Friday
Dec012017

Net Neutrality - Why This Battle Is So Critical

Every time I get a junk fax, I file a complaint with the FCC. Last week, when I received the most recent “too good to be true” offer, I went to file another one, and the first thing that I noticed is that across the top of the FCC’s complaint homepage is a banner providing a short cut to the place where the FCC is taking comments on its proposal to roll back net neutrality rules,  the Obama-era Open Internet Order that the agency is poised to dismantle before year end.  Even the way that the act has been titled, “The Restoring Internet Freedom Act”  is offensive to those of us who believe that while we may be sufficiently lucky to enjoy the benefits of them,  there remain many greater goods than shareholder return.

This action is not about restoring internet freedom. It’s simply about abandoning a regulatory structure that has restricted the biggest players on the stage from controlling access to content (both in terms of speed and the content itself), and letting the market go where it will.  In this scenario, the rich get richer and the underserved, many of whom saw a Trump administration as a positive force for change in their worlds, get left further behind.

To me, to move the regulatory regime of the internet back to the Federal Trade Commission and thus change the regulatory authority under which its use is managed, is a step so far backwards that before I even finished sending the junk fax complaint in, I had made some pointed (polite, but pointed) comments to the FCC about my feelings on the potential harm that a move like this, made in the name of “incentives to innovate” can and will cause.  As I’ve read portions of the language of the FCC’s Fact Sheet and document behind it as a whole, I find the language to be so loaded with inaccurate, inflammatory political rhetoric that it’s simply hard to read with a straight face. Nonetheless, some of the key takeaways of what’s proposed are as follows:

  1. Change the classification of broadband internet back to a Title 1 “information service” subject to a much lighter regulatory touch than is required under the current regulatory structure imposed on a Title II regulated “telecommunications service.”  This allows the big players to behave in a much less friendly way towards consumers and smaller market players in the name of the free market.
  2. Under the proposed new rules, ISPs are required to be transparent.  Sort of. ISPs would be required to identify their practices to the public and the FCC, but they would no longer be prevented from throttling, blocking and prioritizing paid content. Essentially, as long as So if your ISP wants to you see its content, but charges you to see a competitor’s content, or denies access to the competitor’s content altogether, as long as the ISP’s practices are disclosed, a consumer (individual or enterprise) is considered to be informed.  Essentially, the current majority within the FCC is claiming that the current regulatory structure is overly burdensome, and it’s proposing a move to the wild west where there are no rules governing the conduct of ISPs towards their customers.   Even if the Federal Trade Commission, took action under the proposed new regulatory structure, and provide oversight and a regulatory “light touch,” there is no assurance that it has the muscle to enforce the rules that it may choose to enforce.
  3. Many states and localities find the proposed new regulatory structure untenable, but the new order prevents them, through preemption, from passing laws that offer net neutrality-like protections to those who live and work within their jurisdictions.  States could still have a role in the enforcement process, particularly with respect to matters including fraud, taxation and commercial dealings, but only to the extent that state and local actions taken are consistent with “federal regulatory objectives.”
  4. Under the proposal, the Federal Trade Commission would be tasked with protecting consumer privacy. According to Mitchell F. Brecher of Greenberg Traurig,  this transfer of responsibility to the FTC could be problematic, as it is undetermined whether the FTC has the necessary jurisdiction to enforce consumer protection and privacy requirements against Broadband Internet Access Service (BIAS) providers. The Federal Trade Commission Act explicitly precludes the FTC from enforcing that act against common carriers. Whether or not a BIAS provider is legally classified as a common carrier, it is indisputable that many providers of BIAS are effectively, in name and spirit--if not legal classification, common carriers. There is no question that telephone companies, cellular (wireless) carriers, and even cable companies offer voice telephone service and do so on a common carrier basis, subject to Title II of the Communications Act’s common carrier provisions. By taking this [giant] step [backwards], the FCC is opting to allow some forms of voice communications to be regulated differently than others.
  5. Those communities that are interested and motivated to provide broadband where few or no options exist for even getting the most basic services, should be nothing short of alarmed by this market-based turn.  Rural high speed broadband will never make financial sense in and of itself. It is only with a public private partnership that those in rural communities have a chance of getting what the rest of us—at least for now—take for granted. And with the market being permitted to run unfettered, rural consumers, and those in high cost delivery areas, may find themselves behind the curve once again.
  6. One more concern that has been raised is that despite the HUGE number of comments that have been sent to the FCC, that many have been ignored in the interest of time/agreement/relevance (pick one).  This is too important an issue to ignore the comments. Even the vast number of comments should let the FCC Chair and his Republican commissioners that this issue warrants careful consideration beyond the seemingly simple claim that the existing rules stifle innovation.  Time and again, this argument has proven itself to be nothing more than piffle.  And it still is.



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