Tag Archives: Net Neutrality

Saving Net Neutrality?

In the days and weeks following the midterm elections, the news has gotten steadily better. Undecided House races have been called for the Democrats; statehouses across the country have turned blue; and according to a couple of tweets from Nate Silver, the Democrats got as many votes in the midterms as Trump got in the Presidential election.

According to Silver, that’s unprecedented.

The news may also be good for Net Neutrality. According to the Brookings Institution, a combination of the Democrats’ win and a Supreme Court decision may restore non-discrimination rules to the Internet.

On November 5, the Supreme Court declined to review the decision of the D.C. Circuit Court that twice upheld the 2015 Open Internet Rule. The industry groups that had long opposed non-discriminatory access to broadband networks had previously stopped such regulation at the D.C. Circuit. When they attempted the same thing with regard to the 2015 decision of the Federal Communications Commission (FCC), a three-judge panel ruled the FCC’s favor. The industry then appealed the panel’s decision to the entire D.C. Circuit and lost again. The industry then appealed that loss to the Supreme Court. The Supreme Court voted 4-3 (with Chief Justice Roberts and Justice Kavanaugh abstaining) to deny a writ of certiorari for the appeal. As a result, the lower court’s decision upholding the 2015 Open Internet Rule stands.

The FCC’s 2015 Open Internet decision declared broadband providers to be Telecommunications Services subject to the common carrier requirements of Title II of the Communications Act. Just like the telegraph and telephone companies that preceded them, internet service providers could not discriminate among those using the network. They could not, for instance, break the internet into fast lanes and slow lanes depending on how much a content provider such as Netflix paid them.

It will not surprise you to learn that in 2017, Trump’s FCC repealed the Open Internet Rule, and ruled that the agency had only minimal authority over internet networks. Under Trump’s FCC chief, former Verizon honcho Ajit Pai, the Commission announced it would exercise no oversight over internet access.

As former FCC chair Tom Wheeler explains, not only did the agency created by Congress to oversee the nation’s networks walk away from that responsibility, it joined the plaintiffs in asking the Supreme Court to overrule the D.C. Circuit’s 2015 decision.

The High Court declined to do so.

Add to that encouraging development the fact that Democrats will control the House of Representatives.

House Democratic leaders from presumptive Speaker Nancy Pelosi (D-CA,) to the new Chairman of the Energy and Commerce Committee Frank Pallone (D-NJ), to the new Chairman of the Telecommunications Subcommittee Mike Doyle (D-PA) have all been vocal supporters of strong net neutrality rules.

Reps. Pallone and Doyle will be able to conduct oversight hearings into the activities of  Trump’s FCC, and on the effect of eliminating the Open Internet Rule.

Since meaningful new legislation is highly unlikely, given the GOP Senate and Trump’s threatened veto, the Supreme Court’s refusal to overturn the Open Internet Rule means non-discrimination might survive anyway.

I say “might” because the D.C. Circuit will hear arguments in February in the lawsuit challenging the FCC’s elimination of the Open Internet Rule.  If the Circuit Court rules against the FCC,  the 2015 Open Internet Rule is reinstated—and the Supreme Court has declined to consider the matter, at least for now.

In their zeal to gut oversight of their activities, the internet networks and their Trump FCC allies may have shot themselves in the foot. There is a strong case that the Trump FCC acted in an arbitrary and capricious manner when it repealed the 2015 Open Internet Rule and walked away from any responsibility over the most important network of the 21st century. If the D.C. Circuit makes such a finding, net neutrality would once again be the law of the land. Although the Trump FCC would probably spitefully ignore its enforcement and even force adoption of a new rule to free the broadband companies, that action would simply bolster the Democrats in the House.

Research suggests that an overwhelming majority of Americans favor retention of Net Neutrality.

I favor neutering Ajit Pai.

Hard Cases And Bad Law

Lawyers have a saying: hard cases make bad law. A couple of pending cases over Net Neutrality offer a good illustration.

A bit of background: One of the many outrages perpetrated by the Trump Administration was the cynical elimination of net neutrality rules by Ajit Pai of the FCC, despite the fact that a huge majority of Americans supported those rules. Pai came to the agency from Verizon, where he’d been an executive; Verizon and other large telecom interests don’t want to be restrained by pesky regulations requiring that they treat internet users equally.

When the FCC eliminated Net Neutrality, more than 20 states filed lawsuits, arguing that the agency had acted arbitrarily. Those lawsuits are supported by companies like Mozilla, trade associations representing Amazon, Facebook and Google, and consumer groups like Free Press and Public Knowledge.

For its part, California responded to the elimination of Net Neutrality by passing a version of its own. On September 30th, The Washington Post reported

California on Sunday became the largest state to adopt its own rules requiring Internet providers like AT&T, Comcast and Verizon to treat all web traffic equally. Golden State legislators took the step of writing their law after the Federal Communications Commission scrapped nationwide protections last year, citing the regulatory burdens they had caused for the telecom industry.

That same Sunday, the Trump Administration announced that it would sue California to block that law, setting up what the Post characterized as a high-stakes legal showdown over the future of the Internet. The administration will argue that only the federal government has the authority to regulate the Internet, and that the reason Congress gave the federal government exclusive authority was to ensure that all 50 states wouldn’t write their own conflicting rules governing the web.

Fair enough. Fifty different regulatory approaches would be a nightmare for ISPs, and arguably impossible to enforce. On the other hand, the  federal government’s actions weren’t just bad policy that ignored the great weight of both expert and public opinion–its nullification of the net neutrality rules arguably constituted yet another gift by the administration to moneyed interests.

When the Justice Department announced that it would sue California, it set up a “lose-lose” “hard cases” scenario. In a sane world, the U.S. would have one comprehensive set of policies governing Internet practices–not 50. But in a sane world, the administration wouldn’t have repealed rules that were widely seen as necessary, reasonable and equitable.

If all this wasn’t bizarre enough, a couple of days ago, the FCC submitted its defense of the repeal in the lawsuit brought by the states by arguing that it had no authority to pass net neutrality rules in the first place.

Chairman Ajit Pai’s FCC argued that broadband is not a “telecommunications service” as defined in federal law, and therefore it must be classified as an information service instead. As an information service, broadband cannot be subject to common carrier regulations such as net neutrality rules, Pai’s FCC said. The FCC is only allowed to impose common carrier regulations on telecommunications services.

That argument would be a tad more convincing if the DC Circuit appeals court hadn’t ruled in 2016 that the rules were legal.

The argument also would seem to complicate the administration’s threatened preemption suit against California; lawyers defending the ability of states to pass rules say the FCC can’t preempt state laws that regulate conduct over which the FCC has no regulatory authority.

Does your head hurt yet? (Mine does.)

The various entities suing the FCC have until November 16 to file reply briefs. Final briefs are due November 27, and oral arguments are scheduled for February 1.

Oh what a tangled web we weave when trying to enrich an administration’s cronies.

File Under “We Told You So”

The Guardian,among other publications, recently reported that Verizon “throttled” the presumably unlimited data of California firefighters while they were battling the blazes that were–and still are–engulfing communities in that state.

California firefighters’ ability to battle a huge wildfire was impeded by Verizon Wireless throttling their internet connection, in a moment advocates say demonstrates the high stakes of the battle over net neutrality.

Santa Clara county fire department had paid for what Verizon described as an “unlimited” data plan for various internet-connected devices, but the data flow was throttled to about 1/200th of the typical speed – unusably slow for any meaningful data transfer.

This restriction created problems for a command and control communications vehicle called OES 5262 as firefighters battled the Mendocino Complex fire, the largest wildfire in California’s history, in late July. The vehicle – essentially a fire engine that is fitted with computers and communications equipment – gets internet access via a device that uses a Verizon sim card. It is used as a hub to “track, organize and prioritize routing of resources around the state and country to the sites where they are needed the most”, according to the Santa Clara county fire chief, Anthony Bowden, in a lawsuit over net neutrality protections, first reported by Ars Technica.

Net Neutrality rules put in place under the Obama Administration would have protected the firefighters (or at least provided them with recourse), but those rules were repealed by Ajit Pai, Trump’s appointee to the FCC.  Pai was a former executive at Verizon, and Verizon has been one of the “big telecom” companies lobbying for the repeal.  Pai argued that the net neutrality rules would stifle innovation, and that they had been established on “hypothetical harms and hysterical prophecies of doom”.

With Pai at the helm, the FCC simply ignored massive numbers of emails arguing against repeal, and ignored as well a number of surveys that found more than 80% of Americans supporting Net Neutrality.

The July incident wasn’t the first time Verizon had throttled the firefighters’ data connection.

They had previously contacted Verizon in June when they were dealing with the Pawnee fire and December 2017 when they were battling a grass fire near Prado regional park.

According to emails included in court filings, in June 2018, the fire captain Justin Stockman contacted Verizon requesting that the data connection for a critical piece of communications equipment was unthrottled. A Verizon account manager responded by trying to upsell the fire department from a $37.99 plan to a $39.99 plan.

The Santa Clara fire department is part of a larger lawsuit against the Federal Communications Commission; the lawsuit seeks to overturn the repeal of net neutrality rules that prevent internet service providers from blocking, throttling and prioritizing customers on the basis of pay. The suit represents plaintiffs in twelve separate lawsuits that were consolidated into a single suit. Those lawsuits were filed by more than three dozen entities, including state attorneys general, consumer advocacy groups, and tech companies.

Probably the best explanation of Net Neutrality–and the consequences of its repeal–can be found by watching comedian John Oliver who has devoted two of his shows to the topic.

I guess it takes a comedian to explain why the loss of Net Neutrality is no laughing matter.

Controlling Our Brave New (Digital) World

Now that Net Neutrality rules have been eliminated by Trump’s FCC, the question is: how will the repeal affect ordinary Americans? What consequences will be seen by the millions of Americans who turn increasingly to the Internet for everything from information to entertainment to commerce?

The Brookings Institution has at least a preliminary answer.

On June 11, 2018, the Federal Communications Commission’s repeal of the Open Internet Order—the net neutrality rules—went into effect. In the wake of this change, Americans are wondering how the repeal will affect them, and what it means for the future of internet access. Though consumers may not see changes quickly, the shift on net neutrality undermines the nation’s history on network regulation, creating a new era in how these networks operate in America.

So–in this brave “new era,” what can we expect?

The “quick and dirty” answer is: it depends. For one thing, there is a pending court challenge to the FCC’s authority to repeal Net Neutrality. For another, the Senate has passed Senate Joint Resolution 52, officially disapproving the repeal.  (Under the Congressional Review Act,  Congress can undo recently created rules by federal agencies.)

It still has to pass in the House, and then be signed by the president, which makes its prospects dicey, but perhaps Mueller will have completed his investigation…

That said, the need for a vote in the House should make protection of Net Neutrality an issue in the upcoming midterms. Every Congressional candidate should be asked whether they will vote to reinstate the rules. In December of last year, the Hill reported that 83% of Americans support Net Neutrality.

The pending court case is a consolidation of twelve separate challenges to the FCC’s authority to repeal the rules. The 12 lawsuits were filed by more than three dozen entities, including state attorneys general, consumer advocacy groups, and tech companies.

(If there is a Justice Kavanaugh sitting on the Supreme Court, and the case reaches the high court, its prospects dim: Kavanaugh is on record opposing Net Neutrality on the grounds that Internet providers are publishers, and protected from government interference by the First Amendment. Equating companies like Verizon and AT&T with media outlets like the New York Times requires some convoluted logic. )

More encouraging, a number of states aren’t waiting for Congress or the courts. California, not surprisingly, looks to be first out of the gate with a “robust” protection of Net Neutrality, but a number of other states are in the process of crafting similar bills.

The latest version of the bill restores provisions that would prevent broadband providers from exempting some services from customers’ data caps and would ban providers from charging websites “access fees” to reach customers on a network or blocking or throttling content as it enters their networks from other networks, according to a fact sheet released by Wiener, Santiago, and state senator Kevin de León.

The enumerated practices are those that big telecom companies are expected to engage in now that the FCC has repealed national protections.

The new version of the bill needs to be approved by both houses of the California Legislature, then be signed by Governor Jerry Brown. From there, it could face legal challenges from the FCC, which prohibited states from adopting their own net neutrality protections when it repealed the national net neutrality rules. During the press conference, Santiago said the California bill would stand up to legal scrutiny. Legal experts have told WIRED they are unsure whether the FCC has authority to preempt state law on the issue.

As 83% of Americans understand (at least in this context), this administration’s indiscriminate war on all regulatory activity more often than not just favors big business over the rest of us.

Net Neutrality

Well, they did it. Trump’s Verizon  puppet at the FCC–after a campaign of disinformation and downright dishonesty–got his (and Verizon’s) fondest wish: they voted yesterday to dispense with Obama-era rules protecting Net Neutrality.

If you are one of the many Americans who is unfamiliar with this policy, or unsure why it matters, Vox has a comprehensive explanation; if you have less time, Paul Krugman recently offered a concise analogy. Asked for his thoughts on the impending vote, and on the policy, he responded that

… for a democratic society, and also just for a society that is open to new ideas, level playing fields are really important. One of the great unifying things that we did very early on in our country’s history was to establish a postal service, where the cost of sending a letter was the same no matter who was sending it, no matter how far you were sending it…

We’ve done very, very well with providers not allowed to discriminate among different users. This is something that’s very much not broken. Why try to fix it?

This assault on Internet equality is just one of the myriad Trump Administration efforts to remake our country into a plutocracy–to make America “great” for the powerful and wealthy.

It gets harder and harder to keep track of the wholesale de-regulation that Trump insists will unleash the productivity of the market–the rollbacks of environmental regulations that keep our air breathable and our water drinkable, the withdrawal of measures to protect students from fraudulent private colleges and sexual assaults, reversal of regulations preventing fossil fuel companies from despoiling protected lands….I teach public policy, so following all of these efforts to eviscerate the rules of fair play (and not-so-incidentally, anything Obama did or favored) is part of my job–and I can’t begin to keep up.

Before the election of this monumentally ignorant man, I was not a huge fan of robust federalism, or the argument that state “laboratories of democracy” would, or at least could, constrain unwise federal policies. As I’ve watched sensible state governments respond to Trumpism by protecting immigrants, decriminalizing marijuana, enacting stringent environmental protections and demonstrating that raising taxes actually promotes economic growth, I’ve warmed to the wisdom of that argument.

And now…

Washington State has followed the shameful vote against Net Neutrality with an announcement that it will fill the void and protect Internet users: 

On the eve of an expected vote by the Federal Communications Commission to roll back crucial net neutrality rules, Gov. Jay Inslee joined Attorney General Bob Ferguson, legislators, and business leaders to announce state plans to preserve an open internet and protect Washington consumers from internet companies that are not transparent about costs or services.

Inslee wrote a letter to the FCC earlier this month, in which he made a strong case for the retention of current policy.

All Americans, as a matter of principle, should enjoy equal access to the educational, social and economic power of the internet. Ensuring this important technology remains free and unfettered is critical both to our personal freedoms and to our country’s economy,”

Making Washington State’s announcement, Inslee conceded that the FCC’s vote will preempt states from ensuring full net neutrality. But he said states can take a number of steps to promote an open internet and strengthen protections for consumers–and Washington intends to take them:

Hold companies to their commitments not to block websites, throttle speeds, or impose prioritization pricing

  • Direct the state’s Utilities and Transportation Commission (UTC) to establish a process for ISPs to certify that they will not engage in practices inconsistent with net neutrality principles.
  • Limit state-conferred benefits to ISPs that have made such certifications.
  • Limit applicability of UTC pole attachment rules to ISPs that are net neutral.
  • Review other state-conferred benefits such as easements and taxes.

Leverage the state’s power as a large purchaser of ISP and telecommunications services

  • Use the state government’s role as a big customer, and our ability to establish state master contracts used by localities, to incentivize Washington companies to adhere to net neutrality principles.
  • Pursue regulatory and legislative action to award contracts to vendors that meet net neutral business requirements.
  • Lead the exploration of a multi-state purchasing cooperative to procure internet service from providers that adhere to net neutrality principles.

Hold companies accountable for warranties made to consumers

  • Create a state-wide internet speed test. This will allow Washingtonians to test their own broadband speed at home, and submit the test to help appropriate state agencies determine what internet speeds consumers are receiving and where companies may be blocking or throttling.
  • Collaborate with legislators to strengthen our consumer protection laws to include the principles of net neutrality.

Encourage new entrants into the currently concentrated ISP market

  • Pursue legislation authorizing public utility districts and rural and urban port districts to provide retail ISP and telecommunications services.
  • Prohibit government-owned ISP services, such as municipal broadband networks, from engaging in blocking, throttling, or priority pricing for Internet services.

As one Washington state legislator asserted, state governments have the right to prevent a “reckless and power-intoxicated federal government from handing over access to the free flow of information to the largest corporations on this planet.”

If other states follow in Washington’s path, they will do more than protect an essential platform for American democratic discourse.

They’ll make a federalism fan out of this skeptic.