Terrified Of Losing In Court, ISPs (With Senator John Kennedy's Help) Push Hard For A Fake Net Neutrality Law

from the pretending-to-help dept

ISPs are worried that the FCC's assault on net neutrality won't hold up in the face of court challenge. And they should be.

By law, the FCC has to prove that the broadband market changed substantially enough in just a few years to warrant such a severe reversal of popular policy. And the numerous lawsuits headed the FCC's direction (including one by nearly half the states in the union) will also take aim at all of the shady and bizarre behaviors by the FCC during its ham-fisted repeal, from making up a DDOS attack to try and downplay the John Oliver effect, to blocking a law enforcement investigation into the rampant fraud and identity theft that occurred during the public comment period.

With the FCC repeal on unsteady legal ground, ISPs have a back up plan for in case the FCC and its mega-ISP BFFs lose in court: bogus net neutrality legislation.

Last fall, AT&T-favorite Masha Blackburn introduced one such bill in the House dubbed the "Open Internet Preservation Act." While the bill's stated purpose was to reach "compromise" and "put the net neutrality debate to bed," the bill's real intent is notably more nefarious. While the bill would ban behaviors ISPs had no real interest in (like the outright blocking of websites), it contained numerous loopholes that allowed anti-competitive behavior across a wide variety of fronts, from zero rating tactics that exempt an ISPs own content from usage caps, to interconnection shenanigans or anti-competitive paid prioritization.

Basically, it's a net neutrality law in name only, ghost written by the broadband industry. And its real purpose is three fold. One, it would pre-empt the 25 (and counting) state efforts to impose real net neutrality rules in the wake of federal apathy. It would also prevent any future FCC or Congress from passing real, tough federal rules should the FCC repeal succeed in court. And finally it would even pre-empt the FCC's 2015 net neutrality rules from being restored should ISPs and the FCC lose in the major court battle to come.

This week the broadband industry pushed its plan a little harder, prompting Louisiana Senator John Kennedy to unveil a companion version of the bill in the Senate. The bill is a mirror copy of Blackburn's HR 4682 in the House, and again, suffers from massive loopholes that allow all manner of anti-competitive behavior. That includes letting companies engage in paid prioritization deals, allowing companies like ESPN to buy a distinct competitive advantage over smaller content creators, startups and non-profits (most Techdirt readers should understand how that's a really, really bad idea).

Having covered this sector for the better part of my adult life, I can assure you the bill Blackburn and Kennedy are pushing was ghost written by AT&T, Verizon, and Comcast lawyers and lobbyists. So it's amusing to see Kennedy try to pretend in his press release for the bill that he's somehow courageously standing up to telecom monopolies:

"Some cable companies and content providers aren’t going to be happy with this bill because it prohibits them from blocking and throttling web content. They won’t be able to micromanage your web surfing or punish you for downloading 50 movies each month. This bill strikes a compromise that benefits the consumer,” said Sen. Kennedy."

Except it does nothing of the sort. The bill still allows ISPs to abuse a lack of competition by imposing arbitrary and unnecessary usage caps and overage fees. A system that not only makes broadband (and streaming video) more expensive, but allows ISPs to give their own content a leg up via zero rating. Calling a ghost-written industry bill a "compromise" is like calling a punch to the nose "healthy negotiations."

As has traditionally been the case with ISP allies pushing garbage legislation, Kennedy then tries to insist that anybody that refuses to support his industry-favored bill isn't "serious" about protecting net neutrality:

"If the Democrats are serious about this issue and finding a permanent solution, then they should come to the table and work with me and Rep. Blackburn on these bills. Does this bill resolve every issue in the net neutrality debate? No, it doesn’t. It's not a silver bullet. But it's a good start."

But it's not a good start, either. It's always worth repeating that net neutrality isn't a "partisan" problem, it's just framed that way by ISP lobbyists to sow division and stall progress on meaningful rules. It's disingenuous to pretend this is an above-board effort to compromise when the bill's real purpose is to prevent real rules from taking root. This is an AT&T and Comcast-backed policy play, and neither they nor their Congressional marionettes will allow changes to this legislation that could possibly prevent these companies from abusing the lack of broadband competition for further anti-competitive financial gain (the only thing this has ever been about).

Fortunately most net neutrality advocates in Congress seem to see these bills for what they are, and have steered clear. But as the telecom industry's worries over losing in court grow, you're going to see a growing drumbeat of farmed support for a "legislative compromise" that will be anything but. The best chance for restoring net neutrality rests with the courts. Failing that, it rests with voting out ISP lackeys in the midterms and thereafter, replacing them with lawmakers that actually respect the will of the public and the bipartisan quest for a healthy, competitive internet.

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Filed Under: congress, fake laws, fcc, john kennedy, net neutrality