We All Agree on Net Neutrality, Except When We Don’t

Submitted on July 28, 2017

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Robbie's Round-Up for the Week of July 24-28, 2017

The House Commerce Committee’s Communications and Technology Subcommittee held a hearing on July 25, 2017. It was advertised to be a Federal Communications Commission oversight hearing, meant to focus on agency actions and processes and to discuss draft legislation that would reauthorize the FCC, a step that has not been taken since 1990. But, as with most telecommunications policy discussions theses days, it quickly turned into a debate over network neutrality.

Notably, this debate made public the below tactics by those in Congress and at the FCC who would repeal the rules barring broadband internet access service providers from web content blocking, throttling, and paid prioritization. Throwing out those rules, especially paid prioritization (which prevents providers from making special deals with popular websites like Netflix to reach subscribers faster than their competitors), opens the door for broadband service packages that copy the cable TV model.

Frame the Debate as Company vs Company

House Commerce Committee Chairman Greg Walden (R-OR) grabbed the day's headlines by announcing that he will hold a hearing on September 7 entitled “Ground Rules for the Internet Ecosystem.” He said:

A strong consensus is forming across party lines and across industries that it’s time for Congress to call a halt on the back-and-forth and set clear net neutrality ground rules for the internet. In some form or another, we have been working for at least 20 years on the intertwined goals of incentivizing the huge investments needed to connect Americans, while keeping the internet open and protecting consumer privacy. With almost everyone in agreement about fundamental principles to prevent anti-competitive behavior such as throttling and blocking, I think we are closer than ever to achieving a lasting resolution. The time has come to get everyone to the table and get this figured out.

By 'everyone', Chairman Walden seems to mean just edge provider (a website, web service, web application, online content hosting, or online content delivery service that customers connect to over the internet) and broadband provider CEOs. Following the announcement, Chairman Walden sent invitations to Facebook, Alphabet, Amazon, Netflix, Comcast, Verizon, AT&T, and Charter Communications, requesting their CEOs to testify before the full committee. In the letter, Walden said the open internet rules put in place during the Obama Administration "disrupted the longstanding regulatory balance that for years allowed the internet to grow and thrive.” He added, “With your help, I know we can craft a fair, predictable and sustainable solution that not only benefits edge providers and internet service providers, but also the billions of consumers worldwide that deserve a free and open internet.”

Chairman Walden appeared to be giving short shrift to larger, public-interest concerns in an attempt to frame the debate as edge providers vs. broadband providers. The FCC's current rules protect broadband consumers to employ any legal applications, content, devices, and services of their choosing, ensuring that the Internet remains a platform for all citizens, consumers, content creators, and innovators, regardless of their ability to pay infrastructure owners special fees for special access. Surely someone other than corporate CEOs could better represent these other concerns!

The Democratic leaders for the Commerce Committee and Communications Subcommittee, Rep. Frank Pallone, Jr. (D-NJ) and Rep. Doyle, respectively, recognized this in their response to Chairman Walden’s letter. They wrote:

Although you stated the hearing was an inquiry into the ‘Internet ecosystem,’ you once again failed to recognize how important the Internet is for consumers, small businesses, entrepreneurs, political organizers, public interest groups, and people looking for work. We therefore ask that you make sure that any hearing has sufficient witnesses to represent the diversity of real people who will be affected by the FCC’s efforts to roll back net neutrality.

Agree that No One Is Against an Open Internet While Working Against an Open Internet

Everybody says they’re for an open internet. The question I have is: Why change the existing regime where everyone agrees that there is an open internet? -- Rep. Peter Welch (D-VT)

Morning Consult noted that the key takeaway from the hearing is, “Democratic and Republican members of Congress both support net neutrality -- they just have different definitions for the term.” Although that may be the perception the GOP and broadband providers are trying to create, it really does not reflect reality.

In her opening remarks, Communications Subcommittee Chairman Marsha Blackburn (R-TN) said, "Let me be clear. Republicans have always supported a free and open internet. Let's not have any misunderstanding on that issue. We must move past the partisan rhetoric."

Of course, Blackburn then attacked the FCC's rules with some partisan rhetoric. She said of the FCC’s decision to classify broadband internet access service as a telecommunications service as defined in Title II of the Communications Act (Title II decision), “The Commission’s decision in 2015 to reclassify the Internet as a public utility was a power grab laced with the irony of suffocating the most innovative part of our economy with a 1930s era law. This gave new meaning to the term 'progressive.'" She said she hopes FCC Chairman Ajit Pai is keeping his deregulatory "weed whacker" handy to dismantle the FCC's Open Internet rules.

Chairman Walden also voiced support for the tenets of net neutrality, just not the practice. He said the American people deserve no less than "bipartisan legislation to protect the internet from bad actors who want to use their unfair advantage to block, throttle or in other ways engage in bad behavior." But he backed Chairman Pai's proceeding to undo the FCC's rules that do just that.

In an attempt to demonstrate that everyone is on the same page, Chairman Walden asked all three FCC commissioners testifying at the hearing if they oppose net neutrality. FCC Commissioner Michael O'Rielly responded saying, "I agree with the chairman [Pai], I support the open internet." But he continued, "the term 'net neutrality' means so many different things these days than it once did that I can't sign up for that."

Chairman Pai said he favors “a free and open internet as many members of the committee and most Americans do.” But Rep. Anna Eshoo (D-CA) took issue, telling him that his chairmanship “rests on the altar of dismantling net neutrality as we know it.” She added, “With all due respect to you, I don’t think it’s a credible statement to say that you support it.”

FCC Commissioner Mignon Clyburn went furthest with her support of net neutrality, saying that maintaining classification of broadband services under Title II of the Communications Act will ensure competition and drive greater service availability. “Taking away Title II for broadband undercuts [the FCC’s] ability to ensure universal service for broadband by taking away our clearest source of authority to make sure all Americans are connected,” Commissioner Clyburn said. “Undoing our classification of broadband as a Title II service also harms the FCC’s ability to enable competition. There is specific authority in sections 224 and 253 of the Communications Act that allows the FCC to enable competitive access to monopoly infrastructure, and to remove other barriers to competition. Without Title II, it will be far more difficult for the Commission to enact policies to enable competition.”

Commissioner Clyburn also pointed to how Title II helps to ensure privacy. “We adopted rules of the road for broadband privacy last October and they were stripped away earlier this year with the passage of the Congressional Review Act (CRA) resolution of disapproval which means today, there are no comprehensive rules on the books protecting broadband consumer privacy for Americans,” Commissioner Clyburn said.

Align With Corporate Interests Over the Public Interest

As we saw at the hearing, GOP lawmakers presented themselves as advocates for the concept of the "open Internet," while simultaneously attacking the FCC’s 2015 Open Internet Order, the only open Internet rules that have survived court review. Their argument, interestingly, echoes the language used by large ISPs like Comcast, Verizon, and AT&T: we’re for an open internet, but we oppose Title II.

On Wednesday, one of AT&T’s top lobbyists, Joan Marsh, explained the reasoning behind the company’s participation in the July 12 “Day of Action for Net Neutrality”. “AT&T joined the Day of Action because we too support an open internet. We are and have always been against blocking, censorship and discriminatory throttling,” she wrote. “I’ll be honest, I don’t get the confusion.”

AT&T may say it supports an open Internet, but it hasn’t always practiced it. Before the 2015 rules, AT&T and other carriers blocked tethering apps that allow consumers to turn their phones into Internet hotspots. AT&T also blocked Apple’s FaceTime and Google Hangouts on Android devices.

And it is not just AT&T. Asked in 2013 about the prospect of charging certain Internet-dependent companies to speed up traffic to their websites—the creation of so-called Internet “fast lanes”—Verizon’s attorney, Helgi Walker, said in court, “I’m authorized to state by my client today that but for these rules, we would be exploring those types of arrangements.”

Free Press ridiculed AT&T’s Day of Action participation, writing:

AT&T is just a company that is deliberately misleading the public. Their lobbyists are lying. They want to kill Title II — which gives the FCC the authority to actually enforce Net Neutrality — and are trying to sell a congressional “compromise” that would be as bad or worse than what the FCC is proposing. No thanks.

AT&T has spent more money than maybe anyone except Comcast and Verizon to undermine the open internet and destroy Net Neutrality. It has hired hundreds of lobbyists. It has propped up Astroturf groups. Its primary trade association is literally suing the FCC over Net Neutrality and considering taking the case to the Supreme Court.

Keep Deliberations in the Dark

American Oversight, a legal watchdog group formed to expose conflicts and fraud in the Trump Administration’s executive departments, filed a lawsuit on July 25 against the FCC.

On April 26, American Oversight filed a Freedom of Information Act (FOIA) request asking the FCC for all records related to communications on net neutrality between broadband service providers and Chairman Ajit Pai or Pai's staff. The group asked for "correspondence, e-mails, telephone call logs, calendar entries, meeting agendas," and any other records of such communications. The group also asked for similar records related to FCC communications with members of Congress, congressional staff, and members of the media. American Oversight's lawsuit says the FCC hasn't complied with the requests.

“The FCC has made it clear that they’re ignoring feedback from the general public, so we’re going to court to find out who they’re actually listening to about net neutrality," said American Oversight Executive Director Austin Evers. "If the Trump administration is going to let industry lobbyists rewrite the rules of the Internet for millions of Americans, we’re going to make them do it in full view of the public."

FOIA requires an agency to inform a records requester of the agency's decision to grant or deny access to requested records within 20 business days and to release the records shortly after that. The FCC repeatedly requested extensions after getting the FOIA request from American Oversight, the group's complaint says. The nonprofit agreed to the first two extension requests, giving the FCC until July 24 to respond. The FCC asked for another one-month extension on July 21, but American Oversight refused to agree to a third extension. American Oversight asked for a court order requiring the FCC to produce the required records within 20 days.

The FCC has also been less than transparent in its handling of net neutrality complaints. The agency has refused to release the text of more than 40,000 net neutrality complaints that it has received since June 2015. The National Hispanic Media Coalition (NHMC) filed a FOIA request in May for the complaints, arguing the details of these complaints are crucial for analyzing Pai's proposal to overturn net neutrality rules. The FCC has released just 1,000 complaints claiming that providing them all would be too burdensome since staff would have had to review and redact personally identifiable information. NHMC believes that consumers' net neutrality complaints might contradict Pai's claims that there are no real problems addressed by net neutrality rules.

There are also some questions about the performance of the FCC's system to even receive public comment in the current net neutrality proceeding. In early May, the FCC announced that it was subject to multiple distributed denial-of-service (DDoS) attacks, deliberate attempts by external actors to bombard the FCC’s comment system with a high amount of traffic to its commercial cloud host. The attackers apparently wanted to make it difficult for legitimate commenters to access and file with the FCC.

But the FCC has been secretive in response to FOIA requests regarding its analysis of the attacks, which the FCC said "stemmed from real time observation and feedback by Commission IT staff and did not result in written documentation." After various media outlets wrote about this refusal to provide records, the FCC claimed that Gizmodo only asked for analysis produced on May 8, the day of the attack, and that the FCC thus doesn't have to provide any written analysis produced after that date.

Senator Ron Wyden (D-OR) criticized the FCC for apparently "playing word games to avoid responding to FOIA requests" and "violat[ing] Chairman Ajit Pai’s pledge to increase transparency at the FCC.” Sen. Wyden said the FCC's actions raised, “legitimate questions about whether the agency is being truthful when it claims a DDoS attack knocked its commenting system offline.”

On July 27, it was announced that the FCC was being sued by investigative journalist Kevin Collier over the issue. Collier filed his own FOIA requests earlier this year, prompted by the FCC’s “weird and cagey” inclination to obscure details about the incident. “The fact that they gave Gizmodo such a runaround in its own request for internal ‘analysis’ of the attack just goes to show this,” he said. “I want to know the full story.”

“The FCC may be determined to ignore journalists,” said Dan Novack, the lawyer representing Collier, “but it’s going to be in for a rude awakening when a federal judge is asking the questions.”

Can Anything Stop a Net Neutrality Rollback? Limiting the Parameters of the Debate

Back in April, even before he launched his proceeding to undo the FCC's 2015 Open Internet Order, FCC Chairman Pai said the Title II decision's days were numbered. "Make no mistake about it: this is a fight that we intend to wage and it is a fight that we are going to win," he said. And since fellow Republican Commissioner O'Rielly also voted against the 2015 rules, it is a foregone conclusion that the two will vote to repeal the Title II decision in the coming months. (A frustrating fact for the citizens flooding the FCC's public comment system with support for the Title II-based rules.)

Communications Subcommittee Ranking Member Michael Doyle (D-PA) questioned whether anything would stop Pai’s Republican majority from rolling back the Title II decision and net neutrality rules.

He asked Pai, "What kind of comment would cause you to change your mind?" Chairman Pai responded, "economic analysis that shows credibly that there's infrastructure investment that has increased dramatically" since the net neutrality rules went into effect. Pai said he also would take evidence seriously if it shows that the overall economy would suffer from a net neutrality rollback or that startups and consumers can't thrive without the existing rules.

Rep. Doyle pressed Chairman Pai on investments made by websites. "You talk about broadband investment by ISPs alone as an indication of the health of the marketplace," Doyle said. "Why aren't you talking about edge providers, the investments they're making, the jobs that they're creating?"

Pai said he focuses primarily on investment by ISPs because millions of Americans "are on the wrong side of the divide," without access to fast Internet service. Lacking broadband today can mean not having access to education and healthcare, Pai said. "Those core investments in the network are critical if every American is going to be able to thrive in the twenty-first century," Pai told Doyle.

"I'm looking to the record to see if anything changes my mind. I'm looking for substantive comments," said Commissioner O'Rielly who contrasts "substantive comments" with the filings of everyday citizens participating in the proceeding. When asked for an example of a substantive comment, O'Rielly said, "Economic analysis and real evidence of harm to consumers vs. some of the material I've been getting." While there are millions of comments (over 10 million), "many of those comments are empty and devoid of any value," O'Rielly said.

Rep. Doyle admonished Chairman Pai saying, “[I]n the time that you have been head of this agency, we have seen an agenda that is anti-consumer, anti-small business, anti-competition, anti-innovation, and anti-opportunity.” He urged Pai and O'Rielly to closely examine the comments and promised to hold them to their commitments to be swayed by evidence that repealing the rules will do harm.

Relying just on economic analysis, Pai and O'Rielly miss, to name just one aspect of the FCC's broad public interest mandate, the civil rights implications of net neutrality. Moreover, engineers and technologists note that the FCC's current proceeding appears to lack a fundamental understanding of what the Internet's technology promises to provide, how the Internet actually works, which entities in the Internet ecosystem provide which services, and what the similarities and differences are between the Internet and other telecommunications systems the FCC regulates as telecommunications services.

This Is How We Make Policy in 2017

Whatever your feelings about net neutrality, here's what you might find disturbing about how the majority in Congress and the FCC are going about refashioning rules. They are:

Framing a debate that encompasses just corporate interests while ignoring the public interest;
Giving lip service to a popular policy while actively undermining it;
Aligning with special interests -- in this case, incumbent broadband providers -- over the interests of the public and entrepreneurs;
Withholding information about attacks to the public comment system, while using the attacks to delegitimize the system;
Only allowing economic arguments to sway a decision that will have an impact on just about every aspect of our lives while ignoring technical and civil rights issues; and
Shutting out the voices of the public.

We will continue to cover all the twists and turns of the net neutrality debate. You can follow along daily at Headlines.

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