Network Neutrality

[Commentary] At bottom, network neutrality is nothing more than good old-fashioned rate regulation. Accordingly, if you are going to impose rate regulation, then Title II prescribes certain rules you must adhere to in order to ensure that the regulated firms’ Fifth Amendment due process rights are not violated....At stake...is whether an administrative agency should be permitted to re-write the law—especially when it does so simply to fit a political agenda. According to the D.C. Circuit in United States Telecom v. FCC, the answer appears to be “yes.” Citing the Supreme Court’s seminal case in Brand X, the D.C. Circuit found in USTelecom that the FCC had wide—nearly unbounded—latitude to interpret the Communications Act and not only upheld the agency’s decision to reclassify but also upheld the agency’s ability to “tailor” how it chose to implement Title II. In so doing, the D.C. Circuit—rather by design or by omission—has taken Chevron deference to the extreme.

USTelecom has greatly expanded the commission’s authority to set the rates, terms and conditions of private actors well beyond its statutory mandate. Accordingly, the statutory construct of “Title II” now has no meaning; it is some bizarre legal hybrid that the FCC has made up and the D.C. Circuit has sanctioned. For those who care deeply about due process and the rule of law, the precedent set by the D.C. Circuit in USTelecom is deeply troubling and is a case that we will likely have to deal with its aftermath for years to come.

[Lawrence J. Spiwak is president of the Phoenix Center for Advanced Legal & Economic Public Policy Studies.]

As part of Federal Communications Commission Cgairman Ajit Pai's proposal to roll back Title II and review network neutrality regulations, the agency is proposing to use a "multiplier" to calculate the amount, if any, of lost investment from Title II, beyond the immediate investment to the total impact of that lost investment, say on construction workers not getting paid because of buildouts not being built out -- something like counting the number of other dominoes that fall rather than just counting the first one. The Free State Foundation, in comments to the FCC, submitted an assessment of such a cost-benefit analysis by senior fellow Theodore Bolema that suggested it would be reasonable to multiply lost investment assessments by between 1.25 and 1.75, which would mean Free State's own estimate of a $5.6 billion reduction in what would have been invested between 2015 and 2016 were Title II not in place would translate to more like between $7 billion and $9.8 billion. "If the current investment trend were to continue," said Free State president Randolph May in the FCC submission, "the negative economic impact resulting from the Open Internet Order regulatory regime will only become greater over time.”

[Commentary] If there's anything lawmakers should have learned from activists over the past few years it's this: Do not make the internet angry.

In March, congressional Republicans once again felt the wrath of the internet community when they reversed the Federal Communications Commission’s broadband privacy rules. The blowback from the vote was massive, prompting members of Congress to hide from angry constituents. Now President Donald Trump and FCC Chairman Ajit Pai are digging even deeper and looking to overturn the historic 2015 Net Neutrality win. If they think the internet is going to take that sitting down, they have another think coming. The internet community and allied companies come together to remind President Trump, Chairman Pai and Congress that millions of people in America have made their support for net neutrality known. They know that the repeal of net neutrality means the end of real privacy protections, means paying more for worse service — and enables companies like AT&T, Comcast and Verizon to decide how you use the internet.

[Sandra Fulton is the government relations manager for Free Press Action Fund]

Key tech industry leaders are expressing openness to having Congress step in to legislate net neutrality — putting pressure on Democrats who've been adamantly opposed to such a move. Facebook’s Mark Zuckerberg and Sheryl Sandberg said they’re willing to work with lawmakers on the issue, and Reddit’s Alexis Ohanian expressed a similar view. That flies in the face of the resistance many Democrats and activists have shown to working with Republicans on enshrining open internet protections into law. Democrats have been focused on stopping the GOP-led FCC from rolling back the current net neutrality rules, and fear their Republican colleagues want to pass weaker standards than what the FCC has already put in place.

[Commentary]

1. Freedom of expression isn’t a function of the values of a place but the structure of the information infrastructure. Oppressive regimes led by the likes of Adolf Hitler and Joseph Stalin understood this and used the power of centralized/consolidated information systems to spread propaganda.
2. The 1960s were famous for the rejection of these centralized systems (in this case, the Bell/AT&T monopoly). And, the internet was explicitly designed to be network neutral as a way to fight consolidation.
3. This network neutrality or net neutrality means that every service on the internet competes on a level playing field and it is users (i.e. us) that choose which internet service wins. This system brings its own set of issues with it but it is better than the alternative.
4. Net neutrality principles are closely aligned with the principles behind the freedom of expression. So, the real question underlying the net neutrality discussion is — how much do you care about freedom of expression?

[Commentary] A curious thing happened on a day that many internet companies and public policy groups had christened a “Day of Action” aimed at protesting the Federal Communications Commission’s plan to overturn so-called net neutrality rules. The curiosity was that several broadband companies — the very same companies that pushed to rewrite the rules that undergird net neutrality — put out statements suggesting that they, too, supported the aims of the protesters.

So why, now, are broadband companies suggesting that they support the aims of the other side? There are two possibilities: A cynic might argue that it’s just puffery, that the broadband industry is simply trying to present a friendly image to an outraged online horde. Or you might take them at their word. Here’s one idea for longtime proponents of network neutrality: Call the broadband companies’ bluff, if that’s what it is. Maybe it is time to push Congress, rather than the FCC, to take up the neutrality fight — and maybe, finally, end the debate for good. Internet giants control the world’s most important channels for information, from your Facebook feed to Google results to your phone’s home screen. They are more than capable of applying enormous pressure to members of Congress to push for what they want. And then, if nothing else, we’ll be able to see where the broadband companies really stand.

In a national poll of 1,500 voters, 70 percent of respondents — including Democrats, Republicans and Trump supporters — think the internet has improved while network neutrality rules have been in place.

86 percent of all voters say ISPs should treat all websites and content equally. 75 percent of Trump supporters said they agreed that ISPs should continue to follow net neutrality rules prohibiting slowing or blocking websites or video services. 58 percent of Republicans and Trump voters agreed with the statement, "Internet should be treated like any other utility such as gas or electric service." While it won't change Federal Communications Commission Chairman Pai's mind about reversing the rules, the high number of Trump voters who support net neutrality regulations could get some attention. Showing broad backing helps make the case that support for the net neutrality rules is an issue that resonates outside of the coastal bubbles most associated with tech. That's a message net neutrality advocates hope to send to conservatives as they fight an uphill battle to preserve the rules.

Facebook, Google, Twitter and other companies, activists and startups that rallied in support of net neutrality probably aren’t going to stop the Trump administration from killing the rules currently on the government’s books. But the organizers of the so-called “day of action” insist they reached more than 10 million users with their message, while generating at least 2.1 million comments urging the Federal Communications Commission to rethink its plans. That’s a drop in the bucket, seeing as the tech companies that took part in the protest reach billions of users every day — but the event’s planners stress that they’ve touched a nerve. Some of the web’s largest companies — including Amazon, Facebook and Google — took a more reserved approach. They didn’t darken their webpages, like some companies did during a massive online protest against the Stop Online Piracy Act, and their alerts to users weren’t always easy to find.

In April, 22 small cable providers signed a letter to the Federal Communications Commission asking for the end of network neutrality, writing that the policy imposed “onerous burdens” on their businesses. FCC chairman Ajit Pai has latched onto this. He’s been touting the damage net neutrality could do to regional and “mom and pop” internet providers, and he cited this letter as proof when announcing plans to reverse net neutrality and its classification of internet providers under a legal statute known as Title II. Quite a few of these smaller internet providers have taken issue with the FCC’s net neutrality rules. This is not just because of the rules’ core tenets — no blocking websites, no throttling internet speeds, no demanding payments for access — which many small providers say they support. Instead, they’re concerned about being forced to spend tens of thousands of dollars proving to the FCC that they’re actually following the rules. The Verge called eight smaller internet providers to find out whether they’d been impacted by net neutrality, and the answers were mixed. Multiple respondents, when asked if Title II was hurting them, gave an unqualified “no.”

If you weren’t paying close attention, it may have looked like AT&T got onboard the net neutrality “day of action” protest. The company’s website displayed a banner saying that “AT&T supports an open internet,” and it sent a message to DirecTV customers mentioning the same thing. “Tell Congress to adopt permanent protections,” both messages added, before directing people to an “Open Internet” page on AT&T’s site. But while that page might look like other pro-net neutrality sites at first glance, it’s far from it. AT&T is carefully wording around the fact that it’s opposed to the net neutrality order that activists are fighting for. What’s worse: it’s trying to get people to send an email to legislators and the FCC that pushes its own agenda, while masquerading as something in support of the same cause yesterday’s protest was about.