Network Neutrality

[Commentary] The current network neutrality regulations set forth in the 2015 Open Internet Order (2015 OIO) prohibit Internet service providers (ISPs) from blocking or throttling lawful content or engaging in paid prioritization of Internet traffic. These three “bright line rules” cover a wide swath of ISP practices and are intended to promote competition and ensure quality service transmission for content providers and end users. At the same time, however, they fail to consider more nuanced issues that complicate achieving these outcomes.

Christopher Yoo, Professor of Law, Communication, and Computer and Information Science at the University of Pennsylvania Law School, and founding director of the Center for Technology, Innovation, and Competition, makes the case for one such issue in his recent work, “.” This post is the sixth in a series featuring the contents of a recent special issue of the Review of Industrial Organization, organized by the Technology Policy Institute and the University of Pennsylvania’s Center for Technology, Innovation, and Competition. Yoo argues that, contrary to the FCC’s claim in the Order, practices like zero rating can stimulate competition among infrastructure providers and edge services. He contends that zero rating should not be prohibited but rather handled on a case-by-case basis. He supports these claims with economic theory, competition theory, and a number of case studies featuring zero rating.

[Romzek is a 2017 Google Policy Fellow and Research Associate at the Technology Policy Institute. Wallsten is President and Senior Fellow at TPI]

The network neutrality debate is often framed as a fight by everyday citizens to prevent broadband providers like AT&T and Comcast from using their servers to throttle or slow the internet traffic of business rivals. But internet service providers’ opponents in the long-running Washington fight — major content “edge” providers like Amazon, Facebook, Google and Netflix — don’t exactly have clean hands in the fight, according to analysts who say those firms have a way of favoring their content, in the form of content delivery networks.

CDNs are clusters of servers that cache data from content providers to reduce the delay before a transfer of data begins — a way for the prominent and deep-pocketed sites to load more quickly than others. The networks are often owned by third party companies like Akamai Technologies, while some of the largest content providers have built their own. Globally, 71 percent of all internet traffic will cross CDNs by 2021, compared with 52 percent in 2016. Those networks have the ability to discriminate against and interrupt content flows, according to Dan Rayburn, principal analyst at Frost & Sullivan and executive vice president of Streamingmedia. Rayburn suggested that the Open Internet Order enacted by the Federal Communications Commission in 2015 was myopically focussed on ISPs. “If you’re thinking rationally about this, you’d address it with CDNs, with transit providers, with backbone providers,” Rayburn said. “You’d address it with everybody.”

Tom Wheeler, former chief of the Federal Communications Commission under President Barack Obama, warned the Trump Administration’s plan to repeal network neutrality rules could make accessing the internet like buying a cable TV package.

Wheeler, who led the passage of the embattled rules at the FCC in 2015, said the new Republican plan to undo them would let broadband providers like Comcast and Verizon carve up internet access like premium cable channels. “Do you want your access to the internet to look like your cable service?” Wheeler told a crowd in Baltimore. “Stop and think about it — cable operators pick and choose what channels you get. Cable operators pick and choose who they let on. Cable operators turn to you and say, ‘Oh you want that? That’s going to be a little bit more.'” “That is the difference between a closed network and an open network,” he said. “Net neutrality without Title II is net nothing.”

One of the more notable recent filings from the Open Internet docket comes from a collection of engineers, technologists, professors, current and former Internet Engineering Task Force (IETF) and ICANN staffers, and numerous network architects and system engineers. Collectively, these experts argue that the Federal Communications Commission is not only making a mistake in killing net neutrality protections, it doesn't appear to understand how the internet actually works: "Based on certain questions the FCC asks in the Notice of Proposed Rulemaking (NPRM), we are concerned that the FCC (or at least Chairman Pai and the authors of the NPRM) 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." The engineers single out numerous technical mistakes in the FCC's Notice for Proposed Rulemaking (NPRM), including incorrect assessments and conflation of the differences between ISPs and edge providers (Netflix, content companies), incorrect claims in the NPRM about how the transition from IPv4 to IPv6 functions, how firewalls work, and more. But the engineers and architects also warn, as countless others have before them, that not having meaningful rules in place will result in an "balkanized" internet that will be nothing like the one that drove decades of innovation.

[Commentary] Federal Communications Commission Chairman Ajit Pai’s proposal to undo the open internet rules argues that network neutrality has dissuaded internet providers -- like Comcast, Verizon, and AT&T -- from investing in building out and upgrading their networks. Likewise, at the congressional hearing, Chairman Pai said that a convincing argument that investment in internet infrastructure actually was on the rise could persuade him to stop trying to roll back net neutrality protections. The problem with this argument, though, is that according to the internet providers themselves, investment in their networks actually has gone up since the net neutrality rules were passed. Chairman Pai’s claims that internet providers aren’t investing in their networks is misleading, at best, and potentially ruinous for the future of a vibrant internet if his proposal to gut net neutrality rolls through unchallenged without a big public fight. And the scary thing is that in the current political climate, with so many major changes underway all at once, net neutrality may become a casualty.

The Federal Communications Commission was sued by a group that says the commission failed to comply with a public records request for communications about net neutrality between FCC officials and Internet service providers. On April 26, a nonprofit called American Oversight filed a Freedom of Information Act (FoIA) request asking the FCC for all records related to communications on net neutrality between Internet 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. But American Oversight's lawsuit against the FCC says the commission 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," American Oversight Executive Director Austin Evers said in the group's announcement of its lawsuit. "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."

Rep Michael Doyle (D-PA) accused Federal Communications Commission Chairman Ajit Pai of pursuing an agenda that harms both consumers and small businesses. "Chairman Pai, in 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," Rep Doyle said during an FCC oversight hearing held by the House Communications Subcommittee. Rep Doyle pointed to several of Chairman Pai’s decisions, including ending a net neutrality investigation into what Rep Doyle called "anti-competitive zero-rating practices" by AT&T and Verizon Wireless.

Doyle also questioned whether anything would stop Pai's Republican majority from rolling back net neutrality rules and the classification of ISPs as common carriers. Doyle 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. Chairman 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.

Congressional Progressive Caucus Co-Chairs Rep Raúl Grijalva (D-AZ) and Mark Pocan (D-WI) respond to the Federal Communications Commission’s failure to release 47,000 public complaints that could show the American public's desire to keep the internet open and free. The comment period on a new FCC proposal to undo net neutrality was closed on July 17. National Hispanic Media Coalition had requested the comment deadline be extended until complaints against internet service providers (ISPs) were made public.

“The fact that 47,000 complaints were filed against internet providers since the rules on net neutrality went into place shows an enormous need for these consumer protections. The FCC’s failure, so far, to comply with the FOIA request gives the appearance that they would rather bury these complaints than admit that the current rules are necessary...Internet access can no longer be considered a luxury commodity for the wealthy. The rules governing the internet must ensure it remains free and open and unfortunately President Trump’s new FCC commissioner is moving in the exact opposite direction while ignoring the evidence.”

[Commentary] Minority-owned small businesses need two things to compete and thrive in an economy that is dominated more and more each year by global megafirms: a level playing field where everyone plays by the same rules of the road and stable and certain regulations that maximize their ability to invest and grow. This is true in the brick and mortar business world and even more so in the increasingly vital digital world, where a handful of dominant tech giants can use monopoly control over gateway services like search and social media and their ability to mine and exploit massive troughs of consumer data to choke off competition. That’s why the Federal Communications Commission’s plan to reform the internet regulations known as “net neutrality” is so important.

Americans deserve a permanent, stable and evenhanded net neutrality law that protects our data and fair competition online. That is something that can only be accomplished by Congress, where bipartisan support clearly exists to make net neutrality the law of the land. A law would put net neutrality beyond politics, eliminate the need to rely on legal contortions like Title II, and boost fair competition and equal opportunity everywhere online.

[Harry C. Alford is president and CEO of the National Black Chamber of Commerce.]

After House Commerce Committee Chairman Greg Walden (R-OR) announce that he had invited the CEOs of both Internet-based companies and broadband internet access service providers to a September hearing on network neutrality, the committee’s Democratic leadership wrote to him saying, “In your announcement of the hearing, you said the Chief Executive Officers from eight of the largest corporations in the world with a combined market capitalization of nearly $2.5 trillion had been invited to testify. 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,”