Regulatory classification

[Commentary] The Federal Communications Commission’s 2015 open internet order has long been a posterchild for bad law and worse economics. It has been labeled an “economics-free zone” by the FCC’s own chief economist. The data on the results of its fool hard decision to proceed with Title II despite reams of expert warnings bears this out. FCC Chairman Ajit Pai deserves credit for revisiting the issue in an economically serious way and attempting to restore some semblance of order to a renegade regulatory agency.

[George S. Ford, Ph.D., is an economist specializing in technology issues at the Phoenix Center for Advanced Legal & Economic Public Policy Studies.]

A Q&A with Federal Communications Commission Chairman Ajit Pai.

Asked about Congress' role in the network neutrality debate, Chairman Pai said, "Well a few years ago after one of the court rulings in 2014, I suggested that, you know, I think Congress would be well-positioned to take hold of this issue and just figure out what the rules of the road are going to be long-term. And I think in the past couple of months, we've seen increasingly a desire from all sides of the debate to involve members of Congress. And obviously if Congress sets the rules in statute, then the FCC, the American public, is duty-bound to follow it. And so we'll see what they do in the time to come."

Because whether and how to regulate various parts of the Internet supply chain (or, if you prefer, ecosystem), I will try to explain below why common carriage obligations, such as network neutrality, are different from public utility regulation (even though most utility providers are common carriers), which is different from natural monopoly regulated rate of return/tariffing/price regulation. I will briefly explore some of the arguments in favor of applying some sort of public forum doctrine or common carrier obligation to social media platforms, and — because this invariably comes up in telecom space — why platform or other infrastructure providers are not and should not be covered by Title II or the Federal Communications Commission, even if we agree they should have some sort of public forum or even public utility obligations.

[Commentary] We have come to the end of the comments period set by the Trump Federal Communications Commission (FCC) during which the public could respond to the FCC’s efforts to deregulate high-speed Internet service and roll back network neutrality rules that designate the Internet a utility. There have been over 22 million comments to the FCC’s proposed rule making, or ‘rule unmaking’ — surely a testament to the Internet’s potential to encourage participation — and it appears the huge majority of those comments have spoken against the FCC’s proposal to deregulate.

The public now understands, just as the courts have always understood, the the Internet is an incredible information transmission utility that has fallen into the hands of monopolists and should be regulated in the public’s interest. But the Trump FCC has only free market solutions to problems we don’t have in 2017, so it is highly likely that this FCC will indeed do away with the Net Neutrality rules set forth by the FCC in 2015.

[Fred Johnson is a documentary maker and telecom policy analyst]

[Commentary] Is broadband internet an “information service,” as concluded repeatedly over two decades by Democratic and Republican commissioners, or a “telecommunications service” as a partisan majority decreed two years ago? This is a distinction with a profound legal difference under the Telecommunications Act of 1996.

Telecommunications services are subject to the same restrictions and government controls that applied to the old Bell monopoly starting in the 1930s. Information services have far more freedom to compete and innovate. The real-world effects of this heavy vs. light regulation are dramatic, and they turn on the question of how consumers use broadband internet. 72% of U.S. adults frequently read or watch news, sports or other content online. Sixty-one percent use search engines; 52% purchase items online, and 48% check or post on social media. Smaller percentages store photos, grocery lists and other items. That broadband internet access that enables these activities is precisely what makes broadband an “information service” under the statute. It is impossible to make use of popular video-rich information applications on today’s internet using old-fashioned dial-up access because of the need for higher speeds and lower latency. Returning to the longstanding light-touch framework will offer many benefits to American consumers and encouraging Congress to do its job and modernize the Telecommunications Act for the broadband era, developing and passing bipartisan legislation that ensures the open internet, protects consumers and maintains investment in the nation’s high-speed broadband networks.

[Bruce Mehlman is a lobbyist for broadband service providers]

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."