Opinion: John Oliver finds humor in net neutrality, but loses the facts

Comedian John Oliver of HBO’s “Last Week Tonight with John Oliver� has done the unimaginable: He made the debate over the Federal Communications Commission’s proposed net neutrality rules compelling. Now if only he’d gotten the facts right.

Oliver, who honed his news-reading-as-comedy chops with Jon Stewart at Comedy Central’s “The Daily Show,� presented a segment on net neutrality Sunday that combined equal parts humor and outrage. The latter sprang from the notion that the FCC, led by a former cable industry lobbyist, wants to let cable companies set up fast lanes and slow lanes online.

Or, as Oliver put it, “If we let cable companies offer two speeds of service, they won’t be Usain Bolt and Usain Bolt on a motorbike. They’ll be Usain Bolt and Usain Bolted to an anchor.�

He also argued that cable operators would “shake down� content providers, old-school mobster style, by threatening to slow down their data. As proof, he offered up a graph from Netflix showing how its video streaming speeds on Comcast had fallen sharply before Netflix cut a deal to pay Comcast directly for interconnection, after which the speeds jumped.

There was a grain of truth to his narrative, but Oliver misled his audience badly on a couple of key points.

First, he started his rant on the proposed rules by saying, “The Internet in its current form is not broken, and the FCC is currently taking steps to fix that.� It’s true that the status quo online is the way things should be, with Internet service providers treating all legitimate traffic equally. That’s the essence of net neutrality.

The issue is whether the status quo can be sustained without a clear federal prohibition on ISPs picking winners and losers. There’s no such thing today. The federal courts have thrown out two previous attempts by the FCC to stop ISPs from handling traffic on the last mile (that is, broadband connections to homes or offices) in an unreasonably discriminatory way. So, at the insistence of Chairman Tom Wheeler (who is, as Oliver correctly noted, a former top lobbyist for the cable industry, as well as the wireless industry), the commission has proposed a new set of rules that are designed to pass muster with the federal bench.

Second, Oliver characterized the proposal as a move by Comcast and other cable operators (a term he also applied to Verizon and AT&T, the country’s two biggest phone companies) to create fast and slow lanes online. If that’s what they want to do, however, they’d be better off with the FCC not adopting any rules at all.

The real question is what’s the best way to preserve the Internet as an open platform for innovation and content, without interference from the cable and phone companies that dominate the market for broadband connections. Some conservative and libertarian critics of Wheeler’s proposal, including the two Republicans on the FCC, argue that the market will preserve the Internet’s best qualities, with no need for burdensome regulation.

Others, including some consumer advocates and Web-based companies, argue that the proposed rule wouldn’t go far enough to protect Internet users and innovators. That’s because it would allow ISPs to cut deals with websites and services for favorable treatment, as long as they weren’t “commercially unreasonable.� They want the FCC to reclassify broadband as a communications service subject to stringent regulation -- an approach that would be sure to draw lawsuits from telecommunications companies and opposition from Congress.

To placate that faction, Wheeler’s proposal would explore reclassification as an alternative to the chairman’s preferred method, which follows the more permissive legal path suggested by the federal D.C. Circuit appeals court. He also argues that his approach wouldn’t let ISPs hobble companies that don’t strike deals, because that would be commercially unreasonable. The proposal also leaves open the possibility that the FCC could declare paid prioritization to be unreasonable on its face.

That’s a bit too nuanced an explanation for Oliver, however. To him, the deal between Comcast and Netflix is clear evidence of cable operators’ nefarious ambition to create a two-tiered Internet.

But that deal has nothing to do with net neutrality, at least not how it’s defined today.

This is a point that the media have flubbed repeatedly. Net neutrality is about whether ISPs will be allowed to favor some bits over others -- to prioritize their partners’ traffic, giving them an unfair advantage over the rest of the data in the queue. Netflix’s agreement with Comcast, on the other hand, addresses how its data gets into the queue.

Netflix had been paying Cogent, a “transit provider� that delivers data online from one ISP to another, to carry at least some of its streams to broadband ISPs such as Comcast. But Cogent’s connections with Comcast were becoming congested as the two companies squabbled over how much capacity Comcast would provide and at what cost. According to analyst Dan Rayburn, Comcast’s deals with transit providers let them deliver a limited amount of data for free, after which point they have to pay extra. So Netflix moved to cut out the middleman and connect directly to Comcast, a move that Rayburn suggests actually saved Netflix money.

The deal, in other words, didn’t put Netflix in a fast lane or give its data priority over other sites’ traffic.

Details, details, details. What you think about net neutrality and the FCC’s proposed rule depends in large measure on how hard you want to stick it to the cable companies, and hey, who doesn’t despise them and their abysmal customer service? One sure way to get people interested in a mind-numbingly complex public-policy issue is to characterize it as a favor to the evil cable guys, so that’s how Oliver played it.

He urged the public, and particularly Internet “trolls,� to “focus your indiscriminate rage in a useful direction� by telling the FCC not to approve the proposed rule. And many did, letting their Caps Locked outrage loose in such comments as “YOU MUST UPHOLD NET NEUTRALITY AND NET FREEDOM!!!!!! DON’T WUSS OUT TO THOSE CORPORATE [expletive deleted]. DO THE RIGHT THING.�

Happily, though, there’s no shortage of comments that recognize what the FCC is actually wrestling with. You can read them here, or file your own comment here.