Five Myths about Title II and the Internet
Myth #1: Title II is the foundation of the Internet.
Fact: Title II didn’t make an appearance on a significant part of the Internet until the Obama FCC’s Open Internet Order of 2015. Originally a network that connected low-speed teletype terminals to far-away supercomputers, the Internet now connects everything from temperature sensors and light bulbs to smartphones and massive data centers. The Internet excels at flexibility. Hence, it needs a regulatory regime that promotes innovation and progress rather than a rigid concept of correct behavior grounded in the historical norms of entirely different networks.
Myth #2: Title II Internet regulation is a battle between the people and the powerful.
Fact: No company exerts the kind of control over the Internet that the Bell System had over the telephone network of 1934 – when Title II was created – or the networks of 1996 when Title II was last revised. Control of the Internet is divided between search engines, social networks, video streaming services, wired ISPs and mobile networks. This benefits both ordinary people and deep-pocketed venture capitalists.
Myth #3: Without strong net neutrality regulations, Internet Service Providers will block Netflix, WhatsApp, and Skype to make us buy their rotten alternatives.
It’s been more than a decade since ISPs blocked lawful applications. Early experiments at blocking ended when networks became more powerful and ISPs more sensitive to marketplace effects and the court of public opinion. The key fact about attempts to create the appearance of net neutrality violations is that the incidents in question either never happened or were terminated without regulatory intervention.
Myth #4: Without Title II we can’t have real net neutrality.
Fact: The DC Circuit created a path to non-Title II net neutrality in its 2014 opinion in the case of Verizon v. FCC (page 50):
Given these principles, we concluded that the data roaming rule imposed no per se common carriage requirements because it left “substantial room for individualized bargaining and discrimination in terms.” Cellco, 700 F.3d at 548.
This approach allowed the FCC to evaluate data roaming agreements on a case-by-case basis in order to strike down any that were not reasonable. Isn’t this what net neutrality advocates want?
Myth #5: We need Title II because there’s no competition among ISPs.
Fact: The Wheeler FCC attempted to create the appearance of market concentration by redefining “broadband” to 25Mbps, a speed conveniently chosen to exclude solid services at 15 – 24 Mbps. Most Census Blocks have more than 3 services offering 10+ Mbps, not counting the two 15 Mbps satellite networks. The markets for Internet search, social networks, video streaming, and Internet retail are all more concentrated than broadband in terms of market share. The Internet promotes concentration, but more so in edge services than in infrastructure.