As to harms akin to those such as interference with file- sharing, the Commission observes that commenters could point “only to a handful of incidents that purportedly affected Internet openness, while ignoring the two decades of flourishing innovation that preceded the Title II Order.” 2018 Order ¶ 110; see also id. ¶ 116. The colorful example of difficulties with downloading the King James Bible arose from Comcast’s “throttling of BitTorrent, a peer-to-peer networking protocol,” id. ¶ 112, which had nothing in particular to do with the Bible, see J.A. 2429 n.198, and which Petitioners do not suggest is of a type likely to recur. Further, Petitioners do nothing to refute the agency’s claim that “since 2008, few tangible threats to the openness of the Internet have arisen.” 2018 Order ¶ 113; see id. ¶¶ 111–114 (describing examples of similar conduct).

Face-Saving 101: Stretching Definitions

Nevertheless, long-time advocates of net neutrality regulations under Title II of the Communications Act insist that the absence of such regulations is a continuing threat to the openness of the Internet. Lindsay Stern works this beat for the public interest lobby group Public Knowledge. Her methods are instructive to any advocate stuck defending an indefensible position.

One of Stern’s tactics is to simply broaden the definition of net neutrality so that things that have nothing to do with illegitimate blocking, throttling, or collusion fall under its umbrella. Hence, privacy problems become net neutrality issues in the Public Knowledge analysis:

Consumers’ real-time location data originating from cell phone providers, including T-Mobile, AT&T, and Sprint, is being sold to bounty hunters and others. Domestic abusers have used the easy availability of this geolocation data to stalk current and former partners. This data is also being resold on the black market. According to these wireless companies, this use of data goes against the company’s policies, but when net neutrality rules were repealed, so too was the FCC’s authority to regulate broadband privacy.

The facts of the case are not as Stern represents (permission to access location data is given to bail bondsmen as a condition of bail), but the connection of non-net neutrality issues to Title II is the standout here. Many critics of the Markey approach to net neutrality profess to being in favor of targeted legislation directing the FCC to protect Internet openness as long as it doesn’t drag Title II along.

The inability of some lawmakers to distinguish openness from Title II common carriage is a major source of friction. But even with Title II, the FCC has been forbidden by Congress from creating privacy rules that are unfair to ISPs by comparison with the standards that govern Google, Facebook, and similar firms that collect and monetize personal data as their principal revenue source.

Stern makes a similar complaint about rural ISP Frontier charging fees to consumers that use their own home routers, but this has nothing to do with net neutrality either.

Face-Saving 102: Relying on Dubious Facts

Another tactic to avoid the conclusion that your cause is obsolete is to manufacture alternative facts about its prevalence. Stern turns to the very thin research of David Choffnes to charge that Sprint throttles video calls through Skype.

Unfortunately for her, Choffnes only claimed to have seen throttling on 35% of Skype calls through Sprint. Given that Choffnes’ platform collects data from mobile phones and mobile data rates are variable depending on signal quality, this finding can easily be explained by Sprint’s spotty coverage. The Choffnes dataset is underpowered, so he has no business making this claim in the first place.

As a general matter, reducing the resolution of video moving over mobile networks falls under the network management exception in Title II regulations, so it’s not really a net neutrality violation in any case.

Face-Saving 103: Echoing Sensational Claims

Pretty much every argument for Title II net neutrality made in the last two years includes a complaint about Verizon throttling the Santa Clara County fire department during California’s Mendocino Complex forest fire in 2018. Stern dutifully links to a blog post complaining about this incident.

The facts of the case are not actually on the side of the campaigners: Santa Clara bought a limited data plan for its fire fighters, and Verizon throttled them when they exceeded contractual limits. We’re accustomed to complaining about ISPs that claim limited plans are unlimited, but what we have here is a case of a user complaining that a plainly limited plan is not unlimited.

In the face of bad publicity, Verizon adopted a policy of making all first responder data plans unlimited, even when sold at the lower, limited data price:

Regardless of the plan emergency responders choose, we have a practice to remove data speed restrictions when contacted in emergency situations. We have done that many times, including for emergency personnel responding to these tragic fires. In this situation, we should have lifted the speed restriction when our customer reached out to us. This was a customer support mistake. We are reviewing the situation and will fix any issues going forward.

The Power of the Press

Nice, but this never had anything to do with net neutrality. As with location privacy and modem fees, the issue at the heart of the firefighter incident is the power of the FCC to restrict practices that garner press attention while not being explicitly unlawful. Advocates want to enable to the FCC to enact face-saving regulations when it has failed to consider potential problems before they occur.

The advocates fail to realize that even the largest and most powerful companies are averse to bad publicity. They are even more intimidated by it than small companies because of the impact news has on their share prices. Verizon caved to Santa Clara County while it was in the right because it didn’t want to be skewered by the press.

Net neutrality is an odd issue because it correctly identifies some problems that do take place on the Internet – blocking, throttling, and leveraging platform dominance – while attributing them to the wrong parties. In the next post, we’ll look at the real offenders limiting the Internet’s openness.

[Note: updated December 11 for clarity and grammar.]