Network Neutrality

The staff of the Federal Trade Commission filed an official comment to the Federal Communications Commission in favor of Chairman Ajit Pai’s plan to scrap network neutrality regulations. In their filing, staff at the agency said that they favor Chairman Pai’s “Restoring Internet Freedom” plan, which would give regulatory authority over broadband providers back to the FTC. Under the Open Internet Order approved in 2015, the FCC currently has the jurisdiction to regulate broadband providers instead of the FTC.

The FTC is currently split with one Democrat, Commissioner Terrell McSweeny, and one Republican, acting Director Maureen Ohlhausen. In their joint comment, FTC’s Bureau of Consumer Protection, Bureau of Competition and Bureau of Economics argued that, prior to the Open Internet Order, when the FTC still regulated broadband providers it “consistently protected broadband consumers from unfair and deceptive practices, including in the privacy and data security area.”

Sen Ron Wyden (D-OR) accused Federal Communications Commission Chairman Ajit Pai of mischaracterizing his position from nearly two decades ago to justify the agency’s repeal of network neutrality rules.

In a comment filed to the net neutrality docket at the FCC, Sen Wyden said that Chairman Pai was being “willfully ignorant” when he cited a letter that the Oregon Democrat wrote in 1998 arguing against the reclassification of internet service providers (ISP) as telecommunications companies, which, in 2015, became the legal framework for the net neutrality rules. “The internet and internet access service today both are wildly different than they were in 1998,” Sen Wyden wrote in the filing. “Back then, large numbers of consumers were starting to take advantage of the whole internet, rather than just a walled-garden service." "The key difference, however, was that in 1998 consumers largely accessed the internet through third-party ISPs like AOL, or Prodigy, and those consumers used the infrastructure of the common carrier telephone system to connect to that third-party ISP,” he continued.

As Public Knowledge’s comprehensive filing of more than 100 pages makes abundantly clear, Chairman Pai’s proposal would remove consumer protections the Federal Communications Commission has explicitly and repeatedly identified as critical to protecting broadband subscribers. It would for the first time explicitly make cable companies the gatekeepers of the internet.

To attempt such a dramatic change of policy without even acknowledging the over 20 years of FCC past practice chronicled in these comments is the definition of arbitrary and capricious -- and leaves Pai’s proposal highly vulnerable to reversal in the courts. Twice opponents of Title II have pitched their alternate history of ‘light touch regulation’ to the D.C. Circuit in an effort to overturn the FCC’s existing net neutrality rules. Twice the D.C. Circuit has flatly rejected it. Chairman Pai apparently thinks that the third time will prove the charm. Hopefully, Chairman Pai will reconsider his unpopular plan to strip away net neutrality and critical consumer protections.

AT&T filed comments in support of the Federal Communications Commission’s proposal to return to a nearly two decades-old bipartisan commitment to a light-handed approach to internet services – a commitment the FCC abandoned for no good reason in 2015. Throughout this period, AT&T has supported an open internet as well as baseline requirements to ensure an open internet is protected without the regulatory baggage that comes with Title II.

We continue to support such requirements, and we continue to oppose Title II as an unprecedented regulatory overreach for which there was no economic or marketplace justification. By proposing to eliminate this abrupt and unwarranted departure from longstanding precedent, the FCC is taking an important first step. But we continue to believe that a bipartisan legislative solution is the best way to ensure an open internet that serves the interests of consumers while providing the regulatory certainty that investors demand.

Comcast filed comments in support of the Federal Communications Commission’s plan to kill the 2015 network neutrality rules. And while pretty much everything in them is expected — Comcast thinks the rules are burdensome and hurt investment, yet it says it generally supports the principles of net neutrality — there’s one telling new quirk that stands out in its phrasing: Comcast now says it’s in support of a ban on “anticompetitive paid prioritization,” which is really a way of saying paid prioritization should be allowed. Comcast doesn’t just see paid fast lanes being useful for medicine. It also thinks they might be fair to sell to automakers for use in autonomous vehicles. “Likewise, for autonomous vehicles that may require instantaneous data transmission, black letter prohibitions on paid prioritization may actually stifle innovation instead of encouraging it,” the filing says.

The American Library Association says the Federal Communications Commission under Chairman Tom Wheeler got the reading of the law right when it imposed strong network neutrality rules under Title II (common carrier) authority.

It said 120,000 libraries and their customers would be seriously disadvantaged by getting rid of the rules banning blocking traffic and degrading (the FCC's terminology is actually "throttling") traffic, and says paid prioritization is inherently unfair, especially for libraries without the money to pay for such prioritization. But the ALA breaks with some Title II fans in arguing for capacity-based pricing and excluding private networks from net neutrality rules. On capacity-based pricing of broadband service, it says ISPs "may receive greater compensation for greater capacity chosen by the consumer or content, application, and service provider." And on private networks, it says: "[T]he Commission should decline to apply the Open Internet rules to premises operators, such as coffee shops and bookstores, and private end-user networks, such as those of libraries and universities."

If the Federal Communications Commission does dismantle Title II network neutrality rules, what happens next? Consumer advocates and other proponents could launch a legal challenge, tying the issue up in court for years -- perhaps until after the current administration. Or companies could push Congress to pass its own law and take the power out of the commission.

But here's where things get tricky. Court cases can drag on and legislation is certain to involve compromises. Denelle Dixon, chief business and legal officer for Mozilla, says the fight to keep the internet free and open is too important to not push forward. But she admits it may not turn out exactly as she would like. "Legislation by its nature is complicated and never plays out the way you expect," she said. "One side doesn't always win...In a perfect world, we'd like to see the rules that exist today remain. But the reality is that we have an FCC chairman who is set on dismantling them and at some point we need to engage with legislators."

On July 17, a group opposed to the rules said its analysis had uncovered 1.3 million likely fake pro-net neutrality comments from addresses in France, Russia and Germany "almost exclusively" from the e-mail domains Pornhub.com and Hurra.de "The gaming of the comment submission process continues and in fact appears to have reached epidemic proportions," Peter Flaherty, president of the nonprofit conservative watchdog group National Legal and Policy Center, said in a statement. "At this point, the deception appears to be so massive that the comment process has been rendered unmanageable and meaningless."

[Commentary] There are differences between what tech giants (Google, Facebook, Amazon, Netflix) of the internet and their smaller counterparts are saying. More importantly, there’s a difference in how the most powerful internet companies are incentivized to act. It’s a fine line, but an important distinction for those who want the existing net-neutrality rules to stay. The protests from big tech companies themselves were more subdued than past demonstrations, and few of the major companies involved explicitly demanded the legally enforceable, Title II-based net-neutrality rules stay in place today. And that leaves the major tech firms a small but significant bit of wiggle room.

Tech giants' relatively meager actions on July 12 serve as a reminder: Net neutrality is about the small, not the big. If the (still mostly hypothetical) fears of Title II advocates come true, and ISPs are able to set tolls for access to better quality, the companies with better funding will more easily be able to pay them.

[Commentary] Americans’ information independence is under attack, whether it’s the repeal of network neutrality or the repeal of broadband privacy protections. The Federal Communications Commission needs to listen and serve the American people, not special interests. I am committed to protecting both your privacy and the internet as we know it. A free and open internet is essential to our democracy, economy and modern way of life.