Reclassifying Broadband Under Title II Becoming Politically Feasible

from the this-can-happen dept

One of the most annoying things about the net neutrality fight -- as we've been noting for over a decade -- is how silly the net neutrality debate was once it became "partisan." An issue that, previously, had been a general one about the future of the internet turned into a ridiculous political circus with Republicans (misleadingly) claiming it was about "regulating the internet." You'd think that the "pro-business party," as they like to call themselves, would support a policy of an open and free internet that enables so many entrepreneurs and businesses to exist. But, of course, "pro-business" is often code for "pro-big-legacy business." Either way, the unfortunate news is this has become a stupidly partisan issue, and when that happens, reasoned debate often goes out the window. Given that, one the prevailing narratives in DC circles is that this idea of reclassification of broadband under Title II (basically common carrier status) was "politically impossible," because it would entail a huge partisan fight in Congress, and apparently no one wants to do that.

This argument, too, is kind of stupid and typical of the Jay Rosen-coined concept of the "Church of the Savvy," in which the narrative of the politics becomes much more important than the policy itself. In this case, it's pretty clear that the "fight" is happening no matter what rules the FCC comes out with. The politicians opposed to net neutrality have made it clear that they'll oppose any rules that the FCC adopts, including its currently proposed, ridiculously weak, rules under Section 706, which leave the door wide open to destroying net neutrality and creating fast lanes.

Given that, it seems like the FCC has a choice on its hands: (A) go with pretend net neutrality and have Republicans fight like hell against it, or (B) go with real net neutrality rules and have Republicans fight like hell against it. It's difficult to see how choice (A) makes any sense, except that the "savvy" claim has long been that the Democrats didn't have the political will to really fight back against Republicans over Title II (suggesting that they would be more willing to support Wheeler's fake neutrality rules).

But, a funny thing has been happening over the last few weeks, indicating that "the savvy" may not be so "savvy" after all. A bunch of Senators have come out strongly in favor of Title II reclassification. And then the big gun came out: Senate Majority Leader Harry Reid has basically told activists that he'd support the FCC in a political fight with Republicans if the FCC chooses Title II. Reid, unfortunately, did not go all out, and directly urge the FCC to support Title II, but his statement that he would support "any Open Internet rules" that the FCC comes up with is a pretty clear signal to the FCC that the Democratic Leadership in the Senate wouldn't shy away from supporting Title II, as many had assumed.

It may seem like a small step, but the signalling here is pretty important, because it suggests that the "politically impossible" Title II reclassification is moving towards a political possibility... if the FCC and Chairman Wheeler are actually willing to make that move. In the past, Wheeler has argued that there wasn't enough political support to go with Title II, and that's part of the reason he was leaning on the fake solution of Section 706. But as more and more support in Congress is popping up for Title II, the tide is shifting towards it being a political possibility, even if it still very much depends on if Wheeler is willing to take a stand, or fold like so many previous FCC bosses.

Now, if only some on the Republican side stopped listening to the misleading talking points on this, and took the time to understand why this actually matters, and is so important to businesses and innovation...

Filed Under: broadband, common carrier, congress, democrats, fcc, harry reid, net neutrality, republicans, section 706, title ii

Broadband Industry To American Public: Who Needs Open Internet Rules When You Can Just Take Our Word For It?

from the trust-us! dept

Hundreds of thousands of concerned citizens recently asked the FCC to protect the open Internet, but broadband providers filed comments that are the hundreds of pages equivalent of "take our word for it, everything will be fine" or "move along, nothing to see here." In preparing our reply comments to the FCC's open Internet proceeding, we've been examining the most recent comments of the big fixed and mobile broadband providers like Comcast, Verizon, and AT&T.

What we found could be striking or completely obvious, but is probably both at the same time. Broadband providers primarily occupy themselves with aggressive posturing and finger-pointing aimed at content providers like Netflix and backbone providers like Cogent and Level 3. The big industry players' comments also make clear that the big broadband providers apparently do live in an alternate universe to most Americans. In this universe, the vast majority of Americans can easily switch between an ample number of broadband providers on a whim, and where any real rules to protect the open Internet as we know it are unnecessary because... well, because... just take our word for it.

Here are some of the lowlights:

Comcast:

"If a provider were to block or degrade Internet applications or content, the provider would incur substantial subscriber losses and reputational harm. Thus, in order to undertake such a strategy, a broadband provider would first need to conclude that any theoretical benefits of the strategy outweigh these very real costs." (pg. 6)

Ok, a couple points here. First, the basic assumption that this argument relies on is that subscribers actually have another provider to switch to, which many people who live in Comcast territory know is simply fantasy. That said, the point about reputational harms also seems to ignore the fact that broadband providers are already considered the worst companies in America. Subscriber bases and profits are maintained due to these companies entrenched, excessive market power, not customer service. But then, I suppose you can’t blame Comcast for trying: They were neck and neck with Monsanto this year for "worst company in America."

After discussing at length the importance of a mercurial, end-around category of "specialized services," and why the FCC should properly leave them beyond the scope of Open Internet rules, Comcast states:

"While it is unnecessary to impose additional mandates on specialized services, the Commission should clarify the definition of specialized services to provide increased certainty regarding the scope of its open Internet rules." (pg. 30, emphasis added)

Comcast’s argument here can best be summed up as follows: "Specialized services are perhaps the greatest thing we have ever thought of, and the FCC has wisely chosen to not regulate them. By the way, what are specialized services anyway?" If you’re confused, you’re not alone.

Who's next?

Verizon:

"A policy of impeding access [instituted by a broadband provider] to services customers wish to access would only push those customers to other providers. Other ISPs face the same incentives. Under these – in which users demand access to all lawful content and ISPs are committed to fulfilling customers’ needs – there is no need for a prescriptive no-blocking rule." (pg. 26)

Verizon asks that we set aside any silly preconceived notions we may have about the lack of alternative providers (discussed above) and how poorly broadband providers have been known to respond to their subscribers (Matt Stone and Trey Parker may have summed it up best already), and then essentially says that we hardly need rules in place when we can just take their word for it.

"Just because the Commission could prohibit such practices [such as blocking or degrading content] in some contexts, does not mean that it should do so at the present time and instead could wait to see whether any such theorized harms actually materialize." (pg. 37)

Translation: Just because the Commission could stop us from experimenting in ways that break the open Internet to extract more money from both content providers and our subscribers does not mean they should do that. Instead, why don't we wait to even think about doing anything until we've locked in business practices that ensure the open Internet as we know it disappears?

"Applying Title II to the American broadband industry would be like tying a cinder block to the ankle of an Olympic sprinter in the midst of a race and then wishing her luck." (pg. 50)

You should first know that Verizon spent a fair amount of time making accusing proponents of Open Internet regulations of being "sensationalistic" and "superficial" and of spouting "politically motivated fantasy." The only "fantasy" here is Verizon likening the American broadband industry to an Olympic sprinter. It is more akin to Godzilla: more prone to simply crush the competition than to race against them.

AT&T:

"To engage in end-to-end prioritization of Internet traffic across connecting networks, it would be necessary to have a system coordinated among edge providers, backbone providers, and ISPs to mark certain packets for priority and to handle them accordingly. No such system exists today.” (pg. 18)

AT&T may be right that no such system of coordination between edge providers, backbone providers, and ISPs exists today, but that overlooks the reality that broadband providers have already found a better way to achieve this goal while also cutting out backbone providers: Directly connecting to edge providers, like Comcast has done with Netflix. Not only that, but cutting out the middle man (backbone providers) has an added benefit for last-mile providers (like Comcast and AT&T) in that it cuts off revenue sources for backbone providers (as edge providers rely on their data transport services less often), weakening them and making them more susceptible to increasing demands from the last-mile broadband providers like Comcast, Verizon, AT&T and others.

The FCC has an opportunity here to spur competition and innovation, but it starts with recognizing that "take our word for it," "move along, nothing to see here" are not the cornerstones of a framework to protect an open Internet.

Art Neill is the Founder and Executive Director of New Media Rights, and Kyle Reynolds is a legal intern with New Media Rights. New Media Rights is a nonprofit program that provides legal services and advocacy for internet users and creators.

Filed Under: fcc, net neutrality, open internet, section 706, title ii
Companies: at&t, comcast, verizon

All The Big Broadband Players Support FCC's Proposed Rules... Which Says All You Need To Know

from the preventing-cable-company-fuckery dept

John Oliver had the right idea last month when he noted that we shouldn't be discussing "net neutrality," but rather "preventing cable company fuckery." I've been sorting through a bunch of the hundreds of thousands of "comments" on the FCC's proposal, and it's amazing how nearly all of them basically say "we support a free and open internet..." but then totally diverge on how to accomplish that -- with people basically insisting that either reclassifying under Title II would protect an open and free internet, or destroy an open and free internet.

But if the goal is to honestly prevent "cable company fuckery," it's not difficult to figure out which plans make sense, because all of the major broadband players are pretty clear that they really, really like the FCC's plan -- and we already know that they also tend to like "fuckery." AT&T had already kicked this off last month by insisting that Section 706 was a lovely way to keep the internet open and free and Title II would damn us all to the 9th circle of hell (or something close to that). Yesterday, Comcast said something similar in its blog post and actual FCC filing. Though, as you dig deep into Comcast's filing, you get weasely language like the following:

Comcast supports the application of such a standard [the "commercially reasonable" standard for paid prioritization]. Comcast also would not be opposed to a rebuttable presumption that "paid prioritization" arrangements are commercially unreasonable. This presumption could be interpreted to preclude, among other things, exclusive arrangements and arrangements that prioritize a broadband provider's own affiliated Internet content vis-a-vis unaffiliated content. A broadband provider seeking to justify any "paid prioritization" arrangement could be required to bear the burden of showing that the arrangement is commercially reasonable and fair to consumers and edge providers. Comcast believes that few arrangements would be deemed to overcome the presumption.

However, the Commission should not establish a policy that would preclude all experimentation in this area. Arrangements could emerge between broadband providers and edge providers that could have widely varying implications for competition and consumer welfare based on the terms of an individual arrangement, the parties involved, and the markets affected. As FCC General Counsel Jon Sallet recently explained, "[c]ase-by-case enforcement offers a potentially more dynamic approach, permitting the Commission to respond to and learn from the rapid pace of change in the communications market."

This is sneaky in the extreme. Beyond being somewhat mealy-mouthed, that first paragraph pretends to say these rules would stop fast lanes. But what it really says is that broadband providers would be totally free to experiment with paid prioritization agreements, and might then have to defend them in front of the FCC later if and only if those who are screwed over (generally smaller players who have neither the cash nor the lawyers necessary) complain loudly enough to the FCC that it investigates the issue. The second paragraph makes it quite clear that the broadband companies have every intention of "experimenting" with fast lanes. They're just going to look for ways to pretend that they're beneficial to customers -- such as by first setting artificially low "broadband caps," and then letting big internet companies pay them to have those caps ignored for their content only.

Meanwhile, NCTA, the lobbying arm of the cable industry (which current FCC Commissioner Tom Wheeler used to run, and which is currently run by former FCC Commissioner Michael Powell), has also weighed in on just how great it thinks the proposed plans are. Just like AT&T and Comcast, it insists that (1) Section 706 is just dandy and (2) Title II would be horrific. It insists that Section 706 gives the FCC the power to deal with any problems, while Title II would just likely lead to litigation. This is self-contradictory. As both Comcast and NCTA make clear, part of their support for Section 706 is that it allows the FCC to pick and choose what to declare problematic on a "case-by-case" basis. But you (and those lobbyists) know that any such attempt by the FCC to declare something commercially unreasonable will lead to a lawsuit as well.

In other words, either plan is likely to lead to lawsuits and uncertainty. Anyone claiming that one plan won't is being misleading.

Finally, the mega filing came from Verizon late last night, and may be the most interesting and ridiculous. It too is quite happy with the FCC's plan, and Verizon's view is best summarized as "there's no reason to put rules on anything we do!" But... at the same time, it's rather passive aggressive in attacking internet companies like Netflix, Google and Amazon, pretending that if the FCC wants to regulate anyone, it might want to look at those guys. In other words "hands off of us, look at those guys who actually provide the services people like." But, when it comes to Title II classifications -- the very same one that Verizon begs to have its fiber lines classified under to get subsidies and tax breaks -- Verizon insists that it would be a total disaster for its broadband access to be regulated under that system. Because it says so. But, when it comes to actually creating fast lanes, like Comcast, Verizon is excited by the "commercially reasonable" standard and all the fuckery it allows, though of course it couches it in language pretending to be about "protecting consumers."

...consumer welfare is best protected if the Commission allows broadband Internet access service providers to manage their networks and—if they so choose—offer differentiated services or implement sophisticated pricing strategies as long as those practices do not harm competition.

In assessing whether a practice harms competition, it is essential not to confuse harm to competitors with harm to competition. The Commission has stated “We believe that consumers of broadband access service should have the ability to exercise meaningful choices.” Those choices should include services offered by edge providers that have chosen to enter arrangements for differential treatment in order to offer more desirable services to their customers. Such options will benefit consumers, even as they reduce rival edge providers’ economic welfare by increasing the competitive pressure they face.

In other words, give us our fast lanes and fuck the internet companies.

So, really, if you go back to the basic idea that John Oliver made clear: if the goal here is to prevent [broadband provider] fuckery, which do you think is really going to do that? The plan that the broadband providers claim to love, or the one that they're all scared to death the FCC might actually put in place?

Filed Under: broadband, cable company fuckery, fast lane, fcc, john oliver, priority access, section 706, title ii
Companies: at&t, comcast, ncta, verizon

Politicians Freak Out Over New FCC Neutrality Moves, Not Realizing They Probably Won't Do Anything

from the I-have-absolutely-no-idea-what-I'm-upset-about dept

Now that I've had some additional time with the FCC boss Tom Wheeler's new net neutrality proposal and have talked to a few lawyers and consumer advocates, I'm starting to think the agency's announcement was almost entirely political theater. All the FCC really said is that it wouldn't appeal the Verizon case, and would begin a meandering public conversation about how to vaguely protect the Internet under shaky Section 706 authority the FCC knows it doesn't have. Layered on top were empty promises about improving competition and some empty threats about reclassifying ISPs as common carriers if they don't behave (which is supposed to be a threat, but every ISP lobbyist on K Street knows they won't do this if they weren't willing to do it already).

In short, the FCC vaguely promised to maybe think about some stuff after a glacial, year long conversation. Cue the absolute, unbridled, partisan hyperbole shitstorm:

"Ranking Republicans called the FCC's efforts to revive net-neutrality rules "a solution in search of a problem," and plan to fight any new rules. Rep. Marsha Blackburn of Tennessee will introduce legislation in the coming weeks to block what she calls the "socialistic" proposal. "Federal control of the Internet will restrict our online freedom and leave Americans facing the same horrors that they have experienced with HealthCare.gov," Blackburn said in a statement."

You apparently don't understand that the FCC's proposal won't actually do anything, but you do know it's certainly socialist and freedom killing? The sad part is that issues like a healthy, functioning Internet with competitive balance really shouldn't be partisan at all. It's in the interest or everyone that networks work well and that honest, healthy competition improves service and drives down costs, while limiting the bad behavior of large network gatekeepers.

Well ok, not everyone. If you actually want to understand whether a policy will be good or bad for consumers, ignore all the think tanks and politicians and watch the ISP response. Specifically watch AT&T, which has the biggest lobbyist operations and the biggest mouth when truly consumer-friendly policy gets passed. AT&T supported the original rules because they had oodles of loopholes and didn't cover wireless (Verizon only sued in the hopes of killing off FCC authority entirely). Note how AT&T thinks all this socialist freedom killin' is just a splendid idea:

"AT&T, the second-largest wired broadband provider in the U.S., said it believes the FCC has the authority under Section 706 to preserve Internet openness...."AT&T has built its broadband business, both wired and wireless, on the principal of Internet openness," AT&T said in a statement. "That is what our customers rightly expect, and it is what our company will continue to deliver. That is also why we endorsed the FCC's original rule on Net neutrality, and is why we pledged to adhere to openness principles even after the recent court decision."

Knowing the FCC pretty well after more than a decade of watching them, what I think you'll ultimately see at the end of this new "conversation" is a cross-industry set of self-regulatory voluntary guidelines "prohibiting" ISPs from doing the kinds of things they never intended to do anyway -- like blocking your access to entirely legal websites. There might be particular cases where the FCC pushes for greater transparency in peering debates (especially if the ongoing Netflix standoff doesn't improve), but nothing that will truly rattle any slats. The primary goal here is making sure incumbent ISPs maximize revenues and keep the campaign contributions coming. Consumer protection is just pillow talk. For both parties.

What you won't see in any way (and probably wouldn't be enforceable under 706 anyway) is hard rules governing the more subtle sort of things network neutrality folks should actually be worried about, such as predatory pricing and the use of broadband usage caps as a weapon (like AT&T's "sponsored data"). This, unfortunately for consumers, is considered "creative pricing innovation" by both the current FCC and industry alike, and the only ones who should be freaking out at the moment are the people who are going to foot the bill for all this supposed creativity.

Filed Under: fcc, net neutrality, section 706
Companies: at&t, verizon