The Video Game Industry Joins The Lawsuit To Save Net Neutrality

from the with-Mario's-help dept

The Electronic Software Association (ESA) has decided to take a break from making up piracy statistics to actually do something useful.

The group, which represents video game publishers ranging from EA to Nintendo, has filed a motion to intervene (pdf) in the looming case against the FCC's repeal of net neutrality rules at the behest of consumers. Numerous consumer advocacy firms, several companies including Vimeo and Mozilla, and 23 State attorneys general have filed suit against the FCC, arguing it ignored the public interest, experts, and objective data when it rushed to kill popular net neutrality rules at the telecom industry's behest.

In a statement posted to its website, the ESA states it felt the need to lend a hand to ensure that ISPs don't use their last-mile monopolies to hamstring innovative and disruptive new games or gaming-related services:

"The internet drives innovation, fuels our 21st century economy, and helps create the jobs of tomorrow—especially for the connected world of interactive entertainment. Consumers deserve rules of the road that prevent blocking, throttling, and other restrictive conduct – and enable the great online experiences that bring meaning and value to all parts of our country. ESA will make that case in the months ahead on behalf of America’s gamers and game makers."

In the full filing, the ESA says its members are concerned that with no rules in place, ISPs may "take actions that could jeopardize the fast, reliable, and low latency connections that are critical to the video game industry." In Canada, that manifested a few years back when Rogers decided to throttle all BitTorrent activity, hampering the then BitTorrent-based World of Warcraft upgrade client. As with every other sector, there's valid worry that ISPs will strike paid prioritization or zero rating deals with the deepest-pocketed companies, putting smaller services and companies at a disadvantage.

The lawsuits against the FCC comes as more than half the states in the union have now proposed their own, state-level net neutrality protections. Large ISPs, meanwhile, have threatened to sue any state that dare try and protect consumer welfare. The lawsuits, which should fully kick off after the FCC finalizes publication of the repeal (expected late this month), should be chock full of insight into some notably bizarre behavior by the Trump FCC as it tripped over itself to pander to the telecom industry.

Filed Under: fcc, net neutrality, video games
Companies: esa, mozilla, vimeo

Ex-Obama FTC Boss Now Lobbying For Comcast, Trying To Prevent States From Protecting Consumers

from the revolving-door-regulation dept

While the Trump FCC has certainly taken protectionism, corruption and cronyism to an entirely new level, it's important not to forget that Trump and Ajit Pai are just products of the country's long established bipartisan dysfunction when it comes to revolving door regulators, and it's going to take more than just ejecting Trump and Pai to repair the underlying rot that has allowed them to blossom.

Case in point: former Obama FTC boss Jon Leibowitz, who has long professed himself to be a "privacy advocate," has spent much of the last few years lobbying for Comcast while at Davis Polk. That has included making a myriad of false claims about ongoing, EFF-backed efforts to protect broadband consumer privacy in California.

In an endless wave of op-eds (where his financial conflicts of interest are almost never disclosed to the reader), Leibowitz has been busy insisting that rampant ISP privacy abuses are a "nonexistent problem," and that strong state and FCC oversight of ISPs are unnecessary because the FTC will somehow rush in to save the day in the wake of efforts to neuter the FCC, kill net neutrality, and embolden massive anti-competitive telecom duopolies.

We've already outlined in detail why that's a horrible take here. More specifically, the FTC lacks rule-making authority, and can only act against ISPs if behavior is clearly proven to be "unfair and deceptive," something ISPs can usually wiggle out of on the net neutrality front (we weren't throttling a competitor, we were protecting the safety and integrity of the network!). The FTC's also understaffed, under-funded, and over-extended. And oh, did we mention that AT&T has been busy in court trying to obliterate whatever authority over ISPs the FTC does have?

Leibowitz (like most ISP lobbyists pretending to be objective analysts) "forgets" to mention that.

With more than half the states in the nation now considering some flavor of net neutrality and privacy rules in the wake of federal apathy, Leibowitz is also busy trying to help Comcast scuttle privacy and net neutrality in other states like Massachusetts. Massachusetts, with the backing of dozens of lawmakers, is contemplating new net neutrality rules that would effectively mirror the ones Comcast lobbied the FCC To dismantle last December.

Leibowitz's oppositional testimony this week in front of state leaders included claims that net neutrality somehow hampered broadband industry investment, an ISP-lobbying claim routinely debunked by just looking at ISP earnings reports, SEC filings, and countless CEO statements:

"According to his prepared testimony for a hearing before the Joint Committee on Telecommunications, Utilities, Leibowitz said he recognized "the sky did not fall" when the FCC, during the Obama Administration, reclassified ISPs as Title II common carriers. But he said that reclassification did have costs to consumers, including diminished deployment of broadband, according to the FCC, as well as removing broadband consumer protection from the FTC's jurisdiction."

Again that diminished deployment never happened. ISP CEOs admit as much. Meanwhile, the "sky did not fall" because the FCC's 2015 net neutrality rules haven't even technically been repealed yet (that's expected to occur sometime in April). Even then, ISPs aren't expected to truly even start testing their newfound anti-competitive freedoms until they're sure the FCC (with ISP help) wins their looming legal battle. Even then ISPs may not truly be comfortable behaving badly until they're sure tougher state and federal rules are pre-empted (that's why they're pushing for a fake, loophole-filled net neutrality law.)

Knowing that states might fill the consumer protection vacuum, both Verizon and Comcast lobbied the Trump FCC to include language in their net neutrality repeal trying to ban states from protecting consumers (from net neutrality or privacy violations). And while Leibowitz tried to warn Massachusetts leaders that they might run afoul of the Trump FCC if they try to protect consumers (oh no!), that ignores the fact that legal experts say the FCC abdicated its authority on this front when they decided to back away from classifying ISPs as common carriers.

Again, dozens of individual state privacy and net neutrality protections aren't ideal, but that's something Leibowitz's client Comcast should have thought about before lobbying to demolish popular and modest federal level privacy and net neutrality protections. The fact that ISP lobbyists still cling to false claims that net neutrality "demolished sector investment" speaks volumes as to the integrity of their arguments. Meanwhile, at some point media outlets in the States need to wake the hell up to the harm caused by publishing lobbyist op-eds without disclosing authors' financial ties to industries they represent.

Filed Under: broadband, california, competition, ftc, jon leibowitz, lobbying, massachusetts, net neutrality, privacy
Companies: comcast

Telecom Lobbyists: We'll Fight State Efforts To Protect Net Neutrality For A 'United And Connected Future'

from the we're-the-phone-company-and-we're-here-to-help! dept

Since the FCC rushed to give telecom monopolies a sloppy kiss with its net neutrality repeal late last year, more than half the states in the country are now pursuing their own net neutrality rules. Some states (most recently Washington and Oregon) have already passed legislation that effectively takes the FCC rules and encodes them on the State level (in some cases with a few improvements). Other states have signed executive orders that prohibit states from doing business with or subsidizing ISPs that engage in anti-competitive behavior.

With the FCC's repeal on shaky legal ground and states now passing even tougher net neutrality rules, ISP lobbyists have truly begun reaping what they've sown. And it's becoming increasingly clear they're both annoyed and nervous as the true scale of their poor judgement comes into view.

For example, US Telecom, a top lobbying arm of the telecom sector (primarily funded and operated by AT&T), this week penned this blog post making it clear that major ISPs would fight tooth and nail against state efforts to (gasp) actually protect consumers from predatory telecom monopolies:

"It is said that ‘the road to hell is paved with good intentions.’ Nowhere can we find a more perfect modern example for this sentiment than in the cacophony of disparate calls by state and local regulators across the country each seeking to impose their own brand of ‘net neutrality’ regulations on consumers’ internet experience."

Right. State level net neutrality protections that wouldn't exist if AT&T and USTelecom hadn't sued to overturn meaningful rules (both in 2010 and again in 2015), then prodded revolving door regulator Ajit Pai to repeal the FCC's extremely popular, modest and consistent federal protections. From here USTelecom makes its real agenda clear: reiterating the call for fake net neutrality laws it knows its member companies would get to write:

"Broadband providers have worked hard over the past 20 years to deploy ever more sophisticated, faster and higher-capacity networks, and uphold net neutrality protections for all. To continue this important work, there is no question we will aggressively challenge state or municipal attempts to fracture the federal regulatory structure that made all this progress possible.

We also will continue to work with Congress to enact one consistent set of national and permanent consumer protections. All Americans deserve equal rights online. Standing up for them means not merely saying no to state-level regulation, but hell no to the idea of dismantling what must be a united and connected future."

It takes an over-abundance of hubris to lobby and "donate" to government to kill extremely popular, uniform and modest consumer protections, then lecture people on the need for a "united and connected future."

US Telecom's blog post only really serves two purposes. One, telecom lobbyists are signaling they'll fight any state that actually tries to protect consumers from anti-competitive behavior by telecom monopolies (a "united and connected future" indeed). But while the FCC included language in their net neutrality repeal attempting to ban states from protecting consumers from privacy or net neutrality violations (at telecom lobbyist behest), the repeal they lobbied for leaves the FCC with shaky legal authority on that front (nice work, guys).

Two, they're again pushing for a fake net neutrality law they'll get to write. One that contains so many loopholes as to be useless when it comes to actually protecting consumers, but would pre-empt tougher state-level measures, and even the 2015 FCC rules should the FCC lose in court.

The more worried the telecom sector becomes about this whole thing blowing up in their faces, the harder you'll see them push for a new law they'll write that will only make the whole thing worse. For now if you support net neutrality, your best path forward remains hoping that the FCC loses in court, and if not, voting out lawmakers that prioritize AT&T, Verizon, Comcast and Charter revenues over the will of the public and the health of the internet.

Filed Under: ajit pai, fcc, net neutrality, states rights
Companies: at&t, us telecom

California Introduces New, Tougher Net Neutrality Rules; Uses Ajit Pai's Abdication Of Authority Against The FCC

from the reap-what-you-sow dept

Earlier this year, California introduced new net neutrality legislation as part of similar efforts across more than half the states in the nation. At the time, we noted how the EFF wasn't a particular fan of California's proposal, arguing that the wording of the effort left the law open to challenges by the FCC, which has (at AT&T and Comcast behest) promised to block states that actually try to protect consumers in the wake of its unpopular net neutrality repeal. But a new California proposal has no such Achilles heel, goes notably further than the first effort, and now has the EFF's full support.

California state senator Scott Wiener this week introduced SB 822, a much tougher, more comprehensive proposal that would prohibit not only the blocking and throttling of websites and services by ISPs, but would ban "paid prioritization" deals that would allow deep-pocketed content companies (like, say, ESPN) from buying an unfair advantage against smaller competitors and startups. The bill also takes aim at the kind of interconnection shenanigans and double dipping that resulted in Netflix performance issues back in 2014, while leaving the door open to reasonable network management practices.

In some ways the proposal goes a bit further than the FCC's 2015 net neutrality rules, in that it more concretely addresses the problem of "zero rating" ( when ISPs let a partner's content or their own bypass usage caps while still penalizing others). Zero rating in general is allowed, but only if entire classes of content are whitelisted. Individual efforts to whitelist only specific partners (as we saw with T-Moble's controversial "Binge On" efforts), would be forbidden, as would pay to play approaches where content companies are allowed to buy a zero rating advantage over a competitor:

"Wiener’s bill digs into more arcane matters that the Obama-era FCC’s now-abolished 2015 policy included. It tackles the “zero-rating” programs, such as T-Mobile’s Binge On, which exempt some sites, apps, and services from monthly data caps. Obama’s FCC allowed Binge On, since T-Mobile continued welcoming new video services. California’s law seems to require blanket access for all similar apps without a wait for the ISP to add them. “It can be allowed if it is about a certain class [of content], like you could have when you’re doing games,” says Wiener about zero-rating. “If they say we’re going to apply it to a category, not any one product, and all comers, then it’s not automatically illegal."

The bill is also more resilient to any efforts by the Trump and Ajit Pai FCC to hinder state efforts to protect consumers. Whereas many states are just regurgitating the FCC's 2015 rules in their own proposals, that alone isn't enough to protect them from potential FCC preemption, argues Barbara van Schewick, Professor of Law at Stanford Law School, and the Director of Stanford Law School’s Center for Internet and Society. She also argues that the FCC shot its state preemption efforts in the foot by rolling back the classification of ISPs as common carriers under Title II of the Telecommunications Act:

"The bill is on firm legal ground.

While the FCC’s 2017 Order explicitly bans states from adopting their own net neutrality laws, that preemption is invalid. According to case law, an agency that does not have the power to regulate does not have the power to preempt. That means the FCC can only prevent the states from adopting net neutrality protections if the FCC has authority to adopt net neutrality protections itself.

But by re-classifying ISPs as information services under Title I of the Communications Act and re-interpreting Section 706 of the Telecommunications Act as a mission statement rather than an independent grant of authority, the FCC has deliberately removed all of its sources of authority that would allow it to adopt net neutrality protections. The FCC’s Order is explicit on this point. Since the FCC’s 2017 Order removed the agency’s authority to adopt net neutrality protections, it doesn’t have authority to prevent the states from doing so, either."

More simply, the FCC shot itself in the foot, and when it neutered its own authority over ISPs at Comcast, AT&T and Verizon's behest, it managed to also neuter its authority to pre-empt states from filling the void. Of course this could all be moot if the FCC loses its battle in court, but it's amusing all the same, and it's another example of how Ajit Pai and friends didn't really think this whole thing through.

While ISPs have whined incessantly about the headaches of having to adhere to multiple discordant net neutrality rules, that's not quite as big of a problem as they claim (especially since they already adhere to numerous rules governing phone, broadband and TV, which can vary town to town). Most of these new state laws follow the same effective template, and Wiener's office says it will work with numerous states to help them mirror California's efforts. All told, if consistency and stability were really the goal of AT&T, Verizon and Comcast lobbyists, they should have left the popular federal protections alone.

Filed Under: ajit pai, california, fcc, net neutrality, pre-emption, scott wiener, states rights

Telecom Lobbyists Whine About State Net Neutrality Efforts They Helped Create

from the this-is-on-you dept

In the wake of the FCC's extremely-unpopular repeal of net neutrality, more than half the states in the country are now pursuing their own net neutrality rules. Some of these efforts are taking the form of actual legislation that closely mirrors the discarded FCC rules (as seen in Oregon and Washington), while others involve the creation of executive orders adjusting state policies to ban states from doing business with ISPs that engage in anti-competitive net neutrality violations. In most instances these rules carve out vast exemptions for "reasonable network management," only outlawing anti-competitive behavior.

ISPs have of course been quick to whine about the unfairness of having to adhere to 50 different rules governing net neutrality, even though most implementations closely mirror the FCC rules these same lobbyists just successfully killed. US Telecom, a lobbying organization primarily managed by AT&T, lamented the unfairness of this scenario in a conversation with the Washington Post:

"As we have cautioned repeatedly, we simply cannot have 50 different regulations governing [broadband],” said USTelecom, a major trade association for Internet providers. “It’s time for Congress to step up and enact legislation to make permanent and sustainable rules governing net neutrality."

So one, most of the state-level rules closely mirror the same rules the FCC is trying to eliminate, so most of them are fairly uniform. It's also worth pointing out that these companies already have to navigate a vast array of regulations governing phone, cable and broadband service -- rules that can often vary town by town. In other words, these net neutrality efforts aren't as uncommon, discordant and fractured as the telecom industry might have you believe.

Granted having disparate state-level protections may in some ways be cumbersome, but that's again something ISPs like AT&T, Verizon and Comcast should have thought a little harder about before killing extremely popular and modest (by international standards) federal protections. Large ISP lobbyists created this mess and, unsurprisingly, they're simply refusing to own it.

US Telecom is also being disingenuous in claiming to want "permanent and sustainable rules" via new legislation. As we've noted several times, what they really want is a net neutrality law they know they'll write. One that prohibits ISPs from doing things they never intended to do (like blocking websites entirely), while carving out vast loopholes allowing anti-competitive behavior on numerous other fronts (zero rating, interconnection). The real goal: pass flimsy legislation that pre-empts tougher state rules, or future efforts by the FCC or Congress to implement meaningful protections.

ISPs like Comcast and Verizon successfully lobbied the FCC to include language in its net neutrality repeal banning states from protecting consumers ("states rights" and all that). But the FCC's legal authority on this front is untested, setting up some interesting legal showdowns in the weeks and months to come. And while this too is going to generate ridiculous costs predominately in the form of billable hours, blame for this needs to be placed where it belongs: in the laps of ISP lobbyists and revolving door regulators that thought ignoring the facts and the public interest would be a wonderful idea.

Filed Under: fcc, net neutrality, states rights
Companies: comcast, us telecom, verizon

Cable's Top Lobbyist Again Calls For Hyper Regulation Of Silicon Valley

from the Google-is-the-real-villain dept

For years telecom monopolies have downplayed the lack of competition in the broadband sector, and the chain reaction of problems this creates for everybody (from privacy infractions to net neutrality violations). At the same time, large ISP lobbyists (and the regulators, politicians and policy flacks paid to love them) have insisted that it's Silicon Valley companies the public really need to worry about. As a result, ISPs like Comcast and AT&T routinely insist that we need new regulations governing companies like Google and Facebook, but entrenched natural monopolies should be allowed to do pretty much whatever they'd like.

This of course requires you ignore a few things. One, that the lack of competition in broadband makes the two sectors an apples to oranges comparison. Customers frustrated by Facebook's bad behavior can vote with their wallets, something most Comcast customers can't do. You're also supposed to ignore the fact that large ISPs are simply trying to saddle Google and Facebook with additional regulation because they're increasingly trying to challenge them for advertising revenue in the video and media space.

This underlying narrative is constant, whether it's FCC boss Ajit Pai weirdly demonizing Netflix, to telecom-industry funded smear campaigns that try to suggest Google is a nasty freeloader that doesn't pay for bandwidth. Speaking at a sector trade show in Ireland this week, former FCC boss turned top cable lobbyist Michael Powell dusted off this rhetoric and turned up the volume. He began by insisting the quest for a healthy and open internet was "irrelevant" because the real villains are Silicon Valley companies hungrily gobbling up "mindshare":

"Michael Powell, president of NCTA-The Internet & Television Association, told the crowd at a Cable Congress Dublin event in Ireland Tuesday (March 6) that the network neutrality debate sucks up money, resources and "mindshare," but is increasingly an irrelevant discussion.

What isn't irrelevant, he suggested, is for governments in the U.S. and abroad to start looking at tech companies/edge providers like Facebook, their size and power, and the harm they can do to mental health by keeping consumers chasing the dopamine rush of "likes" and "streaks" as a way to glue them to devices.

Right. So again, notice how some of the most despised and least competitive companies in America aren't a problem and should be free from regulation, but Facebook and Google (which again, consumers can choose not to use) require vast expansions in regulatory oversight. Powell, whose tenure at the FCC consisted of comically denying any competition issues whatsoever, repeatedly called out Apple, Facebook and Google as the worst sort of villains; villainy that somehow, magically, makes the whole net neutrality conversation moot:

"They have the size, power and influence of a nation state. Antitrust policy has barely begun to address how to check this power to protect consumers and healthy competition."...He called the net neutrality debate "mindless trench warfare" and said that, as in the First World War, Democratic and activist cries that the battle for an open internet was a war to end all wars would prove wrong.

"Net neutrality policy does not remotely address the issues companies and consumers are facing today and likely will face in the future," Powell said. "Put simply, net neutrality is deeply rooted in engineering, consumer expectations, corporate business models and the norms of internet activity. It is firmly entrenched, and I don’t believe the open internet experience will change, whatever the outcome of the current debate."

So one, Comcast owns NBC and is considering a $31 billion acquisition of European satellite TV provider Sky, so it's not clear Powell's the guy to turn to when talking about media consolidation worries. Two, the idea that the "open internet experience" won't change if ISPs are successful in their current bid to gut FTC, FCC and state authority over natural monopolies is simply comical. History is filled with endless examples of how a lack of competition or reasonable regulatory oversight of natural monopolies results in higher prices and worse service. In telecom this lack of competition is already profound, routinely exemplified by everything from privacy violations to net neutrality infractions.

That's not to say that companies like Facebook and Google don't have their own universe of issues. Both were totally absent from the latest net neutrality fight as they slowly but surely shift from innovation and disruption to turf protection. And there's countless conversations to be had regarding their privacy practices and the country's ugly little disinformation problem.

But despised monopolists like Comcast calling for hyper-regulation of companies they're trying to compete with is pretty damn hard to take seriously. When Powell wasn't busy trying to insist that companies like Facebook were to blame for the nation's mental health issues, he was was hypocritically giving the audience lessons on anti-competitive behavior and a respect for consumer privacy:

"Our governmental authorities need to get a handle on what kind of market power and harm flow from companies that have an unassailable hold on large pools of big data, which serve as barriers to entry, allowing them to dominate industries throughout the economy," he said. "For years, big tech companies have been extinguishing competitive threats by buying or crushing promising new technologies just as they were emerging," he said. "They dominate their core business, and rarely have to foreclose competition by buying their peers. "Competition policy must scrutinize more rigorously deals that allow dominant platforms to kill competitive technologies in the cradle," he added.

If you've watched the companies Powell represents do business, that's pretty funny. As is Powell's claim that Silicon Valley giants have too much influence over government, a claim made just a few months after revolving door regulators sold out the public on net neutrality:

"We have reached a point where governments can no longer coddle and cater to tech companies," he said. "They have become too large, too influential and too indispensable to live above regulatory scrutiny. As a start, we need to reject the 'do no evil' fairytale." These companies must be brought back down to earth and regulators must recognize them for what they are: profit-maximizing corporations that have a strong incentive and ability to pursue their own self-interest over the interests of society and consumers."

Oh no! You mean just like Comcast, and Charter Spectrum? In the heads of many telecom executives, the quest for net neutrality (despite having massive support from the public) was all one mean cabal by Google designed to ruin their good time. But despite this breathless concern for consumer and market welfare, this hysteria serves only one real purpose: to saddle companies Comcast wants to challenge for advertising "mindshare" with numerous additional regulations, while leaving entrenched telecom monopolies free to run amok.

Filed Under: antitrust, broadband, competition, michael powell, net neutrality, regulation
Companies: at&t, comcast, facebook, google, ncta

After Chat With Ethics Lawyers, FCC Boss Declines NRA Gun Award For Killing Net Neutrality

from the good-call,-hoss dept

Last month you might recall that the NRA gave FCC boss Ajit Pai the Charleton Heston Award for Courage for his decision to dismantle popular net neutrality rules. The tone-deaf celebration was a pretty hollow attention seeking move, but was also an ouroboros of blistering idiocy. One, the NRA appears oblivious to the fact that net neutrality rules would have helped it as well, since the entire point is to ensure the internet is a level playing field for all competitors and voices. Net neutrality protects free speech (even speech you don't agree with), something you'd think the folks at the NRA would be able to appreciate.

Two, there's simply nothing courageous about teaming up with Comcast to screw over the public and the nation's small businesses and startups. Pai's decision is widely derided as the dumbest decision in the history of modern tech policy. And while ISPs like to frame net neutrality as partisan to sow division and prevent meaningful rules, surveys repeatedly indicate the rules had broad bipartisan support.

It didn't take long for ethics experts to point out that the award and the NRA's gift to Pai (a Kentucky long rifle) was over $200 and therefore violated ethics rules and lobbying restrictions:

After a chat with FCC ethics lawyers, Pai appears to have finally realized that accepting the award probably wouldn't be a particularly bright idea. As such, Pai wrote a letter to the NRA declining the gun while insisting this whole thing simply caught him by surprise:

"As you know, once my staff became aware of what was happening, they asked backstage that the musket not be presented to me to ensure that this could be first discussed with and vetted by career ethics attorneys in the FCC’s Office of General Counsel," Pai wrote, according to an FCC source who relayed the text of the letters.

“Therefore, upon their counsel, I must respectfully decline the award,” he wrote. “I have also been advised by the FCC’s career ethics attorneys that I would not be able to accept the award upon my departure from government service."

Of course Pai and his staff could have rejected the award at any point (the award occurred on February 23), but then they wouldn't have been able to enjoy all the yucks at the expense of startups, consumers, and the health of the internet. From stem to stern this was just a PR disaster, and you couldn't have paid a fiction author to craft a dumber, more absurd narrative. And while those behind the effort likely believe they were being clever trolls, Millennial voters likely got a decidedly different impression from the tone-deaf gala.

Filed Under: ajit pai, awards, ethics, fcc, net neutrality, nra
Companies: nra