 Well, okay. Okay. All right, whatever. We're starting. Hello. Let's start over. By the way, in case you're wondering why we always do this to tape and not live, it's because I can't say that hello without laughing almost every time. All right. Ready? Yes. Hello, and welcome to the Vergecast, the flagship podcast of the Verge.biz. But here's what I'm going to tell you. This is a completely renegade episode of the Vergecast. Our producer, Andrew Marino, is not here. We are live, foolishly, on Hangouts on YouTube, which may or may not be working. And there's a live audience here chatting at us. But I am at my parents' house in Wisconsin. Hi, Dieter, where are you? I'm in a little town called Magnolia, Arkansas, which is a lovely town. And it has internet. Interestingly enough, I think it's the only internet option here, is this meh internet. Yeah, that's about right. I also have meh internet. That's the only option at my parents' house here in Racine, Wisconsin. Paul, where are you? I am at the New York office, and I'm literally the only person here other than some guy who's going around cleaning stuff. How's the internet in your office? Well, that's exactly why I'm here. When I am at home, I think my router is misconfigured. And whenever, especially Google Hangouts is the worst. It just chokes and it just sits there and it doesn't work for a little while. So as you might be guessing, as you may have surmised from our internet banter, we're here emergency renegade broadcast for one reason, which is that the HomePod has been delayed. None of us know why. We're bereft. We're homepobless. We're emergency HomePodcast. Oh, you do? See, this is why we don't do a video show because now there's going to be props. Look at this. Funny prop. Everybody laughs. You have to describe it for the audio listeners. I have like a 2004 product called HomePod by a company called Macsense. It's basically a HomePod. It's like an internet radio thing. All right, Paul, put the HomePod down. No one wants your 2004 internet radio here. All right, but here's why we're actually doing it. On Wednesday, which is the day before Thanksgiving, we're recording this on the blackest of Black Fridays. On Wednesday, Ajit Pai and the FCC put out their proposed order to completely rescind all net neutrality rules in the United States. So Tom Wheeler, the former chairman of the FCC, in 2015 reclassified internet service, broadband service as a Title II common carrier service, which let him put rules on it, like no blocking, no locking, no paid prioritization, no throttling, transparency rules. Ajit Pai and the Republicans thought this was a terrible idea. They thought it would reduce broadband investment. Pai has been- And the Republican? Oh yeah, okay, I'm with you. Yes, you're gone. He's a Republican. What are you going to do? Pai became the chairman of the FCC when Trump became president. He has spent, I would say, the past year making his case that investment has been lowered. He has not, and I think this is an important point, he has not taken any interviews with anyone who disagrees with him. He's only insisted that he's right. I think this is a point I want to come back to a whole lot as we talk about this on this broadcast. And he put out his notice to proposed rulemaking a few months ago, which we read and reacted to, and he put out his proposed order on Wednesday. There's going to be a vote. He's pushing a vote on December 14th. So he's all about like, look, I put out the rules. The public gets to see them. That's not what Tom Wheeler did, but he put them out the day before Thanksgiving and he's holding a vote in two weeks. So it's like six and one half of the other, right? Yeah. People are mad. I'm mad. Dieter, I think you're mad. Paul, probably not so mad. I'm glad. Paul's glad. But people are right now today protesting at Verizon stores. They spent all day yesterday protesting. The battleforthenet.com is running huge call-in campaigns. We're writing posts on the site. And because we talk about the virtual cast so much, Paul said to me and Dieter, why don't we have an emergency rogue session? So everyone else is on vacation, except for the poor people covering Black Friday deals on the verge. And we are basically at our parents' houses, except for Paul who's in the office. The verge is my parent. Do an emergency session. So here's what I will start with. And this is the important thing. Up until now. Man, there's so much, hang on, hang on. Just, I want to point out that Neal's like lightning fast overview, it lies over like a million points that we would have previously spent the entire verge cast on. Yeah. Like a million points. There's just so much history and pain and sorrow and like actually very interesting debates that we have had that are embedded in that little story that Neal I told. And so if you see us pause and have a well of feelings during this podcast, it's because like, oh man, you just said that thing. I could talk for an hour about that, but I have to shut up now. So I just want to point that out. There's a lot. So I think, I mean, this is just long history. This is, you know, in 21, I'll start with the main thing, which is we now- With the railroads. Dude, sorry. No, the main thing is we now have a document from Pi, a legal document in which he makes his legal argument. Yeah. We have to have like a moral debate about this, right? We're not having a, how do we think the internet should be regulated? We have- Guess what we're going to have. I know, but there's like a foundation under it and there's an argument under it that we can, I can at least refer to because I've opened it. I'll Slack it to you guys. But it's here, right? And so it, I can just read you. There's like a summary over the top, right? So it says, this is the fact sheet, document number 17-108. Over 20 years ago, President Clinton and Republican Congress established a policy in the United States to preserve the vibrant and competitive free market that presently exists for the unfettered by state or regulation, federal state regulation. That's great. That's a great line. And then it's, you know, it goes on to say, this declaratory ruling report in order would return to the bipartisan consensus on light touch regulation, ending utility style regulation of the internet, promote future innovation and investment and more investment in digital infrastructure will create jobs, increase competition and lead to better, faster, cheaper internet access for all Americans, especially those in rural and low income areas. So that's- Okay. Right, like that is Pi's like moral argument and he's got all this stuff he wants to do. So the stuff he wants to do, he wants to restore the classification of broadband internet access service as an information service, which is, it's a lot. Okay. What's happening? I just breathe in just like- Just taking a couple deep breaths. Yeah. He wants to reinstate the private mobile service classification of mobile broadband internet access service. This is, these two work together in a particularly hilarious legal way. So I'm just gonna explain the information service thing. So right now the internet under net neutrality is classified as a telecommunication service. Yeah. The definition of that is a telecommunication service provides point to point connections without any additional layers over the top. An information service, which is what the courts and the FCC called the internet before is like, you get additional things. So like think about America online in the 90s. You would dial into America online. It would present you an interface. That interface would have lots of bits and pieces, like an email client and forums and like AOL shopping or whatever. And then you could like take a right turn out of that interface onto the main internet. That's an information service. Does that have anything to do with the common carrier designation? So if as an information service, it's title one, which is not a common carrier. As a telecommunication service, it's title two, which makes it a common carrier. So they're saying America online under that definition in like in that way of AOL, where you would dial into an AOL server and then it would like mediate everything and present you with applications and whatever is an information service. And what I have always thought of as broadband, which is I have a cable modem, I plug my wifi router into it and I just use a web browser. That has been classified as a telecommunication service for the past two years. Paya is now classifying that as an information service. And his argument for that, his like legal argument for that is based on the fact that internet service providers, this is true, this is his argument. They provide DNS servers and caching equipment. And that is equivalent to AOL chat in like user groups in AOL shopping. Like, I'm not kidding, but that's his argument that those things are information services that mediate your internet experience. And you might get an email client from your broadband provider, or you might get like a custom web browser or any of the other garbage that you don't actually want. And because of that, it's information service. This is literally his argument in this document. I mean, if I wanted to actually start an information, like a more modern equivalent, not AOL might be what? Like the Bloomberg terminal? Like that to me sounds like an information service. You are free to do whatever the hell you want on that information service. So I'm gonna pay you to get access to the news that you provide in the terminal. I will just do it. Everything will be fine. But nobody does that on the internet. And so this idea that was DNS and caching counts as information service, it's like, no, no, it doesn't. Right? Like I'm trying to approach the argument on like his terms. If he's setting the rules of the debate and the rules are that counts as a bespoke, I am directly giving you a thing, information service and not a telecommunication service. I don't know, like that seems odd to me. That seems like a fig leaf. It seems like not true at all. But if we are going to accept the argument on his terms, they have a case to me that a caching server is equivalent to AOL online or CopyServe or the Bloomberg terminal or whatever. So that 100% the argument. And so like, when I say like, there's a document here that we can refer to, the argument you just made is referred to in the document. Right? I mean, this was an argument that happened. There was a court case called Brand X. And Brand X argued that it was an information service and the FCC already wasn't Brand X won. All that's fine. But the point here is paragraph 29, we begin by evaluating the information service definition and conclude that it encompasses broadband internet access service. Of course you do. But the commission has looked to dictionary definitions and found the term capability to be broad and expansive, including the potential ability and the capacity to be used, treated and developed for a particular surface. Wait, wait, wait, they pulled high school freshmen like term paper shit on this thing? We looked it up at the dictionary? Sure did. Because broadband internet access service necessarily has the capacity or potential ability to be used to engage in the access and the activities within the information service definition, which are generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications. We concluded it's best understood to have those capabilities. So this is about as wacky of a legal argument as it gets. They have this word, they can define the word, as they're saying, as expansively as they want. It has nothing to do with your experience using the internet. They've just defined it as, can you generate, acquire, store, transform, process, retrieve, utilize, or make available information via telecommunications? Well, that's an information service. So we'll just stick broadband internet under that. And they go on to say, the record reflects the fundamental purposes of broadband internet access service are for generating and making available information, for example, through social media and file sharing, which is not what you do with what you get from your internet service provider, but that's what they're saying you do. So that's the first piece. It is the foundation upon which this entire argument rests. Is the internet a telecommunication service, broadband internet access from your provider? Is it a telecommunication service or an information service? And all the stuff that we will talk about, competition and whether you have one provider or two, all of that comes down to what do we do once we, how do we define it once we know what competition is like? Does that make any sense? Yeah, absolutely. Sure. One of Pi's points is that, this is how broadband providers were originally classified. So 2015 was the anomaly to move it to telecommunications and we're just reverting back to what the internet always was. So that is his argument, but it is not, I don't think it's backed up because for the longest time, the way people got on the internet was with dial up modems. And so you have to do the mental exercise of separating out the phone line, which was always a title two common carrier service. So your phone company could not restrict or throttle whatever was happening on your phone line. And then you had ISPs. And when, so here in literally my parents' house, which is the first place I ever got on the internet, our phone company at that time was called Ameritech. You might guess that it is now part of AT&T. It's all things inevitably are, but our phone company at that time was called Ameritech. I had, there was like 15 different little ISPs in Racine, Wisconsin, right? I actually worked at one of them. It was called core.net. I was like in middle school. And my job was to go and reset the Supra V.92 modems every day, cause they would all crash. So I would walk into a room and like reset 200 modems. That was one competitor. You could get internet access by calling Ameritech's bank of modems. You could call AOL's bank of modems. You could call prodigies bank of modems. And Ameritech running the line couldn't stop you, right? They couldn't say you can only call Ameritech to get internet access. So that allowed competition to flourish because Ameritech which controlled the title two phone line wasn't allowed to tell you who you could call. Simple. So there was like this huge range of ISP providers. The ISP providers at that time, the internet was new. They're running dial up modem. They were doing all kinds of stuff to make the internet work better. And they were competing and the FCC was like, we're gonna leave that alone because fundamentally it's title two on the phone line. Does that make any sense, Paul? So like there's an argument to be had about when the information service classification showed up and the opposition to PI would say it showed up with the Brand X case when the court made an affirmative decision that the internet was title one, right? So there's this weird period where like, net neutrality performance say we got it wrong, right? And so then we fixed it because the early part of the internet that everyone talks about where it was like this explosion of providers and service and there was like free internet providers that showed you ads and blah, blah, blah, blah, blah. The backbone of that was title two phone lines. And so now I think you can get to a place where you say, okay, well the backbone because I didn't have a lot of phone company providers, the backbone of that is now broadband providers cause I only have one broadband provider in this house in Wisconsin. And I should be able to go to all these other competing services. But you can't do that. Like that's the thing is when, when you had a bunch of different ISPs all going over the phone line, you could pick one and we don't have that now. And so we have to, you know, the provider and the service provider are collapsed into the same thing, the broadband provider. It's like, look at cell service in like the UK. Like you can pick from a bunch of different providers but they'll kind of use the same backhaul as my understanding. It's all like, you can switch, right? Oh, if you want to go down that rabbit hole. So in many, well, I've been ready to talk about this for two days. So in like many European countries, the UK is one. I think the Netherlands is another. They have what's called local loop unbundling which is super boring, but they, there's one set of fiber to everybody's home. And anybody can lease that fiber and start an internet company because there's tons of capacity. So people in the UK can generally pick between like 45 broadband providers. In some countries in Europe, there's no, there's not like a lot of, you know, the EU has net neutrality rules but the countries themselves allow different things to happen because you have so many providers to choose from that you can switch. That's where the competition piece of this comes in. So there's a ton of like, you have earth links and AOLs, you have all the ISPs like you had in the dial up days, but you have a government granted monopoly or government owned infrastructure. Yeah, so like BT generally owns the fiber. I'm not like completely up to date on how it works in the UK but I thought we were agreed that like the Ma Bell era where AT&T had a legal government granted monopoly on telecommunications infrastructure was like a bad phase and we're glad we're over it. So, ah, right. So, yeah. So we've arrived at a place where we still have government granted monopolies, right? We, the, I think that the local loop unbundling piece that a lot of European countries do is a recognition of the fact that digging a hole in the ground is hard, right? And you should probably only dig a hole and put an infinite capacity fiber line down once, right? So yes, the United States has philosophically chosen what they call facilities based competition. I mean, this is like just nerdery at its finest. Explain facilities based competition. I haven't heard of that. Okay, so the best example of this is 3G standards which is if you remember them, the UK used UMTS, they used GSM for 3G and the United States, Verizon used CDMA, Sprint was like, fuck it, why max? And LTE was like, yeah. Yeah, Sprint was also CDMA, but then, yeah. So we decided that we would allow all these providers to do what, to basically not have standards, right? We're gonna allow different kinds of competition and in some cases that works. So the one competition that you could have back then was Ameritech ran copper wire to your house to get phone service, MCI was doing microwave transmission. So I don't remember what MCI stands for completely, but it used to be like microwave communications, infrastructure, whatever. And that was Sprint used to do a thing and they had the HD voice. So like the idea was the physical infrastructure would be competitive and provide a different kind of end user service to you. And so the United States is like built on that model. The Europeans generally have said, what if we had a giant government, like a meta government and like we pick standards for competitors. So like, this is why in Europe, you can buy any phone you want, put any SIM card in that you want, everybody uses GSM. You have like different kinds of competition, but there's not, there's not why max versus LTE or whatever. Everyone just has to use LTE. So like, we gotta get out of these weeds. But it's, these are the weeds. This is what I mean. Like these are the deep, deep weeds. And the deepest weed of this is that the Jeep pie is saying because your internet service provider, when you access the internet through your broadband modem provides DNS and caching, it is providing an information service. And if it supplies anything else to you, if it applies a Comcast.net email service, it is definitely not a telecommunications. Maybe we can move to an adjacent weed with this. The one thing that has been kind of a big controversy in this whole debate, and I'm not really sure where we're at with it, is peering, like paid peering. So something like at ISP, like Time Warner Cable. Is that still a company? I don't even know. It's not, it's called Spectrum now. Spectrum. So Spectrum can say, Netflix, hey, you can host your movies in our data center, and you can just link right into our customers. You don't have to go over regular pipes to get to our customers. You can just get straight to them and just pay us some money. Right, so that is, again, I think where I keep coming back to is the consumer experience, right? That's basically what we cover. That's basically who we talk to. Hopefully that's who's in the chat, right? The consumer experience of the internet is that you have one provider or two potentially that take like 86% of Americans only have two providers, and you get what you get, and it's really hard to switch away. Then there's the backhaul portion of the internet where Netflix is like making deals with data centers or like network companies like Level 3 are making deals with other network companies like Comcast to like trade traffic back and forth. That originally was not, what you're talking about paid peering, was originally not in like the net neutrality order. It was all about the consumer line. The FCC put it, part of it, in the net neutrality order, and that was a big win for Netflix, but it's not, I don't think that's what people are mad about. I don't think people give a shit about paid peering arrangements on the backhaul part of the network. I think they care about the fact that they don't have many choices for internet access, and if they're ISP'd as something stupid, they have very little recourse, and the recourse most people would want is not to file a lawsuit, which is what Pyosing can do, but switch providers to somebody else. Let me back up just a minute. So like we can talk about the peering stuff. We could talk about whether or not DNS and caching counts as an information service, but like I hear these legalistic arguments, and I don't feel like they're being made in good faith. Like, do you really think that like Ajit Pai and his fellow FCC commissioners are sitting and getting high and talking about the philosophy of what's the difference between this and that, or is it what I actually think is happening is he wants to do this thing, and he's finding a legal reason to do the thing that he wants to do? But isn't that what happened in the first place? No! Well, so hang on. Let me, that's possibly true, but this is the thing I was tweeting about the other day. Why does he want to do the thing is the question. Like the philosophical argument that I think like we've had before, Paul said we want to try and avoid, I don't think we can, is whatever like we decide we want to do to like run the internet the best way possible, we're gonna find a legal fiction to make that possible. Like we're gonna like look up a definition of the dictionary, find a word in that definition to make it the thing. Fine. But why is pulling these regulations away the thing that is so important for him to do? And like I genuinely truly want to hear like the freshman dorm room explanation of why regulations actually hurt innovation, because the explanations I've heard, regulation bad, like okay, it actually hampers investment and innovation. I kind of don't believe that. And I don't think there's good evidence for that. I feel like there's another reason and I don't want to go full anti-corporate conspiracy and say it's just about Verizon's profits, but I feel like that might be on the table, but there's gotta be another reason I'm not thinking of because I'm dumb to justify this thing. And then I later on towards the end of this, we need to talk about the definition of arbitrary and capricious, but let's get, let's like step out and be like, why? Just why? So Paul, I'm sure you have an answer, but I'll give it a very simple one. I can't look into Ajit Pai's heart. I can't. I mean, you could get yourself a chest saw. Wow. So someone's been in Arkansas too long. I can't look in the man's heart. But what he says is that since the net neutrality rules are passed, overall investment in broadband infrastructure is down. And so if you take the rules away and the rules are costly or whatever, the investment will go back up and what you want is more investment in broadband infrastructure because everyone loves infrastructure investment. That's his argument. Now, there's a lot of argument about whether his numbers are right. Just a lot of argument. And one of the main things to argue with is AT&T is so huge, they tip the scale. So AT&T finished its LTE rollout. It finished a huge network investment. It bought DirecTV for one period of time. It paused investment on its network. And so over the period that Pai is claiming, AT&T alone is enough to say, over the year ago period, broadband investment has fallen $200 million. But that's just AT&T. Every other company is out there saying, we're gonna keep investing in our network. So you can look at the total, you can slice it, you can have all kinds of fights. But that's like the main argument over his metric. Paul, I'm sure you have another answer. Yeah, in his Wall Street Journal piece, he said that growth had slowed. It wasn't, I mean, it's not like net down, but it's- Well, it's net down if you count AT&T. And the reason you count it, right, it's net down if AT&T is allowed to say, we bought DirecTV and hit pause on infrastructure investment. So here's my freshman dorm. I didn't go to college. So most of my conversations are just freshman dorm conversations that I'm not aware of. If you think of what the FCC was like originally, it's like the US government is going to own the airwaves and lease them to companies. The airwaves are going to be a public good, and therefore no company will be allowed to own them. Yeah, I would say that the fundamental debate that we'll have with that start of this explanation is whether or not the US government is an effective proxy for the people. Like the people own the airwaves, the US government regulate, manages them for the people. Well, but the people don't own Google. The people don't own Twitter. That's correct. That's correct. So you have the airwaves, but this, the FCC making all the pipes dug underground, a public good is in a sense almost like asset seizure. It's the government saying that because this is so important to people, and obviously the internet is very important for people, and it is a good for people, it now needs to be a public good so that we can make rules for it. Right. And this is a very baseline life, liberty, property kind of thing. I think that is the government overstepping its role. And I think it's the FCC overstepping the role that was assigned to it by Congress. And, you know, Ajit Pai, a lot of, was always talking about the FEC, or sorry, the FTC, like they can manage this. If there's an anti-competitive practice of one of these companies, we have agencies for that to solve that, but we shouldn't protect internet companies from monopoly status and then make a bunch of rules that actually manage how they're allowed to implement their property. Right. And just real quick, it sounds like the end of that argument is you don't think that back in the day, the FCC should have even like regulated, had Title II in the first place. Like it should not have regulated telephone lines and kept AT&T from like blocking me from calling you and changing prices and like the kind of stuff that they want phone companies to stop doing. I don't think the government should be in the role of protecting monopolies. Like when monopolies really hurt consumers, it's when the government is propping them up. And I think that's what happened with AT&T. And even like with the train, the whole common carrier concept for trains, it's just very unimaginative. It didn't imagine a world where maybe trucks would also deliver goods and trains would almost be, you know, a bit of an afterthought. Right, I think the philosophical debate you're having there is how much does the government assume the future will be better if the market is left to operate? Right, and you have to, like digging a hole in the ground is difficult. Like it's just a hard thing to do. Yeah. The easiest way to dig a hole in the ground is to connect to everybody is to do it on public streets. So the government does own the streets. Yeah. And say, okay, you have access along the street to dig a hole. And the main thing they did, Paul, and I agree with you, this is the heart of the problem, is they granted monopolies to some companies to put pipes in the streets. Right. So in Philadelphia, Comcast sued the government for providing public wifi and killed public wifi because they didn't want competition with Comcast. Yeah. Right, and the government sort of like let that happen and let it die. But the ability for a competitor to come in and put another private pipe in the ground is restricted just by reality. That's an enormously costly thing to do. And it's restricted by throughout the country, all of these restrictive agreements that local governments have entered into with private enterprise for short-term capital. So your little, I have a house in upstate New York, like mid Hudson Cable in upstate New York, like has the deal with the county government to provide internet access. There is just not enough like market saturation up there for another competitor to come in. It's just never going to happen. And like you can tell me if 5G wireless will come in one day, but like I can't get a 3G signal. So like the ability for in some of these places for that competition to happen is very low. And I think you have to just decide how either pragmatic you are or how idealistic you are when it comes to are these pipes in the ground part of a public infrastructure that we all rely on or are they absolutely private property that we can't touch? And the phone company example, the reason AT&T was granted that monopoly is because the government decided the better outcome was for everyone in America to have a phone connection. The other thing I'll point out with the train common carrier thing, it's like, you're not wrong. They're like, yes, the government is bad at forecasting future disruptive innovations. However, it's a very complicated story because with trains in particular, they got out innovated by trucks, you'd say, but like that was only possible because the government built the national highway system. It's always like this interplay between like what the government as essentially the voice of the people is doing to try and like create the greatest public good and balance that against personal freedom. And like the invisible hand of the capitalism is always more complicated than it seems strictly in principle because the things that cause that disruptive innovation are often also the result of government action. One might suggest that the internet itself is the result of DARPA and DARPAnet and ARPANet, which was government funded. So like, it's always more complicated. Like the reason that like I don't find the regulation bad argument compelling is I feel like it doesn't address the realities of like what the actual market is doing. Well, I think it just comes down to common sense and I wanna switch to one thing, but Paul, I think it comes down to, we have these laws in the book. The FCC is not writing laws. It's deciding which of these two regulatory schemes we should use for the internet. Congress could write a law, if you believe that this Congress can do anything, but Congress could write a law. It has two schemes. In 2015, it picked one scheme to broad public acclaim, right, the FCC is supposed to work in the public interest. A lot of people supported that scheme. Only big internet companies didn't support that scheme. Right, so only Verizon and AT&T were making the argument that they shouldn't be regulated. And they're out there, Comcast is like, tweeting crazy things today. Like, we'll never block anything. We don't, these rules, don't worry. We're gonna follow them anyway, because we love you. Like, fine, right? So they all know. The best commentary I saw on that by the way, was Comcast also promises to be at your house between one and five. Yeah, so like, right, like, so the internet companies know what the public wants, right, there's just no market force. If Comcast decides to break all of its promises, it's very hard for a lot of people to leave Comcast. By the way, disclosure, Comcast through its NBC unit, owns a minority stake in Vox Media, which owns The Verge. There's your disclosure. So that's like, Paul, I think that's the problem. You can have competition. This is Craig Aaron from Free Press told me this in 2014. It's a quote in a piece I wrote. You can have competition or you can have regulation. Comcast is trying to have neither, right? So it does a lot of lobbying work to make sure it's the exclusive internet provider in the markets it's in, and it's doing a lot of lobbying work to say, we shouldn't be regulated. You can't have both. You gotta have both. Absolutely dislike the lobbying against competition. And that's one of the reasons why it terrifies me that the FCC has this much power. Because let's say the roles were reversed, right? Let's say the status quo was the 2015 internet, like the internet had been classified under Title II this whole time, and then 2015 comes along, or let's say 2017 right now. You've got a president who was elected but didn't win the popular vote. He nominates one person who was already on this commission to be the leader of this commission. And now the whole internet changes. And that's why I think, I understand that the Congress makes a law and then you get a regulatory agency to sort of enact that role that the Congress created for it. But this is basically one person being the deciding vote of what billion dollar companies and billions of dollars worth of infrastructure, how that's actually used. Like if somebody showed up in some regulatory agency and said, you need to go home and deflate all your footballs and basketballs for some reason, it's like, well, that's my property. Like I understand that you made a law and then there's an agency, and then there's this guy who drinks coffee out of a Reese's mug, thinks I should deflate all, but it's like, I own those. I can decide how I want to use them. I can make those laws all day long, Paul. I can tell you how fast to drive your car. I can tell you if you want to, I'm in Wisconsin, so I've seen a lot of these folks around. If you want to go hunting, you got to wear blaze orange. Like if you build a house, it's got to be up to these codes. Like we make those rules all of the time, literally all of the time. It's illegal for you to show up in my house and punch me in the face. Like that's your body. Like I can't tell you what to do with your body. Yes, I can. I can absolutely tell you. I can tell you not to put drugs in your body. Like there are all kinds of rules we make. And I think this is where you're either super philosophical and idealistic, or you're just pragmatic about reality. And I think where I come down is there's not enough competition to be that philosophical and idealistic. If there was more competition, I would be absolutely fine saying, and I think this is true in mobile. In mobile, you have at least four competitors and T-Mobile is a disruptive competitor and AT&T and Verizon are having to react to. I think there should be more competitors. I think that would be even better, but you can at least see how that market is working. People are switching to T-Mobile. They're doing binge on T-Mobile CEOs, like making videos. He's like middle fingers in the air. He's like throwing bombs. AT&T and Verizon are now doing things that look a lot like T-Mobile. And what's really interesting about that cycle is they're all starting to do unlimited plans because they all have to layer on more and more services. So T-Mobile started with free music streaming and then AT&T started doing free music streaming. So then T-Mobile started doing free video streaming and now they're all just doing unlimited plans. And it's like when the market speaks, when people actually have a free market choice, the thing that they want looks an awful lot like net neutrality. When they don't have a market choice, the thing they want is regulation that gets them net neutrality. So either way, what people are saying is, don't monkey with my internet connection. And what they need is recourse if you start monkeying with their internet connection. But the recourse is one person appointed by a president who's elected every four years. Sure, but like- Well, that's- So actually- The people's recourse is the state. No, but Paul's making a really good point that the whiplash of the rules around how the internet gets served to humans in America changing every time there's a new administration, there's a new group of people in the FCC, it goes from three to two to two to three is crazy making. And yes, it would be great if I- Wait, wait, wait, hold on. No, let me finish. I'm making a point. I'm making a point. It would be great if Congress would make a law. My personal politics, I think that if this Congress could actually pull that off, I don't know if I would like that law, but at least then we would have less whiplash. We could argue about the law. Let me finish. Let me finish. All right. I'm putting the ball on the tee for you, Neal. Are you ready? The ball is just a good one. I hate the tee. I'm walking over to the tee with the baseball. You've got the big giant plastic bat. It's a whipple ball. You're gonna hit it and it won't go very far. Isn't one of the rules around the way the FCC is supposed to work that we're not supposed to have this whiplash, that they have to have good legal justifications and it can't be, I think the phrase is arbitrary and capricious. Right. Okay. Thank you for the ball and the tee. Wow. It is a slightly different ball and tee than I thought was coming. I think I'm playing hockey. It's very confusing. So wait, just to Paul's point, his narrow point, which is we had an election and everything's different. Yes, it actually doesn't matter how that, the mechanics of that don't matter. So like we had an election, we elected Obama, there's Obamacare. We had an election, we elected Trump and they're furiously trying to undo Obamacare. That happens all the time. Like you can't stop it. The end point of that is we should have a king, right? And the king will just never change his mind. I'm saying that the Polish- I vote for a queen actually, but I guess I won't vote at all because it'd be a queen. Let me finish this thought. So the check on that- Wait, so they did what I was saying. Right, but the check on that, which is what you want, which is you can't elect somebody new, have them appoint some new people in regulatory agencies who weren't actually elected, is what Dieter is saying, which is the FCC has to like provide stability to the market. They understand that it needs, the market needs stability and they are not allowed to change their mind in an arbitrary and capricious way. That's in the administrative law of our country. So Pai has to make a case that since the time of net neutrality passing in 2015, something has changed so much that provides him a reason to undo it, right? And his argument is that broadband investment has slowed. That's his argument. So we passed net neutrality. If broadband investment had like, everything was going great, then he wouldn't be allowed to change it. There'd be a lawsuit and they would sue him and the court would say, this is just an arbitrary change. You're not elected. You can't do that. He's saying, well, broadband investment has slowed. That law was obviously bad. That regulatory interpretation was obviously bad. So I'm changing it and it's not arbitrary. And that's where the fight is going to be. So the information service thing, the broadband investment thing, all of that stuff is what people are going to fight about. So like, also, I think the court, just based on what I'm seeing today, I think it would be foolish for a future court. So I know Free Press is going to sue the FCC. The ACLU is going to sue the FCC. The EFF is going to sue the FCC. He's going to take this vote on the 14th and he will immediately face a lawsuit that says, this is arbitrary and capricious and you can't do it. Right? And that somebody in our chat right now is the FCC doesn't answer anyone. It's beyond the people's reach. No, it's not. You can just file a lawsuit. And I think Pai is walking into a lawsuit that says his decision is arbitrary and capricious. And so you just, the EFF has a Twitter thread here that I'm looking at. Well, actually, before, just like the thing you didn't say in that rant is that we just know that this is going to pass, that the FCC is going to vote to undo net neutrality rules and convert it to Title I. Like it's three to two. You can call your Congressman to put pressure on the FCC people on the board. You can call Ajay Pai, you can call whomever, but like, we know this thing is going to pass, right? It's going to happen. Yeah. And then the lawsuit starts. And the lawsuit starts. So, okay. And this is like, are you enough of a single issue voter to vote Democratic or Republican based on broadband regulation? It's, who knows? Right? But it seems- Ask r slash the Donald, because that's an exciting place right now. Right, so yeah, the Donald Trump subreddit on Reddit is like torn asunder. Because, right? Because that wouldn't exist, but for net neutrality, if your ISP could have slowed down Reddit in the early days, or they could have looked at the Donald Trump phenomenon and Russian interference and decided to start blocking certain kinds of content, you wouldn't really be able to stop them and you wouldn't really be able to switch. Reddit existed before 2015. Right, but the argument- And people lobbied for net neutrality before 2015 and the run up to the FCC's decision. Right, because the Brand X decision was bad, is like a piece of this in the background. And people really wanted net neutrality because they started switching in huge numbers from dial up internet to broadband internet and realizing they had no competition. They were pretty far down that road by 2015 and Comcast wasn't blocking Reddit because Reddit did a blackout. I think you're over- I think you're being over optimistic about broadband penetration in the United States. These are the fears that were sold to me like going into 2015, like you don't wanna get like a $10 bill because you decided to use Twitter that month or something like that, or you don't wanna pay extra for Netflix or you'll have a slow lane or something like that. And I am arguing that broadband companies should have the right to do any of that stuff. But I really don't- most companies don't do something that their customers will absolutely hate. We end up disliking a lot about what companies do, but you can definitely push it too far. I mean, I would just, again, there's like philosophy and there's realism and there's like the reality is Comcast is the most hated company in America. They do things their customers hate all day long. AT&T is like, they're around, people don't love them. They have an enormous number of customers. But they clearly realize that there's a line that they're gonna push past that there's- And Comcast pushes past that line all of the time. Comcast blocked BitTorrent. There's another company called, what was it? Madison River Systems that blocked Vonage. Comcast prioritizes its own TV service to various devices. Like AT&T wants to buy Time Warner, the main thing AT&T wants to do with Time Warner content is give it to you for free versus non-Time Warner content. Like this is the future, right? It's coming at us and they want to do these things that people don't want them to do. And what people want is a rule preventing them from doing those things. Or you could start all over and build more competition, but the world in which, you know, the- So Comcast bought Amazon, so Comcast bought NBC, right? They signed a consent decree saying they would basically abide by net neutrality until next year. Next year, that consent decree goes away. There's no net neutrality. And suddenly NBC programming, Universal Movies will come to you for free over to Comcast lines and everyone else will hit the cap. So the minions will be free and I don't know, Milana won't be, right? Like that's not an outcome that people want. And we all know that the phrase, the minions will be free is a contradiction in terms because by definition, by the dictionary definition, they're minions. They're not supposed to be free. I'm not saying everybody gets everything they want no matter what the rules are. You just have a choice. You try sometimes, you just might find. No, but Paul, you don't have a choice. You get what you need. These companies can do things you hate and they do them all the time because you can't leave, right? That's the thing. The philosophy question here is, Paul doesn't believe these companies are gonna do bad things, but maybe they will, but who knows, but should we make a law preventing a company from doing a bad thing before they've done the bad thing? Okay, so this goes to the other thing that Pai brings up and Paul had been talking about, which is maybe the FCC doesn't need this power because the FTC, the Federal Trade Commission or the Consumer Protection Agency will be able to do this stuff either. So I'm just gonna read more from Pai's document because I think it's important to keep referring to his actual argument. So he says, most of the examples of net neutrality violations discussed in the net neutrality order could have been investigated as antitrust violations, which is where the DOJ or the FTC comes in. Madison River Communication blocked access to voice over IP to foreclose competition with itself and business. An antitrust case could have focused on whether the company was engaged in anti-competitive foreclosure. Whether one regards Comcast behavior towards BitTorrent as blocking or throttling, it could have been pursued as an antitrust or consumer protection case. The FCC noticed that BitTorrent service allowed users to view video that they might otherwise have had to purchase through Comcast video on demand service, a claim that would have been considered anti-competitive. Comcast also failed to disclose this network management practice and initially denied that it was engaged in throttling, potentially unfair or deceptive acts or practices. So he's saying, okay, Comcast is throttling BitTorrent. If we discover it and they haven't disclosed it, someone can sue them, very unclear who. If the DOJ wants to make the case that throttling BitTorrent unreasonably preferences Comcast like video on demand service, they can bring a lawsuit too. So instead of a rule, what you have is the hope of more lawsuits. And to be clear, the one thing that this new, this removal of net neutrality is leaving in place is the rule for transparency about actions. Sure, yes, that probably would like the companies to say what they're gonna do. Now, how much transparency in the form of that transparency is not, it's not mandated, right? Because how can you possibly tell a private company what to do ever except be transparent? So if they could bury it in a small print, and this is an important loophole, they don't have to be transparent about anything they define as a reasonable network management practices. So if throttling a bunch of Netflix at 8 p.m. is a reasonable network management practice because everyone's using Netflix, they wanna preserve some service or some bandwidth for Hulu, they don't have to tell you that. You have to discover it, then you have to sue them to say this isn't a reasonable network management practice. And then you have to further win a lawsuit saying this is anti-competitive. So like, that's a lot of lawsuits. So what you had was a rule, and now Pi is saying, well, we can just have a bunch of lawsuits that get us back to the rules, which seems like if what you're worried about is costs, you have just created the opportunity for legal costs to skyrocket. Well, I, so here's a straw man's situation for the reduced investment, right? I'm Verizon, I wanna do this kind of crazy thing, I'm not sure if the FCC will allow me to do it under the 2015 rules. So I do it, and then the FCC says, no, I can't. And then I need to argue in court that the FCC was wrong to ever even have these rules, or outside of these 2015 rules, I do it. And then the FTC says that's anti-competitive. And then I can argue whether or not it's anti-competitive. I don't have to argue that the FCC has overstepped its, like I don't have to argue against the entire existence of a government agency. I just need to decide what, help or argue in front of the court whether or not what I've done is anti-competitive. And there's a lot more literature in legal, like my lawyers, before I do that, that potentially anti-competitive thing, my lawyers can look at this great body of legal argument about what ends up qualifying as anti-competitive, where with the FCC, I'm not quite sure what they're gonna decide. And it's up to them. I don't really track. I think there's a body of law for everything, right? The country is very old. Well, it's not that old, but the country is like, a couple of hundred years old. There's literally every word in PIE's documents that's in this document here. There's a body of law undergirding every single word, right? That's how precedent works. There's like branching precedent and your lawyers do lawyer stuff. I think what you're asking is like, are we making rules where you have to fight against the rules or are we making rules where you're free to do something and somebody else can come in and fight to enforce the rules, right? Or is the burden on the company or is the burden on the consumer that might be harmed? I generally think the burden is on the company. I think only for this reason, the best way for a consumer to address a harm is to stop paying you, right? That's what we want. Like Paul, I think you and I are actually far more aligned of like the basic free market principle there than anybody would suspect. Like if I don't like what I'm getting, if I don't like the value I'm getting from you when I pay you for a service, I should just take my money away. You'll react to that. The problem is that 51% of Americans have nowhere else to spend that money. So they're stuck. So you now have this like incredible leverage as an internet service provider to do anything that you want. And there's no immediate redress for me. I have to spend more money to pay a lawyer to address your behavior. So if we pass that cost back to that set of internet service providers and say, here are the rules, like this relationship is not equal. The rules are you can't do X, Y, and Z because the people have spoken and through some complicated set of government processes, you've created rules. I think that's fine, right? That's the difference that keeps coming back to between idealism and like pragmatism. Like that's fine. If there were like 500 competitors, okay, I'm just gonna take my money away. I do that all the time. There's two slightly different things here then. There is what FCC rules will lead to the most investment and what FCC rules will lead to a certain minimum of internet service. And I would argue that the new no-net neutrality rules are designed to lead to the most investment, which will hopefully foster space internet and project loom and whatever. So we can actually have competition, right? So, right, but if you have enough money to do space internet, right? Like the marginal cost of your lawyer applying for the waiver to the rules so you can build a new technology is like pretty low. Like it's not gonna stop you. You're not gonna like, oh my God, I've got to bill a lawyer $10,000. Like- Well, you need the money from what exists right now to fund your space internet. Sure, but I'm saying that the percentage cost of the leak, if like, if you have the ability to put rockets into space, you probably have the ability to pay for a lawyer because you can't do that without lawyers to begin with. So like, there you are. But like, Paul, you and I are talking in hypotheticals. I'm just gonna read this. It's from the EFF, so it's obviously a biased list, but here's their list. More than a thousand small businesses, investors, and technology startups in all 50 states have publicly opposed the rollback of net neutrality. More than 900 online video creators have produced content for more than 200 million viewers, oppose the FCC plan. 52 social justice, civil rights, and human rights organizations have filed support of net neutrality. Dozens of ISPs across the country have told the FCC to leave the rules in place. 120,000 libraries in total across the United States want net neutrality. Privacy organizations want it. State attorneys general from Illinois, California, Connecticut, Hawaii, Iowa, Maine, Maryland, Massachusetts, Mississippi, Oregon, Vermont, Washington, and DC support retaining net neutrality rules. 60 mayors, the National Association of Realtors, just wandering in the door at the last minute. What are we talking about, guys? Right, like... And then there's like a lot of argument about the comments, but it's like millions of comments in support. So you do have this extreme amount of public support for these rules. And at some point, you just have to deal with it. I don't think you can just say, we'll have more innovation if we let companies do whatever they want. People have deep relationships with their internet service providers. They understand the parameters of that relationship, and they think that those relationships are unfair, and they want some rules in place. I think however you feel about government, you have to respect that in some way, and I think Pye is aggressively ignoring it. In fact, we know he's aggressively ignoring it. His, like, at least his Wall Street Journal piece, it seems like what he mostly paid attention to was small providers who claimed that it was burdensome on them and, you know, the numbers about investment. I feel like there was one other thing that he pointed out. Those are his two things, for sure. And he brought up, again, the opening of this document, he brings up rural and rural broadband access. So that's interesting, right? It's interesting because what small broadband providers care about is not having to do a lot of, like, record keeping. To say hire accountants and bookkeepers and whatever, that's a cost, and if you're, like, a two-person ISP, that's a big cost. But he waived those requirements. So the original order in 2015 waived those requirements for, like, some number of subscribers, and then Pye came into office and waived them for an even huger number of subscribers. So most small ISPs with, like, 200,000 people, 200,000 customers, they don't have those costs anyway. And Jake Kastanakis actually talked, we have a great story on The Verge, he talked to a father-daughter ISP in Colorado that were, like, we completely support Title II. Like, this is fine for us, don't worry about it. So there's, again, there's a lot to litigate there. He's not, Pye is not the only person speaking for small ISPs. The ISPs are fully capable of speaking for themselves, and a huge number of them are saying they want Title II. And then on the investment piece, this is, I think, where the arbitrary and capricious, where the argument is going to be made whether or not this is arbitrary and capricious. Ars Technica has an amazing series of articles about this. In public, the broadband companies, Verizon, AT&T, Comcast, whatever, all claim Title II is killing us. And then on their own earnings calls, they say to investors, Title II isn't a problem, our investment is going up, we're gonna be the best and win everything. So there's a staggering disconnect between what Pye is saying and what these companies are saying to their own investors. And they're not, I mean, they're not allowed to lie to their investment on earnings calls. Like, those are, they have a fiduciary duty to those people to tell the truth. And they could get sued a lot if they're lying. So one presumes that they are telling the truth on those calls versus what they're saying in public. So that's like, that's the whole argument, right? Like whether or not you believe broadband investment has fallen because of net neutrality, whether or not you believe the internet is an information service, which is like broadband. Oh, by the way, can I just say that, I said this at the very top of the podcast, but he's also wants to switch wireless from being a commercial radio service to a private mobile service. And a commercial radio service is anything that connects to a common carrier service basically. Yeah. So like, if you say the internet is, so like think about telephones. So your copper landline telephones are common carrier cell phone, voice calls over cell phones connect to that network. By definition, it's a commercial radio service and can be regulated this way. So they switched the broadband internet service to title two and they said, LTE is now a commercial radio service because it connects to a common carrier. So we can regulate it this way. Then they now Pi wants to switch broadband internet access from, sorry, I think this is hilarious. Mobile broadband. No, he wants to switch broadband internet access the internet from telecommunications to information service. So he does that. And then he's allowed to say, oh, well this LTE network doesn't connect to a common carrier service. Now it's a private mobile service. They can do whatever they want. It's like, it's a shell game. They mean it's, and I say that in like a kind way, it's a shell game cause that's what lawyers do, right? They like line up all the definitions and they push their domino over and they're like, see, I was right all along. And that's a hundred percent what he's doing. But fundamentally the question is, do you have the market power, you yourself to take your money away? If your ISP doesn't do something you don't like and just most Americans don't, that's the answer. And so most Americans are saying, I would prefer the government to mediate this relationship. Okay, okay. So like, what's gonna happen? The December 14th, they're gonna have this vote. It's gonna pass. A bunch of like organizations are gonna sue the FCC. When do I have to pick my internet package, the super premium plus version with HBO now, Hulu plus and Netflix. So what's amazing about that, with the bonus extra stuff for like Reddit and Twitter. So what's amazing about this, amazing, is that the Trump administration is such chaos, they can't even get it all right, right? So the FCC is saying, okay, AT&T do whatever you want, get out there, go crazy. And at the same time, the Department of Justice is saying, hold up AT&T, you are not allowed to buy Time Warner. So I think if it was different and the DOJ was letting the Time Warner deal go through, you would see in short order, the Time Warner deal close, AT&T now owns HBO and CNN, whatever, you would immediately see AT&T customers get free access to those services. And then you would immediately see Comcast respond in next year when its consent decree expires, you would immediately see Comcast start to prioritize NBC services on its network. And you'll immediately see Verizon start to prioritize both services from AOL and Yahoo and Go90. And you already are starting to see some of that stuff, right, Go90 through a complicated arrangement of payments, Verizon's Go90 unit pays Verizon for sponsored data and Verizon customers get it for free. That is actually just a shell game that is stupid, but. Wait, that's happening right now? It's happening right now. How is that possible? Because Verizon offers sponsored data. So if you're a startup or whatever, you can pay, nobody uses it, but Verizon's own Go90 buys data from Verizon and then gives it to Verizon customers for free. That's totally possible. Does that mean that the current regulations are toothless and aren't doing anything for anybody? It means that the Tom Wheeler's FCC, right before he left, did an analysis of these schemes. And it found that T-Mobile scheme of BingeOn, of music freedom, of whatever, was acceptable because it was not discriminatory. So any music service could sign up for it and you just get it for free and there was no cost associated with it. And AT&T and Verizon schemes probably violated net neutrality because they had this price discriminatory element. Then Tom Wheeler flipped the table, left the building, and no one did anything about it. Yeah. That's where he had gotten to, right? He did this long investigation about it. And I interviewed him right before he left and I asked him about it. He was pretty clear that that's what he was gonna do. Yeah. By the way, so this guy, go ahead. When T-Mobile first started, it's BingeOn stuff. And I stood up in the room and asked John Legere about net neutrality and he got real mad at me. Then he started cursing The Verge and made fun of my title actually, which was really funny. Anyway, people were like, why are you mad at T-Mobile for giving something for free to his customers? That doesn't seem like a problem for net neutrality. And it's because we knew at the end of this story was Verizon having the legal justification to offer, oh, go 90 to its customers for free and AT&T having the legal justification to give CNN for free, but charge you more for something that isn't on Time Warner's networks. Right. And Paul, I think that comes down to the real, at the end of it, the real problem here, which is you do not wanna be in a place where Comcast owns MSNBC and MSNBC streams to your phone and Fox News costs you extra money, right? Like you just don't wanna be in that place. As much as I hate Fox News, you don't wanna be in a place where your broadband provider is now making price differentiation based on points of view that it holds that promotes that. So like there's a, that's why Free Press, which is a speech, a free speech organization is like after this so hard, right? They're saying, leave the internet alone. This isn't about startups or whatever. This is about core private regulation of speech. So like there's just layers and layers and layers of this. I just brought up the fact that I interviewed Tom Wheeler. I interviewed Tom Wheeler, the former chair of the FCC twice. I wasn't easy on him. I interviewed Michael Powell, who runs NCTA during the run up to net neutrality in 2014 and 15. He was the former chair of the FCC. He's a Republican. He now runs the largest cable company lobbying group. It's basically Comcast lobbying group. He answered hard questions with me. We've, I mean, basically we've interviewed Jessica Rosenworcel. We've asked her hard questions like down the line, Mignon Clyburn, who's another FCC commissioner. We've interviewed her and asked her questions. Down the line, we have interviewed these people who are public servants and asked hard questions about their policies and they've given their answers and like whatever we agree with them or don't agree with them, but they're willing to take the questions. Pai is not. And I think that if I wanna come to one thing, we've gone way over here, but if I wanna come back to one thing most clearly, is that elected or not, these people are public servants and Pai is facing this huge backlash and he is not being responsive to it in any way. He won't take hard questions in any forum. He won't come, if you think we're his opposition, if you think I'm his opposition, he won't talk to me, but he won't talk to, I've seen, I don't know, I've seen probably a dozen people who have his podcast tweeted him over the past two days saying, hey, will you come on my podcast? He's not going to any of those. He is just doing this without doing the associated work of justifying his plan in the face of hard questions. And I think if anything's the most dangerous piece of this, it's that, like he's not answering to the people through the channels that we traditionally expect our politicians to answer to the people. And I think if you would just start doing that, like I would actually calm down a whole lot, right? If you would start saying, if you would, so Steve Kovach, who works for Business Insider, FCC announced its plan. Kovach gets on the press call and he says, hey, you keep saying this thing about broadband investment, but according to the numbers I'm looking at, you're wrong. Like, can you justify the discrepancy? Which is a great question to ask, right? Like well thought out question from a good reporter. They just said next question and moved on. They just refused to answer his question. He's so mad about it. Yeah, he and I were talking about it. And a lot of other people noticed it. They're at that level, right? Where the fundamental question that they need to answer, that they will have to answer in front of a court, they're just not even acknowledging. They're just saying this is the right thing to do and they're moving on. And I think that's the mess. Like, whatever, policies are policy, elections come in, in four years, there'll be another one. Maybe it'll get even crazier in one direction or maybe they'll swing all the way back. Like that is the nature of elections. But once you take the office, once you're doing the job, I think you have to be responsible to the people. And Kai is definitely not doing that. Stun silence from Paul. Eli wins again. Yeah, I really wish he'd get on the podcast. Yeah, it'd be really nice to talk to him. I will say- He has a standing invite to come on his show. Yeah, he does. We should ask our listeners to ask him to join us. Just send them my hangouts link on Twitter, Dito. Just add Ajit Pai FCC, A-J-I-T-P-A-I-F-C-C. Tweet at him. Yep. I think if you've been listening to this, wait, if you've been listening to this, Paul and I have known each other for a long time. We obviously disagree about this, but we're also friends. Like, and I think if you've been listening to the show, we are very nerdy. We are very willing to get into the weeds of this argument with him. This is a great show for him to come on and make these arguments. It's not actually a hostile space. It's not an opposition space. It's just- And please don't tweet offensive crap at him. I've seen like, I made a joke about the ratio on his Happy Thanksgiving tweet, and I was right. A bunch of people tweeted nasty things at him to just saying Happy Thanksgiving. Please be kind. But like, and we intend to be kind and fair to him on this show, but we do want him to answer the questions that he's refusing to answer. Yeah, he just won't do it. I think, again, and he's racing this through, right? He put out the plan the day before Thanksgiving. He's pushing a vote on December 14th. Like, the amount of time the American people have to react to this is just very low. But you gotta give him credit. It's more time than there was in 2015. Will you at least get to read the full text? No, I disagree. I disagree in a serious way. In 2015, what had happened was that was five years after the FCC tried to do something in 2010. They finally did the thing that the courts told them to do. So there was a huge run-up, right? FCC originally tried to put net neutrality regulations in place under Title I, and Verizon sued them and won. If Verizon hadn't sued them, it would be fine. We would have net neutrality rules under Title I. We wouldn't have all this burdensome additional regulation. But Verizon decided they didn't like it, and they sued them, and they won. Great, and the court said to them, if you want these regulations, you have to use Title II. So then there was a massive run-up again, and Tom Wheeler's first instinct was to not do Title II. It was to try to shoehorn them into yet another statute and go to court again. And basically, the public pressure was put on him to use Title II. So there was that huge run-up. I mean, it was just an endless process where Verizon, they did the rules, Verizon won a case years later, and then Tom Wheeler was made to use Title II with a combination of a court ruling and public pressure. So that's not the same as this. That process was so long. It might not have been out as in front, and it might not have been like this document, like here's what the FCC is voting on. But the process that was going through, we covered the hell out of it every month for four years. So I just don't see that argument. I get what he's doing. Like, I'm more transparent. You can't read the, whatever. No human can read this document. I will say, in just an abstract sense, I want it to be as easy for an agency to devolve power as it is to grab power. And I really do think of 2015 as a power grab by the FCC, constitutional or not, it really bugs me. I'm really happy to see Ajit Pai trying to devolve power, and I hope that he has correct legal arguments to do that. And I see how they're a little tenuous, but I hope he makes it through. And I'm sorry, I know a lot of people hate, I need to open my mouth to disagree with net neutrality. But yeah, it worries me. And I really do think it puts speech more in the hands of the government. If you're going to make a free speech argument, I understand that it's scary for private companies to have so much control over our speech, and that bugs me. But it worries me even more that the FCC would have it. Fundamentally, the question about this regulation is, do you trust the government to do the right thing about it, or do you trust these private corporations to do the right thing about it? And normally with private corporations, you can say, I don't have to trust them or not. I could just choose not to give them my money. And in this case, I don't think we have that option, or 51% of Americans don't have that option. And yes, I'm with you that the idea that I would put more power into the government seems scary. But I also like, who am I more afraid of, big giant corporations or a big giant government? Well, in theory, at least, if we're talking about philosophy, I can vote for the people in the big giant government in a way that I can't in the big giant corporations. Right. Yeah, Paul, I mean, I think this is why I like, this is why we wanted to do an emergency podcast, right? You and I disagree. I think it's interesting to talk about the parameter of that disagreement. But to me, it's, I don't, I'm stuck at what power did the FCC grab? I couldn't tell you, right? Like, the FCC did a thing that the people of the United States were very vocal about wanting, which is restricting the ability of private internet companies to block speech, basically. And if you don't have a choice, I think that's a totally acceptable function for the government. Like, the government needs to do things. Otherwise, you might as well not have one. And I think, right at the end of that, again, it's like, are you an idealist or are you a pragmatist? Like, do you live in this world or do you want to live in a world that doesn't exist? Well, Neil, I am an anarcho-capitalist. I'm glad you asked. Yeah, I'm just not. Like, look, we're home for, I'm in my parents' house, right? Like, we're home for the holidays. Like, their relationship to this technology is not, and they're very smart doctors. There's a model of a heart back here somewhere. I was an MBA. Like, their relationship to technology is not as sophisticated as to understand what AT&T U-verse is doing to their connection. They don't give a shit. They have better things to do. And that's the slippery slope of danger, where Netflix is buffering, and they just are like, fuck it, and they use U-verse. Well, they're not going to file the consumer protection lawsuit. They're not going to investigate whether that's a reasonable network management practice. So the scope of potential harm, unless we sit around doing our job and investigating what every company is doing, and you believe the press when they find out, or consumer advocacy organizations, which are not well-funded, are doing the work. You've just moved the cost. You've moved the cost from the company to this diffuse set of other actors, and they're not going to win as the companies get bigger and bigger and bigger and collect more profits. That, to me, is the reality. So we've gone way over. Dieter, did we miss anything? Probably. I could make more points about being afraid of normal, non-techy Americans not seeing the point here, or not seeing the danger here, but we definitely need to stop. OK, I'll say it real quick. Yes, last night, we were going to watch a movie, and it was like, well, OK, I'm just going to find something good to rent. But everybody else wanted to find something free on Netflix to save the $4 that it would cost to stream something. And if it's built into the internet service that you can get CNN for free and Fox News costs $2, people will definitely just watch CNN. And that's the danger. If the network gets to give you something, it gets to preference content, then it is the network choosing what you're watching, because people have a very, very lizard brain desire to just take the cheaper thing. Yeah. OK, did anybody get anything good for Thanksgiving? Are you supposed to get presents? It's Black Friday. By the way, I will say, OK, we're going to end the show. I'm going to promote some things. It's Black Friday. Yeah. The Verge website is full of Black Friday news, so go look at that stuff if you're listening to this live. On Monday, Paul, you're hosting Gadget Emotional Support, right? Oh, I'm so excited for this. Emotional tech support. So any emotional problems that you have, dealing with Cyber Monday, you can call us live. It's going to be in the morning, Eastern time morning. Yeah, so get ready for that. It's you, Ashley, and Haim, right? Yeah. Haim is our deals expert, and Ashley and I will be providing the emotional support. Yeah, so if you see a hot Cyber Monday deal, you don't know what to do, call Paul and Ashley and Haim on the Circuit Breaker show. So that's happening. The Verge cast is, I won't be on it next week. I'm out of town. The Verge cast is back next week. And then Ashley and Caitlin are back with Why'd You Push That Button next week. You can also listen to Too Embarrassed to Ask with Lauren Good, who is wonderful. She does a show with Kara Swisher. Kara Swisher, equally wonderful, hosts Recode Decode. And then Peter Kofta hosts Recode Media. And I am sure that Recode Media is going to have some net neutrality and AT&T stuff on it coming up, because two biggest stories in tech policy happening right now. Thank you very much, everybody, on the chat here for joining our renegade Black Friday net neutrality podcast. I know it's the hottest thing going right now, but it's important to us. I will just say this. I think it's cool that three of us can have a conversation, which we disagree about something this fundamental, and have it be cool. So please take that into your heart. Try to have cool conversations. I appreciate that, too. And assuming that if I wasn't here, and it's just the two of you, and you all agree, what is your call to action? What are people supposed to do? There's a couple of ways. The thing you should do is you should call Congress. Congress can put a pressure on the FCC. I saw some well-meaning what's all tweeted, Ajit Pai and Michael O'Reilly. They're not going to change your mind. Call Congress. You can go to battlephonenet.com. The EFF has a tool. Just make that phone call. It's easy to do. You should do it if you believe in it. If you don't believe in it, you can make the phone call, too. But our government needs to hear from us, and maybe something will change. So make that first move. It might feel like nothing, but it adds up in the aggregate, and it will turn into something. And then when it's lawsuit time, we'll all just huddle for warmth together. It'll be fine. Yeah, that's the Vergecast, Renegade style. Thank you for joining us. Rock and roll. Paul. Promo code. Promo code. Hey. Promo code.
 Well, okay.
 Okay. All right, whatever.
 We're starting. Hello. Let's start over.
 By the way, in case you're wondering why we always do
 this to tape and not live,
 it's because I can't say that hello
 without laughing almost every time.
 All right. Ready?
 Yes.
 Hello, and welcome to the Vergecast,
 the flagship podcast of the Verge.biz.
 But here's what I'm going to tell you.
 This is a completely renegade episode of
 the Vergecast. Our producer,
 Andrew Marino, is not here.
 We are live, foolishly,
 on Hangouts on YouTube,
 which may or may not be working.
 And there's a live audience here chatting at us.
 But I am at my parents' house in Wisconsin.
 Hi, Dieter, where are you?
 I'm in a little town called Magnolia, Arkansas,
 which is a lovely town.
 And it has internet.
 Interestingly enough, I think it's
 the only internet option here,
 is this meh internet.
 Yeah, that's about right.
 I also have meh internet.
 That's the only option at my parents' house
 here in Racine, Wisconsin.
 Paul, where are you?
 I am at the New York office,
 and I'm literally the only person here
 other than some guy who's going around
 cleaning stuff.
 How's the internet in your office?
 Well, that's exactly why I'm here.
 When I am at home,
 I think my router is misconfigured.
 And whenever, especially Google Hangouts
 is the worst.
 It just chokes and it just sits there
 and it doesn't work for a little while.
 So as you might be guessing,
 as you may have surmised
 from our internet banter,
 we're here emergency renegade broadcast
 for one reason,
 which is that the HomePod has been delayed.
 None of us know why.
 We're bereft.
 We're homepobless.
 We're emergency HomePodcast.
 Oh, you do?
 See, this is why we don't do a video show
 because now there's going to be props.
 Look at this.
 Funny prop.
 Everybody laughs.
 You have to describe it for the audio listeners.
 I have like a 2004 product called HomePod
 by a company called Macsense.
 It's basically a HomePod.
 It's like an internet radio thing.
 All right, Paul, put the HomePod down.
 No one wants your 2004 internet radio here.
 All right, but here's why we're actually doing it.
 On Wednesday, which is the day before Thanksgiving,
 we're recording this on the blackest of Black Fridays.
 On Wednesday, Ajit Pai and the FCC
 put out their proposed order
 to completely rescind all net neutrality rules
 in the United States.
 So Tom Wheeler, the former chairman of the FCC,
 in 2015 reclassified internet service,
 broadband service as a Title II common carrier service,
 which let him put rules on it,
 like no blocking, no locking, no paid prioritization,
 no throttling, transparency rules.
 Ajit Pai and the Republicans thought this was a terrible idea.
 They thought it would reduce broadband investment.
 Pai has been-
 And the Republican?
 Oh yeah, okay, I'm with you.
 Yes, you're gone.
 He's a Republican.
 What are you going to do?
 Pai became the chairman of the FCC when Trump became president.
 He has spent, I would say, the past year making his case
 that investment has been lowered.
 He has not, and I think this is an important point,
 he has not taken any interviews
 with anyone who disagrees with him.
 He's only insisted that he's right.
 I think this is a point I want to come back to a whole lot
 as we talk about this on this broadcast.
 And he put out his notice to proposed rulemaking
 a few months ago, which we read and reacted to,
 and he put out his proposed order on Wednesday.
 There's going to be a vote.
 He's pushing a vote on December 14th.
 So he's all about like, look, I put out the rules.
 The public gets to see them.
 That's not what Tom Wheeler did,
 but he put them out the day before Thanksgiving
 and he's holding a vote in two weeks.
 So it's like six and one half of the other, right?
 Yeah.
 People are mad.
 I'm mad.
 Dieter, I think you're mad.
 Paul, probably not so mad.
 I'm glad.
 Paul's glad.
 But people are right now today protesting at Verizon stores.
 They spent all day yesterday protesting.
 The battleforthenet.com is running huge call-in campaigns.
 We're writing posts on the site.
 And because we talk about the virtual cast so much,
 Paul said to me and Dieter,
 why don't we have an emergency rogue session?
 So everyone else is on vacation,
 except for the poor people covering Black Friday deals
 on the verge.
 And we are basically at our parents' houses,
 except for Paul who's in the office.
 The verge is my parent.
 Do an emergency session.
 So here's what I will start with.
 And this is the important thing.
 Up until now.
 Man, there's so much, hang on, hang on.
 Just, I want to point out that Neal's
 like lightning fast overview,
 it lies over like a million points
 that we would have previously spent
 the entire verge cast on.
 Yeah.
 Like a million points.
 There's just so much history and pain and sorrow
 and like actually very interesting debates
 that we have had that are embedded
 in that little story that Neal I told.
 And so if you see us pause
 and have a well of feelings during this podcast,
 it's because like, oh man, you just said that thing.
 I could talk for an hour about that,
 but I have to shut up now.
 So I just want to point that out.
 There's a lot.
 So I think, I mean, this is just long history.
 This is, you know, in 21,
 I'll start with the main thing, which is we now-
 With the railroads.
 Dude, sorry.
 No, the main thing is we now have a document from Pi,
 a legal document in which he makes his legal argument.
 Yeah.
 We have to have like a moral debate about this, right?
 We're not having a,
 how do we think the internet should be regulated?
 We have-
 Guess what we're going to have.
 I know, but there's like a foundation under it
 and there's an argument under it that we can,
 I can at least refer to because I've opened it.
 I'll Slack it to you guys.
 But it's here, right?
 And so it, I can just read you.
 There's like a summary over the top, right?
 So it says, this is the fact sheet,
 document number 17-108.
 Over 20 years ago,
 President Clinton and Republican Congress established
 a policy in the United States to preserve the vibrant
 and competitive free market that presently exists
 for the unfettered by state or regulation,
 federal state regulation.
 That's great.
 That's a great line.
 And then it's, you know, it goes on to say,
 this declaratory ruling report in order
 would return to the bipartisan consensus
 on light touch regulation,
 ending utility style regulation of the internet,
 promote future innovation and investment
 and more investment in digital infrastructure
 will create jobs, increase competition
 and lead to better, faster, cheaper internet access
 for all Americans,
 especially those in rural and low income areas.
 So that's-
 Okay.
 Right, like that is Pi's like moral argument
 and he's got all this stuff he wants to do.
 So the stuff he wants to do,
 he wants to restore the classification
 of broadband internet access service
 as an information service,
 which is, it's a lot.
 Okay.
 What's happening?
 I just breathe in just like-
 Just taking a couple deep breaths.
 Yeah.
 He wants to reinstate the private mobile service
 classification of mobile broadband internet access service.
 This is, these two work together
 in a particularly hilarious legal way.
 So I'm just gonna explain the information service thing.
 So right now the internet under net neutrality
 is classified as a telecommunication service.
 Yeah.
 The definition of that is a telecommunication service
 provides point to point connections
 without any additional layers over the top.
 An information service,
 which is what the courts and the FCC called
 the internet before is like, you get additional things.
 So like think about America online in the 90s.
 You would dial into America online.
 It would present you an interface.
 That interface would have lots of bits and pieces,
 like an email client and forums
 and like AOL shopping or whatever.
 And then you could like take a right turn
 out of that interface onto the main internet.
 That's an information service.
 Does that have anything to do
 with the common carrier designation?
 So if as an information service,
 it's title one, which is not a common carrier.
 As a telecommunication service, it's title two,
 which makes it a common carrier.
 So they're saying America online under that definition
 in like in that way of AOL,
 where you would dial into an AOL server
 and then it would like mediate everything
 and present you with applications and whatever
 is an information service.
 And what I have always thought of as broadband,
 which is I have a cable modem,
 I plug my wifi router into it and I just use a web browser.
 That has been classified as a telecommunication service
 for the past two years.
 Paya is now classifying that as an information service.
 And his argument for that, his like legal argument for that
 is based on the fact that internet service providers,
 this is true, this is his argument.
 They provide DNS servers and caching equipment.
 And that is equivalent to AOL chat
 in like user groups in AOL shopping.
 Like, I'm not kidding, but that's his argument
 that those things are information services
 that mediate your internet experience.
 And you might get an email client
 from your broadband provider,
 or you might get like a custom web browser
 or any of the other garbage that you don't actually want.
 And because of that, it's information service.
 This is literally his argument in this document.
 I mean, if I wanted to actually start an information,
 like a more modern equivalent, not AOL might be what?
 Like the Bloomberg terminal?
 Like that to me sounds like an information service.
 You are free to do whatever the hell you want
 on that information service.
 So I'm gonna pay you to get access to the news
 that you provide in the terminal.
 I will just do it.
 Everything will be fine.
 But nobody does that on the internet.
 And so this idea that was DNS and caching
 counts as information service, it's like, no, no, it doesn't.
 Right?
 Like I'm trying to approach the argument on like his terms.
 If he's setting the rules of the debate
 and the rules are that counts as a bespoke,
 I am directly giving you a thing, information service
 and not a telecommunication service.
 I don't know, like that seems odd to me.
 That seems like a fig leaf.
 It seems like not true at all.
 But if we are going to accept the argument on his terms,
 they have a case to me that a caching server
 is equivalent to AOL online or CopyServe
 or the Bloomberg terminal or whatever.
 So that 100% the argument.
 And so like, when I say like, there's a document here
 that we can refer to, the argument you just made
 is referred to in the document.
 Right?
 I mean, this was an argument that happened.
 There was a court case called Brand X.
 And Brand X argued that it was an information service
 and the FCC already wasn't Brand X won.
 All that's fine.
 But the point here is paragraph 29,
 we begin by evaluating the information service definition
 and conclude that it encompasses
 broadband internet access service.
 Of course you do.
 But the commission has looked to dictionary definitions
 and found the term capability to be broad and expansive,
 including the potential ability
 and the capacity to be used, treated
 and developed for a particular surface.
 Wait, wait, wait, they pulled high school freshmen
 like term paper shit on this thing?
 We looked it up at the dictionary?
 Sure did.
 Because broadband internet access service
 necessarily has the capacity or potential ability
 to be used to engage in the access
 and the activities within the information service definition,
 which are generating, acquiring, storing, transforming,
 processing, retrieving, utilizing,
 or making available information via telecommunications.
 We concluded it's best understood
 to have those capabilities.
 So this is about as wacky of a legal argument as it gets.
 They have this word, they can define the word,
 as they're saying, as expansively as they want.
 It has nothing to do with your experience
 using the internet.
 They've just defined it as,
 can you generate, acquire, store, transform,
 process, retrieve, utilize,
 or make available information via telecommunications?
 Well, that's an information service.
 So we'll just stick broadband internet under that.
 And they go on to say,
 the record reflects the fundamental purposes
 of broadband internet access service
 are for generating and making available information,
 for example, through social media and file sharing,
 which is not what you do with what you get
 from your internet service provider,
 but that's what they're saying you do.
 So that's the first piece.
 It is the foundation upon which this entire argument rests.
 Is the internet a telecommunication service,
 broadband internet access from your provider?
 Is it a telecommunication service
 or an information service?
 And all the stuff that we will talk about,
 competition and whether you have one provider or two,
 all of that comes down to what do we do once we,
 how do we define it once we know what competition is like?
 Does that make any sense?
 Yeah, absolutely.
 Sure.
 One of Pi's points is that,
 this is how broadband providers were originally classified.
 So 2015 was the anomaly to move it to telecommunications
 and we're just reverting back
 to what the internet always was.
 So that is his argument,
 but it is not, I don't think it's backed up
 because for the longest time,
 the way people got on the internet was with dial up modems.
 And so you have to do the mental exercise
 of separating out the phone line,
 which was always a title two common carrier service.
 So your phone company could not restrict or throttle
 whatever was happening on your phone line.
 And then you had ISPs.
 And when, so here in literally my parents' house,
 which is the first place I ever got on the internet,
 our phone company at that time was called Ameritech.
 You might guess that it is now part of AT&T.
 It's all things inevitably are,
 but our phone company at that time was called Ameritech.
 I had, there was like 15 different little ISPs
 in Racine, Wisconsin, right?
 I actually worked at one of them.
 It was called core.net.
 I was like in middle school.
 And my job was to go and reset the Supra V.92 modems
 every day, cause they would all crash.
 So I would walk into a room and like reset 200 modems.
 That was one competitor.
 You could get internet access by calling
 Ameritech's bank of modems.
 You could call AOL's bank of modems.
 You could call prodigies bank of modems.
 And Ameritech running the line couldn't stop you, right?
 They couldn't say you can only call Ameritech
 to get internet access.
 So that allowed competition to flourish
 because Ameritech which controlled the title two phone line
 wasn't allowed to tell you who you could call.
 Simple.
 So there was like this huge range of ISP providers.
 The ISP providers at that time, the internet was new.
 They're running dial up modem.
 They were doing all kinds of stuff
 to make the internet work better.
 And they were competing and the FCC was like,
 we're gonna leave that alone
 because fundamentally it's title two on the phone line.
 Does that make any sense, Paul?
 So like there's an argument to be had
 about when the information service classification showed up
 and the opposition to PI would say
 it showed up with the Brand X case
 when the court made an affirmative decision
 that the internet was title one, right?
 So there's this weird period where like,
 net neutrality performance say we got it wrong, right?
 And so then we fixed it because the early part
 of the internet that everyone talks about
 where it was like this explosion of providers and service
 and there was like free internet providers
 that showed you ads and blah, blah, blah, blah, blah.
 The backbone of that was title two phone lines.
 And so now I think you can get to a place where you say,
 okay, well the backbone
 because I didn't have a lot of phone company providers,
 the backbone of that is now broadband providers
 cause I only have one broadband provider
 in this house in Wisconsin.
 And I should be able to go
 to all these other competing services.
 But you can't do that.
 Like that's the thing is when,
 when you had a bunch of different ISPs
 all going over the phone line, you could pick one
 and we don't have that now.
 And so we have to, you know, the provider
 and the service provider are collapsed
 into the same thing, the broadband provider.
 It's like, look at cell service in like the UK.
 Like you can pick from a bunch of different providers
 but they'll kind of use the same backhaul
 as my understanding.
 It's all like, you can switch, right?
 Oh, if you want to go down that rabbit hole.
 So in many, well, I've been ready to talk
 about this for two days.
 So in like many European countries, the UK is one.
 I think the Netherlands is another.
 They have what's called local loop unbundling
 which is super boring, but they, there's one set
 of fiber to everybody's home.
 And anybody can lease that fiber
 and start an internet company
 because there's tons of capacity.
 So people in the UK can generally pick
 between like 45 broadband providers.
 In some countries in Europe, there's no,
 there's not like a lot of, you know,
 the EU has net neutrality rules
 but the countries themselves allow different things
 to happen because you have so many providers
 to choose from that you can switch.
 That's where the competition piece of this comes in.
 So there's a ton of like, you have earth links
 and AOLs, you have all the ISPs like you had
 in the dial up days, but you have a government
 granted monopoly or government owned infrastructure.
 Yeah, so like BT generally owns the fiber.
 I'm not like completely up to date on how it works in the UK
 but I thought we were agreed that like the Ma Bell era
 where AT&T had a legal government granted monopoly
 on telecommunications infrastructure was like a bad phase
 and we're glad we're over it.
 So, ah, right.
 So, yeah.
 So we've arrived at a place
 where we still have government granted monopolies, right?
 We, the, I think that the local loop unbundling piece
 that a lot of European countries do is a recognition
 of the fact that digging a hole in the ground is hard, right?
 And you should probably only dig a hole
 and put an infinite capacity fiber line down once, right?
 So yes, the United States has philosophically chosen
 what they call facilities based competition.
 I mean, this is like just nerdery at its finest.
 Explain facilities based competition.
 I haven't heard of that.
 Okay, so the best example of this is 3G standards
 which is if you remember them, the UK used UMTS,
 they used GSM for 3G and the United States,
 Verizon used CDMA, Sprint was like, fuck it, why max?
 And LTE was like, yeah.
 Yeah, Sprint was also CDMA, but then, yeah.
 So we decided that we would allow all these providers
 to do what, to basically not have standards, right?
 We're gonna allow different kinds of competition
 and in some cases that works.
 So the one competition that you could have back then
 was Ameritech ran copper wire to your house
 to get phone service, MCI was doing microwave transmission.
 So I don't remember what MCI stands for completely,
 but it used to be like microwave communications,
 infrastructure, whatever.
 And that was Sprint used to do a thing
 and they had the HD voice.
 So like the idea was the physical infrastructure
 would be competitive and provide a different kind
 of end user service to you.
 And so the United States is like built on that model.
 The Europeans generally have said,
 what if we had a giant government, like a meta government
 and like we pick standards for competitors.
 So like, this is why in Europe,
 you can buy any phone you want,
 put any SIM card in that you want, everybody uses GSM.
 You have like different kinds of competition,
 but there's not, there's not why max versus LTE or whatever.
 Everyone just has to use LTE.
 So like, we gotta get out of these weeds.
 But it's, these are the weeds.
 This is what I mean.
 Like these are the deep, deep weeds.
 And the deepest weed of this is that the Jeep pie is saying
 because your internet service provider,
 when you access the internet through your broadband modem
 provides DNS and caching,
 it is providing an information service.
 And if it supplies anything else to you,
 if it applies a Comcast.net email service,
 it is definitely not a telecommunications.
 Maybe we can move to an adjacent weed with this.
 The one thing that has been kind of a big controversy
 in this whole debate,
 and I'm not really sure where we're at with it,
 is peering, like paid peering.
 So something like at ISP, like Time Warner Cable.
 Is that still a company?
 I don't even know.
 It's not, it's called Spectrum now.
 Spectrum.
 So Spectrum can say,
 Netflix, hey, you can host your movies in our data center,
 and you can just link right into our customers.
 You don't have to go over regular pipes
 to get to our customers.
 You can just get straight to them and just pay us some money.
 Right, so that is, again,
 I think where I keep coming back to
 is the consumer experience, right?
 That's basically what we cover.
 That's basically who we talk to.
 Hopefully that's who's in the chat, right?
 The consumer experience of the internet
 is that you have one provider or two potentially
 that take like 86% of Americans only have two providers,
 and you get what you get,
 and it's really hard to switch away.
 Then there's the backhaul portion of the internet
 where Netflix is like making deals with data centers
 or like network companies like Level 3
 are making deals with other network companies
 like Comcast to like trade traffic back and forth.
 That originally was not,
 what you're talking about paid peering,
 was originally not in like the net neutrality order.
 It was all about the consumer line.
 The FCC put it, part of it, in the net neutrality order,
 and that was a big win for Netflix,
 but it's not, I don't think that's what people
 are mad about.
 I don't think people give a shit
 about paid peering arrangements
 on the backhaul part of the network.
 I think they care about the fact
 that they don't have many choices for internet access,
 and if they're ISP'd as something stupid,
 they have very little recourse,
 and the recourse most people would want
 is not to file a lawsuit,
 which is what Pyosing can do,
 but switch providers to somebody else.
 Let me back up just a minute.
 So like we can talk about the peering stuff.
 We could talk about whether or not DNS and caching counts
 as an information service,
 but like I hear these legalistic arguments,
 and I don't feel like they're being made in good faith.
 Like, do you really think that like Ajit Pai
 and his fellow FCC commissioners are sitting
 and getting high and talking about the philosophy
 of what's the difference between this and that,
 or is it what I actually think is happening
 is he wants to do this thing,
 and he's finding a legal reason to do the thing
 that he wants to do?
 But isn't that what happened in the first place?
 No!
 Well, so hang on.
 Let me, that's possibly true,
 but this is the thing I was tweeting about the other day.
 Why does he want to do the thing is the question.
 Like the philosophical argument that I think
 like we've had before,
 Paul said we want to try and avoid,
 I don't think we can,
 is whatever like we decide we want to do
 to like run the internet the best way possible,
 we're gonna find a legal fiction to make that possible.
 Like we're gonna like look up a definition
 of the dictionary,
 find a word in that definition to make it the thing.
 Fine.
 But why is pulling these regulations away
 the thing that is so important for him to do?
 And like I genuinely truly want to hear
 like the freshman dorm room explanation
 of why regulations actually hurt innovation,
 because the explanations I've heard,
 regulation bad, like okay,
 it actually hampers investment and innovation.
 I kind of don't believe that.
 And I don't think there's good evidence for that.
 I feel like there's another reason
 and I don't want to go full anti-corporate conspiracy
 and say it's just about Verizon's profits,
 but I feel like that might be on the table,
 but there's gotta be another reason I'm not thinking of
 because I'm dumb to justify this thing.
 And then I later on towards the end of this,
 we need to talk about the definition
 of arbitrary and capricious,
 but let's get, let's like step out and be like, why?
 Just why?
 So Paul, I'm sure you have an answer,
 but I'll give it a very simple one.
 I can't look into Ajit Pai's heart.
 I can't.
 I mean, you could get yourself a chest saw.
 Wow.
 So someone's been in Arkansas too long.
 I can't look in the man's heart.
 But what he says is that since the net neutrality rules
 are passed, overall investment
 in broadband infrastructure is down.
 And so if you take the rules away
 and the rules are costly or whatever,
 the investment will go back up
 and what you want is more investment
 in broadband infrastructure
 because everyone loves infrastructure investment.
 That's his argument.
 Now, there's a lot of argument
 about whether his numbers are right.
 Just a lot of argument.
 And one of the main things to argue with
 is AT&T is so huge,
 they tip the scale.
 So AT&T finished its LTE rollout.
 It finished a huge network investment.
 It bought DirecTV for one period of time.
 It paused investment on its network.
 And so over the period that Pai is claiming,
 AT&T alone is enough to say,
 over the year ago period,
 broadband investment has fallen $200 million.
 But that's just AT&T.
 Every other company is out there saying,
 we're gonna keep investing in our network.
 So you can look at the total, you can slice it,
 you can have all kinds of fights.
 But that's like the main argument over his metric.
 Paul, I'm sure you have another answer.
 Yeah, in his Wall Street Journal piece,
 he said that growth had slowed.
 It wasn't, I mean, it's not like net down, but it's-
 Well, it's net down if you count AT&T.
 And the reason you count it, right,
 it's net down if AT&T is allowed to say,
 we bought DirecTV and hit pause on infrastructure investment.
 So here's my freshman dorm.
 I didn't go to college.
 So most of my conversations are just
 freshman dorm conversations that I'm not aware of.
 If you think of what the FCC was like originally,
 it's like the US government is going to own the airwaves
 and lease them to companies.
 The airwaves are going to be a public good,
 and therefore no company will be allowed to own them.
 Yeah, I would say that the fundamental debate
 that we'll have with that start of this explanation
 is whether or not the US government
 is an effective proxy for the people.
 Like the people own the airwaves,
 the US government regulate, manages them for the people.
 Well, but the people don't own Google.
 The people don't own Twitter.
 That's correct.
 That's correct.
 So you have the airwaves, but this,
 the FCC making all the pipes dug underground,
 a public good is in a sense almost like asset seizure.
 It's the government saying that
 because this is so important to people,
 and obviously the internet is very important for people,
 and it is a good for people,
 it now needs to be a public good
 so that we can make rules for it.
 Right.
 And this is a very baseline life, liberty, property
 kind of thing.
 I think that is the government overstepping its role.
 And I think it's the FCC overstepping the role
 that was assigned to it by Congress.
 And, you know, Ajit Pai, a lot of,
 was always talking about the FEC,
 or sorry, the FTC, like they can manage this.
 If there's an anti-competitive practice
 of one of these companies,
 we have agencies for that to solve that,
 but we shouldn't protect internet companies
 from monopoly status and then make a bunch of rules
 that actually manage how they're allowed
 to implement their property.
 Right.
 And just real quick, it sounds like the end of that argument
 is you don't think that back in the day,
 the FCC should have even like regulated,
 had Title II in the first place.
 Like it should not have regulated telephone lines
 and kept AT&T from like blocking me from calling you
 and changing prices and like the kind of stuff
 that they want phone companies to stop doing.
 I don't think the government should be in the role
 of protecting monopolies.
 Like when monopolies really hurt consumers,
 it's when the government is propping them up.
 And I think that's what happened with AT&T.
 And even like with the train,
 the whole common carrier concept for trains,
 it's just very unimaginative.
 It didn't imagine a world where maybe trucks
 would also deliver goods and trains would almost be,
 you know, a bit of an afterthought.
 Right, I think the philosophical debate you're having there
 is how much does the government assume the future
 will be better if the market is left to operate?
 Right, and you have to,
 like digging a hole in the ground is difficult.
 Like it's just a hard thing to do.
 Yeah.
 The easiest way to dig a hole in the ground
 is to connect to everybody is to do it on public streets.
 So the government does own the streets.
 Yeah.
 And say, okay, you have access along the street
 to dig a hole.
 And the main thing they did, Paul,
 and I agree with you, this is the heart of the problem,
 is they granted monopolies to some companies
 to put pipes in the streets.
 Right.
 So in Philadelphia, Comcast sued the government
 for providing public wifi and killed public wifi
 because they didn't want competition with Comcast.
 Yeah.
 Right, and the government sort of like let that happen
 and let it die.
 But the ability for a competitor to come in
 and put another private pipe in the ground
 is restricted just by reality.
 That's an enormously costly thing to do.
 And it's restricted by throughout the country,
 all of these restrictive agreements
 that local governments have entered into
 with private enterprise for short-term capital.
 So your little, I have a house in upstate New York,
 like mid Hudson Cable in upstate New York,
 like has the deal with the county government
 to provide internet access.
 There is just not enough like market saturation up there
 for another competitor to come in.
 It's just never going to happen.
 And like you can tell me if 5G wireless will come in one day,
 but like I can't get a 3G signal.
 So like the ability for in some of these places
 for that competition to happen is very low.
 And I think you have to just decide
 how either pragmatic you are or how idealistic you are
 when it comes to are these pipes in the ground
 part of a public infrastructure that we all rely on
 or are they absolutely private property that we can't touch?
 And the phone company example,
 the reason AT&T was granted that monopoly
 is because the government decided the better outcome
 was for everyone in America to have a phone connection.
 The other thing I'll point out
 with the train common carrier thing,
 it's like, you're not wrong.
 They're like, yes, the government is bad
 at forecasting future disruptive innovations.
 However, it's a very complicated story
 because with trains in particular,
 they got out innovated by trucks, you'd say,
 but like that was only possible
 because the government built the national highway system.
 It's always like this interplay between
 like what the government as essentially
 the voice of the people is doing to try
 and like create the greatest public good
 and balance that against personal freedom.
 And like the invisible hand of the capitalism
 is always more complicated than it seems
 strictly in principle because the things
 that cause that disruptive innovation
 are often also the result of government action.
 One might suggest that the internet itself
 is the result of DARPA and DARPAnet and ARPANet,
 which was government funded.
 So like, it's always more complicated.
 Like the reason that like I don't find
 the regulation bad argument compelling
 is I feel like it doesn't address the realities
 of like what the actual market is doing.
 Well, I think it just comes down to common sense
 and I wanna switch to one thing,
 but Paul, I think it comes down to,
 we have these laws in the book.
 The FCC is not writing laws.
 It's deciding which of these two regulatory schemes
 we should use for the internet.
 Congress could write a law,
 if you believe that this Congress can do anything,
 but Congress could write a law.
 It has two schemes.
 In 2015, it picked one scheme to broad public acclaim,
 right, the FCC is supposed to work in the public interest.
 A lot of people supported that scheme.
 Only big internet companies didn't support that scheme.
 Right, so only Verizon and AT&T were making the argument
 that they shouldn't be regulated.
 And they're out there, Comcast is like,
 tweeting crazy things today.
 Like, we'll never block anything.
 We don't, these rules, don't worry.
 We're gonna follow them anyway, because we love you.
 Like, fine, right?
 So they all know.
 The best commentary I saw on that by the way,
 was Comcast also promises to be at your house
 between one and five.
 Yeah, so like, right, like,
 so the internet companies know what the public wants,
 right, there's just no market force.
 If Comcast decides to break all of its promises,
 it's very hard for a lot of people to leave Comcast.
 By the way, disclosure, Comcast through its NBC unit,
 owns a minority stake in Vox Media, which owns The Verge.
 There's your disclosure.
 So that's like, Paul, I think that's the problem.
 You can have competition.
 This is Craig Aaron from Free Press told me this in 2014.
 It's a quote in a piece I wrote.
 You can have competition or you can have regulation.
 Comcast is trying to have neither, right?
 So it does a lot of lobbying work
 to make sure it's the exclusive internet provider
 in the markets it's in,
 and it's doing a lot of lobbying work to say,
 we shouldn't be regulated.
 You can't have both.
 You gotta have both.
 Absolutely dislike the lobbying against competition.
 And that's one of the reasons why it terrifies me
 that the FCC has this much power.
 Because let's say the roles were reversed, right?
 Let's say the status quo was the 2015 internet,
 like the internet had been classified
 under Title II this whole time,
 and then 2015 comes along, or let's say 2017 right now.
 You've got a president who was elected
 but didn't win the popular vote.
 He nominates one person who was already on this commission
 to be the leader of this commission.
 And now the whole internet changes.
 And that's why I think,
 I understand that the Congress makes a law
 and then you get a regulatory agency
 to sort of enact that role that the Congress created for it.
 But this is basically one person being the deciding vote
 of what billion dollar companies
 and billions of dollars worth of infrastructure,
 how that's actually used.
 Like if somebody showed up in some regulatory agency
 and said, you need to go home
 and deflate all your footballs and basketballs
 for some reason, it's like, well, that's my property.
 Like I understand that you made a law
 and then there's an agency,
 and then there's this guy who drinks coffee
 out of a Reese's mug, thinks I should deflate all,
 but it's like, I own those.
 I can decide how I want to use them.
 I can make those laws all day long, Paul.
 I can tell you how fast to drive your car.
 I can tell you if you want to, I'm in Wisconsin,
 so I've seen a lot of these folks around.
 If you want to go hunting, you got to wear blaze orange.
 Like if you build a house, it's got to be up to these codes.
 Like we make those rules all of the time,
 literally all of the time.
 It's illegal for you to show up in my house
 and punch me in the face.
 Like that's your body.
 Like I can't tell you what to do with your body.
 Yes, I can.
 I can absolutely tell you.
 I can tell you not to put drugs in your body.
 Like there are all kinds of rules we make.
 And I think this is where you're either super philosophical
 and idealistic, or you're just pragmatic about reality.
 And I think where I come down is there's not enough
 competition to be that philosophical and idealistic.
 If there was more competition,
 I would be absolutely fine saying,
 and I think this is true in mobile.
 In mobile, you have at least four competitors
 and T-Mobile is a disruptive competitor
 and AT&T and Verizon are having to react to.
 I think there should be more competitors.
 I think that would be even better,
 but you can at least see how that market is working.
 People are switching to T-Mobile.
 They're doing binge on T-Mobile CEOs, like making videos.
 He's like middle fingers in the air.
 He's like throwing bombs.
 AT&T and Verizon are now doing things
 that look a lot like T-Mobile.
 And what's really interesting about that cycle
 is they're all starting to do unlimited plans
 because they all have to layer on more and more services.
 So T-Mobile started with free music streaming
 and then AT&T started doing free music streaming.
 So then T-Mobile started doing free video streaming
 and now they're all just doing unlimited plans.
 And it's like when the market speaks,
 when people actually have a free market choice,
 the thing that they want looks an awful lot
 like net neutrality.
 When they don't have a market choice,
 the thing they want is regulation
 that gets them net neutrality.
 So either way, what people are saying is,
 don't monkey with my internet connection.
 And what they need is recourse
 if you start monkeying with their internet connection.
 But the recourse is one person appointed by a president
 who's elected every four years.
 Sure, but like-
 Well, that's-
 So actually- The people's recourse is the state.
 No, but Paul's making a really good point
 that the whiplash of the rules
 around how the internet gets served to humans in America
 changing every time there's a new administration,
 there's a new group of people in the FCC,
 it goes from three to two to two to three is crazy making.
 And yes, it would be great if I-
 Wait, wait, wait, hold on.
 No, let me finish.
 I'm making a point.
 I'm making a point.
 It would be great if Congress would make a law.
 My personal politics,
 I think that if this Congress could actually pull that off,
 I don't know if I would like that law,
 but at least then we would have less whiplash.
 We could argue about the law.
 Let me finish.
 Let me finish.
 All right.
 I'm putting the ball on the tee for you, Neal.
 Are you ready?
 The ball is just a good one.
 I hate the tee.
 I'm walking over to the tee with the baseball.
 You've got the big giant plastic bat.
 It's a whipple ball.
 You're gonna hit it and it won't go very far.
 Isn't one of the rules around the way the FCC
 is supposed to work that we're not supposed to have
 this whiplash,
 that they have to have good legal justifications
 and it can't be, I think the phrase is arbitrary
 and capricious.
 Right.
 Okay.
 Thank you for the ball and the tee.
 Wow.
 It is a slightly different ball and tee
 than I thought was coming.
 I think I'm playing hockey.
 It's very confusing.
 So wait, just to Paul's point,
 his narrow point, which is we had an election
 and everything's different.
 Yes, it actually doesn't matter how that,
 the mechanics of that don't matter.
 So like we had an election, we elected Obama,
 there's Obamacare.
 We had an election, we elected Trump
 and they're furiously trying to undo Obamacare.
 That happens all the time.
 Like you can't stop it.
 The end point of that is we should have a king, right?
 And the king will just never change his mind.
 I'm saying that the Polish-
 I vote for a queen actually, but I guess I won't vote at all
 because it'd be a queen.
 Let me finish this thought.
 So the check on that-
 Wait, so they did what I was saying.
 Right, but the check on that, which is what you want,
 which is you can't elect somebody new,
 have them appoint some new people in regulatory agencies
 who weren't actually elected, is what Dieter is saying,
 which is the FCC has to like provide stability
 to the market.
 They understand that it needs, the market needs stability
 and they are not allowed to change their mind
 in an arbitrary and capricious way.
 That's in the administrative law of our country.
 So Pai has to make a case that since the time
 of net neutrality passing in 2015,
 something has changed so much
 that provides him a reason to undo it, right?
 And his argument is that broadband investment has slowed.
 That's his argument.
 So we passed net neutrality.
 If broadband investment had like,
 everything was going great,
 then he wouldn't be allowed to change it.
 There'd be a lawsuit and they would sue him
 and the court would say, this is just an arbitrary change.
 You're not elected.
 You can't do that.
 He's saying, well, broadband investment has slowed.
 That law was obviously bad.
 That regulatory interpretation was obviously bad.
 So I'm changing it and it's not arbitrary.
 And that's where the fight is going to be.
 So the information service thing,
 the broadband investment thing,
 all of that stuff is what people are going to fight about.
 So like, also, I think the court,
 just based on what I'm seeing today,
 I think it would be foolish for a future court.
 So I know Free Press is going to sue the FCC.
 The ACLU is going to sue the FCC.
 The EFF is going to sue the FCC.
 He's going to take this vote on the 14th
 and he will immediately face a lawsuit that says,
 this is arbitrary and capricious and you can't do it.
 Right?
 And that somebody in our chat right now
 is the FCC doesn't answer anyone.
 It's beyond the people's reach.
 No, it's not.
 You can just file a lawsuit.
 And I think Pai is walking into a lawsuit
 that says his decision is arbitrary and capricious.
 And so you just,
 the EFF has a Twitter thread here that I'm looking at.
 Well, actually, before, just like the thing you didn't say
 in that rant is that we just know that this is going to pass,
 that the FCC is going to vote to undo net neutrality rules
 and convert it to Title I.
 Like it's three to two.
 You can call your Congressman
 to put pressure on the FCC people on the board.
 You can call Ajay Pai, you can call whomever,
 but like, we know this thing is going to pass, right?
 It's going to happen.
 Yeah.
 And then the lawsuit starts.
 And the lawsuit starts.
 So, okay.
 And this is like,
 are you enough of a single issue voter
 to vote Democratic or Republican
 based on broadband regulation?
 It's, who knows?
 Right?
 But it seems-
 Ask r slash the Donald,
 because that's an exciting place right now.
 Right, so yeah, the Donald Trump subreddit on Reddit
 is like torn asunder.
 Because, right?
 Because that wouldn't exist, but for net neutrality,
 if your ISP could have slowed down Reddit in the early days,
 or they could have looked at the Donald Trump phenomenon
 and Russian interference
 and decided to start blocking certain kinds of content,
 you wouldn't really be able to stop them
 and you wouldn't really be able to switch.
 Reddit existed before 2015.
 Right, but the argument-
 And people lobbied for net neutrality before 2015
 and the run up to the FCC's decision.
 Right, because the Brand X decision was bad,
 is like a piece of this in the background.
 And people really wanted net neutrality
 because they started switching in huge numbers
 from dial up internet to broadband internet
 and realizing they had no competition.
 They were pretty far down that road by 2015
 and Comcast wasn't blocking Reddit
 because Reddit did a blackout.
 I think you're over-
 I think you're being over optimistic
 about broadband penetration in the United States.
 These are the fears that were sold to me
 like going into 2015,
 like you don't wanna get like a $10 bill
 because you decided to use Twitter that month
 or something like that,
 or you don't wanna pay extra for Netflix
 or you'll have a slow lane or something like that.
 And I am arguing that broadband companies
 should have the right to do any of that stuff.
 But I really don't-
 most companies don't do something
 that their customers will absolutely hate.
 We end up disliking a lot about what companies do,
 but you can definitely push it too far.
 I mean, I would just, again,
 there's like philosophy and there's realism
 and there's like the reality
 is Comcast is the most hated company in America.
 They do things their customers hate all day long.
 AT&T is like, they're around, people don't love them.
 They have an enormous number of customers.
 But they clearly realize that there's a line
 that they're gonna push past that there's-
 And Comcast pushes past that line all of the time.
 Comcast blocked BitTorrent.
 There's another company called, what was it?
 Madison River Systems that blocked Vonage.
 Comcast prioritizes its own TV service to various devices.
 Like AT&T wants to buy Time Warner,
 the main thing AT&T wants to do with Time Warner content
 is give it to you for free versus non-Time Warner content.
 Like this is the future, right?
 It's coming at us and they want to do these things
 that people don't want them to do.
 And what people want is a rule preventing them
 from doing those things.
 Or you could start all over and build more competition,
 but the world in which, you know, the-
 So Comcast bought Amazon,
 so Comcast bought NBC, right?
 They signed a consent decree saying
 they would basically abide by net neutrality
 until next year.
 Next year, that consent decree goes away.
 There's no net neutrality.
 And suddenly NBC programming, Universal Movies
 will come to you for free over to Comcast lines
 and everyone else will hit the cap.
 So the minions will be free and I don't know,
 Milana won't be, right?
 Like that's not an outcome that people want.
 And we all know that the phrase,
 the minions will be free is a contradiction in terms
 because by definition, by the dictionary definition,
 they're minions.
 They're not supposed to be free.
 I'm not saying everybody gets everything they want
 no matter what the rules are.
 You just have a choice.
 You try sometimes, you just might find.
 No, but Paul, you don't have a choice.
 You get what you need.
 These companies can do things you hate
 and they do them all the time because you can't leave,
 right?
 That's the thing.
 The philosophy question here is,
 Paul doesn't believe these companies
 are gonna do bad things, but maybe they will,
 but who knows, but should we make a law preventing
 a company from doing a bad thing
 before they've done the bad thing?
 Okay, so this goes to the other thing that Pai brings up
 and Paul had been talking about,
 which is maybe the FCC doesn't need this power
 because the FTC, the Federal Trade Commission
 or the Consumer Protection Agency
 will be able to do this stuff either.
 So I'm just gonna read more from Pai's document
 because I think it's important to keep referring
 to his actual argument.
 So he says, most of the examples
 of net neutrality violations discussed
 in the net neutrality order could have been investigated
 as antitrust violations,
 which is where the DOJ or the FTC comes in.
 Madison River Communication blocked access to voice over IP
 to foreclose competition with itself and business.
 An antitrust case could have focused
 on whether the company was engaged
 in anti-competitive foreclosure.
 Whether one regards Comcast behavior
 towards BitTorrent as blocking or throttling,
 it could have been pursued as an antitrust
 or consumer protection case.
 The FCC noticed that BitTorrent service allowed users
 to view video that they might otherwise have had to purchase
 through Comcast video on demand service,
 a claim that would have been considered anti-competitive.
 Comcast also failed to disclose
 this network management practice
 and initially denied that it was engaged in throttling,
 potentially unfair or deceptive acts or practices.
 So he's saying, okay, Comcast is throttling BitTorrent.
 If we discover it and they haven't disclosed it,
 someone can sue them, very unclear who.
 If the DOJ wants to make the case
 that throttling BitTorrent unreasonably preferences
 Comcast like video on demand service,
 they can bring a lawsuit too.
 So instead of a rule,
 what you have is the hope of more lawsuits.
 And to be clear, the one thing that this new,
 this removal of net neutrality is leaving in place
 is the rule for transparency about actions.
 Sure, yes, that probably would like the companies
 to say what they're gonna do.
 Now, how much transparency in the form of that transparency
 is not, it's not mandated, right?
 Because how can you possibly tell a private company
 what to do ever except be transparent?
 So if they could bury it in a small print,
 and this is an important loophole,
 they don't have to be transparent
 about anything they define as a reasonable network
 management practices.
 So if throttling a bunch of Netflix at 8 p.m.
 is a reasonable network management practice
 because everyone's using Netflix,
 they wanna preserve some service or some bandwidth
 for Hulu, they don't have to tell you that.
 You have to discover it, then you have to sue them
 to say this isn't a reasonable network management practice.
 And then you have to further win a lawsuit saying
 this is anti-competitive.
 So like, that's a lot of lawsuits.
 So what you had was a rule, and now Pi is saying,
 well, we can just have a bunch of lawsuits
 that get us back to the rules,
 which seems like if what you're worried about is costs,
 you have just created the opportunity
 for legal costs to skyrocket.
 Well, I, so here's a straw man's situation
 for the reduced investment, right?
 I'm Verizon, I wanna do this kind of crazy thing,
 I'm not sure if the FCC will allow me to do it
 under the 2015 rules.
 So I do it, and then the FCC says, no, I can't.
 And then I need to argue in court that the FCC was wrong
 to ever even have these rules,
 or outside of these 2015 rules, I do it.
 And then the FTC says that's anti-competitive.
 And then I can argue whether or not it's anti-competitive.
 I don't have to argue that the FCC has overstepped its,
 like I don't have to argue against the entire existence
 of a government agency.
 I just need to decide what, help or argue
 in front of the court whether or not
 what I've done is anti-competitive.
 And there's a lot more literature in legal,
 like my lawyers, before I do that,
 that potentially anti-competitive thing,
 my lawyers can look at this great body
 of legal argument about what ends up qualifying
 as anti-competitive, where with the FCC,
 I'm not quite sure what they're gonna decide.
 And it's up to them.
 I don't really track.
 I think there's a body of law for everything, right?
 The country is very old.
 Well, it's not that old, but the country is like,
 a couple of hundred years old.
 There's literally every word in PIE's documents
 that's in this document here.
 There's a body of law undergirding every single word, right?
 That's how precedent works.
 There's like branching precedent
 and your lawyers do lawyer stuff.
 I think what you're asking is like,
 are we making rules where you have to fight
 against the rules or are we making rules
 where you're free to do something
 and somebody else can come in and fight
 to enforce the rules, right?
 Or is the burden on the company
 or is the burden on the consumer that might be harmed?
 I generally think the burden is on the company.
 I think only for this reason,
 the best way for a consumer to address a harm
 is to stop paying you, right?
 That's what we want.
 Like Paul, I think you and I are actually far more aligned
 of like the basic free market principle there
 than anybody would suspect.
 Like if I don't like what I'm getting,
 if I don't like the value I'm getting from you
 when I pay you for a service,
 I should just take my money away.
 You'll react to that.
 The problem is that 51% of Americans
 have nowhere else to spend that money.
 So they're stuck.
 So you now have this like incredible leverage
 as an internet service provider
 to do anything that you want.
 And there's no immediate redress for me.
 I have to spend more money to pay a lawyer
 to address your behavior.
 So if we pass that cost back to that set
 of internet service providers and say,
 here are the rules, like this relationship is not equal.
 The rules are you can't do X, Y, and Z
 because the people have spoken
 and through some complicated set of government processes,
 you've created rules.
 I think that's fine, right?
 That's the difference that keeps coming back
 to between idealism and like pragmatism.
 Like that's fine.
 If there were like 500 competitors,
 okay, I'm just gonna take my money away.
 I do that all the time.
 There's two slightly different things here then.
 There is what FCC rules will lead to the most investment
 and what FCC rules will lead to a certain minimum
 of internet service.
 And I would argue that the new no-net neutrality rules
 are designed to lead to the most investment,
 which will hopefully foster space internet
 and project loom and whatever.
 So we can actually have competition, right?
 So, right, but if you have enough money
 to do space internet, right?
 Like the marginal cost of your lawyer applying
 for the waiver to the rules
 so you can build a new technology is like pretty low.
 Like it's not gonna stop you.
 You're not gonna like, oh my God,
 I've got to bill a lawyer $10,000.
 Like- Well, you need the money
 from what exists right now to fund your space internet.
 Sure, but I'm saying that the percentage cost of the leak,
 if like, if you have the ability to put rockets into space,
 you probably have the ability to pay for a lawyer
 because you can't do that without lawyers to begin with.
 So like, there you are.
 But like, Paul, you and I are talking in hypotheticals.
 I'm just gonna read this.
 It's from the EFF, so it's obviously a biased list,
 but here's their list.
 More than a thousand small businesses, investors,
 and technology startups in all 50 states
 have publicly opposed the rollback of net neutrality.
 More than 900 online video creators
 have produced content for more than 200 million viewers,
 oppose the FCC plan.
 52 social justice, civil rights,
 and human rights organizations
 have filed support of net neutrality.
 Dozens of ISPs across the country have told the FCC
 to leave the rules in place.
 120,000 libraries in total across the United States
 want net neutrality.
 Privacy organizations want it.
 State attorneys general from Illinois,
 California, Connecticut, Hawaii, Iowa,
 Maine, Maryland, Massachusetts, Mississippi,
 Oregon, Vermont, Washington,
 and DC support retaining net neutrality rules.
 60 mayors, the National Association of Realtors,
 just wandering in the door at the last minute.
 What are we talking about, guys?
 Right, like...
 And then there's like a lot of argument about the comments,
 but it's like millions of comments in support.
 So you do have this extreme amount of public support
 for these rules.
 And at some point, you just have to deal with it.
 I don't think you can just say,
 we'll have more innovation
 if we let companies do whatever they want.
 People have deep relationships
 with their internet service providers.
 They understand the parameters of that relationship,
 and they think that those relationships are unfair,
 and they want some rules in place.
 I think however you feel about government,
 you have to respect that in some way,
 and I think Pye is aggressively ignoring it.
 In fact, we know he's aggressively ignoring it.
 His, like, at least his Wall Street Journal piece,
 it seems like what he mostly paid attention to
 was small providers who claimed that it was burdensome on them
 and, you know, the numbers about investment.
 I feel like there was one other thing that he pointed out.
 Those are his two things, for sure.
 And he brought up, again, the opening of this document,
 he brings up rural and rural broadband access.
 So that's interesting, right?
 It's interesting because what small broadband providers
 care about is not having to do a lot of, like, record keeping.
 To say hire accountants and bookkeepers and whatever,
 that's a cost, and if you're, like, a two-person ISP,
 that's a big cost.
 But he waived those requirements.
 So the original order in 2015 waived those requirements
 for, like, some number of subscribers,
 and then Pye came into office and waived them
 for an even huger number of subscribers.
 So most small ISPs with, like, 200,000 people,
 200,000 customers, they don't have those costs anyway.
 And Jake Kastanakis actually talked,
 we have a great story on The Verge,
 he talked to a father-daughter ISP in Colorado that were,
 like, we completely support Title II.
 Like, this is fine for us, don't worry about it.
 So there's, again, there's a lot to litigate there.
 He's not, Pye is not the only person speaking for small ISPs.
 The ISPs are fully capable of speaking for themselves,
 and a huge number of them are saying they want Title II.
 And then on the investment piece,
 this is, I think, where the arbitrary and capricious,
 where the argument is going to be made
 whether or not this is arbitrary and capricious.
 Ars Technica has an amazing series of articles about this.
 In public, the broadband companies,
 Verizon, AT&T, Comcast, whatever,
 all claim Title II is killing us.
 And then on their own earnings calls,
 they say to investors, Title II isn't a problem,
 our investment is going up,
 we're gonna be the best and win everything.
 So there's a staggering disconnect
 between what Pye is saying
 and what these companies are saying to their own investors.
 And they're not, I mean, they're not allowed
 to lie to their investment on earnings calls.
 Like, those are, they have a fiduciary duty
 to those people to tell the truth.
 And they could get sued a lot if they're lying.
 So one presumes that they are telling the truth
 on those calls versus what they're saying in public.
 So that's like, that's the whole argument, right?
 Like whether or not you believe broadband investment
 has fallen because of net neutrality,
 whether or not you believe the internet
 is an information service, which is like broadband.
 Oh, by the way, can I just say that,
 I said this at the very top of the podcast,
 but he's also wants to switch wireless
 from being a commercial radio service
 to a private mobile service.
 And a commercial radio service is anything
 that connects to a common carrier service basically.
 Yeah.
 So like, if you say the internet is,
 so like think about telephones.
 So your copper landline telephones
 are common carrier cell phone,
 voice calls over cell phones connect to that network.
 By definition, it's a commercial radio service
 and can be regulated this way.
 So they switched the broadband internet service to title two
 and they said, LTE is now a commercial radio service
 because it connects to a common carrier.
 So we can regulate it this way.
 Then they now Pi wants to switch broadband internet access
 from, sorry, I think this is hilarious.
 Mobile broadband.
 No, he wants to switch broadband internet access
 the internet from telecommunications
 to information service.
 So he does that.
 And then he's allowed to say,
 oh, well this LTE network doesn't connect
 to a common carrier service.
 Now it's a private mobile service.
 They can do whatever they want.
 It's like, it's a shell game.
 They mean it's, and I say that in like a kind way,
 it's a shell game cause that's what lawyers do, right?
 They like line up all the definitions
 and they push their domino over and they're like,
 see, I was right all along.
 And that's a hundred percent what he's doing.
 But fundamentally the question is,
 do you have the market power, you yourself
 to take your money away?
 If your ISP doesn't do something you don't like
 and just most Americans don't, that's the answer.
 And so most Americans are saying,
 I would prefer the government to mediate this relationship.
 Okay, okay.
 So like, what's gonna happen?
 The December 14th, they're gonna have this vote.
 It's gonna pass.
 A bunch of like organizations are gonna sue the FCC.
 When do I have to pick my internet package,
 the super premium plus version with HBO now,
 Hulu plus and Netflix.
 So what's amazing about that,
 with the bonus extra stuff for like Reddit and Twitter.
 So what's amazing about this, amazing,
 is that the Trump administration is such chaos,
 they can't even get it all right, right?
 So the FCC is saying, okay, AT&T do whatever you want,
 get out there, go crazy.
 And at the same time, the Department of Justice is saying,
 hold up AT&T, you are not allowed to buy Time Warner.
 So I think if it was different
 and the DOJ was letting the Time Warner deal go through,
 you would see in short order, the Time Warner deal close,
 AT&T now owns HBO and CNN, whatever,
 you would immediately see AT&T customers
 get free access to those services.
 And then you would immediately see Comcast respond
 in next year when its consent decree expires,
 you would immediately see Comcast start to prioritize
 NBC services on its network.
 And you'll immediately see Verizon start to prioritize
 both services from AOL and Yahoo and Go90.
 And you already are starting to see some of that stuff,
 right, Go90 through a complicated arrangement of payments,
 Verizon's Go90 unit pays Verizon for sponsored data
 and Verizon customers get it for free.
 That is actually just a shell game that is stupid, but.
 Wait, that's happening right now?
 It's happening right now.
 How is that possible?
 Because Verizon offers sponsored data.
 So if you're a startup or whatever, you can pay,
 nobody uses it, but Verizon's own Go90 buys data
 from Verizon and then gives it to Verizon customers
 for free.
 That's totally possible.
 Does that mean that the current regulations are toothless
 and aren't doing anything for anybody?
 It means that the Tom Wheeler's FCC,
 right before he left, did an analysis of these schemes.
 And it found that T-Mobile scheme of BingeOn,
 of music freedom, of whatever, was acceptable
 because it was not discriminatory.
 So any music service could sign up for it
 and you just get it for free
 and there was no cost associated with it.
 And AT&T and Verizon schemes probably violated net neutrality
 because they had this price discriminatory element.
 Then Tom Wheeler flipped the table, left the building,
 and no one did anything about it.
 Yeah.
 That's where he had gotten to, right?
 He did this long investigation about it.
 And I interviewed him right before he left
 and I asked him about it.
 He was pretty clear that that's what he was gonna do.
 Yeah.
 By the way, so this guy, go ahead.
 When T-Mobile first started, it's BingeOn stuff.
 And I stood up in the room and asked John Legere
 about net neutrality and he got real mad at me.
 Then he started cursing The Verge
 and made fun of my title actually, which was really funny.
 Anyway, people were like, why are you mad at T-Mobile
 for giving something for free to his customers?
 That doesn't seem like a problem for net neutrality.
 And it's because we knew at the end of this story
 was Verizon having the legal justification
 to offer, oh, go 90 to its customers for free
 and AT&T having the legal justification
 to give CNN for free, but charge you more
 for something that isn't on Time Warner's networks.
 Right.
 And Paul, I think that comes down to the real,
 at the end of it, the real problem here,
 which is you do not wanna be in a place
 where Comcast owns MSNBC and MSNBC streams to your phone
 and Fox News costs you extra money, right?
 Like you just don't wanna be in that place.
 As much as I hate Fox News, you don't wanna be in a place
 where your broadband provider is now making
 price differentiation based on points of view
 that it holds that promotes that.
 So like there's a, that's why Free Press,
 which is a speech, a free speech organization
 is like after this so hard, right?
 They're saying, leave the internet alone.
 This isn't about startups or whatever.
 This is about core private regulation of speech.
 So like there's just layers and layers and layers of this.
 I just brought up the fact that I interviewed Tom Wheeler.
 I interviewed Tom Wheeler,
 the former chair of the FCC twice.
 I wasn't easy on him.
 I interviewed Michael Powell, who runs NCTA
 during the run up to net neutrality in 2014 and 15.
 He was the former chair of the FCC.
 He's a Republican.
 He now runs the largest cable company lobbying group.
 It's basically Comcast lobbying group.
 He answered hard questions with me.
 We've, I mean, basically we've interviewed
 Jessica Rosenworcel.
 We've asked her hard questions like down the line,
 Mignon Clyburn, who's another FCC commissioner.
 We've interviewed her and asked her questions.
 Down the line, we have interviewed these people
 who are public servants and asked hard questions
 about their policies and they've given their answers
 and like whatever we agree with them
 or don't agree with them,
 but they're willing to take the questions.
 Pai is not.
 And I think that if I wanna come to one thing,
 we've gone way over here,
 but if I wanna come back to one thing most clearly,
 is that elected or not, these people are public servants
 and Pai is facing this huge backlash
 and he is not being responsive to it in any way.
 He won't take hard questions in any forum.
 He won't come, if you think we're his opposition,
 if you think I'm his opposition, he won't talk to me,
 but he won't talk to, I've seen, I don't know,
 I've seen probably a dozen people who have his podcast
 tweeted him over the past two days saying,
 hey, will you come on my podcast?
 He's not going to any of those.
 He is just doing this without doing the associated work
 of justifying his plan in the face of hard questions.
 And I think if anything's the most dangerous piece of this,
 it's that, like he's not answering to the people
 through the channels that we traditionally expect
 our politicians to answer to the people.
 And I think if you would just start doing that,
 like I would actually calm down a whole lot, right?
 If you would start saying, if you would,
 so Steve Kovach, who works for Business Insider,
 FCC announced its plan.
 Kovach gets on the press call and he says,
 hey, you keep saying this thing about broadband investment,
 but according to the numbers I'm looking at, you're wrong.
 Like, can you justify the discrepancy?
 Which is a great question to ask, right?
 Like well thought out question from a good reporter.
 They just said next question and moved on.
 They just refused to answer his question.
 He's so mad about it.
 Yeah, he and I were talking about it.
 And a lot of other people noticed it.
 They're at that level, right?
 Where the fundamental question that they need to answer,
 that they will have to answer in front of a court,
 they're just not even acknowledging.
 They're just saying this is the right thing to do
 and they're moving on.
 And I think that's the mess.
 Like, whatever, policies are policy, elections come in,
 in four years, there'll be another one.
 Maybe it'll get even crazier in one direction
 or maybe they'll swing all the way back.
 Like that is the nature of elections.
 But once you take the office,
 once you're doing the job,
 I think you have to be responsible to the people.
 And Kai is definitely not doing that.
 Stun silence from Paul.
 Eli wins again.
 Yeah, I really wish he'd get on the podcast.
 Yeah, it'd be really nice to talk to him.
 I will say-
 He has a standing invite to come on his show.
 Yeah, he does.
 We should ask our listeners to ask him to join us.
 Just send them my hangouts link on Twitter, Dito.
 Just add Ajit Pai FCC, A-J-I-T-P-A-I-F-C-C.
 Tweet at him.
 Yep.
 I think if you've been listening to this,
 wait, if you've been listening to this,
 Paul and I have known each other for a long time.
 We obviously disagree about this, but we're also friends.
 Like, and I think if you've been listening to the show,
 we are very nerdy.
 We are very willing to get into the weeds
 of this argument with him.
 This is a great show for him to come on
 and make these arguments.
 It's not actually a hostile space.
 It's not an opposition space.
 It's just-
 And please don't tweet offensive crap at him.
 I've seen like, I made a joke about the ratio
 on his Happy Thanksgiving tweet, and I was right.
 A bunch of people tweeted nasty things at him
 to just saying Happy Thanksgiving.
 Please be kind.
 But like, and we intend to be kind and fair
 to him on this show, but we do want him to answer
 the questions that he's refusing to answer.
 Yeah, he just won't do it.
 I think, again, and he's racing this through, right?
 He put out the plan the day before Thanksgiving.
 He's pushing a vote on December 14th.
 Like, the amount of time the American people
 have to react to this is just very low.
 But you gotta give him credit.
 It's more time than there was in 2015.
 Will you at least get to read the full text?
 No, I disagree.
 I disagree in a serious way.
 In 2015, what had happened was that was five years
 after the FCC tried to do something in 2010.
 They finally did the thing that the courts told them to do.
 So there was a huge run-up, right?
 FCC originally tried to put net neutrality regulations
 in place under Title I, and Verizon sued them and won.
 If Verizon hadn't sued them, it would be fine.
 We would have net neutrality rules under Title I.
 We wouldn't have all this burdensome additional regulation.
 But Verizon decided they didn't like it,
 and they sued them, and they won.
 Great, and the court said to them,
 if you want these regulations, you have to use Title II.
 So then there was a massive run-up again,
 and Tom Wheeler's first instinct was to not do Title II.
 It was to try to shoehorn them into yet another statute
 and go to court again.
 And basically, the public pressure was put on him
 to use Title II.
 So there was that huge run-up.
 I mean, it was just an endless process where Verizon,
 they did the rules, Verizon won a case years later,
 and then Tom Wheeler was made to use Title II
 with a combination of a court ruling and public pressure.
 So that's not the same as this.
 That process was so long.
 It might not have been out as in front,
 and it might not have been like this document,
 like here's what the FCC is voting on.
 But the process that was going through,
 we covered the hell out of it every month for four years.
 So I just don't see that argument.
 I get what he's doing.
 Like, I'm more transparent.
 You can't read the, whatever.
 No human can read this document.
 I will say, in just an abstract sense,
 I want it to be as easy for an agency to devolve power
 as it is to grab power.
 And I really do think of 2015 as a power grab by the FCC,
 constitutional or not, it really bugs me.
 I'm really happy to see Ajit Pai trying to devolve power,
 and I hope that he has correct legal arguments to do that.
 And I see how they're a little tenuous,
 but I hope he makes it through.
 And I'm sorry, I know a lot of people hate,
 I need to open my mouth to disagree with net neutrality.
 But yeah, it worries me.
 And I really do think it puts speech more
 in the hands of the government.
 If you're going to make a free speech argument,
 I understand that it's scary for private companies
 to have so much control over our speech, and that bugs me.
 But it worries me even more that the FCC would have it.
 Fundamentally, the question about this regulation
 is, do you trust the government to do the right thing about it,
 or do you trust these private corporations
 to do the right thing about it?
 And normally with private corporations,
 you can say, I don't have to trust them or not.
 I could just choose not to give them my money.
 And in this case, I don't think we have that option, or 51%
 of Americans don't have that option.
 And yes, I'm with you that the idea
 that I would put more power into the government seems scary.
 But I also like, who am I more afraid of, big giant
 corporations or a big giant government?
 Well, in theory, at least, if we're talking about philosophy,
 I can vote for the people in the big giant government in a way
 that I can't in the big giant corporations.
 Right.
 Yeah, Paul, I mean, I think this is why I like,
 this is why we wanted to do an emergency podcast, right?
 You and I disagree.
 I think it's interesting to talk about the parameter
 of that disagreement.
 But to me, it's, I don't, I'm stuck at what power
 did the FCC grab?
 I couldn't tell you, right?
 Like, the FCC did a thing that the people of the United
 States were very vocal about wanting,
 which is restricting the ability of private internet companies
 to block speech, basically.
 And if you don't have a choice, I
 think that's a totally acceptable function
 for the government.
 Like, the government needs to do things.
 Otherwise, you might as well not have one.
 And I think, right at the end of that, again,
 it's like, are you an idealist or are you a pragmatist?
 Like, do you live in this world or do you
 want to live in a world that doesn't exist?
 Well, Neil, I am an anarcho-capitalist.
 I'm glad you asked.
 Yeah, I'm just not.
 Like, look, we're home for, I'm in my parents' house, right?
 Like, we're home for the holidays.
 Like, their relationship to this technology is not,
 and they're very smart doctors.
 There's a model of a heart back here somewhere.
 I was an MBA.
 Like, their relationship to technology
 is not as sophisticated as to understand
 what AT&T U-verse is doing to their connection.
 They don't give a shit.
 They have better things to do.
 And that's the slippery slope of danger,
 where Netflix is buffering, and they just are like, fuck it,
 and they use U-verse.
 Well, they're not going to file the consumer protection
 lawsuit.
 They're not going to investigate whether that's a reasonable
 network management practice.
 So the scope of potential harm, unless we sit around
 doing our job and investigating what every company is doing,
 and you believe the press when they find out,
 or consumer advocacy organizations,
 which are not well-funded, are doing the work.
 You've just moved the cost.
 You've moved the cost from the company
 to this diffuse set of other actors,
 and they're not going to win as the companies get bigger
 and bigger and bigger and collect more profits.
 That, to me, is the reality.
 So we've gone way over.
 Dieter, did we miss anything?
 Probably.
 I could make more points about being
 afraid of normal, non-techy Americans not seeing
 the point here, or not seeing the danger here,
 but we definitely need to stop.
 OK, I'll say it real quick.
 Yes, last night, we were going to watch a movie,
 and it was like, well, OK, I'm just
 going to find something good to rent.
 But everybody else wanted to find something free on Netflix
 to save the $4 that it would cost to stream something.
 And if it's built into the internet service
 that you can get CNN for free and Fox News costs $2,
 people will definitely just watch CNN.
 And that's the danger.
 If the network gets to give you something,
 it gets to preference content, then it
 is the network choosing what you're watching,
 because people have a very, very lizard brain desire
 to just take the cheaper thing.
 Yeah.
 OK, did anybody get anything good for Thanksgiving?
 Are you supposed to get presents?
 It's Black Friday.
 By the way, I will say, OK, we're going to end the show.
 I'm going to promote some things.
 It's Black Friday.
 Yeah.
 The Verge website is full of Black Friday news,
 so go look at that stuff if you're listening to this live.
 On Monday, Paul, you're hosting Gadget Emotional Support,
 right?
 Oh, I'm so excited for this.
 Emotional tech support.
 So any emotional problems that you have,
 dealing with Cyber Monday, you can call us live.
 It's going to be in the morning, Eastern time morning.
 Yeah, so get ready for that.
 It's you, Ashley, and Haim, right?
 Yeah.
 Haim is our deals expert, and Ashley and I
 will be providing the emotional support.
 Yeah, so if you see a hot Cyber Monday deal,
 you don't know what to do, call Paul and Ashley and Haim
 on the Circuit Breaker show.
 So that's happening.
 The Verge cast is, I won't be on it next week.
 I'm out of town.
 The Verge cast is back next week.
 And then Ashley and Caitlin are back with Why'd
 You Push That Button next week.
 You can also listen to Too Embarrassed to Ask
 with Lauren Good, who is wonderful.
 She does a show with Kara Swisher.
 Kara Swisher, equally wonderful, hosts Recode Decode.
 And then Peter Kofta hosts Recode Media.
 And I am sure that Recode Media is
 going to have some net neutrality and AT&T stuff on it
 coming up, because two biggest stories in tech policy
 happening right now.
 Thank you very much, everybody, on the chat
 here for joining our renegade Black Friday net neutrality
 podcast.
 I know it's the hottest thing going right now,
 but it's important to us.
 I will just say this.
 I think it's cool that three of us can have a conversation,
 which we disagree about something this fundamental,
 and have it be cool.
 So please take that into your heart.
 Try to have cool conversations.
 I appreciate that, too.
 And assuming that if I wasn't here,
 and it's just the two of you, and you all agree,
 what is your call to action?
 What are people supposed to do?
 There's a couple of ways.
 The thing you should do is you should call Congress.
 Congress can put a pressure on the FCC.
 I saw some well-meaning what's all tweeted, Ajit Pai
 and Michael O'Reilly.
 They're not going to change your mind.
 Call Congress.
 You can go to battlephonenet.com.
 The EFF has a tool.
 Just make that phone call.
 It's easy to do.
 You should do it if you believe in it.
 If you don't believe in it, you can make the phone call, too.
 But our government needs to hear from us,
 and maybe something will change.
 So make that first move.
 It might feel like nothing, but it adds up in the aggregate,
 and it will turn into something.
 And then when it's lawsuit time, we'll all just huddle
 for warmth together.
 It'll be fine.
 Yeah, that's the Vergecast, Renegade style.
 Thank you for joining us.
 Rock and roll.
 Paul.
 Promo code.
 Promo code.
 Hey.
 Promo code.