November 2014

The new war over network neutrality

Network neutrality was divisive before. Now it’s explosive -- and more political than ever.

Veteran Federal Communications Commission watchers said they could not remember when a president had ever given such explicit thoughts to the commission -- an independent agency. Officially, President Barack Obama can’t order the FCC to do anything. But the president’s policies tend to be reflected by the agency, and his latest move was made official when the Commerce Department submitted his statement to the commission calling on Title II regulation. It’s clear that the Obama Administration, congressional Democrats and tech activists are trying to get out in front of the conservative, business-led backlash against net neutrality. Republicans also are ready to go to war over the issue. For every Republican decrying Obama’s push, there’s a Democrat emboldened by the President’s statement, saying robust rules are needed to prevent an Internet of haves and have-nots.

Previously scheduled FCC meetings with public interest advocates and technology companies went ahead Nov 10, as did staff-level meetings on the Hill. Chairman Wheeler also met with tech companies and plans to meet with broadband carriers this week, according to sources. “Wheeler, pretty much, committed himself to looking at all the Title II issues,” said Public Knowledge President Gene Kimmelman, who attended one of the meetings with Chairman Wheeler. “If there was a doubt whether the Obama administration cared that much about this issue or was willing to fight a battle on that issue, even in Congress, that was laid to rest.”

Chairman Wheeler was told Nov 6 that President Obama was going to push the FCC to go further than originally expected. Jeff Zients, director of the National Economic Council and assistant to the president, told the chairman of the broad outlines of Obama’s announcement, according to FCC documents. A White House official described the meeting as “standard operating procedure.”

Why Obama waited so long to take a stand on network neutrality

[Commentary] Why didn't President Barack Obama speak more plainly about network neutrality, and sooner? And how much will he be able to move the needle at the Federal Communications Commission?

Had President Obama come out a few months ago calling for rigorous regulation of Internet providers under Title II of the Communications Act, it could have been a disaster for any number of reasons.

First is that technology generally -- and net neutrality, in particular -- is not a winning political issue.
Second, President Obama was toxic to Democrats this cycle. Candidates did as much as they could to disassociate themselves from the White House, given Obama's low approval ratings. If the President had promised voters magical flying ponies, his fellow party members would have run the other way. At best, Obama's strong position on net neutrality would've been ignored. At worst, the sight of Democrats fleeing from the policy (for purely political reasons) would have undermined the proposal.
Thirdly, Obama's net neutrality statement would have drawn instant backlash from a Republican Party eager to pillory an unpopular president. As for why President Obama chose right after the midterms to drop his net neutrality statement: Remember that time is ticking at the FCC to make a decision.

What can President Obama really do for network neutrality?

President Barack Obama urged the Federal Communications Commission to take a stand and treat broadband more like a utility than a web portal. But as President Obama himself admits, this isn't his call to make.

The FCC is currently drafting its network neutrality proposals, and he has no control over how its five commissioners ultimately vote. After taking both houses of Congress in the midterm elections, Republicans are poised to overrule the FCC and ban net neutrality regulation. In this climate, what can a speech from the President actually do? "It's fair to see this as a preemptive strike in the coming legislative battle," says Geoffrey Manne, executive director of the International Center for Law and Economics. "There's already significant interest on the Hill in passing legislation to rein in the FCC on net neutrality, whether as part of a Communications Act rewrite or a standalone bill. The White House statement certainly makes it harder to get Democratic votes behind such an effort, and signals very clearly (although this was probably already obvious) that the White House would veto a bill that takes Title II off the table."

For now, Congress is less important than the FCC, and Tim Karr, strategy director of Free Press, thinks Obama's statement is a limited but much-needed nudge.

The President Might Have Just Saved the Internet

[Commentary] President Barack Obama weighed in at a crucial moment in the fight for real Net Neutrality.

For months and months, his appointee to head the Federal Communications Commission has put forward convoluted, loophole-ridden proposals to avoid reclassifying broadband under Title II. Both FCC Chairman Tom Wheeler's original slow-lane-creating "706" proposal and the baffling "hybrid" currently under consideration would endanger the open Internet as we know it. The FCC is an independent agency, but the President appointed its commissioners who pay attention to what he says. His Nov 10 statement sends a clear message to FCC Chairman Tom Wheeler: Stop messing around and get on the surest path to protecting the open Internet. Why is the Administration suddenly so vocal? There's only one answer: unprecedented public pressure.

I haven't been shy about criticizing this administration in the past -- and I won't hesitate to do so in the future. But today, Internet users everywhere should thank President Obama and his staff. Today, they just might have saved the Internet.

[Aaron is CEO of Free Press]

6 reasons real conservatives should defy Republicans and support network neutrality

[Commentary] Conservative voters actually have compelling reasons to break from the Republican party's rhetoric and should support net neutrality and reclassification of ISPs as public utilities. Here are some of them.

Regulating the internet like a utility makes sense because ISPs don't actually compete.
There is no evidence net neutrality will kill jobs.
Net neutrality is the only way to protect the free market of the internet from monopolists like Comcast and Verizon.
Net neutrality will expand liberty and free expression.
Net neutrality represents the opposite of a government takeover of the internet.
Classical small-government liberalism supports the idea that government should provide public utilities, like roads and internet service.

Protesters descend on FCC chairman’s house over network neutrality

Internet activists descended on Federal Communications Commission Tom Wheeler's house as he was trying to back out of his driveway on Nov 10. The 6-foot-4 chairman drives a Mini Cooper, but even that nimble vehicle wouldn't have been able to get around the human blockade.

The protesters demanded that Wheeler "reclassify" broadband providers under Title II of the Communications Act -- a move that'd allow the FCC to regulate the behavior of ISPs more closely. At first, Wheeler responded by repeating what he'd previously said in public: That "everything is on the table" when it comes to net neutrality, including Title II. But the protesters refused to leave, prompting a visibly exasperated Chairman Wheeler to complain that they were "blocking my driveway and prohibiting my rights." "I think you've all made your point -- can I get out of my driveway now?" he said. Both Chairman Wheeler and the protesters appeared to be recording the incident. "[The problem] just goes away once you reclassify," one protester said, off-camera. "It's just gone."

FCC Likely to Delay Network Neutrality Rules Until Next Year

Emerging Federal Communications Commission rules on how broadband Internet providers can treat traffic on their networks are so complicated that they may be delayed until 2015 as the agency works to ensure they are defensible in court and people understand them, according to FCC officials.

The proposal has confounded even experts on the issue, and few people appear to fully understand its implications. As a result, FCC staff lawyers are pushing for more time to fully vet the proposal, especially since Verizon and other providers have made it clear they plan to challenge the rules in court. The final FCC open meeting of the year is scheduled for Dec. 11, and all proposals subject to a vote must be circulated to the other four commissioners at least three weeks prior. That would have given Chairman Wheeler only until Nov. 20 to finish his proposal if he wanted a vote by the end of the year.

A Promising Approach to Internet Rules

[Commentary] In the Spring of 2014, Federal Communications Commission Chairman Tom Wheeler proposed a plan that would have allowed broadband companies to divide the Internet into fast and slow lanes. That idea that was roundly attacked by advocacy groups like Public Knowledge and the American Civil Liberties Union, and now the chairman is reportedly considering a new approach.

He has not provided details about a new approach, but legal experts say it is based on several ideas that law professors, technology companies and public interest groups have been debating since the United States Court of Appeals for the District of Columbia Circuit in January struck down the commission’s previous rules, which the court said improperly applied telecommunications regulations to broadband service. The most straightforward solution would be to reclassify broadband as a telecommunications service and issue rules that prohibit phone and cable companies from giving preference to some Internet content. Broadband providers will, of course, fight reclassification tooth and nail. To avoid that political battle, Chairman Wheeler and his staff appear to be considering a hybrid approach that would regulate high-speed Internet service in two parts.

A hybrid approach, if done right, could be promising. Ultimately, how well it would protect an open Internet and consumers would depend on the commission’s being willing to issue rules that limit the power of the broadband giants.

Welcome back, Infobahn

[Commentary] Certainly there are those who would grumble that it's not equitable that some drivers can go much faster because they have paid for more expensive vehicles that can achieve higher speeds. But as a policy matter, it's difficult to imagine anyone advocating that Porsches or BMWs be prohibited by law from the Autobahn, or that a regulatory requirement be imposed so that they could not outperform a Volkswagen or Fiat.

Yet in a parallel setting in telecommunications, there appears to be active FCC consideration of undertaking a comparable task -- namely, subjecting some of the fast-lane Internet to common carrier regulation under Title II of the Communications Act. Since telecommunications, like automobile manufacturing, relies on innovation and investment, mandating a new set of restrictive rules actually could have the effect of slowing down broadband Internet development as an unintended consequence of putting too heavy a thumb on the scale of regulation.

[Brotman teaches at Harvard Law School]

The Stock Market Is on Edge About a Cable Merger

[Commentary] The debate over network neutrality and cable company concentration has been rattling Wall Street.

This discomfort is evident in some unusual moves in the share prices of Comcast and Time Warner Cable, the two cable giants that announced in February that they intended to merge in a $45 billion all-stock deal. While their adjusted prices should be converging -- if you assume the merger will eventually be completed without major problems -- the spread has actually widened strikingly since early September. Regulators in Washington and in some state and local governments are reviewing the merger. As regulatory issues crucial to cable companies and the Internet have heated up, the stock market has reacted with varying degrees of consternation.

Benton

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