Network Neutrality

Apple is breaking its silence on network neutrality, urging the Trump administration to preserve strong rules that prevent the likes of AT&T, Charter, Comcast and Verizon from blocking or interfering with web traffic. In its new comments to the Federal Communications Commission, the iPhone maker specifically urged FCC Chairman Ajit Pai not to roll back an existing ban against so-called “fast lanes,” which might allow broadband providers someday to charge for faster delivery of tech companies’ movies, music or other content. Apple doesn’t take an explicit position on the Title II legal issue at hand. Instead, Apple only shares its more general views about the need for net neutrality safeguards.

“Broadband providers should not block, throttle, or otherwise discriminate against lawful websites and services,” Apple said . “Far from new, this has been a foundational principle of the FCC’s approach to net neutrality for over a decade. Providers of online goods and services need assurance that they will be able to reliably reach their customers without interference from the underlying broadband provider.”

The American Cable Association has taken what it hopes will be a parting shot at Title II classification for its members. In its comments to the Federal Communications Commission, ACA told the FCC that Title II reclassification had been costly; harmful, particularly to its members, and unnecessary. Costly and harmful, it said, because of the "concrete economic harms" it has already inflicted as witness five member company declarations; unnecessary because 1) the industry is uniformly supportive of an open internet because its smaller ISP members lack the ability to be the "gatekeepers" the FCC branded ISPs in defending reclassification; because 2) the commission has authority under Sec. 706 to adopt net neutrality rules and transparency requirements without Title II; and 3) even if the FCC concludes it does not, Congress is the best place to resolve that.

The reason why network neutrality is so important—and why this issue remains so fiercely contested—is that it amounts to the free speech principle for the internet. This open access concept is absolutely essential, net neutrality advocates argue, because the entire US economy—and indeed society—is now deeply rooted in internet connectivity. More than that, net neutrality ensures that US democracy will continue to thrive by allowing all voices—even unpopular ones—to be heard. "Net neutrality is what democracy looks like," said Winnie Wong, a veteran political activist involved in Occupy Wall Street, People For Bernie, and the Women's March on Washington. "Without it we can't tell the story of the struggle for social justice. If the government empowers corporate monopolies to dictate how and what we can share online, we'll never be able to advance our vision of racial justice, climate action, and economic equality." With so much at stake, US faith leaders are also getting involved. "An open internet is vital for our organizing efforts here in North Carolina, and around the country," said Rev. Dr. William J. Barber, II, a leading national justice organizer and President of Repairers of the Breach.

Facing such strong public opposition to his net neutrality rollback, Federal Communications Commission Chairman Ajit Pai may punt the issue to Congress, which is actually what the nation's largest ISPs want. The broadband industry's real goal, according to many tech policy experts, is to move this battle to the Republican-led US Congress, where deep-pocketed ISPs can lobby to craft internet policy rules that favor themselves. If the ISPs are successful, look for a spirited net neutrality debate this fall featuring Rep. Marsha Blackburn (R-TN). This fight is far from over.

After months of debate, protests, and disruptions, the Federal Communications Commission’s comment period on its proposal to kill network neutrality is now over. The commission stopped accepting comments closing out with nearly 22 million total replies — setting an immense new record. The FCC’s previous comment record was just 3.7 million, set during the last net neutrality proceeding. But the process of receiving all those comments was far from smooth this time around.

The FCC’s website is fairly confusing. It’s also, apparently, susceptible to spam and other attacks, which we saw at multiple points across the past four months. All the while, the FCC’s chairman has been trying to explain that comments don’t really matter anyway, despite the commission’s requirement to act in the public interest and take public feedback. From the very beginning of the proceeding, FCC leadership laid out that it would be the quality, not the quantity, of the comments that made a difference. On the surface, that’s a reasonable argument, but it’s being set out as an excuse to ignore the overwhelming millions of comments in support of net neutrality in favor of few well-written filings by Comcast and the like. Now that the comment period has ended, the FCC will begin work on a revised version of its proposal, which it will then vote on and quite likely pass, making it official policy. The commission is supposed to factor public input into its revisions — and in fact, much of the original proposal was just a big series of open-ended questions — so it’ll probably be a little while before we see a final draft.

It’s entirely possible that the commission will go ahead with its original, bare-bones plan to simply kill net neutrality and leave everything else up to internet providers to sort out. But if the commission does decide to put in place some sort of protections, then we’ll have another debate to run through — one over exactly how effective those rules might be, and exactly how many ways companies can weasel around them.

Despite a study showing that 98.5 percent of individually written network neutrality comments support the US's current net neutrality rules, AT&T is claiming that the vast majority of "legitimate" comments favor repealing the rules. The Federal Communication Commission's net neutrality docket is a real mess, with nearly 22 million comments, mostly from form letters and many from spam bots using identities stolen from data breaches. AT&T is part of an industry group called Broadband for America that just funded a study that tries to find trends within the chaos. That study (conducted by consulting firm Emprata) found fewer than 1.6 million filings appear to have "originated from individuals that took the time to type a personalized comment." Of those, 1.52 million were against FCC Chairman Ajit Pai's plan to repeal the current Title II net neutrality rules, while just 23,000 were in favor of repeal.

Let's contrast that finding with what AT&T Executive VP Joan Marsh wrote in a blog post: "While Title II proponents may claim that millions of consumers representing the large majority of commenters support Title II, in fact, most of these comments were not legitimate. And when only legitimate comments are considered, the large majority of commenters oppose Title II regulation of Internet access."

The comments submitted in the record so far serve only to illustrate that the Federal Communications Commission was right in 2015 to classify broadband as a Title II service and to adopt Open Internet rules, and that the DC Circuit was right to uphold it. Poll after poll shows that a majority of Americans of both political parties support net neutrality. Just today, a broadband-industry funded study found that 60 percent of comments filed before the FCC support keeping the current rules in place, including 98.5 percent of unique comments.

Net neutrality opponents are wrong on the facts, wrong on the law, and attempt to rewrite history to support their agenda -- and the public is not behind them. If the FCC attempts to rely on the corporate PR, paid-for ‘economic’ analyses, and misstatements of legal precedent that currently support its proposal, it will lose in court -- but not before harming consumers and damaging competition in the meantime. Because the facts continue to show a need for rules, and because opponents have failed to substantiate any claims of alleged harms they cause, the Commission must keep the rules in place.

Cable operator and broadband providers call the suggestion that Title II is essential to safeguarding the virtuous circle of investment and innovation "preposterous" and the supposed demise of openness under a Title I regime "fearmongering." That was in NCTA-The Internet & Television Association's comments on net neutrality at the Federal Communications Commission.

NCTA said Title II proponents were relying on misleading analyses and manipulating data to "explain away" the harms of Title II common carrier regulations. NCTA said a dozen economists have submitted studies documenting Title II's reduction in the rate of investment. The trade group provided several options for regulating the internet going forward, though it said such regulation wasn't really needed. "While market forces are sufficient to ensure that BIAS providers continue to act in the interests of consumers, the record also confirms that there are several options for creating an appropriately tailored regulatory backstop," it told the commission.

[Commentary] The Federal Trade Commission can challenge harmful non-neutral practices on a case-by-case basis under its antitrust authority and under its consumer protection authority. These complementary tools ensure that consumers can effectively pursue their many, varying market preferences, including preferences for values of openness and free expression online.

First, the FTC’s antitrust tools protect the competitive process, which motivates companies to deliver what consumers want. Second, the FTC uses its consumer protection authority to ensure that consumers get the benefit of the bargain they strike. This two-pronged competition and consumer protection enforcement approach is case-by-case. We evaluate each practice to see if it actually harms consumers. Such an approach has advantages over prescriptive regulation, which prejudges, in the abstract, entire categories of business practices. In dynamic, fast-changing industries, case-by-case enforcement better protects consumers and promotes innovation because it focuses agency resources on actual consumer injury and doesn’t require regulators to predict the future.

[Maureen K. Ohlhausen is acting chairman of the Federal Trade Commission.]

The Federal Communications Commission is taking dozens of meetings with companies, trade groups and public policy advocates as it gears up to change its regulatory classification of broadband and loosen its network neutrality rules. But FCC Chairman Ajit Pai’s own calendar mostly has been filled with proponents of redoing the commission’s broadband classification and rewriting the rules.

Chairman Pai or his staff have sat down 15 times since he became chairman in January with companies and groups asking him to undo the FCC’s underlying regulatory classification of broadband and enact looser net neutrality rules. Pai or his staff have held four meetings with groups that have urged him to keep their priorities in mind in whatever approach he takes; and another three meetings with people urging Pai to leave the issue to Congress or the Supreme Court to resolve. Two of those meetings were with tech trade groups, CALinnovates and the Application Developers Alliance, who want Pai to let Congress rewrite the rules. AT&T is a member of both groups.

Despite assertions by Title II fans that the common carrier regulation regime has not adversely affected broadband investment, the Free State Foundation begs to differ and says it has the data to back that up. That came in reply comments—due Aug. 30—on Federal Communications Commission Chairman Ajit Pai's proposal to roll back Title II and reconsider the rules against blocking, throttling and paid prioritization.

Free State pointed to research by its own Michael Horney that indicated Title II had depressed broadband capital investment by $5.6 billion in 2015 and 2016. The Title II reclassification went into effect June 12, 2015. But Free State says that is of more than scholarly interest and that that foregone investment has hurt the economy and job creation. He says the other side has little evidence to back their dismissals of the economic impact argument.