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America's net neutrality rage hits academia

Corporate shill allegations spark furious response

By Kieren McCarthy, 3 Jul 2017

Special report In an extraordinary flurry of allegations, personal insults and legal threats, net neutrality has entered the world of academia.

At the heart of the row is a new paper in the International Journal of Communication (IJOC) that claims to act as a rebuttal to an earlier paper that has been repeatedly cited by the chairman of America's federal regulator, the FCC, as justification for tearing up existing net neutrality rules.

That new paper alleges that far from being an independent analysis, the original paper was commissioned by an advocacy group funded by the cable industry, that its authors have effectively acted for the cable industry for years, and that the claim at the heart of the paper – that there was no economic analysis behind the net neutrality rules – is bunkum.

When the authors contacted the other paper's authors, as well as the group behind funding the paper to put their claims to them for a response, they were understandably upset.

Within days, the editor of the IJOC received a slew of letters and legal threats telling him not to publish the paper due to its "false and misleading defamatory assertions" and claiming that it would "provide a basis for liability in the event of reckless publication."

Other letters flung the same dirt at the report's authors, raising questions about their funding, questioning specific claims in the papers, and alleging that they were compromised due to relationships with other groups that are pro-net neutrality.

Despite the not-so-subtle legal threats, the IJOC went ahead with publication, accompanied by no fewer than three responses from the aggrieved. Such was the intensity of argument that the IJOC also published it as a "feature" rather than an "article" and added a disclaimer that the paper did not reflect the IJOC's views.

Upshot

So far, the new paper has attracted nine responses, and the upshot – as with most things surrounding the case against net neutrality – is that the increasingly partisan nature of the net neutrality debate is forcing everyone in one of two camps, to the detriment of informed debate.

Most strikingly, the fact that the original paper The Curious Absence of Economic Analysis at the Federal Communications Commission: An Agency in Search of a Mission has been used by anti-net neutrality advocates and the chair of the Federal Communications Commission (FCC) Ajit Pai as evidence for why the Open Internet Order needs to be struck down, has pushed it into the anti camp and so opened up it up to critical attack.

We spoke with one of the authors of the original paper, Hal Singer, and he told us he never expected his paper to become part of the angry swirl around net neutrality.

Singer sits in the unwelcome middle of the net neutrality debate: not happy with the Title II classification that the Open Internet Order imposes on telcos but equally unhappy with the hands-off approach advocated by chair Pai (something Pai insists is merely "soft touch regulation").

Singer advocates for the neutral fact finder approach used by the FCC to adjudicate claims of discrimination by independent cable networks against vertically integrated cable operators. "I'm not in the Pai camp, I'm not in the Winseck camp," he says, referring to Dwayne Winseck who co-authored the new paper that attacks Singer's paper as the product of a cable industry's behind-the-scenes efforts.

Singer also believes that the common carriage aspect of Title II is useful but that the reality is that the 1932 law used to ground the current net neutrality rules is wildly out of date and so not fit for purpose. "The sheer amount that they had to forebear is effectively an admission that it is not the right fit," he told us, referring to the fact that the FCC effectively gutted the original law to attach it to telcos.

The intent of his original article, Singer argues, was to point out that the FCC does not use sufficient economics – and in particular cost-benefit analysis – to make decisions. In fact, when pressed on whether it had carried out a cost-benefit analysis in arriving at the Open Internet Order, the FCC at the time responded, correctly, that it didn’t have to.

Agency

That's because, unlike executive agencies under the control of the White House that are expected to do such analyses, the FCC is semi-autonomous. Singer says he was approached by CALinnovates and asked if he would co-author a piece digging into the lack of economic analysis at the FCC. And being an economist, he said yes.

"Our article… traces the history of economic analysis at the FCC from its peak in the 1990s to its virtual disappearance in recent history," reads the response from Singer and co-authors Gerald Faulhaber and Augustus Urschel to the new IJOC paper attacking their work. It continues: "What our article does not do is to comment, criticize, or in any way analyze the substantive issues subject to these orders (e.g., network neutrality)."

But, of course, if it was just an academic paper arguing for better economics at the FCC, there wouldn’t have been the explosion we've seen with this new paper.

Singer admits that the white paper originally contained a large section on net neutrality and in particular what the FCC's then chief economist Tim Brennan said was an "economics-free zone" when it came to the Open Internet Order.

Brennan has repeatedly expressed [PDF] his "regret and chagrin" over a comment that he says was "part of a self-deprecating joke I told to defuse tensions at a small but contentious conference on the FCC’s Open Internet Order" but which has become a constant refrain and battering ram used by anti-net neutrality advocates.

However, the paper of the white paper dealing with net neutrality was pulled out of Singer's paper before it was published in the IJOC, leaving it largely about the lack of economic analysis at the FCC.

Funder

The new IJOC paper that has caused the current wave of furious denunciations implicitly acknowledges as much and is largely focused on what it sees as the pernicious influence of Big Cable: in this case through CALinnovates.

Winseck and his co-author Jefferson Pooley describe CALinnovates as an "advocacy group with deep ties to the telecommunications industry." And they note that a reference to the fact that the paper was funded by CALinnovates was removed before publication (why and how that happened remains unresolved).

CALinnovates describes itself as a "non-partisan coalition of tech companies, founders, funders and non-profits determined to make the new economy a reality." But among its members – almost all of whom you will never have heard of, like Drumbi, Famingo, Speek – sits an unusual giant: AT&T.

CALinnovates has refused to say how much of its revenue comes from just AT&T but its appearance in a member list of small non-profits for an organization that then commissions a paper that attacks the FCC's Open Internet Order certainly looks unusual.

The fact that this relatively obscure paper is then repeatedly cited by the chair of a federal regulator and even used to justify the creation of a new FCC Office of Economics and Data (OED) makes it looks all the more suspicious.

Winseck and Pooley decide to call it: "This, we contend, is a case of information laundering."

And the truth is that there is good reason to suspect the cable industry is behind this for the simple reason that it does it repeatedly. The most recent blatant example came in May when the metadata of a "toolkit" provided to House Republicans by Republican Party headquarters to defend the FCC's decision to tear up net neutrality revealed that it has actually been written by the cable lobby.

The new IJOC paper is effectively an investigative dig into CALinnovates, looking at how deep its connections to AT&T go, trying to prove beyond reasonable doubt that something unusual is going on.

Hmmm

And in that respect, the paper is successful: it highlights personnel crossovers, position papers and meetings that closely tie CALinnovates and AT&T, particularly when it comes to the issue of net neutrality.

It also points out that CALinnovates' budget nearly tripled in a single year – 2014 – and that others observed how what was a Silicon Valley advocacy group had suddenly started taking a strong line against Title II classification – something that the valley is largely in favor of.

In its response to the paper attacking it, CALinnovates takes what has become the cable industry's new mantra – that it supports net neutrality but not Title II classification. "CALinnovates has long advocated for a Third Way approach to solving this decade long battle royale," it says. "From the beginning, CALinnovates has supported the principles of net neutrality."

But that is also a reasonable position. As is its point that it's not in anyone's interests to have "the ongoing uncertainty of the regulation based on the whims of who is the FCC chairman at the time."

Of course the big reason why the cable industry is sounding much more reasonable in recent months is because it can afford to be. FCC chair Pai has made it 100 per cent clear that he intends to scrap the Open Internet Order - regardless of what the FCC's own public process says – and even roll back further. So Big Cable can look as generous as it likes knowing that what it wants will likely happen anyway.

CALinnovates does not come out smelling neutral however. It inserts an odd series of innuendos at the end of its formal response. "Perhaps we’ll never know what motivated Winseck and Pooley to form such an odd-couple team to attempt to topple, or at least sideline, a California-based technology advocacy coalition from the high stakes net neutrality debate through personal and professional attacks," it reads. "Our research and work stands up because we back it with data, instead of personal attacks - something perhaps Winseck and Pooley should learn to mimic."

In the letters it sent to the IJOC editor claiming factual inaccuracies, CALinnovates made claims that its executive director had never met with FCC representatives and that it did not support anti-net neutrality positions.

But, Winseck and Pooley went to the trouble of digging out their research that showed in the first case that CALinnovates itself had reported how its lobbyists met with FCC officials, and in the second how its formal responses to the FCC showed precisely what they claimed: that it kept supporting positions that went against net neutrality.

And so: where are we?

In short, the new paper tears off the lid to what everyone knows is going on behind the scenes: careful cable funding of third parties to push a position and then careful pointing of others to that position as a way of taking control of the debate.

That Winseck and Pooley decided to do so aggressively has sparked an equally aggressively response. And those sat in the middle are uncomfortable at efforts to push or pull them into one of two camps. Does it matter? Sadly, just like the split in the wider United States, yes it does.

"The stakes could not be higher," the paper argues, "as Pai sprints to reverse the most prominent accomplishments of the Obama-era FCC."

It continues: "The IJoC paper, and its predecessors, are a touchstone for op-eds across think tanks and their blogs as well as the business and popular press. Pai has positioned the papers as a cornerstone of his rush to roll back FCC regulations. The authors’ appeal to the authority of economics, as we document in some detail, cloaks a full-throated political project designed to remake communications markets along the lines that incumbent telecommunications, broadband Internet, and media industries have desired all along."

And that, sadly, looks like an entirely true statement. ®

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