Regulatory classification

The FBI will not investigate a cyberattack that crashed the Federal Communications Commission’s website during an influx of comments on an agency plan to reverse network neutrality.

Agency chief Ajit Pai said the FBI declined to investigate the FCC cyberattack that followed a “Last Week Tonight with John Oliver” segment in May, when Oliver called on viewers to submit comments opposing Pai’s plan to scale back net neutrality rules. “In speaking with the FBI, the conclusion was reached that, given the facts currently known, the attack did not appear to rise to the level of a major incident that would trigger further FBI involvement,” Pai wrote to a pair of Senate Democrats, who were skeptical of the attack. “The FCC and FBI agreed to have further discussions if additional events or the discovery of additional evidence warrant consultation.”

Some of the nation's biggest Internet service providers are begging a court not to weaken the power of a major regulatory agency — the Federal Trade Commission — in a case that has implications for businesses and consumers nationwide and puts the companies at odds with another key industry player, AT&T.

The request earlier this week by Charter, Comcast, Cox and Verizon seeks to shore up the FTC's ability to regulate Internet providers, in a case about whether the FTC can punish AT&T for allegedly misleading consumers with its marketing of "unlimited" data plans. But the case also has other implications. It could create an undesirable regulatory environment for the companies, they say. "At first glance, [our] position might seem surprising — four leading corporations are arguing in favor of restoring the FTC’s authority to regulate," the ISPs wrote. They added: "If the FTC is divested of jurisdiction," the companies wrote, "it is likely that a variety of federal, state, and local government agencies that lack the appropriate reach, perspective, and experience … will attempt to fill the perceived 'regulatory gaps,' thereby creating a patchwork of unreasonable, duplicative, and inconsistent rules."

Rep Don Beyer (D-VA) held a forum just outside of DC for his constituents to come learn and voice their concerns about the fate of network neutrality. Though Rep Beyer was the host, the real headliners of the event were former Federal Communications Commission Chairman Tom Wheeler and former FCC general counsel Jon Sallet, who both spoke at length to a packed house about how we got to where we are today, with the rules under fire, and what consumers can still do to try and make their voices heard. A couple key take-aways?

No Neutrality Without Title II: “What I hope you’ll think about is that that legal term is a smokescreen for not having to discuss” the bright-line net neutrality principles, privacy guidelines, and the FCC’s oversight authority, Wheler said. “Those who are trying to overturn the rules want to talk about them in these [legalistic] terms, instead of talking about the effect of Title II.” “We looked hard to see if there would be ways other than Title II to accomplish these goals,” Wheeler said. “They weren’t there.”

Why Commenting Is Important: Both Sallet and Wheeler admitted that the FCC’s mind is probably already made up, no matter what public comments come in to the proceeding now. But those comments become vital in the case of a lawsuit and “can shape what happens if it’s necessary to go to court one more time,” as Sallet put it. “We can all predict what can happen at the FCC, but I can tell you this,” Sallet said: “When I was general counsel, I didn’t think that what the FCC said was the last word. I knew there would be a day in court.”

[Commentary] Recently, Amazon, Netflix, and Mozilla have taken note of the success of astroturfing and are leveraging a “stick-it-to-the-man” ethos to advocate for internet regulation, in this case advocacy to regulate internet providers under Title II of the Communications Act, which empowers the Federal Communications Commission to regulate broadband through price controls as well as tax consumers to raise funds for government run networks. A culmination of their efforts will take place on a July 12th “Day of Action,” which will display their protests both on and offline to pressure Congress and the FCC to capitulate to its agenda to take control of the internet.

The event is yet another campaign funded by Battle for the Net, an organization of radical left-wing activists, including Free Press, Fight for the Future, and Demand Progress, seeking more regulation and government control over markets This July 12th, remember that what you will witness on website and browsers is one heck of an astroturf campaign, and their mission is straightforward: take control of the internet, by any means necessary.

[Roslyn Layton is a Visiting Fellow at the Center for Internet, Communications and Technology Policy at the American Enterprise Institute and served on the President Elect Transition Team for the FCC from 2016-2017.]

[Commentary] Some partisan activists have sought to leverage the public’s privacy concerns to advance their political agenda and have resorted to spreading accusations and false information that misleads the public. Immediately after the Congressional vote, the media was flooded with stories suggesting that internet privacy had been “repealed.” Other stories made misleading claims that Congress “voted to allow your web history to be sold to the highest bidder.” None of this is true. Congress did not repeal internet privacy. They kept the FTC’s two decades of privacy rules in place while preventing the inequitable Obama mandates from going into effect.

Congress did the right thing by stopping the FCC’s power grab to protect consumer privacy and indeed protect the internet itself. It is far better public policy to leave the internet in the free market to continue to bring us innovation after innovation which has transformed our lives for the better in the past generation. Take a moment and send an email of appreciation to the members of the Iowa delegation who stood up for you, your family, and your neighbors in this cause.

[Donald P. Racheter is president of the Public Interest Institute, a public policy research institute in Muscatine]

A group of small Internet service providers urged Federal Communications Commission Chairman Ajit Pai to preserve the FCC's network neutrality rules and the related classification of ISPs as common carriers. "We have encountered no new additional barriers to investment or deployment as a result of the 2015 decision to reclassify broadband as a telecommunications service and have long supported network neutrality as a core principle for the deployment of networks for the American public to access the Internet," the ISPs said in a letter to Pai that was organized by the Electronic Frontier Foundation (EFF). The current rules are necessary "to address the anticompetitive practices of the largest players in the market," but "the FCC’s current course threatens the viability of competitive entry and competitive viability," the companies wrote.

[Commentary] For some time now, the related issues of control and intelligent infrastructure have fuelled the network neutrality debate. Proponents of network neutrality are concerned that if internet service providers get to charge Netflix, YouTube or any website for the privilege of being downloaded at a faster speed than others - allowing some companies to avoid becoming slowed down - society would allow deep pockets to hijack our attention.

It's tempting to back Federal Communications Commission Chairman Ajit Pai if it means we'll be able to stream movies faster and buffer-free. But while smart systems seem attractive, they'll inevitably be optimised for corporate profit and control. The principle of first-come, first-served is our best protection against interference. We need it on the web - and on the roads.

[Brett Frischmann is a professor at Cardozo Law School in New York City. Evan Selinger, Professor in the Department of Philosophy at the Rochester Institute of Technology]

[Commentary] Recently, without any reference to the Net Neutrality debate, the cable industry trade association NCTA made the unsurprising observation that broadband speeds in the US continue to rise, as they always have. Seeing all things through the lens of Net Neutrality, Public Knowledge Senior Vice President Harold Feld immediately laid claim to the trend, asserting that the data in NCTA’s post supports the FCC’s reclassification decision. According to Feld, the speed trend confirms that the “Title II Virtuous Circle” is “totally working” because “the rate of increase has accelerated since the FCC adopted the Title II Reclassification Order in February 2015.”

Feld sets up a direct test of the wisdom of Title II reclassification based on the pace of speed increases following the 2015 Open Internet Order. An empirical question requires an empirical answer. Using the Akamai speed data, Ford subjects Feld’s “theorem” to a battery of statistical tests. Without exception, the data reveal a statistically significant decline in the rate of average broadband speed increases for the US subsequent to the 2015 Open Internet Order. Ford finds that “but for” the FCC’s 2015 Open Internet Order, US broadband speeds would have been about 10% higher—or about 1.5 Mbps faster—on average. Thus, in direct contradiction to Feld’s claim, reclassification appears to have significantly retarded expected broadband speed increases.

[Commentary] Network neutrality rules are not the way to maintain a free and open Internet, according to Michael Katz, professor of economics and director of the Center for Telecommunications and Digital Convergence in the Haas School of Business at the University of California, Berkeley. Regulation never “levels” a playing field because that assumes we know the optimal balance between firms. We don’t, and if an optimal balance exists today it might be different tomorrow.

In this case, proponents believe tilting the field more towards edge providers is important for innovation. One problem with that belief, Katz argues, is that the Internet has never been neutral. For example, the Internet was designed in a way that “works relatively poorly for applications that are highly sensitive to packet loss and require very low latency (e.g., telepresence) and works relatively well for applications that require little bandwidth and are not time sensitive (e.g., email).” Another problem with the level playing field argument is that it should apply to many industries and services, not just the Internet. Yet, we know that paid prioritization has become crucial in other areas, like package delivery (think FedEx, UPS, or expedited shipping in e-commerce). Finally, the argument tends to focus on particular firms that might not do well with paid prioritization at the expense of consumer welfare. However, consumer welfare may be improved by new services that cannot currently exist, or must exist via workarounds that are not technically “paid prioritization.” The point is not that one of these necessarily outweighs the other, only that it is incorrect to automatically conclude that the net effect of paid prioritization is negative.

Federal Communications Commission Chairman Ajit Pai unveiled new details about a reported cyberattack that came after comedian John Oliver urged his viewers to flood the agency with pro-network neutrality comments. In response to a series of questions about the incident from Sens Ron Wyden (D-OR) and Brian Schatz (D-HI), Chairman Pai said he was taking the issue seriously. “I agree that this disruption to [the Electronic Comment Filing System] by outside parties was a very serious matter,” Pai wrote in a letter. “As a result, my office immediately directed our Chief Information Officer (CIO) to take appropriate measures to secure the integrity of ECFS and to keep us apprised of the situation. The Commission's CIO has informed me that the FCC's response to the events sufficiently addressed the disruption, and that ECFS is continuing to collect all filed comments."

The ECFS slowed to a crawl after Oliver’s HBO show addressed the net neutrality proceeding in May, leading many to assume that the system was bogged down by an influx of public filings. But the next day, FCC CIO David Bray said the disruption was caused by a malicious distributed denial of service (DDoS) attack, a move designed to take down a site by flooding it with fake traffic. “I appreciate the FCC’s response,” Sen Wyden said. “I’m waiting to draw any final conclusions until the FBI weighs in. However, it is clear that FCC wasn’t ready for this attack. In the future, the agency should consider other ways to submit comments if its web portal fails again.”