Regulatory classification

A regulatory revival at the Federal Communications Commission during the Obama Administration dramatically curbed capital spending on broadband infrastructure. Since the specter of reclassification was first introduced by then-Chairman Julius Genachowski in 2010, investment has consistently been at least 20% below expectations. More recently, significant attention has focused on the reductions in infrastructure investment following the 2015 Open Internet Order (adopted on February 25, 2015). Data from USTelecom and CTIA, for instance, show sizeable declines in capital spending in 2016, the year following the decision. Even Free Press, an advocate for Title II, offers evidence that real investment declined in 2016. Given the importance of broadband infrastructure deployment in the modern economy, the decline in capital spending will almost certainly play a role in the current FCC’s proposal to reverse the reclassification decision and the legal defense of that decision.

On July 12, 2017, some of the world's largest companies, activists, and citizens protested the Federal Communications Commission's proposal to rollback (well, gut, really) network neutrality protections adopted in 2017. Here's a look at the news of the day.

The country's biggest broadband service providers, we learned, are huge, huge supporters net neutrality. Companies like Comcast and Verizon, who've sued the FCC after it's previous attempts at writing Open Internet rules -- just so the rules come out just right -- did not sit by quietly during the big online rally. They voiced their support for an Open Internet -- just not using the rules that a federal court upheld in 2016. The companies support the FCC reversing the 2015 decision so they can go back to court and find out if the FCC's next set of rules are enforceable.

• AT&T Vice President of External and Legislative Affairs Bob Quinn said the company supports the repeal of the current regulations set under Title II of the Communications Act, calling it “outdated”, and encouraged Congress to create bipartisan, net neutrality legislation.
• Verizon Senior Vice President of Federal Regulatory and Legal Affairs Will Johnson said, “The Internet is too important to have policies that change with each election. It’s time to get past the rhetoric and the pendulum swings and work together to craft a durable set of rules that protect the open Internet without discouraging the investment in the next generation of broadband networks that will enable the next generation of online services. Open Internet protections deserve to be written in ink, not pencil.”
• “Title II regulation and net neutrality are not the same thing,” said Comcast Senior Executive Vice President and Chief Diversity Officer David Cohen. “While some seem to want to create hysteria that the Internet as we know it will disappear if their preferred regulatory scheme isn’t in place, that’s just not reality.”
• USTelecom, the lobbying organization for large broadband providers, dismissed the rally as a campaign of large Internet-based companies. "For many of the large, powerful internet companies who have signed on to today’s net neutrality protest, the real issue here is not protecting the open internet, but protecting their bottom lines," said President and CEO Jonathan Spalter. "What’s the solution? Clean, modern net neutrality rules that safeguard consumers’ online freedoms without sacrificing their equally keen interest in stronger, faster broadband networks—and all the innovation it makes possible. FCC Chairman Ajit Pai should be commended for seeking that balance in his net neutrality proceeding. And, Congress would do right by all consumers to make these protections permanent under the law."
• NCTA – The Internet & Television Association said, "[W]e agree that internet users should have the freedom to go anywhere on the internet or to run any application with confidence that internet traffic will in no way be blocked or throttled."

Free Press, BTW, was quick to point out 10 ways broadband providers could better support network neutrality. #4 -- quit suing the FCC over the 2015 Open Internet rules.

Internet-based companies voiced their support for preserving the FCC's 2015, court-upheld rules.

• Google said, "Internet companies, innovative startups, and millions of internet users depend on these common-sense protections that prevent blocking or throttling of internet traffic, segmenting the internet into paid fast lanes and slow lanes, and other discriminatory practices. Thanks in part to net neutrality, the open internet has grown to become an unrivaled source of choice, competition, innovation, free expression, and opportunity. And it should stay that way."
• Twitter Public Policy Manager Lauren Culbertson said, "Without the guiding principles of Net Neutrality, it is entirely possible Twitter would not have come from a somewhat quirky experimental 140-character SMS service to where we are today, an international company with thousands of employees and a service that incorporates pictures, video, and live streaming and connects the world to every side of what’s happening." She continued, "Net Neutrality is one of the most important free expression issues of our time because without Net Neutrality, ISPs would be able to charge content providers more to access the Internet or to reach other users, frustrating the free flow of information. Moreover, without Net Neutrality in force, ISPs would even be able to block content they don’t like, reject apps and content that compete with their own offerings, and arbitrarily discriminate against particular content providers by prioritizing certain Internet traffic over theirs. This is especially critical for smaller and noncommercial voices, who would be unable to pay a new ISP broadband toll for 'fast lane' service."
• The Netflix homepage included a banner that read, "Protect Internet Freedom. Defend Net Neutrality".
• Airbnb used its homepage to tell users the company was "protesting the FCC's plan to remove common-sense regulations" and provides a form for them to contact members of Congress.
• HomeAway featured a "Save #NetNeutrality" banner with a link to the Internet Association site.
• Reddit helped drive traffic to the "Battle for the Net" and included the message "The internet's less fun when your favorite sites load slowly, isn't it?"
• Dropbox General Counsel Bart Volkmer said, "[W]e strongly favor a free and open internet with fair rules that promote competition, choice, and innovation. We’ve shared this position before and it’s worth repeating."

But the debate over an Open Internet isn't just pitting the competing interests of broadband providers and Internet-based companies. According to a recent poll conducted by Civis Analytics, 77 percent of Americans support keeping the strong net neutrality rules we already have and more than 80 percent agree with the principles of net neutrality.

• “The FCC needs to listen to the public, not just lobbyists from big cable companies," said Evan Greer, campaign director for rally organizer Fight for the Future. "Today, the Internet is showing its political power. No one wants companies like Comcast, AT&T, and Verizon to have control over what we can see and do online, or to have to pay them extra fees to access the content we want. The Internet is outraged by censorship and corruption, this is our moment to defend net neutrality and fight for the future of freedom of expression. Lawmakers in Washington, DC need to understand that if they stand idly by and allow the FCC to gut these rules that are overwhelmingly supported by voters from across the political spectrum, they will be seen as enemies of the Internet and enemies of free speech.”
• "The facts are clear: The current net neutrality rules are working, they are popular, and they have been upheld in court challenges not once but twice," said Chris Lewis, Vice President at Public Knowledge. "No one should have to pay an extra toll or get permission from their broadband provider to deliver their content or services to consumers online. It’s time to take a stand to preserve these hard-fought rules that protect the internet and internet users everywhere, and the movement starts today."
• Free Press CEO Craig Aaron said, “The fact is, we have something that is already working, so why we would be urging people to take an incredibly popular policy with wide support from millions and millions of Americans and rewrite it to make it 5 percent less awful than whatever the FCC is proposing right now doesn’t make any sense."
• "The open Internet is a place for authentic storytelling by Latinos and communities of color, whose voices have been misrepresented or underrepresented by traditional media,” said Carmen Scurato, director of policy and legal affairs for the National Hispanic Media Coalition, which says undoing Title II would "slash the legal foundation" for online protections. “Strong net neutrality rules, that prevent corporate gatekeepers from standing in the way of how we access and use the internet, ensure that historically underserved communities will be heard online."
• "Net neutrality is essential to 21st Century democracy," said Michael Copps, former FCC chairman and special advisor to Common Cause. "Without real open internet protections, Big Cable gatekeepers are free to filter dissent and stifle online organizing. That's why millions of Americans—and so many of companies—are speaking with one voice. We will never compromise online free speech."

FCC Commissioner Mignon Clyburn said, "“Today I stand with those who believe that a free and open internet is a foundational principle of our democracy. Its benefits can be felt across our economy and around the globe. That is why I am excited that on this day consumers, entrepreneurs and companies of all sizes, including broadband providers and internet startups, are speaking out with a unified voice in favor of strong net neutrality rules grounded in Title II. Knowing that the arc of success is bent in our favor and we are on the right side of history, I remain committed to doing everything I can to protect the most empowering and inclusive platform of our time.”

Republican FCC Commissioners Ajit Pai and Michael O'Rielly were silent on the matter on July 12.

Tim Berners-Lee, the inventor of the world wide web, posted a video urging people to show support for net neutrality. “If we lose net neutrality, we lose the internet as we know it,” he said.

Many have called on Congress to address net neutrality protections in legislation. Senate Commerce Committee Chairman penned an op-ed for Recode saying, Like many organizers of today’s protest, I vigorously support an open internet. But as a senator representing a rural state, I am concerned that such protests often [give] short shrift to ensuring all Americans have access to high-speed internet." His solution: "passing enduring bipartisan legislation, is obvious and — no, I’m not kidding — within Congress’s reach. If Democrats and Republicans have the political support to work together, we can together enact a framework that provides the net neutrality protections wanted by so many internet users, reasonably limits the whims of partisan regulators and grants the necessary flexibility to protect consumers from future harm."

House Commerce Committee Chairman Greg Walden (R-OR) said, “Today’s Day of Action highlights the need for Congress to work together to protect consumers and ensure a free and open internet. The internet and the new technologies it unleashed have revolutionized the world in just a few short decades, and done so with little or no federal regulation. I again call on my Democratic colleagues, edge providers and ISPs, and all those who make up the diverse internet ecosystem that has flourished under light-touch regulation to come to the table and work with us on bipartisan legislation that preserves an open internet while not discouraging the investments necessary to fully connect all Americans. Too much is at stake to have this issue ping-pong between different FCC commissions and various courts over the next decade."

"We understand people have some passionate feelings on the issue, and we expect to hear those," said House Communications Subcommittee Chairman Marsha Blackburn (R-TN). But she predicted the day of action will "only be another day of confusion for consumers and users" and criticized Democrats for refusing to engage on net neutrality legislation. "What I find interesting is that we have asked Democrats for years to come to the table on this issue, only for them to hide behind political excuses."

Rep. Darrell Issa said, "You can look at criticism as an opportunity to improve your own game or you can look at it as a nuisance. Rep Issa backs an antitrust approach to open internet protections relying on the Federal Trade Commission rather than the FCC.

Democratic National Committee Chairman Tom Perez said, "President Obama enacted historic and tough net neutrality rules for good reason — we need strong guidelines designed to protect budding startups and businesses from large corporations that might want to stamp out their competition. We need to fight to preserve the power a free and open Internet gives the marginalized and underrepresented to organize and have their voices heard."

“Without net neutrality, the internet as we know it ends,” said Sen. Ron Wyden (D-OR), speaking alongside other Democratic lawmakers outside the U.S. Capitol. “It’s just that simple.”

“The FCC and everyone in this city is going to know what the political consequences are if net neutrality is repealed,” said Sen. Ed Markey (D-MA).

Rep. Mike Doyle (D-PA) stressed that Democrats had been “fighting to protect and promote a free and open internet for a long time” — and did not plan to stop. “Now, the Trump administration and the ISPs want to take that away,” he charged. “I challenge my colleagues on the other side of the aisle to go back to their districts and ask their constituents if they want slower internet.”

In any case, no one expects Congress to take up this issue fast enough to get ahead of the FCC. Rep. Anna Eshoo said Republicans don’t want to give the FCC any authority, and that “if I drew up the bill right now they wouldn’t support it. Congress is on the wrong side of history on this."

This means the net neutrality fight may end up in a very familiar place: federal court.

Gigi Sohn, who was at the FCC when it passed the current regulations, says that Pai’s rules will face an immediate legal challenge that could actually lead to a durable victory. The basis of a lawsuit could deal with something even more arcane than internet regulation: the limits on the rights of regulators to change their minds.

“It will certainly make a difference to the extent that Pai has to respond” to the comments, said Sohn, a longtime champion of net neutrality who served as counselor to former FCC Chairman Tom Wheeler.

“This is not the end of the campaign,” she added. “This is just the beginning. This is just the kickoff.”

[Commentary] The now-raging battle over the fate of landmark network neutrality rules adopted by the Obama-era Federal Communications Commission just two years ago is, at the same time, a war of ideas. On the front lines is a subterranean network of think tanks and hired-gun economists, lawyers, and others mobilizing their credentials to justify FCC Chairman Ajit Pai’s sprint to reverse not just the net neutrality rules, but also a raft of measures on concentration in the broadband, mobile wireless, cable TV and broadcasting markets, broadband privacy and pricing, and on and on. If the rollback is successful, Pai’s FCC will deliver a regulatory agenda beyond the biggest telecom-ISP and media companies’ wildest dreams. Each step of the way, industry-friendly think tanks and front groups have commissioned academics to flood the ‘marketplace of ideas’ with corroborating ideas and ‘white papers,’ often without disclosure. What they’re paying for is the veneer of academic legitimacy.
[Jeff Pooley is Associate Professor and Chair of Media & Communication, Muhlenberg College, Allentown. Dwayne Winseck is Professor at the School of Journalism and Communication, Carleton University, Ottawa, and Director of the Canadian Media Concentration Research (CMCR) Project.]

The Republican-led Federal Communications Commission is preparing to overturn the two-year-old decision that invoked the FCC's Title II authority in order to impose net neutrality rules. It's possible the FCC could replace today's net neutrality rules with a weaker version, or it could decide to scrap net neutrality rules altogether. Either way, what's almost certain is that the FCC will eliminate the Title II classification of Internet service providers. And that would have important effects on consumer protection that go beyond the core net neutrality rules that outlaw blocking, throttling, and paid prioritization.

Without Title II's common carrier regulation, the FCC would have less authority to oversee the practices of Internet providers like Comcast, Charter, AT&T, and Verizon. Customers and websites harmed by ISPs would also have fewer recourses, both in front of the FCC and in courts of law. Title II provisions related to broadband network construction, universal service, competition, network interconnection, and Internet access for disabled people would no longer apply. Rules requiring disclosure of hidden fees and data caps could be overturned, and the FCC would relinquish its role in evaluating whether ISPs can charge competitors for data cap exemptions.

[Commentary] As we slog away once again on Federal Communication Commission Chairman Ajit Pai’s summer blockbuster reboot “Net Neutrality: The Mummy Returns!,” it’s worth noting in passing the anniversary a previous Pai celebration of industry self-regulation, #DitchTheBox. I bring this up not merely as a fairly bitter bit of Cassandrafreude, but to remind everyone why only those who most desperately want to believe ever put any faith in “industry self-regulation” — especially when that industry is the cable industry.

[A]s an industry, the major broadband providers have recognized that they need some kind of fig leaf concession (preferably cemented into law by a compliant Congress). And so we have seen the cable companies falling all over themselves to swear their undying support for net neutrality and promises to do nothing to harm the open Internet. So a brief review of the history of cable industry self-regulatory promises, and Chairman Pai’s willingness to believe them, seems in order for the day.

[Harold Feld is senior vice president at Public Knowledge]

Ajit Pai, the chairman of the Federal Communications Commission, has a reputation as a nice guy who remembers co-workers’ birthdays and their children’s names. After he was targeted by trolls on Twitter, he took it in good humor, participating in a video where he read and responded to “mean tweets”. This is the man who could destroy the open internet.

Chairman Pai argues that if the US introduced strong net neutrality protections, authoritarian states would have an excuse to clamp down on online freedoms – in spite of the fact that authoritarian states don’t need an excuse to do so. He also says that legislation should only be applied if there’s a market failure. However, as Pai has said, “nothing is broken” and the rules were established on “hypothetical harms and hysterical prophecies of doom”.

[Commentary] President Donald Trump’s chairman of the Federal Communications Commission, Ajit Pai, has repeatedly signaled that he wants to dismantle the net-neutrality protections that were put in place during the Obama years after a massive campaign by democracy advocates, consumer groups, and defenders of a free and open Internet. If Pai’s FCC votes later this summer for that dismantlement, the future of personal communications, education, commerce, economic arrangements, and democracy itself will be radically altered.

The fight over net neutrality is about much more than the fight over whether telecommunications companies will be able to create “fast lanes” for paying content from corporations and billionaire-funded politicians while relegating the essential informational sharing of civil society to “slow lanes” on the periphery of what was supposed to be “the information superhighway.” Because our lives are now so digital, and because they are becoming so automated, the fight over net neutrality is really the fight over the whole of the future. It comes down to a simple question: Will that future be defined by civic and democratic values? Or will it defined by commercial and entertainment values?

[Commentary] We’re still picking ourselves off the floor from all the laughing we did when AT&T issued a press release announcing that it was joining the “Day of Action for preserving and advancing the open internet.” Here are some things AT&T could actually do to defend Net Neutrality and the open internet:

1) Quit trying to co-opt the terms “Net Neutrality” and “open internet.”
2) Actually support real Net Neutrality.
3) Get your CEO on the record in support of Title II.
4) Quit suing the FCC over the 2015 Open Internet Order.
5) Stop sending all your lobbyists to lobby against Net Neutrality.
6) In fact, leave Congress out of it altogether.
7) Stop lying.
8) Specifically stop lying about investment.
9) Abandon your merger with Time Warner.
10) If you won’t do that, can you at least pledge to extend John Oliver’s contract when you own HBO? That’s our guy.

[Commentary] Broadband providers need to know that they can innovate, invest and operate their networks without constantly worrying about federal bureaucrats second-guessing their decisions or micromanaging their businesses. Continuing down the Title II path isn’t necessary for achieving effective and strong net neutrality. We can have net neutrality protections – no blocking, throttling or unfair traffic prioritization – without regulations that stifle future network investments.

Federal Communications Commission Chairman Ajit Pai’s proposal is an important first step. But ultimately Congress should step in to ensure that we have permanent, enforceable net neutrality rules that provide certainty for everyone – consumers, innovators and ISPs.

[Jonathan Spalter is president of chief executive officer of USTelecom]

July 12, AT&T will join the “Day of Action” for preserving and advancing an open internet. This may seem like an anomaly to many people who might question why AT&T is joining with those who have differing viewpoints on how to ensure an open and free internet. But that’s exactly the point – we all agree that an open internet is critical for ensuring freedom of expression and a free flow of ideas and commerce in the United States and around the world.

We agree that no company should be allowed to block content or throttle the download speeds of content in a discriminatory manner. So, we are joining this effort because it’s consistent with AT&T’s proud history of championing our customers’ right to an open internet and access to the internet content, applications and devices of their choosing.