Patrick Frey, who blogs and tweets under the pseudonym Patterico, picked an odd fight yesterday over what should have been a simple disagreement. In the process he made false statements about what I want to see in telecom/media policy.

First, though, here’s where we do agree: The FCC’s move to reclassify Internet service providers as common carriers could have negative consequences. If Frey posted that on Twitter, I’d retweet him in a heartbeat.

While I support the commission’s decision, have argued for it, and have publicly worried about the potential unintended consequences, I don’t assume these consequences are inevitable. Frey does. But to make his point, he resorted to tactics that surprised me, given my prior respect for his work.

He’s blogged about all this at, in a tendentiously titled post that extends his original false claim. I’m responding to the central points in that blog post, not the irrelevant personal stuff or the “nuance-free slogans and analogies” he barraged me (and his followers) with on Twitter, which once again demonstrates its unfitness for serious conversation. Read it and come back. I’ll wait.

For those of you who didn’t read his post, here’s how Frey picked the fight. A blog post by news industry analyst Ken Doctor about plunging single-copy sales of newspapers led me to tweet that by drastically hiking prices of single copies, newspapers had found a new way to commit suicide.

This led to Frey’s opening salvo:

.@dangillmor Final blow for newspapers: they increasingly rely on the Web, and people like you want the government regulating it. @kdoctor

— (@Patterico) March 14, 2015

There are only two rational ways to read this. 1. I want the government to regulate the Web, and by extension what people post on it. 2. I want government to regulate the Web, but I’m too dense to understand what that might lead to. From his later statements, I gather that he meant the second interpretation. Both are false (never mind conflating the Web and the Internet, which as you’ll see below he did correct). Since I write publicly about telecom policy, and since I’ve respected Frey (and said so in my book We the Media a decade ago), I was flabbergasted.

(I called his tweet a lie, and said I was surprised that he would say such a thing. As he has pointed out, a lie is a deliberate, knowing falsehood. Since I can’t read his mind, I’ve retracted that word. I’ll stick with “false” to describe what he wrote.)

Here’s the meat of Frey’s blog post (bold text in the original):

  • Newspapers are increasingly reliant on the Internet to communicate with their audience.
  • The FCC this year is assuming regulatory control over the Internet.

Seeing those two facts together should frighten all Americans. With the death of newsprint, the federal government (under the guise of Net Neutrality, which Gillmor supports) is putting regulatory control over the new printing press — the Internet — in the hands of the Federal Communications Commission.

Is the Internet the new printing press? Sure, and a lot more. Is the FCC assuming regulatory control over the Internet? It is asserting regulatory power over one (relatively) small part, in a small but crucial way. It is working to ensure that the people who create media and other services, using that printing press and other tools, are treated fairly by the cartel of corporate giants that has taken unprecedented control–over how what we create may (or even will) be seen by others who want to see it.

The promise of the Internet “network of networks” was in its radical decentralization. Innovation and true freedom of expression would originate at the edges of those networks, where we wouldn’t need anyone’s permission to innovate or speak because we were free of centralized control.

The corporate giants that control most of the on-ramps to the fabled information superhighway want the right to decide what bits of information get delivered at what speed and in what order, or if they’ll get delivered at all, to those of us requesting the information. And they insist they’d never, ever abuse that control. (They already have.)

Big Telecom doesn’t operate the 21st Century printing presses. You and I do. Big Telecom isn’t the Internet; it is part of the Internet. But it has become the antithesis of the Internet’s promise–a centralized choke point.

The FCC’s Title II decision recognizes the choke point for what it is, and attempts to mitigate the worst effects. The ruling says, essentially, that we–you and I, at the edges of the network of networks–should decide on our own priorities for what we access from digital networks. It says the centralized cartel shouldn’t make those decisions for us.

Frey hearkens back to the early days of the FCC and its subsequent control over broadcasting to frighten us with the specter of FCC Internet content regulation, citing the commission’s pernicious (we agree again!) regulation over broadcasters’ content through the decades. If there was ever a need for policing televised wardrobe malfunctions in an era of government-limited broadcast outlets–there was not, in my view–it ended when the Internet gave us, in theory, unlimited multidirectional channels of communications.

But Frey, citing a slew heavy-handed government threats and actions against broadcasters, predicts the same is in store for the Internet as a result of Title II reclassification. He’s saying, This is what governments do, and it’ll happen again. (He mistakenly says the FCC has turned the ISPs into utilities, when in fact they’ve been reclassified as “common carriers”–the difference is important and highly relevant in this debate.)

Frey’s argument is a bit like saying government regulations about auto safety, such as requiring seat belts, is just the first step toward the government deciding precisely where you can drive. I suppose that’s possible, but one doesn’t inevitably lead to the other.

Governments don’t always go too far. When they’re “of the people, by the people, for the people,” we have a say in what happens.

The nation’s founders had the right idea when they established freedom of speech, freedom of the press, freedom of assembly, freedom of religion and more in the First Amendment. America hasn’t always lived up to these ideals, which are always under attack from people and organizations who worry about too much freedom. But the FCC decision on net neutrality very much honors the founders’ intent.

The FCC has explicitly said it would apply forbearance (a key word in the legal and regulatory arena), making clear in the rules what it won’t do–which covers the parade of horribles even supporters of Title II fear. (Here’s a Q&A that explains the concept.) And never mind that the public is getting better at understanding what the Internet is and how it works–not to mention increasingly wary of centralized power and downright allergic to government control of what we can read or write.

There’s one bit of forbearance I wish the FCC hadn’t done, in what’s called “unbundling” of the last mile (to our homes and businesses). Given the monopoly/cartel nature of the staggeringly profitable ISP business we’d have been better off if the commission had required the ISPs, particularly the cable companies, to let other companies create ISPs on “their” lines. (Unbundling, by the way, has a track record in several other countries. It’s not the answer but it can help in the short run.

This is exactly what our oppressive government did in the early days of the public Internet. In the 1990s there were thousands of small ISPs competing for our business on wired phone lines. The phone companies were not permitted to discriminate against them, because they were common carriers. And the Internet took off in large part because there was vast, and valuable competition for our business, something the anti-net-neutrality forces never seem to remember.

On one other key point, Frey and I agree entirely, even if we’d undoubtedly get there by different routes: the best fix to this situation is competition. There is a small amount of competition now, but the overall American “broadband” marketplace is a parody of genuine capitalism.

The dominant ISPs got where they are because the marketplace was rigged in their favor. They built “their” networks on the backs of government-granted monopolies in the first place. Then they leveraged their built-in advantages–including cozy deals with various governments–to create a cartel that will be immensely difficult to dislodge, though we should keep trying.

Here’s how we could have genuine competition, or move closer to it:

  • Require monopoly/oligopoly businesses created through special favors to then make their facilities–lines, towers, etc.–available to competitors until such time as there’s actual competition for what they do;
  • Require communities to make their rights of way accessible to all competitors, which would help create the conditions for competition, though it wouldn’t undo the unfair advantages the cartel already possesses as a result of its monopoly days;
  • Forbid state governments from preventing municipalities from installing publicly owned broadband networks (the carriers have “persuaded” lots of state governments to enact competition-killing rules of this kind, and the FCC’s latest rules wisely pre-empt such laws);
  • Free up vastly more unregulated spectrum–ideally created from the airwaves we unconscionably gave to the national and local broadcasters–letting competition emerge there the way it did in wi-fi;
  • Promote, in that spectrum, the promising area of “smart radios,” recognizing that there is a spectrum “shortage” caused by “interference” largely because traditional radios have been so inefficient;
  • And make many other moves aimed at creating the conditions where genuine competition can emerge and thrive.

The chances that the telecoms and their owned-and-operated legislatures would allow actual competition are close to zero. If the opponents of net neutrality really believed in competition, they’d push for something like this. I’m not holding my breath.

Meanwhile, I’ll settle, with misgivings, for Title II. And, working with the enormous group of pro-net-neutrality folks who’ve demonstrated expertise and good will on this issue, I’ll do my best to see that it doesn’t boomerang on all of us. Fear-mongering, even if it’s well-intended, won’t help anyone.

(Note: I’ve updated this post with several small tweaks.)

24 thoughts on “A disagreement about Net control: rebutting Patterico’s falsehoods

  1. Perhaps the most unhappy outcome of this regulation will be to cement the big ISPs as the sole providers. Smaller players will have greatly increased compliance costs. We lost almost all the independent gas stations in the 1980’s through safety regulations that the majors all agreed to. What happens to the overbuilders like Covads or local ISPs who market and manage telco wires? They cannot afford to hire a roomful of lawyers like AT&T can.

  2. Perhaps the most unhappy outcome of this regulation will be to cement the big ISPs as the sole providers. Smaller players will have greatly increased compliance costs. We lost almost all the independent gas stations in the 1980’s through safety regulations that the majors all agreed to. What happens to the overbuilders like Covads or local ISPs who market and manage telco wires? They cannot afford to hire a roomful of lawyers like AT&T can.

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