Regulatory classification

A group of Democratic senators has joined in a call for the Federal Communications Commission to allow for public "review and comment" on tens of thousands of network-neutrality complaints provided through a Freedom of Information Act request in May, saying the FCC has not provided sufficient opportunity to vet them.

They said the documents were only produced a few days before the August Open Internet Order proceeding deadline and were only posted to the FCC website recently. “Although the Commission has undertaken an historic proceeding to undo the Open Internet Order, the FCC has failed to provide stakeholders with an opportunity to comment on the tens of thousands of filed complaints that directly shed light on proposed changes to existing net neutrality protections,” they wrote in a letter to FCC Chairman Ajit Pai. “The public deserves an opportunity to review and analyze evidence that has a direct impact on the proceeding.” The senators want Chairman Pai to tell them what efforts the FCC has taken to analyze the complaints, responses from ISPs and other documents, how it will incorporate them into the record and when, whether the FCC will issue a public notice and comment cycle on them.

Signing on to the letter were Senators Ed Markey (D-MA), Charles Schumer (D-NY), Ron Wyden (D-OR), Al Franken (D-MN), Richard Blumenthal (D-CT), Elizabeth Warren (D-MA), Chris Van Hollen (D-MD), Brian Schatz (D-Hawaii) and Kamala Harris (D-CA).

In filings about the Federal Communications Commission’s forthcoming wireless-competition report, Free Press called out FCC Chairman Ajit Pai for misrepresenting the state of broadband investment following the agency’s 2015 network neutrality ruling.

The FCC is required by statute to compile this annual report to Congress on the state of the wireless industry. The 20th annual report is the first edition to come due during Pai’s chairmanship. The report is on the docket for the FCC’s next monthly meeting, which will take place on Sept. 26. During that meeting, the commissioners will consider and then vote on adoption of the final report. Chairman Pai released the draft of this annual report earlier this month. In a recent speech at an industry conference, Chairman Pai claimed that this draft contains evidence that wireless-industry capital investment declined from 2015 to 2016. He suggested that this decline is due to the FCC’s February 2015 Title II reclassification decision and adoption of open-internet rules.

Free Press sent a letter to Pai condemning the chairman for misusing this report and “once again misleading the public” to advance his “irrational vendetta” against the Net Neutrality rules the FCC put in place during the Obama administration. “The easily verifiable truth is that wireless-industry investments peaked in 2013, as carriers completed the bulk of 4G LTE deployments,” the Free Press letter reads. “Both that peak, and the ongoing decline from it, predate the entire proceeding that led to the 2015 reclassification of broadband as a lightly regulated Title II service. What’s more, this is by no means the only years-long downturn for the wireless sector: Such periods of slower spending are natural — and, in the recent past, have likewise occurred outside of recessions.” The Free Press letter includes detailed analysis that proves that this fluctuating trend is part of a larger pattern of investment that has nothing to do with the rules the FCC adopted to prevent internet-access providers from blocking, throttling or otherwise discriminating against the online communications of internet users. The letter also notes that many previous agency reports on wireless competition specifically caution against misinterpretation of short-term investment data. Yet the draft of Pai’s report provides no such historical context — and no warnings about investment patterns.

“The Open Internet exists today, and it is under attack.” That was the dire message Tom Wheeler, former Chairman of the Federal Communications Commission, had for the audience of the Benton Foundation hosted event at 1871 on September 18. What is the Open Internet? Take, for example, the Facebook Live video of his entire speech. As Wheeler put it, no one had to ask permission from a major internet provider to broadcast it to the world. But the FCC under the current administration has done an about-face in policy, signaling they may be looking to reverse protections for consumers and make it much easier for large broadband providers to restrict access to certain content, throttle up and download speeds and perhaps prevent innovators and entrepreneurs from freely distributing their services.

The 9th Circuit Court of Appeals will hear arguments in a Federal Trade Commission throttling case against AT&T that has major implications for the agency’s reach over telecommunications companies. An 11-judge panel is taking a second look at the case, which centers on whether a carve-out in the FTC’s jurisdiction for "common carriers" should be based on a company’s activities or its status. A three-judge panel from the court sided with AT&T in 2016 and knocked down the FTC’s case against the telecom giant, ruling that the agency did not have the authority to bring the lawsuit against the company because of its status as a common carrier. The FTC asked the court to re-hear the case, and got support from the Federal Communications Commission and internet service providers including Comcast, Charter, Cox Communications and Verizon.

The National Hispanic Media Coalition filed a joint Motion, with 20 additional organizations, in the Federal Communications Commission’s Restoring Internet Freedom proceeding asking the FCC to enter into the record all open internet complaints, ombudsperson correspondence, and carrier responses since the 2015 Open Internet Order, and set a comment period to allow for public input on the new evidence. NHMC initially asked for all related documents in May and, as of this writing, has not received any of the attachments to the ombudsperson emails and has received only 823 pages of the 18,000 carrier responses to consumer complaints about issues they experienced.

We gather today at a critical moment in the history of an Open Internet; in the fight for Net Neutrality. So, right here at the outset, let’s make clear something that will bear repeating throughout these remarks: An Open Internet is the law of the land and any change to that policy would take away from consumers, innovators and the competitive marketplace something they have today. The proof point that opponents to an Open Internet must hurdle is the factual basis for why it is necessary to remove existing protections? Those protections can be boiled down to one simple principle: Consumers must be in charge of how they use their broadband connections, free from manipulation by their broadband providers. Unfortunately, those of us who believe the internet should be fast, fair and open are in for a fight. The majority of the Trump Federal Communications Commission (FCC), the Republicans in Congress, and the big broadband providers are ganging up on consumers. They mouth the words, “We support an open internet,” yet oppose meaningful protections of that openness. So let me say it again, the current effort is to take away protections that now exist. This is principally about four economically and politically powerful broadband providers – companies that control the connections to 70 percent of American homes – seeking to take something away from tens of millions of consumers and tens of thousands of entrepreneurial innovators. The Trump FCC’s ongoing proceeding to accomplish this is a sham, starting with its name. In the Orwellian world of alternative facts in which we now live, the FCC calls gutting the Open Internet: “Restoring Internet Freedom.” The only thing this effort frees are the broadband providers that escape from their obligations to consumers. The effort to repeal or revise the Open Internet rules is contrary to statute, and contrary to the facts demonstrating how broadband providers can, have, and will abuse their role as gatekeeper to the network that will define the 21st century. And the best its proponents can come up with to support their position are claims of reduced investment that add up to nothing more than special pleading by the biggest cable and telecommunications companies.
[Tom Wheeler is the Walter Shorenstein Fellow for Media and Democracy, Harvard Kennedy School; Visiting Fellow, Brookings Institution; and Klinsky Visiting Professor, Harvard Law School. He served at Chairman of the Federal Communications Commission November 2013 - January 2017.]

The Federal Communications Commission has ignored a public records request for information that might shed light on the legitimacy of comments on Chairman Ajit Pai's anti-net neutrality plan, according to a lawsuit filed against the FCC. Freelance writer Jason Prechtel filed a Freedom of Information Act (FoIA) request on June 4 asking the FCC for data related to bulk comment uploads, which may contain comments falsely attributed to people without their knowledge. But while the FCC acknowledged receiving his FoIA request, it did not approve or deny the request within the legally allotted timeframe, Prechtel wrote in a lawsuit filed in the US District Court for the District of Columbia.

The Trump administration, the Federal Communications Commission, Congress and greedy companies are attacking people’s rights to connect and communicate so relentlessly that staying on top of everything that’s happening can feel like an impossible task. That’s why we’ve put together this handy list of five of the biggest threats people are facing:

1) The FCC’s scheme to kill Net Neutrality
2) Anti-Net Neutrality legislation
3) Mega media mergers
4) Local news crisis
5) Lies, lies and more lies: The proliferation of fake news — which Trump embraces — is making it hard to get the truth out about these attacks on our rights to connect and communicate, what’s at stake and what we can do about it.

Network neutrality advocates are planning two days of protest in Washington DC in Sept as they fight off plans to defang regulations meant to protect an open internet. A coalition of activists, consumer groups and writers are calling on supporters to attend the next meeting of the Federal Communications Commission on Sept 26 in DC. The next day, the protest will move to Capitol Hill, where people will meet legislators to express their concerns about an FCC proposal to rewrite the rules governing the internet. Participating organizations in the protest include Fight for the Future, Public Knowledge, Electronic Frontier Foundation, Center for Media Justice, Common Cause, Consumers Union, Free Press and the Writers Guild of America West.

[Commentary]

• Federal Communications Commission Chairman Ajit Pai plans to reverse the agency’s open internet rules passed in 2015.
• The Open Internet Rule makes sure that the internet, the most important network of the 21st century, is open and available to everybody, and not controlled by a handful of companies.
• More than half of American consumers don’t have a choice when signing up for internet service, allowing monopolists to make the rules.
• The Open Internet Rule, as it currently stands, ensures that there is oversight in the internet marketplace.
• There are four companies, cable and telephone, that provide three-quarters of the access to the internet for American consumers, and they would prefer to be unregulated.
• The Open Internet Rule is the law of the land that protects consumers. If Congress or the Trump administration’s FCC eliminate the rule, consumers will lose their current protections. Without the Open Internet Rule, cable and phone companies will pick what you see, what you pay, and what you have to pay extra for. Congress plays an important role in the oversight of the FCC and in how the internet is regulated.
• The Open Internet Rule has been successful in protecting consumers, in stimulating innovation, and in providing good returns for those who provide internet service. If it isn’t broken, it doesn’t need to be fixed.

[Wheeler is a visiting fellow in Governance Studies. Wheeler is a businessman, author, and was Chairman of the Federal Communication Commission from 2013 to 2017.]