Over the past 24 hours, headlines from USA Today to the National Review have declared net neutrality officially dead. Fortunately, those stories are dead wrong – not that it truly matters, since the big day is at most a few weeks away.
Notwithstanding, as long as the media is going to fixate on all the tedious officialities of net neutrality’s gradual but still completely avoidable demise, reporters might as well get the details right. (If you’re interested in a lengthy explainer on how this process is unfolding, I’d recommend this explainer by Free Press Policy Director Matt Wood.)
The real big news Monday is far more encouraging for net neutrality supporters: INCOMPAS, a trade association representing many of the country’s smaller telcos – including internet service providers Sonic and Fatbeam – joined the impending lawsuit against the Federal Communications Commission (FCC) to halt the net neutrality repeal.
Monday was the deadline for petitioners to join the case, so INCOMPAS got in just under the wire. The Ninth Circuit was originally chosen to hear the case, but a motion was granted in March to consolidate the lawsuits in the DC Circuit, where two prior appeals involving net neutrality have been heard.
Last year, INCOMPAS filed a 95-page comment outlining the case for net neutrality, which offers arguments that contrast sharply with FCC Chairman Ajit Pai's myriad excuses for supplanting it. Repealing the 2015 order, INCOMPAS argued, would gift the country's biggest broadband providers the "incentives and tactics" necessary to thwart online competition.
"The American people do not want the internet to look more like cable, where prices rise, customer service falls, and gatekeepers control what you watch, read, and pay," said INCOMPAS CEO Chip Pickering.
Moreover, INCOMPAS has argued that content providers (also known as "edge providers") would be unfairly disadvantaged in the event that AT&T, Verizon, and other major telecoms are granted gatekeeper status over the internet. (In addition to numerous small telecos, INCOMPAS represents various large tech companies, including Microsoft, Twitter, and Amazon Prime.)
Though there's no shortage of examples of internet service providers violating net neutrality in recent years, INCOMPAS used a quaint literary metaphor to explain why providers had not been previously engaged in more "egregious activity to limit competition and consumer choice." (Pai often uses examples of internet companies thriving prior to the FCC's 2015 net neutrality rules to explain why he thinks they're unnecessary.)
Citing the 2005 Internet Policy Statement, in which the FCC emphasised it would use its authority to ensure "competition among network providers, application and service providers, and content providers," INCOMPAS wrote:
It's the dog that did not bark. The dog in the Sherlock Holmes mystery provided a critical clue when it did not bark because it knew who was walking through the house at night. So too, the broadband providers have not "barked" more because they have known that the Commission stood vigilant to guard against the dangers described forcefully in the 2005 Policy Statement.
Just as the Holmsian hound would have barked at a stranger, mountains of evidence demonstrate that the broadband providers have the incentive and ability, that is to say, the motivation and the power, to limit competition in the absence of established rules. A decision to ignore this evidence would constitute reversible error.
"Net neutrality has always been critical for small businesses and start-ups to compete in the internet age," Dane Jasper, CEO of Sonic, said in a statement. "When the FCC eliminated those protections, it opened the door for large, incumbent ISPs to use their gatekeeper position to put a stranglehold on innovation and competition."
Fatbeam CEO Gregory Green also chided the major broadband providers for having "erected roadblocks to competitive deployment for decades, seeking to commoditize congestion rather than build bigger, better networks of the future."
Added Green: "Investment from new competitive network builders and net neutrality go hand in hand. Open internet policies that foster streaming and edge growth give the little guy more market incentive to build bigger, faster networks."
With INCOMPAS joining as a petitioner Monday, the official deadline for intervenors -- third-parties who are not suing themselves but asserting their right to weigh in on the case, as the Internet Association did in January - has been extended to May 23, according to federal appellate and DC circuit rules.
Below is a copy of the comment INCOMPAS filed with FCC in July 2017: