Network Neutrality

[Commentary] The internet plays a critical role in the dissemination of information and services specifically tailored for people of color and other marginalized groups, including LGBT people, because it provides the opportunity for us to tell our own stories and to organize for racial and social justice. That empowerment relies on an open internet and net neutrality...

If you want to weigh in on net neutrality and the Federal Communications Commission’s role in implementing it, you can contribute by submitting a comment no later than August 16th. As the United States transitions towards this internet-based communications network revolution, we must remain focused on the right goals: ensuring that the internet is affordable and accessible for all, not just the privileged. Digital social justice demands no less.

[Commentary] All of this network neutrality action involves just the very last part of the communications grid in the US — the “last mile,” or the part of the network that actually touches consumers. Former Federal Communications Commission Chairman Tom Wheeler pushed through the relabeling of the “last mile” as a regulable service. That utility label needs to be retained, as I’ve often argued.

But there’s an even bigger and possibly more insidious policy in the works that will result in far greater woes for consumers. It involves the not terribly well-understood part of the system called the “middle mile.” As with the last mile, the new administration wants to avoid enforcing any legal protections. And it‘s doing this in a manner that just happens to benefit the powerful forces that take citizens’ money while denying them the best services.

[Susan Crawford is the John A. Reilly Clinical Professor of Law at Harvard Law School and a Professor at the Benjamin N. Cardozo School of Law.]

[I]t is particularly important that the United States and Caribbean nations collaborate. Our countries share many common interests and significant cultural and economic ties. The U.S. is the leading trading partner for the Caribbean, and we have benefitted greatly from the contributions of the Caribbean diaspora community in the United States. Unlike baseball, this is not a game where there is only one winner. When we expand opportunity and enhance security in one nation, the benefits can flow throughout the region. Recognizing these benefits, Congress last year made it the official policy of the United States to increase engagement with government leaders, the private sector, and civil society groups in the Caribbean region. I am proud to be here in the spirit of this law and want you to know that Chairman Pai is committed to enhancing the FCC’s engagement with the Caribbean region.

On July 19, 2017, the Senate Commerce Committee held a hearing to examine the nominations of Ajit Pai, Jessica Rosenworcel, and Brendan Carr for seats on the Federal Communications Commission.

On March 7, President Donald Trump nominated Pai, the FCC’s current chairman, for a second five-year term ending June 30, 2021. Rosenworcel is nominated for a term that would end June 30, 2020. Carr, the current general counsel at the FCC, has actually been nominated for two terms, one expiring June 30, 2018 and the second ending June 30, 2023. Carr served as legal adviser to then-FCC Commissioner Pai for three years before Pai was named chairman and appointed Carr as general counsel.

Committee Chairman John Thune (R-SD) characterized the hearing as both an examination of the nominees and a FCC oversight hearing, “fulfilling a commitment I’ve made to hold regular, biannual oversight hearings of the Commission.” His opinions of the nominees: “In my view, the FCC will be in very good hands when all three of these nominees are confirmed.” He noted Chairman Pai’s efforts around transparency and FCC processes, network neutrality, and robocall prevention.

Sen Bill Nelson (D-FL), the committee’s ranking member, raised issues around all three nominations. Concerning Rosenworcel, he noted that she should not have been forced to step down from the FCC at the end of 2016 when the Senate failed to reconfirm her.

Sen. Nelson identified two concerns about Brendon Carr: 1) “two consecutive terms to which the Senate is being asked to confirm you would provide you with the longest single, initial period of service of any nominee to the FCC” and 2) “it is hard to recall a similar situation where someone was nominated to serve at the commission alongside, rather than to follow, their current boss.” He stressed that it is important to have commissioners who have independent voices and “ones who will fight for consumers and the public interest.” He later asked Carr to cite an issue that he and Chairman Pai disagree on – Carr failed to answer on more than one occasion. “Going forward, I’ll make my own decisions; I’ll call it the way I see it,” Carr said. “I think my record shows that I’m not a shrinking violet.” Sen. Nelson called that response “not confidence-building.”

Finally, Sen. Nelson congratulated Chairman Pai on some recent pro-consumer actions, but said, “[M]any view these most recent consumer protection actions as mere icing on what is otherwise an unpalatable cake. A cake constructed out of actions that eliminate competitive protections, that threaten dangerous industry consolidation, that make the Internet less free and less open, and that weaken critical consumer protections for those most vulnerable.”

Net Neutrality

Network neutrality and the FCC’s 2015 decision to classify broadband internet access service providers as telecommunications providers under Title II of the Communications Act were key issues for the hearing. In his opening remarks, Chairman Thune said,

“I am pleased that Chairman Pai has sought to hit the reset button on the 2015 Title II Order, because, as I have previously said, the FCC should do what is necessary to rebalance the agency’s regulatory posture under current law. I continue to believe, however, that the best way to provide long-term protections for the Internet is for Congress to pass bipartisan legislation. Two and a half years ago I put forward legislative principles and a draft bill to begin the conversation, and I stand ready and willing today to work toward finding a lasting legislative solution that will resolve the dispute over net neutrality once and for all.”

Two senators questioned the nominees about the impact of the Title II decision on broadband investment in the US. Sen. Mike Lee (R-UT) cited stats, offered by broadband providers, that investment has gone down. He took issue with a New York Times story that said investment had gone up since the 2015 order. He said that increase included foreign investment, some of which he said was spurred by the Title II disincentive to invest in the US, and that there was evidence that US infrastructure investment had declined precipitously.

On the other side was Sen. Ed Markey (D-MA) who said that almost half of the venture capital funds, or about $25 billion, invested since 2015 was in Internet-related businesses, with broadband providers investing $87 billion, the highest rate in a decade. Sen Markey said investment and job creation are high, so there is no problem that rolling back Title II or reviewing net neutrality rules would fix.

Both senators asked Chairman Pai for his take on their respective views, but the chairman's answer was cautious given that he has an open proceeding before him and comments on his proposal to roll back Title II and review the rules are still coming in. He said that evidence of decreased investment was one of his concerns, but that the FCC was testing that theory, as well as the opposite, as part of its due diligence.

E-Rate

While Rosenworcel, Carr and Chairman Pai all generally agreed on the importance of the FCC's E-rate program -- which makes broadband services more affordable for schools and libraries -- they initially refrained from an outright promise not to cut its funding. Sen. Ed Markey (D-Mass.) had to ask Rosenworcel a second time before she explicitly said she would not reduce the funding for E-rate. Neither Pai nor Carr would make that commitment.

Broadband Deployment

The three nominees were largely unanimous on measures to expedite rural broadband like “dig once” policies, which require installation of conduits for fiber-optic cable when preparing infrastructure such as roads. The policies aim to reduce cost and limit wait times for installing fiber in different municipalities.

“I think it would be helpful for ‘dig once’ policies and similar policies to be the law of the land,” Chairman Pai told Sen. Amy Klobuchar (D-MN).

“The agency, working with local jurisdictions, should try to come up with a model code — one that includes policies like ‘dig once,’” Rosenworcel said. She added that there should be incentives built in for local communities to adopt the model.

Senators also pressed the three on the need for accurate coverage maps so that subsidies issued to companies to build out their infrastructure are actually targeted to the right places.

“I would hope to get your commitment that the commission will work to ensure that mapping data used at the FCC accurately accounts for on-the-ground mobile coverage,” said Sen. Cory Gardner (R-CO). The nominees affirmed they are committed to working toward ensuring accurate data coverage moving forward.

First Amendment

Sen. Tom Udall (D-NM) pressed all of the nominees on their commitment to the First Amendment in light of the many statements President Trump has made disparaging outlets covering his Administration. Sen. Udall pointed to a story that the White House could use AT&T’s proposed acquisition of Time Warner as a way to punish CNN for its stories and suggested the Administration might want to reward Sinclair by approving Sinclair’s purchase of Tribune television stations. Each of the nominees pledged to speak out against violence or intimidation against journalists. Chairman Pai reiterated that the White House had not contacted him about retaliating against negative news stories and said he would not do so if asked. And he promised that the FCC would not be used to punish media companies or reward others and would be troubled by any attempt to pressure it to do so.

"I have not directly had any conversations with anyone in the administration with respect to media regulatory proceedings," Chairman Pai said. "To the best of my knowledge, no one on my staff or in the FCC has indirectly had any such conversations as well."

“I have consistently stated that I believe … that First Amendment freedoms, including the freedom of the press, are critical,” Pai added. “If I were ever asked by anyone in the administration to take retaliatory action, for instance, in a media regulatory proceeding, I would not do so.”

Conclusion

If all of the hearing’s nominees are confirmed by the full Senate, the FCC would have a 3-2 Republican majority. Senators on the committee have until July 21 to submit additional questions for the nominees who will be given time to reply in writing.

[Commentary] Recently, millions of Americans, mainly on the left, rallied behind a cause larger than themselves: maximizing President Donald Trump’s power over the Internet. Wait. What?

Powers invoked for net neutrality could be a Trojan horse — just as the Electronic Frontier Foundation warned about the Republican-controlled Federal Communications Commission’s power grab in 2008. The current FCC Chairman, Ajit Pai, has long criticized the FCC’s abuses of power. He has consistently opposed the politicization of the agency and called for the FCC to constrain its discretion. But Pai won’t be chairman forever, and his self-restraint is highly exceptional. Democrats should have worked out a legislative deal while they held the White House. It’s not too late, but it soon might be. Republicans increasingly see Web companies as political enemies. That will only get worse without legislation. We could spend another decade, or more, fighting about this. The good news? Some Democrats and Web companies are showing signs they might negotiate. The door remains open — for now.

[Berin Szoka is president of TechFreedom, a technology policy think tank.]

[Commentary] The General Conduct standard and the advisory opinion process ended what Mercatus Center scholar Adam Thierer has described as the “permissionless innovation” standard that has governed the Internet ecosystem since at least 1996, when Congress passed a law declaring the policy of the US to leave the Internet “unfettered by Federal or State regulation.” The Federal Communications Commission’s wide-ranging, 400-page order instead opted for precisely the opposite, demanding that Internet service providers and their immediate business partners apply for permission for any improvement to the network—permission that wasn’t permission at all, and which might never actually arrive. These needless and dangerous innovation-killers, in addition to the other legal and economic problems caused by the hastily-crafted 2015 Open Internet order, justify FCC Chairman Ajit Pai’s proposal to reverse course and return ISPs to full participation in the Internet ecosystem, where they operated without violating even a strict definition of “net neutrality” for twenty years.

Neutrality was never seriously at risk, nor is it now. But if it is, legislation proposed by Republicans before the FCC swallowed the bitter public utility bill remains the only viable solution, if only to avoid another decade of see-sawing decisions. Chairman Pai is right to be undoing the damage done as quickly as possible.

[Larry Downes is the Project Director at Georgetown Center for Business and Public Policy.]

Prior to the July 12 protest, news outlets were warning their readers to “prepare to be assaulted” by the extent of the protest, after major players like Google, Facebook, Netflix, and Amazon announced their participation in the Day of Action. But as many of those same news outlets have since pointed out, the aforementioned major players barely did anything to promote the protest where it counted: on their most visible and highly trafficked homepages and within their mobile apps. “If you blinked, you missed yesterday’s net neutrality protest,” Recode declared, while Politico hedged that it “may have flown under some radars.”

Protests in support of net neutrality have occurred almost semiannually since 2010, with major events taking place in 2012 and 2014 to comment on pending regulations. The 2012 net neutrality blackout, which successfully campaigned against the restrictive Stop Online Piracy Act (SOPA), was particularly notable because major websites like Wikipedia, Reddit, Tumblr, and Google went dark or displayed prominent site interruptions for the full day. These stances were dramatic — especially compared with the mild, unintrusive efforts made during the July 12 protest.

If you care about robust broadband, if you care about being able to use the internet without your service provider compromising your privacy, picking winners and losers online, if you want infrastructure built in your communities, then you cannot remain on the sidelines. File comments in our open internet proceeding, let your federal Reps or Sens hear about what you think and what you need. Make your voice heard. I, for one, welcome hearing from you, consider your voices and opinions significant and view what you file as substantial. We are not doing our jobs as regulators, if we aren’t listening to you, we are not representing your interests if we fail to understand or consider what you are facing or what concerns you.

I am here tonight in Marietta (OH) because I am using my two ears and will now limit what else I say with my one mouth. My unwavering promise to you this evening, is that I will take what you say back to Washington (DC), and ensure that your stories are told and that they are part of our public policy debate.

The Trump Administration has signaled that it stands behind efforts by the Federal Communications Commission and its Chairman, Ajit Pai, to roll back the agency's network neutrality regulations for Internet providers. Speaking to reporters (audio only) on July 18, administration officials said that while rules can be helpful, the Obama administration “went about this the wrong way.” “We support the FCC chair's efforts to review and consider rolling back these rules,” said deputy White House press secretary Sarah Huckabee Sanders, “and believe that the best way to get fair rules for everyone is for Congress to take action and create regulatory and economic certainty.”

The administration's move recalls similar efforts by the White House, during the Obama Administration, to make its opinion known on the issue of net neutrality. “The process raises serious questions about the president's inappropriate influence over what is supposed to be an independent agency that derives its authority from Congress and not the White House,” Sen Ron Johnson (R-WI) said at the time in a letter to the FCC criticizing the matter. Still, some analysts say, any attempt by a White House to address pending FCC matters should be out of bounds. It was wrong when President Obama asserted himself, and it would be wrong for Trump to do so now, said Scott Wallsten, an economist and president of the Technology Policy Institute. “If the agency is independent, then the executive branch should stay out, plain and simple,” he said.

The Federal Communications Commission has denied a request to extend the deadline for filing public comments on its plan to overturn net neutrality rules, and the FCC is refusing 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 Freedom of Information Act (FoIA) request in May for tens of thousands of net neutrality complaints that Internet users filed against their ISPs. The NHMC argues that the details of these complaints are crucial for analyzing FCC Chairman Ajit Pai's proposal to overturn net neutrality rules. The coalition also asked the FCC to extend the initial comment deadline until 60 days after the commission fully complies with the FoIA request. A deadline extension would have given people more time to file public comments on the plan to eliminate net neutrality rules. Instead, the FCC denied the motion for an extension and said that it will only provide the text for a fraction of the complaints, because providing them all would be too burdensome. Chairman Pai has previously claimed that his proposed repeal of net neutrality rules is using a "far more transparent" process than the one used to implement net neutrality rules in 2015. Chairman Pai has also claimed that net neutrality rules were a response to "hypothetical harms and hysterical prophecies of doom" and that there was no real problem to solve.