Public Knowledge

[Commentary] On the heels of T-Mobile’s controversial announcement that it will be exempting many popular music streaming services from its data caps, the “Uncarrier” has also confirmed that it will be exempting the Ookla speed test and other online speed testing applications as well.

Unlike AT&T and Verizon, T-Mobile does not charge subscribers overage fees when they exceed their data caps. Rather, T-Mobile throttles network speeds for customers who go past a predetermined data allotment. Depending on the type of plan, customers that exceed the “Data Speed Reduction Threshold” can receive maximum speeds ranging from 50 to 128 Kbps -- speeds that don’t even meet the Federal Communications Commission (FCC) 1999 definition of broadband.

By exempting speed tests from the throttling, T-Mobile is effectively preventing consumers from learning exactly how slow their throttled connections are. Under the new policy, T-Mobile customers who exceed their data caps will not be able to gauge the actual speeds available to them for the vast majority of their daily usage.

T-Mobile has justified the move on the basis that it more closely adheres to the true intent of online speed tests, but this doesn't make sense, because whenever customers who have hit their caps use the Ookla application, they are trying to measure their true network speed -- not the speed no longer available to them. The inability for customers to estimate the actual speeds they are receiving serves mostly to disguise the carrier’s throttling policies.

The decision also harms customers, who will lose the ability to plan their mobile broadband activities around the actual speeds that they are receiving.

[Commentary] The Aereo decision is bad news for consumers, since it could take away a promising new model for watching free over-the-air television. Cord-cutters still have options.

They can still access other online video services—and maybe some reconfigured version of Aereo -- and watch broadcast TV with an antenna. But there’s no doubt that the opinion (especially when considered alongside ivi and Sky Angel) is good for the network/affiliate/cable status quo.

Of course if you asked me on the record I would have told you that I was optimistic that a unanimous Supreme Court would simply adopt our brief. But like most observers I concluded that the Court was looking for a way to rule against Aereo but limit the collateral damage against the tech industry as a whole. Instead, the Court uses reasoning that could apply very easily to any number of online services -- file hosting, cloud lockers, even virtual private networks (VPNs) -- as well as services that no one has even come up with yet.

No, cable TV is not a network neutrality violation. Yet.

So I think it’s finally worth explaining the various reasons why cable TV, even when it’s carried on the same wire that also provides broadband, does not violate net neutrality.

It's not on the Internet.

Cable TV was there first. Yes, cable TV and broadband share the same wire. But it's not like bandwidth was taken away from the Internet to make room for TV. They are distinct services with a separate history.

Cable TV is separately regulated.

Cable TV meets the only reasonable definition of a "specialized service." The 2010 Open Internet rules had a broad exception for "specialized" or "managed" services.

Yet? It may be the case that someday soon, technology will improve to the point where one-to-many distribution does not offer a real advantage over one-to-one services. This may change the analysis for "same wire" services like cable TV. But we're not there yet.

Public Knowledge, the Consumer Federation of America (CFA), and the Electronic Frontier Foundation (EFF) submitted written testimony to the House Judiciary Committee's subcommittee on Intellectual Property, Competition, and the Internet for the hearing titled, "Music Licensing Under Title 17 Part Two."

The following can be attributed to Jodie Griffin, Senior Staff Attorney at Public Knowledge:

"Law that shapes the music licensing system should encourage a competitive and innovative market of music platforms that are accountable to music fans and musicians. This requires a set of well-developed structures that promote efficient licensing practices that minimize costs for everyone while promoting competition between intermediaries like record labels, publishers, collective licensing organizations, and distribution services.”

Public Knowledge senior staff attorney, John Bergmayer, will testify before the House Judiciary Committee in the hearing titled, "The Proposed Merger of AT&T and DirecTV."

In Bergmayer's testimony he will call on Congress to be vigilant as multiple mergers come before it in the coming months.

"Policymakers and the press are paying a lot of attention to rumored deals like Sprint/T-Mobile, and pending mergers like Comcast/TimeWarner Cable," said Bergmayer. "But during this time of consolidation Congress must pay close attention to the specifics of each new deal as they are announced."

The following can be attributed to John Bergmayer, Senior Staff Attorney at Public Knowledge: "AT&T and DirecTV directly compete in more than 60 local TV markets. This deal runs afoul of the Department of Justice's antitrust guidelines. It's hard to accept AT&T's claims that buying a direct rival can be good for competition.”

[Commentary] T-Mobile’s announcement that they will exempt a handful of music streaming services from their data cap is but the latest example of ISPs using data caps to undermine network neutrality.

T-Mobile now joins Comcast, AT&T, and AT&T again as an ISP that uses data caps as a pretext to manipulate how its users experience the Internet. Unlike other carriers, T-Mobile does not have a data cap with overage penalties. Instead, when users hit their cap they find their connection slowed significantly.

While this type of throttling is probably preferable to huge overage fees, it still exerts a strong influence on what types of services T-Mobile subscribers use online. This influence is strengthened enormously when certain apps or certain content is exempted from the cap -- a practice known as “zero rating.”

This type of gatekeeping interference by ISPs is exactly what net neutrality rules should be designed to prevent. Furthermore, T-Mobile’s announcement once again calls into question the purpose of data caps at all.

Public Knowledge’s Senior Staff Attorney Jodie Griffin recently testified before the Senate Commerce Committee’s Subcommittee on Communications, Technology, and the Internet in Washington.

In a hearing entitled “Preserving Public Safety and Network Reliability in the IP Transition,” Jodie drove home the necessity of the fundamental values of the phone network carrying over to new technologies, as the IP transition moves forwards and underlying technologies continue to evolve in new and exciting directions. 100 million Americans still rely on traditional copper wire landlines; 85 million in said subset also have a mobile phone or other voice product.

This can be interpreted one of two ways: either (a) political theorists have had it wrong all, and humans are fundamentally irrational to the point that they enjoy writing two checks, or (b) traditional phone services offer users in the marketplace a service they value.

And yet, reports have surfaced indicating consumers are being forced off of legacy copper systems by providers, which heightens the need for more hardened protections in IP-based systems to ensure public safety. Ensuring that new technologies protect basic values with similar robustness to historic systems is critical, as is preventing rural and disadvantaged citizens from falling through the gaps during the transition process.

As Senator Cory Booker (D-NJ) highlighted in reference to the loss of services on Fire Island (NY) and in Mantoloking (NJ) following Hurricane Sandy, transitions have the potential to quite significantly impact consumers in ways not evident at the outset.

A letter was sent to the Senate supporting the National Telecommunications Information Administration's (NTIA) intent to shift the stewardship of the Internet Assigned Numbers Authority (IANA) functions to an international multi-stakeholder model of Internet governance.

The letter also voices concerns with the House of Representative's approval of the Shimkus (R-KS) Amendment to the National Defense Authorization Act (NDAA), which reflects the language of the Domain Openness Through Continues Oversight Matters Act (DOTCOM Act) of 2014.

The DOTCOM Act would effectively stop the NTIA from upholding its commitment to the global Internet governance multi-stakeholder approach.

The following can be attributed to Carolina Rossini, Vice President of International Policy: "The DOTCOM Act stops the United States from upholding it's decades long commitment to the rest of the world that NTIA's stewardship of IANA functions are temporary. A transition would reassure the world of the United States’ commitment to an open, participatory, and decentralized approach to Internet governance.”

She added: "Those who drafted the DOTCOM Act expressed concerns that the multi-stakeholder approach would open the door to Internet governance by authoritarian regimes. However, the DOTCOM Act could have the opposite effect in empowering nations seeing greater governmental control of the Internet."

The signees of the letter are as follows: Public Knowledge, Access, New America Foundation's Open Technology Institute, Freedom House, Human Rights Watch, American Civil Liberties Union and Center for Democracy & Technology.

At Public Knowledge we welcomed the debut of the Authors Alliance.

The Authors Alliance is made up of authors who are concerned that many efforts to strengthen copyright have failed them.

We hope the Authors Alliance will help highlight all of those all too easily forgotten aspects of the copyright policy debate. The Alliance is made up of authors -- “creators” in the classic dichotomy -- who don’t necessarily believe that increasing the scope and strength of copyright is the only way to improve it. Of course, that does not mean that members of the Alliance believe that copyright could not benefit from reform.

In fact, the Alliance is debuting four principles to guide copyright reform:

• Further Empower Authors to Disseminate Their Works
• Improve Information Flows About Copyright Ownership
• Affirm the Vitality of Limits on Copyright that Enable Us to Do Our Work and Research
• Ensure that Copyright’s Remedies and Enforcement Mechanisms Protect Our Interests

The Public interest Spectrum Coalition (PISC) submitted a letter supporting the Federal Communications Commission's plan to ensure that competitive carriers can bid on spectrum in the upcoming Incentive Auction.

"Specifically, we believe that reserving some reclaimed broadcast spectrum in each local market for competitive carriers will be a significant step forward. This proceeding may represent one of the last chances to clear and auction low-band spectrum for some time, and that low-band spectrum is critical for offering competitive mobile broadband services."

The letter listed three reasons why the FCC should reserve at least 30 MHz for competitors:

• In light of the recent efforts by AT&T and Verizon to confuse the issues, we want to stress the three most important reasons the Commission should reject these last minute efforts to undermine the existing auction proposal.
• If even AT&T and Verizon need 20 MHz each to make participation worthwhile, then how can competitors with even less low-band spectrum hope to compete without a reserve of 30 MHz or more?
• The Commission must nurture the current “green shoots” of reinvigorated competition.

Consumers should have more good choices as a result of the auction, not just an increasingly entrenched duopoly.
The letter was signed by the following organizations: Public Knowledge; Benton Foundation; Center for Media Justice; Center for Rural Strategies; Common Cause; Consumer Federation of America; Free Press; Institute for Local Self-Reliance; National Hispanic Media Coalition; Open Technology Institute; New America Foundation; TURN--The Utility Reform Network; United Church of Christ; Writers Guild of America, West; and X-Lab, New America Foundation.