactly what current Chairman Ajit Pai is banking on in his proposal to undo the Title II classification.
Whether the FCC currently treats ISPs as common carriers or not doesn't change the fact that the FCC has the underlying authority to do so, and that authority also lets the FCC impose price regulation. The FCC can also reclassify ISPs as common carriers without imposing any price limits on Internet service, as it did in 2015. Having the Title II classification of ISPs on the books in advance could make it easier for a future FCC to impose price limits on broadband. But an FCC intent on using rate regulation could use its reclassification powers at any time it deems fit as long as it follows the appropriate process.
The FCC could even try to impose price caps on Internet service without using Title II. That's because of a 1996 addition to the Communications Act, authorized by a Republican-led Congress, that says the FCC may use "price cap regulation" to encourage broadband deployment.
None of this changes the fact that the FCC has not told cable companies what prices they are allowed to charge for home Internet service. One can oppose price regulation and support keeping the current system in place.
Pai and other net neutrality opponents claim that the rules are an overreaction to theoretical harms, rather than actual occurrences. Advocacy group Free Press has an answer for that, with this list of actions by the likes of Comcast, AT&T, and Verizon that either blocked or impeded access to certain online services.
Treating cable like a utility
The most convincing part of the cable survey for the anti-Title II side is that 51 percent of respondents said, "Internet access should not be considered a public utility regulated by the federal government." Only 33 percent said Internet access should be a regulated utility, and 16 percent didn't know or had no opinion. This came in response to the question, "As you may know, a public utility is an essential public service, such as electricity, water, or gas, that is regulated by government. Knowing this, which of the following do you agree with more, even if neither is exactly right?"
Pluralities of survey respondents also agreed that utility-style regulation for ISPs would "worsen tech innovation" and "decrease private sector tech investments."
But while the cable lobby argues that the FCC currently treats ISPs as utilities by virtue of the Title II classification, people answering these survey questions probably wouldn't see much similarity between the current state of cable company regulation and regulation of electricity, water, and gas service. Sure, the FCC could theoretically regulate cable Internet prices, but it doesn't, whereas the prices of utilities like electricity and gas are commonly set by the government in order to let utilities recover costs while protecting consumers from monopolistic pricing. Utilities are also generally required to serve everyone, whereas ISPs pick and choose where to go and sometimes demand tens or even hundreds of thousands of dollars from homeowners in exchange for extending their networks to unprofitable areas.
The FCC does have price caps for certain business broadband services, but last month the commission voted to eliminate those caps throughout much of the US. Those caps also applied only to traditional phone companies, like AT&T and Verizon, and not the cable companies represented by the NCTA.
Regardless of the NCTA's survey results, cable companies are almost certainly going to get what they want. The FCC has scheduled a vote for May 18 to start the process of undoing the Title II classification and net neutrality rules. The FCC will accept comments on the proposal until August 16 (or at least when the FCC's website is working), but Pai has already made it clear that he intends to reverse the Title II classification and is not committing to any rules against blocking, throttling, or paid prioritization.
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