Public Knowledge

[Commentary] Overseeing as the Federal Communications Commission does a vast number of complex and fast-moving technological issues, occasionally a rule that is essential for one service just doesn’t apply to another.

In a case like that, the FCC has the power to forbear from enforcement of the rule. Neither Congress nor the courts nor your local neighborhood watch committee can force the FCC to enforce an inapplicable rule that it doesn’t want to.

The only thing the FCC has to do is find that the rule: 1) isn’t necessary to ensure just and reasonable practices, 2) isn’t needed to protect consumers, or 3) is in the public interest.

Once the FCC makes that determination, it simply doesn’t apply that rule in that case. All of this becomes relevant in the net neutrality debate.

Opponents of effective net neutrality rules like to play up the fears that classifying broadband internet services as telecommunication services will saddle ISPs with all sorts of regulations meant for the phone system. They insist that, despite the FCC’s best efforts, those rules will fall into place automatically and result in a thicket to be hacked through. This simply isn’t true -- precisely because of the FCC’s forbearance power.

The United Nations’ Open Working Group on Sustainable Development Goals (SDGs) will hold its final session to draft the new international development goals for the next fifteen years, and in a discouraging turn, access to information might be excluded. Access to information is a core element for improvements in various types of development.

Access to information, especially online, can facilitate improvement in an economy’s knowledge base, as well as more transparent and accountable governance. In a globalized and competitive world economy, growth is dependent upon the continuing free flow of transparent, inexpensive, and trustworthy information. Further, access to information is a basic right that enables the expression of other important human rights. Thus, a move to shy away from access to information as a development goal by a UN based working group is disappointing, to say the least.

Public Knowledge strongly advocates for the explicit inclusion of access to information and freedom of expression in the new UN Sustainable Development Goals, in order to make digital rights and access to information online an international priority.

[Commentary] The extremely aggressive bandwidth caps that most mobile providers impose -- particularly AT&T and Verizon -- don’t make any sense as a way to manage congestion and that they seriously undermine the value of mobile broadband to consumers.

The wireless carriers -- particularly AT&T and Verizon -- argue that they need to use caps to manage congestion and stop “bandwidth hogs” from destroying our national wireless networks with their cat videos. Now comes T-Mobile with fairly rock solid evidence that bandwidth caps have nothing to do with technical constraints and everything to do with AT&T and Verizon holding most of the good wireless spectrum used for mobile broadband.

Subscribers not using streaming media for fear of surpassing data caps hurts not only our ability to use broadband to its fullest potential, but has serious implications for the Open Internet and network neutrality. As we’ve argued all along, there’s no real reason to cap broadband. It’s not because AT&T and Verizon are protecting our networks from bandwidth hogs. It’s because AT&T and Verizon are leveraging their spectrum market power so they can overcharge subscribers and drive out competitors.

The FCC needs to fix data roaming. Separately, it needs to crack down on data caps that increasingly look like nothing more than a way to leverage market power to inflate prices and hurt potential competitors.

Public Knowledge, its partners in the global Our Fair Deal coalition, and a diverse international network of businesses, creators, innovators, start-ups, educators, libraries, archives, and users have released two new open letters to negotiators of the Trans-Pacific Partnership (TPP).

The TPP is a highly secretive, supranational agreement reported to include copyright provisions that could significantly constrain access to information, impede legitimate online activity and innovation, and impair freedom of expression online. Members of the Our Fair Deal coalition are especially concerned that rules proposed in the intellectual property (IP) chapter of the TPP would reduce the ability of ordinary people to access information - seriously hindering innovation both on and offline.

Copyright provisions remain a major sticking point for the negotiations, and the coalition has warned negotiators about the negative impacts these provisions would have on their respective countries.

[Commentary] On the heels of T-Mobile’s controversial announcement that it will be exempting many popular music streaming services from its data caps, the “Uncarrier” has also confirmed that it will be exempting the Ookla speed test and other online speed testing applications as well.

Unlike AT&T and Verizon, T-Mobile does not charge subscribers overage fees when they exceed their data caps. Rather, T-Mobile throttles network speeds for customers who go past a predetermined data allotment. Depending on the type of plan, customers that exceed the “Data Speed Reduction Threshold” can receive maximum speeds ranging from 50 to 128 Kbps -- speeds that don’t even meet the Federal Communications Commission (FCC) 1999 definition of broadband.

By exempting speed tests from the throttling, T-Mobile is effectively preventing consumers from learning exactly how slow their throttled connections are. Under the new policy, T-Mobile customers who exceed their data caps will not be able to gauge the actual speeds available to them for the vast majority of their daily usage.

T-Mobile has justified the move on the basis that it more closely adheres to the true intent of online speed tests, but this doesn't make sense, because whenever customers who have hit their caps use the Ookla application, they are trying to measure their true network speed -- not the speed no longer available to them. The inability for customers to estimate the actual speeds they are receiving serves mostly to disguise the carrier’s throttling policies.

The decision also harms customers, who will lose the ability to plan their mobile broadband activities around the actual speeds that they are receiving.

[Commentary] The Aereo decision is bad news for consumers, since it could take away a promising new model for watching free over-the-air television. Cord-cutters still have options.

They can still access other online video services—and maybe some reconfigured version of Aereo -- and watch broadcast TV with an antenna. But there’s no doubt that the opinion (especially when considered alongside ivi and Sky Angel) is good for the network/affiliate/cable status quo.

Of course if you asked me on the record I would have told you that I was optimistic that a unanimous Supreme Court would simply adopt our brief. But like most observers I concluded that the Court was looking for a way to rule against Aereo but limit the collateral damage against the tech industry as a whole. Instead, the Court uses reasoning that could apply very easily to any number of online services -- file hosting, cloud lockers, even virtual private networks (VPNs) -- as well as services that no one has even come up with yet.

No, cable TV is not a network neutrality violation. Yet.

So I think it’s finally worth explaining the various reasons why cable TV, even when it’s carried on the same wire that also provides broadband, does not violate net neutrality.

It's not on the Internet.

Cable TV was there first. Yes, cable TV and broadband share the same wire. But it's not like bandwidth was taken away from the Internet to make room for TV. They are distinct services with a separate history.

Cable TV is separately regulated.

Cable TV meets the only reasonable definition of a "specialized service." The 2010 Open Internet rules had a broad exception for "specialized" or "managed" services.

Yet? It may be the case that someday soon, technology will improve to the point where one-to-many distribution does not offer a real advantage over one-to-one services. This may change the analysis for "same wire" services like cable TV. But we're not there yet.

Public Knowledge, the Consumer Federation of America (CFA), and the Electronic Frontier Foundation (EFF) submitted written testimony to the House Judiciary Committee's subcommittee on Intellectual Property, Competition, and the Internet for the hearing titled, "Music Licensing Under Title 17 Part Two."

The following can be attributed to Jodie Griffin, Senior Staff Attorney at Public Knowledge:

"Law that shapes the music licensing system should encourage a competitive and innovative market of music platforms that are accountable to music fans and musicians. This requires a set of well-developed structures that promote efficient licensing practices that minimize costs for everyone while promoting competition between intermediaries like record labels, publishers, collective licensing organizations, and distribution services.”

Public Knowledge senior staff attorney, John Bergmayer, will testify before the House Judiciary Committee in the hearing titled, "The Proposed Merger of AT&T and DirecTV."

In Bergmayer's testimony he will call on Congress to be vigilant as multiple mergers come before it in the coming months.

"Policymakers and the press are paying a lot of attention to rumored deals like Sprint/T-Mobile, and pending mergers like Comcast/TimeWarner Cable," said Bergmayer. "But during this time of consolidation Congress must pay close attention to the specifics of each new deal as they are announced."

The following can be attributed to John Bergmayer, Senior Staff Attorney at Public Knowledge: "AT&T and DirecTV directly compete in more than 60 local TV markets. This deal runs afoul of the Department of Justice's antitrust guidelines. It's hard to accept AT&T's claims that buying a direct rival can be good for competition.”

[Commentary] T-Mobile’s announcement that they will exempt a handful of music streaming services from their data cap is but the latest example of ISPs using data caps to undermine network neutrality.

T-Mobile now joins Comcast, AT&T, and AT&T again as an ISP that uses data caps as a pretext to manipulate how its users experience the Internet. Unlike other carriers, T-Mobile does not have a data cap with overage penalties. Instead, when users hit their cap they find their connection slowed significantly.

While this type of throttling is probably preferable to huge overage fees, it still exerts a strong influence on what types of services T-Mobile subscribers use online. This influence is strengthened enormously when certain apps or certain content is exempted from the cap -- a practice known as “zero rating.”

This type of gatekeeping interference by ISPs is exactly what net neutrality rules should be designed to prevent. Furthermore, T-Mobile’s announcement once again calls into question the purpose of data caps at all.