[Commentary] On May 18, I had the privilege of joining a people’s protest outside Federal Communications Commission headquarters in Washington (DC). Inside on that same morning, two intransigent and backward-looking commissioners (they constitute the FCC majority) announced their intention to dismantle the good and court-approved network neutrality rules put in place by the previous FCC. Their intention is to close the open internet. Meanwhile more than 2,000,000 Americans had already contacted the Commission directly, the overwhelming majority seeking to keep the net neutrality rules and guarantee an internet that serves us all rather than kowtow to big cable and bloated telecom. In the May 18 match-up, 2 trumped 2,000,000, and the semi-final proposal was circulated, with final approval likely late this summer or early fall. Unless even more of us get involved.
[Michael Copps served as a commissioner on the Federal Communications Commission from May 2001 to December 2011 and was the FCC's Acting Chairman from January to June 2009.]
In order to understand what’s happening to the internet today and how we can keep it free and open in the future, we have to consult its past. It’s remarkably hard, however, to find that past in a single narrative thread, with a minimum of legal and technical jargon. That’s what I’ve tried to create with this series, Commission Impossible. Are you sitting comfortably? Then let’s begin.
The National Legal and Policy Center, a political and policy lobbying group, has fired the latest shot in the battle over network neutrality comments filed with the Federal Communications Commmission, saying that if its analysis is correct, it will ask Congress to investigate. Countering pushback from Title II fans who have said net-neutrality foes are flooding the Title II docket with fake comments, the NLPC said it has found evidence of "massive deception" among the pro-Title II contingent and its own flood of questionable input. The group said it has concluded, based on its own analysis, that for up to 20% of all the pro-net neutrality comments filed so far, either the e-mail address and name don't match or the same email address was used to email multiple comments -- sometimes thousands of them -- including addresses "culled from spammer and hacker databases" and generated by a fake email address site. The NLPC said it plans to have a "professional data forensics expert" vet the comments.
House Communications Subcommittee Chairman Marsha Blackburn (R-TN) is lauding the Federal Communications Commission for starting to roll back federal rules that govern high-speed internet providers. Appearing on C-SPAN, the Brentwood (TN) Republican said she views the FCC’s vote nearly two weeks ago to undo so-called "net neutrality" rules as “a positive step in the right direction.” The FCC’s new chairman, Ajit Pai, who was appointed by President Donald Trump in January, “is going to do a wonderful job,” Chairman Blackburn said. “He is focused on closing the digital divide and extension of broadband and making certain that the internet is an open source and is not going to be under heavy government control. I think those are good steps, good things.”
With the Federal Communication Commission’s recent vote to consider reversing net neutrality rules, many might be wondering how that could affect their lives. Net neutrality has a handful of functions, but its main function is to keep internet service providers from speeding up, slowing down or blocking content users may want to access, said Sherry Lichtenberg, principal for telecommunications research and policy at National Regulatory Research Institute. “There will no longer be protection for blocking access to websites you want to go to or having carriers favor their own sites or browsers over the one you want to go to,” she said. “It takes away the protection, essentially, that allows you to do whatever you want on the internet.” That’s one take on things, but the FCC, with Chairman Ajit Pai at the helm, believes the commission overstepped with the 2015 rules. The FCC’s notice of proposed rule-making, which was adopted May 18, said the decision to apply utility-style regulation to the internet represented a “massive and unprecedented shift in favor of government control of the internet.”
The order to classify the internet as Title II put online investment and innovation at risk, the FCC said in the notice. Its biggest concern is that over the past two years, investment in broadband networks declined and service providers have pulled back on plans to build new infrastructure.
The federal judges who upheld the Federal Communications Commission's TItle II classification of Internet service providers in 2016 have signaled that even under those rules, ISPs could block content or slow certain traffic, just so long as they created a "walled garden" that had clear signage signaling that was what they were doing. That is according to a new blog post from Hank Hultquist, VP of federal regulatory for AT&T, which strongly opposed Title II.
Hultquist cites the concurring opinion from judges Sri Srinivasan and David Tatel earlier in May in the en banc (full court) decision of the US Court of Appeals for the DC Circuit not to review the three-judge panel ruling last year to uphold the FCC's Open Internet order. Srinivasan and Tatel wrote the majority opinion in that panel decision. "In the past," said Hultquist, "supporters of Title II often alleged that without reclassification, ISPs would be free to block unpopular opinions or viewpoints that they disagreed with. In the understanding of the DC Circuit panel majority, it seems that the Title II order does not touch such practices as long as an ISP clearly discloses its blocking plans to customers."
Matthew Berry, chief of staff to Federal Communications Commission Chairman Ajit Pai, assured a National Public Radio audience May 31 that the chairman's proposal to roll back Title II was meant to continue to protect an open Internet while encouraging innovation and investment that will promote high-speed broadband access, particularly to rural America. Berry was grilled by host Joshua Johnson on the NPR show 1A, a production of WAMU FM Washington, in a segment about the proposal and the pushback it has drawn from Title II fans and its impact on rural broadband deployment. Other guests on the show included former FCC chair Tom Wheeler, US Telecom CEO Jonathan Spalter and Free Press CEO Craig Aaron.
A group of Democratic Sens, including some of the loudest critics of Federal Communications Commission Chairman Ajit Pai's effort to roll back Title II, have asked the FBI to investigate the multiple distributed denial of service (DDoS) attacks the FCC says it suffered that affected its online comment system. “This particular attack may have denied the American people the opportunity to contribute to what is supposed to be a fair and transparent process, which in turn may call into question the integrity of the FCC’s rulemaking proceedings,” the Sens wrote to acting FBI director Andrew McCabe. “We request that you update us on the status of the FBI’s investigation and brief us on this matter.”
Fight for the Future sees dead people. At least it says a few have somehow filed anti-Title II comments to the Federal Communications Commission according to reports from the deceased's friends.
The group has also found another dozen or so people—twice the original number—who say anti-Title II comments were filed in the FCC docket under their names that they did not submit. In addition, the group said it has been hearing from people saying that a comment was filed under the name and address of a deceased family member. The group claims that over 450,000 fake comments have been submitted and that the FCC "is still refusing to remove fake comments, even when victims call the FCC directly and demand that their name and personal information be removed from a public docket endorsing political messages they don’t agree with." Fight for the Future also said it had received three reports from friends of recently deceased individuals whose names were on comments, saying the comments would have had to be posted posthumously.
[Commentary] Although the BROWSER Act is a well-intentioned attempt to clean up the privacy mess left by Net Neutrality, there’s a better path. Rather than reviving a seriously flawed Federal Communications Commission rule, why not just unleash the Federal Trade Commission?
[James Cooper is a professor at George Mason University School of Law]