Harry Reid, Title II, and The Rashomon Effect

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Rashomon, for those readers who aren’t big film buffs, is a 1950’s Japanese masterpiece about a rape and murder mystery told through four different points of view. The film’s brilliant technique, now commonplace in modern narratives, presents different witnesses’ contradictory, self-serving accounts of the crimes with the audience left to sort out the truth. All the spin in policy debates these days can make interpreting current events feel like a similar exercise, with some advocates being all too eager to seize on and promote a particular interpretation, no matter how strained it may be. Case in point: Harry Reid’s recent letter to David Segal of Demand Progress on net neutrality.

Appreciating the subtleties of Reid’s letter requires some context. The most recent iteration of the now decade-long debate over net neutrality has actually seen widespread agreement over the general principles of the open Internet. All the major carriers insist they have no interest blocking or degrading traffic or splitting up websites into tiers or packages. The real controversy is over the appropriate jurisdictional framework for the FCC to build its rules on. There are two possible starting points: either (1) section 706 of the Communications Act or (2) a new classification of broadband under Title II.

Which way the FCC chooses to go has profound implications for the way Internet infrastructure and web services will be regulated. As far as their effectiveness in policing net neutrality violations, the two aren’t all that dissimilar – under section 706 the FCC has broad authority to prohibit any “commercially unreasonable” conduct as compared to Title II’s prohibition on “unjust or unreasonable” discrimination. The big difference is what comes along with each of these frameworks: section 706 is surgical, allowing the FCC to only step in where necessary, whereas Title II brings full weight of the FCC’s regulatory authority designed for the old monopoly phone system, delaying any enforceable open Internet rules, slowing innovation and investment in potentially both infrastructure and the services that ride on top, all for very little gain.

Being the Majority Leader in the Senate, Reid’s voice carries some weight. It is understandable that Title II radicals would want to read his letter in the best light for their quixotic cause, but a plain reading of his words make clear this is no win for Title II. Seriously, read the letter linked above (it’s only 3 paragraphs) and ask yourself if it sounds like a ringing endorsement of Title II. If anything, his letter backs the FCC’s proposal to move forward with strong net neutrality rules under Section 706 of the Communications Act.

In the opening paragraph of the letter, Reid explicitly acknowledges the ask Segal made of him: to support Title II classification of broadband. Yet he very clearly declines the opportunity. So what did Reid support? He says he “support[s] net neutrality” (who doesn’t?) and will “protect any Open Internet rules promulgated by the FCC against the inevitable Republican attack.” Title II advocates have somehow twisted this into “Harry Reid would support Title II,” claiming what is clearly a rejection for a political win. See, for example, Marvin Ammori’s take, here.

The fact is that FCC Chairman Wheeler is facing pressure for reclassifying from the masses drummed up by folks like Ammori and Segal. If anything, Reid is giving Wheeler the cover for moving forward with section 706 as the jurisdictional hook for open Internet rules. Explicitly declining to support Title II regulations but instead supporting any net neutrality rules seems much more like “cover” for relying on Section 706 than anything else.

Indeed, Reid goes on to explain that he wants to “ensure that priority arrangements that harm consumers are prohibited.” The modifier “that harm consumers” acknowledges that there are indeed priority arrangements that are pro-consumer. This fact, that some priority arrangements will advance innovation for consumer’s benefit, is a key reason to support a case-by-case approach determining what is and what is not “commercially reasonable” under section 706. Such an approach allows us to find the line of what will advance innovation without harming consumers in a much more subtle and accurate fashion than attempting a proscriptive ban under Title II.

All this parsing of text may seem pedantic, like splitting hairs. But the point isn’t so much that Reid actually supports section 706 over Title II (though I, for one, am convinced of that reading). The point is how only one (particularly narrow) interpretation of Reid’s letter has been picked up and circulated by Title II supporters and the media. Somehow Bloomberg ran with “[t]he pledge gives . . . political cover to regulate Web services like a utility” – a misinterpretation that should make everyone from Google to the garage-based app developer shudder. Sam Gustin at Vice, like Bob’s Country Bunker of Blues Brothers fame that plays both kinds of music, “country and western,” was able to talk with both Demand Progress and Free Press, concluding that Reid “has given the Federal Communications Commission a much-needed political boost” towards Title II.

Of course, the problem of over-simplification and one-sided interpretation is persistent across many policy debates, but it has been particularly bad in the recent net neutrality fracas. This whole debate has been watered down to catch-phrases like “fast-lanes and slow-lanes” without any real commitment to how this complex technology actually works. The debate is motivated almost purely by abstract political cries and demagoguery instead of honest, rigorous concern for what is truly best for consumers and communications networks. Indeed, much of the media has fallen hook, line, and sinker for the notion that Title II is the only way to get “real” net neutrality rules and that the FCC is actively promoting paid-prioritization – don’t even bother asking what they mean by prioritization.

It appears these exact same tactics are being deployed by Title II advocates with regards to President Obama’s recent comments on net neutrality. Free Press and the like have done their best to paint 706 as somehow anti-net neutrality and Title II as the only “real” net neutrality and unfortunately much of the popular media has taken up this view. But just because they have convinced John Oliver does not mean it is established fact that Title II is the only way to get strong net neutrality rules that protect the open Internet. Everyone (Wheeler included) supports an open Internet whereby, in Obama’s words, the “next Google or the next Facebook can succeed.” There is no way such a statement can be read as an endorsement of the extreme step to Title II. Vague statements in support of the open Internet have no bearing on the jurisdictional hook the FCC should use.

This should be a debate fundamentally about the economic and technological facts, not about twisting people’s words into political cover for your own abstract idealism.

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About the author

Doug Brake is a Telecommunications Policy Analyst with the Information Technology and Innovation Foundation. He specializes in broadband policy, wireless enforcement, and spectrum sharing mechanisms. He previously served as a research assistant at the Silicon Flatirons Center at the University of Colorado, where he sought to improve policy surrounding wireless enforcement, interference limits and gigabit network deployment. Doug holds a law degree from the University of Colorado Law School and a Bachelor’s in English Literature and Philosophy from Macalester College.