Regulatory classification

[Commentary] Fostering competition and punishing anti-competitive conduct creates an environment where innovators can create new products and services in response to consumer demand more freely, without having to spend time and money to comply with static, “one-size-fits-all” regulations from Washington, D.C. With that in mind, the Federal Trade Commission (FTC), with its jurisdiction over our nation’s antitrust and competition laws, is ideally equipped to both protect the interests of consumers and foster competition in the ISP marketplace.
FTC enforcement of antitrust laws preserves innovation and consumer benefits.
FTC has the most extensive experience to address anticompetitive conduct.
FTC provides regulatory certainty and prevents overregulation.

[Rep Bob Goodlatte (R-VA) is Chairman of the House Judiciary Committee]

[Commentary] The Federal Communications Commission’s proposal to reclassify broadband as an information service – the status it had for nearly two decades under which the internet grew and flourished -- has received over 20 million comments expressing views on both sides of the issue. Amid all the noise, it’s important to ensure that one aspect of the rulemaking not be overlooked: its huge impact on rural America.

The best way to ensure that all corners of the country get the connectivity they need is for the FCC to restore the classification of broadband as an information service. Thereafter, Congress should enact legislation that codifies open internet rules and at long last puts to rest a debate that has raged for more than a decade.

[Rick Boucher was a Democratic member of the US House for 28 years and chaired the House Communications Subcommittee. He is honorary chairman of the Internet Innovation Alliance (IIA) and head of the government strategies practice at the law firm Sidley Austin.]

Americans clearly care about network neutrality, but to understand all that’s at stake, let’s take a closer look at what, exactly, “net neutrality” is and why it’s in the news. With so much at stake, millions of people are voicing their support for net neutrality and asking the Federal Communications Commission to keep the current rules in place. Anyone can submit comments through the FCC’s website until Aug. 30. The FCC could vote on a proposal by the end of the year, after which the battle may shift to the courts and Congress—so it is important to contact your elected officials and let them know you support net neutrality. The Trump administration’s effort to repeal net neutrality has created great uncertainty about the future of the internet, but one thing is certain: This fight won’t be over any time soon.

[Commentary] Amid the avalanche of Title II comments were comments filed by eleven Democratic members of Congress—several of whom sit on the House Commerce Committee—who claim their background working on telecommunication issues over the years gives them the “unique ability to provide input on the actual meaning and intent” of both the Communications Act and the Telecommunications Act of 1996. A simple review of the plain text of these statutes and the substantial case law interpreting them, however, appear to raise doubts about that claim.

Let’s start with the Congressmen’s central argument that the FCC “fundamentally and profoundly misstates the law” because the FCC’s notice of proposed rulemmaking (NPRM) “takes an impermissibly narrow view” of the Communications Act’s “public interest” standard. “Any action the FCC takes based on the analysis contained in the proposal,” they claim, “will be legally flawed and contrary to the law.” The problem with this argument is that regardless of how one views the “public interest” standard, application of this standard is irrelevant to the fundamental legal question raised in the NPRM. The Congressmen next argue that by reversing reclassification, the FCC “would remove the statutory privacy rules that can protect broadband users before they are harmed.” Again, this argument is legally inaccurate. The Democrat lawmakers’ third major legal argument is that the FCC is improperly focusing on whether the 2015 Open Internet Order depressed investment in broadband infrastructure. Every serious attempt to analyze the data indicates that the prospect of Title II regulation has reduced investment in broadband infrastructure, and by a significant amount.

At some point, we all hope that Congress will step up and pass some sort of Open Internet legislation to put this debate to bed. If that effort is to be successful, then it is incumbent on Members of Congress to bring greater focus, insight and analytical rigor than they demonstrated in this particular filing.

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

After four months of debate, the Federal Communications Commission is nearly ready to stop accepting feedback on its proposal to kill network neutrality. Final comments are due Wednesday, August 30th, by end-of-day Eastern time. Once the comment period closes, the FCC will review the feedback it received and use it as guidance to revise its proposal, which if passed, would reverse the Title II classification that guaranteed net neutrality just two years ago. The commission is supposed to factor in all of the feedback it received when writing its final draft, so if you do have strong feelings on the matter, it’s worth leaving a comment. And clearly, this proceeding has struck a chord.

There are currently almost 22 million filings on the proposal, setting a dramatic new record at the FCC. The last net neutrality proceeding set the prior FCC comment record at what at the time seemed like a whopping 3.7 million responses.

House Communications Subcommittee Chairman Marsha Blackburn (R-TN) has been critical of Silicon Valley's default position on network neutrality and its privacy practices. But she says she found common ground during a recent visit to tech companies on the West Coast: "I think with a broad brush that it is fair to say that when it comes to broadband expansion they are all incredibly interested about how we're going to do and what we're going to do," she said. Here's what else she had to say:

On net neutrality: She said that companies want "to have their say and to do something on where there is agreement." It remains to be seen, however, whether there'll be enough agreement for all the parties involved to hammer out a deal.

On her privacy proposal: Blackburn has introduced a bill that would require web firms like Facebook and Google (as well as ISPs) to get permission before letting marketers use customers' data to target ads. "I am positive," she said of her outlook on the proposal. "I'm optimistic." She said a "real win would be to have an aggressive discussion" about the issue in the fall.

On free speech on the internet: We also asked her about her views on internet companies removing hate speech from their platforms or systems, which some say raise questions of free speech in a world where private companies have a lot of control over who sees what points of view. She said it's "something that will come up in discussion" down the road about the responsibility that web companies have.

The technology sector has been on edge, waiting to see if the new administration will make the reforms needed to spur innovation and startup activity, or whether it will make policy changes that end up stifling it. There are a few key areas of tech policy that are top of mind for tech CEOs and other industry participants, including four key issues: Expanding tech talent, intellectual property protection, artificial intelligence and automation, and network neutrality. Current Federal Communications Commission Chairman Ajit Pai is arguing to end internet service providers’ status as common carriers (on par with utilities), and instead “reestablish” market forces in regulating the internet. His view is that this would increase infrastructure investment and innovation among the aging broadband networks. This is not surprising, given President Trump’s view on this as a “top-down power grab,” drawing analogies to the FCC’s Fairness Doctrine.

The Federal Communications Commission plan to repeal network neutrality rules depends partly on the argument that antitrust rules can protect consumers and websites from bad behavior by Internet service providers. FCC Chairman Ajit Pai's Notice of Proposed Rulemaking that proposes overturning the rules seeks comment on whether "the existence of antitrust regulations aimed at curbing various forms of anticompetitive conduct" makes the current net neutrality rules unnecessary. But even a prominent opponent of the current net neutrality rules that Chairman Pai wants to overturn says that antitrust isn't robust enough to protect consumers and websites from ISPs.

This anti-antitrust argument comes from economist Hal Singer, who opposed the FCC's 2015 decision under then-Chairman Tom Wheeler to impose net neutrality rules by reclassifying ISPs as common carriers under Title II of the Communications Act. Chairman Pai has repeatedly said that Singer's research on alleged network investment declines proves that the net neutrality rules have been harmful. Singer has derisively called the current net neutrality framework, "the Wheeler tax." But on the question of whether antitrust rules can protect consumers from net neutrality violations, Pai and Singer do not agree.

The pace of filings at in the Federal Communications Commission's network neutrality comment docket, dubbed "Restoring Internet Freedom," by FCC Chairman Ajit Pai, is showing no signs of slowing down, with still plenty of people (or bulk e-mail generators, some argue) still weighing in. The FCC extended the comment deadline to Aug. 30 from Aug. 16. Since that Aug. 16 date, 1.5 million additional filings have been logged as of Aug. 24, making the current total 21,850,771, up from the 20,350,000 in the docket as of Aug. 16. The FCC does not keep track of such records, but nobody is disputing that this volume is a record for the number of comments in any FCC docket.

With the open internet under attack, thousands of Free Press members heeded the call and donated to our $100K in 100 Days campaign to save Net Neutrality. Thanks to their generosity, we exceeded our goal and are continuing to work around the clock to stop the Trump Federal Communications Commission from handing control of the internet over to companies like Comcast and Verizon.