Uphill Effort To Reverse Net Neutrality Repeal Has The Early Votes

from the reverse-the-reversal dept

As we've been tracking, there are several routes net neutrality advocates should support if they want to reverse the FCC's attack on net neutrality. The best path forward remains with the courts, where the FCC will need to explain why it ignored the public, the experts, 1,000 startups, and all objective data as it rushed to give a sloppy kiss to Comcast, AT&T and Verizon. It will also need to explain why it made up a DDOS attack and blocked a law enforcement investigation into rampant comment fraud during the proceeding; both apparently ham-fisted attempts to downplay legitimate public opposition to the plan.

But we've also noted how there's an effort afoot by net neutrality advocates and Senator Ed Markey to use the Congressional Review Act to overturn the FCC's vote. Under the CRA, Congress can overturn a regulatory action with a majority vote if the Act is used within 60 days of said action. It's what the Trump administration and the GOP used early last year to kill broadband privacy protections before they were scheduled to take effect.

Bringing such a vote to the floor requires at least 30 members of the Senate, something net neutrality advocates now have with the new support of Claire McCaskill:

And while net neutrality supporters are enthusiastic about the CRA route, even with these votes it has a steep, uphill climb to success. The CRA reversal would require the signature of President Trump, which isn't going to happen. And getting House floor time for a comparable vote is likely untenable given the steeper GOP majority in the house. As we've long noted, this binary thinking of net neutrality as a partisan issue is a disservice to the public, since the vast majority of voters support net neutrality and opposed the FCC's handout to industry.

That said, there's still real value in forcing Comcast-loyal lawmakers to put their disdain for the public down on the permanent record. Especially given the looming midterms, when countless politicians will have to explain (espcially to more tech-savvy Millennial voters) why they chose to ignore the will of the public just so Comcast, AT&T and Verizon could explore new, creative ways of screwing over small businesses, startups, consumers, and the health of the internet.

Filed Under: congress, congressional review act, cra, fcc, net neutrality

California The Latest State To Propose Its Own Net Neutrality Rules

from the states-rights...or-not... dept

As we've been trying to help people understand, the FCC's repeal of net neutrality goes well beyond just killing net neutrality. The agency's "Restoring Internet Freedom" order not only guts FCC authority over broadband providers, but attempts to shovel any remaining oversight to the FTC. An FTC whose own authority over ISPs is already very limited, and which could be eroded almost completely if AT&T wins an ongoing court battle against the agency (this fact is conveniently forgotten by the small minority of folks still barking support for this historically-unpopular plan).

The goal is to eliminate nearly all meaningful federal oversight of uncompetitive telecom duopolies. But both Verizon and AT&T also successfully lobbied the FCC to include language banning states from trying to protect consumers from monopoly market abuses, whether they take the form of net neutrality violations, misleading pricing, hidden fees, or a rotating crop of privacy violations.

But the incumbent ISP stranglehold over state legislatures is so severe, this tends to be an uphill battle. Case in point: California recently tried to pass a new, EFF-approved privacy law in the wake of the GOP assault on FCC rules, only to have it scuttled by ISP lobbyists, who convinced state lawmakers that the proposal would somehow "increase popups" and "aid extremists." In reality the proposal was relatively modest, mirroring the deceased FCC proposal requiring ISPs disclose what data is being collected and sold (and to whom), while requiring they provide working opt out tools.

California's back again to try the same thing with net neutrality.

Unfortunately right now the proposal by California state Senator Scott Weiner is little more than a placeholder (pdf), but it tries to detail how California will tackle ISPs that violate net neutrality. Since the FCC repeal "pre-empts" states from passing their own net neutrality protections, states like Washington and New York have instead looked toward punishing bad actors like Comcast in other ways. Like restricting access to utility poles, rights of way, or government contracts to companies that repeatedly engage in anti-competitive, anti-consumer behavior. From the proposal:

"Under existing law, the Public Utilities Commission has regulatory authority over public utilities, including telephone corporations. Pursuant to its existing authority, the commission supervises administration of the state's telecommunications universal service programs. The Digital Infrastructure and Video Competition Act of 2006 establishes a procedure for the issuance of state franchises for the provision of video service, defined to include cable service and open-video systems, administered by these commissions.

The bill would state the intent of the Legislature to enact legislation to effectuate net neutrality in California utilizing the state's regulatory powers and to prevent Internet service providers from engaging in practices inconsistent with net neutrality...

There's of course several potential pitfalls here. One, the real issues will arise when California begins trying to define what net neutrality is. As we saw on the federal level in 2010 and 2015, lobbyists are immeasurably successful at using the complex technical nature of net neutrality to their advantage, convincing Luddite lawmakers to include so many loopholes as to make the rules useless. ISP lobbyists will likely work overtime to either water down the bill's language to the point of absurdity, misrepresent what the bill does (as they did with privacy), or bombard the state with lawsuits (likely all three).

And that's of course California. There's countless states where companies like AT&T and Comcast quite literally own state legislatures and most telecom regulators (Tennessee comes quickly to mind). States where similar laws will never be passed or enforced, creating huge oversight gaps for companies with thirty-years of documented anti-competitive history.

That's why, again, the best path forward to protecting net neutrality remains in hoping the courts get it right, and reverse the FCC's repeal for being "arbitrary and capricious," ignoring the public welfare, and turning a blind eye to shady comment period fraud. Not that states shouldn't try to protect consumers, but without rooting out state-level telecom influence and corruption first, passing meaningful state-level net neutrality protections -- then seeing consistent enforcement -- remains a long shot.

Filed Under: california, fcc, net neutrality, states rights

Supporters Aim To Use Net Neutrality To Bludgeon Cash-Compromised Lawmakers In The Midterms

from the enjoy-the-backlash dept

We've already noted that the best route for killing the FCC's recent attack on net neutrality rests with the courts. Once the repeal hits the Federal Register in January or soon thereafter, competitors and consumer groups will be filing multiple lawsuits against the FCC. Those lawsuits will quite correctly note how the FCC ignored the public, relied on debunked lobbyist data, ignored the people who built the internet, and turned a blind eye to rampant fraud during the comment proceeding as it tried to rush through what may just be the least popular tech policy decision in a generation.

The hope will be to highlight that the FCC engaged in "arbitrary and capricious behavior" under the Telecommunications Act by reversing such a popular rule -- without proving that the broadband market had dramatically changed in just the last two years. They'll also try to claim that the FCC violated the Administrative Procedure Act, and even went so far as to block law enforcement investigations into numerous instances of comment fraud during the open comment period.

There is, however, another less likely route toward stopping the FCC's repeal of net neutrality. Since the vote, net neutrality advocates have been trying to pressure lawmakers into using the Congressional Review Act to roll back the FCC's repeal. Under the CRA, Congress has the ability to dismantle a regulatory decision with a vote on the hill, provided it's done within 60 days of the original regulatory decision. It's how the Trump administration killed broadband privacy rules earlier this year that were passed under the Wheeler FCC, and would have taken effect back in March.

Groups like Fight for the Future have been pushing hard to get enough Senators on board to reach the thirty-vote threshold needed to bring a broader CRA vote to the floor (last I checked, they had around 29 lawmakers on board). As such they've launched a new Vote For Net Neutrality effort intended to drum up public support for the CRA vote, while publicizing the countless Senators that are now-mindlessly beholden to every whim of entrenched telecom duopolists. The group suggests that while the effort may be somewhat Sisyphean, it remains possible:

"In the Senate, we may only need one more Republican to vote for the CRA to get it passed, given that Susan Collins (R-ME) opposed the FCC plan and signalled openness to a CRA. In the House, we'll need about 20 Republicans to listen to their constituents and vote for the CRA. That's harder, but several Republican representatives have already criticized the FCC's vote, and given that more than 75% of Republican voters support net neutrality, it's doable."

While well intentioned, this ignores the fact that Trump would still need to vote to seal the deal and kill the FCC's repeal, something that isn't likely to happen given everything we've seen so far. But net neutrality advocates know that forcing Senators to clearly put their name to a vote against net neutrality could prove immeasurably beneficial as a political cudgel ahead of the looming midterms.

That's because as we've noted repeatedly, net neutrality has broad, bipartisan appeal among voters. After all, our collective disdain for Comcast (and what passes for Comcast customer service) is one of a few subjects that tends to bridge the partisan divide. It has only been framed as a partisan issue by ISP lobbyists looking to foment dissent and stall progress. As such, it would be foolish to think that the FCC's decision to kill net neutrality won't have a notable impact on voter behavior (particularly among Millennials) as we head into midterm season.

So while overturning the FCC's repeal in the courts remains the best option, finding ways to publicize the grotesque fealty many lawmakers have toward some of the most-hated companies in America still serves a purpose. As we've noted, a big part of the broadband industry's lobbying agenda for 2018 will be the passage of bogus net neutrality legislation that will claim to "put the issue to bed," but will be exclusively focused on making the FCC's unpopular decision permanent. Purging at least a few of AT&T, Verizon and Comcast's mindless footsoldiers from Congress could go a long way in keeping that from happening.

It feels naive in 2018 to think that we can ever purge enough of them to actually pass a meaningful net neutrality law without numerous, idiotic loopholes, but a notable shift in the makeup of Congress could still be helpful in stopping the broadband industry's attempt to replace all meaningful oversight of the uncompetitive broadband sector with the policy equivalent of wet tissue paper.

Filed Under: congress, congressional review act, cra, fcc, litmus tests, net neutrality

No, The Death Of Net Neutrality Will Not Be Subtle

from the in-your-face dept

If you listen to Comcast , AT&T, Verizon and their army of paid allies, nothing bad will happen now that the FCC has voted to kill net neutrality protections. In fact, Comcast argues, without government oversight of an uncompetitive market, investment and jobs will soon be miraculously springing forth from the sidewalks. It will, the industry argues, be impossible to even measure the incredible innovation that will be created by letting entrenched ISPs (and their natural monopoly over the broadband last mile) run roughshod over the backs of American consumers and smaller competitors.

But even among folks that support net neutrality, there's pretty clearly a contingent that still believes the damage caused by the repeal of the rules will somehow be subtle. Because the net neutrality debate in recent years wandered into more nuanced and quirky areas like interconnection and zero rating, they believe the ultimate impact of the repeal will likely be modest. After all, these harms (like Comcast exempting its own content from usage caps, or Verizon covertly choking interconnection points) were murky and out of the intellectual or technical reach of many Luddite consumers.

The good folks at Boing Boing, for example, warn readers that the impact of the death of net neutrality will somehow be "hard to spot." Julian Sanchez similarly shared his concerns that net neutrality advocates are harming the overall goal of the movement by warning of dire outcomes in the years to come. Actual harms, Sanchez insists, will be "pretty much invisible":

I suspect the doomsday approach to net neutrality is going to backfire badly. Because if the sophisticated neutrality arguments are right, the actual harms are all going to be pretty much invisible to the end user. The visible effects will be stuff people like.

— Julian Sanchez (@normative) December 15, 2017

Of course most of the folks that really understand net neutrality have acknowledged that the harms initially may be muted. ISPs will initially want to be on their best behavior in the new year as they wait for the inevitable lawsuits against the FCC (for ignoring the public and ignoring rampant comment fraud) to shake out, wary of providing the ongoing proceedings with any ammunition. And, as we've noted, ISPs are well aware that even then the rules could simply be recrafted at a later date, which is why they're pushing for a fake net neutrality law that makes federal apathy on the subject the law of the land.

But should ISPs win in the courts or on the Hill, the end result of what they're trying to accomplish will be anything but subtle. Anybody believing otherwise doesn't understand the full scope of what ISPs lobbyists are (so far successfully) up to here.

That's because the FCC didn't just repeal net neutrality. The repeal of the neutrality rules is, in fact, just one part of a much larger vision the ISPs have been lobbying for for years. And that vision includes gutting FCC oversight of broadband ISPs entirely, then shoveling any remaining oversight to an FTC whose authority over ISPs is currently being challenged in court and may soon be all but worthless. With federal oversight out of the way, ISPs have also successfully lobbied the FCC to pre-empt any states that get the crazy idea of protecting consumers from these regional telecom mono/duopolies.

Subtle, nuanced violations of net neutrality (like zero rating) were the end result of fairly tepid, inconsistent regulatory oversight of administrations' past. But what we're talking about here is the wholesale dismantling of adult regulatory oversight of some of the least-liked, least-competitive companies currently operating in America. Anybody that has studied history (or watched Comcast and AT&T do business) and still thinks the resulting harms will be subtle once adult supervision leaves the building simply doesn't understand the full scale of what's being attempted here.

As such, "net neutrality violations" will only be a small part of the problem. Net neutrality infractions are just a symptom of a lack of competition. They're just "creative" efforts to abuse a lack of competition. With neither oversight nor competition, there's no longer a need to be creative or measured. And the impact will be a diverse array of compounded problems, including higher prices, expanded and tightening usage caps and overage fees, even worse customer support (if that's possible for the telecom sector) and even greater privacy abuses than we've grown accostomed to.

Should Comcast, AT&T and Verizon successfully win in court and make the repeal permanent, all bets are off. History tells us repeatedly that the one-two punch of regulatory capture and limited competition has very real, very obvious harms. With no rules and little to no real oversight, there will no need for the pretense we saw as ISPs attempted to creatively tap-dance around the FCC's modest 2015 rules. If you think these companies will be reasonable and measured when they finally receive the green light, you may soon get a very intimate lesson in regulatory capture and natural monopolies.

That said, there remain reasons for hope. The FCC engaged in so much bizarre behavior, made so many procedural gaffes and leaned so heavily on bogus data that the repeal has a good shot at being overturned in the courts. And the subsequent efforts to have ISP cronies in Congress pass bogus net neutrality rules appear to be facing too much justifiable skepticism to gain much traction (though this effort will see a renewed push with multiple legislative efforts -- and lots of phony, farmed support -- in the new year). With a little luck and some elbow grease, the doomsday scenarios quite correctly being predicted may still not come to pass.

Filed Under: broadband, fcc, net neutrality
Companies: at&t, comcast, verizon

Now That The FCC Is Doing Away With Title II For Broadband, Will Verizon Give Back The Taxpayer Subsidies It Got Under Title II?

from the questions,-questions dept

Now that the FCC has done as it said it was going to do and declared that broadband internet is properly classified under Title I of the Communications Act, rather than Title II, I'm left wondering if taxpayers will be getting back all the subsidies that we provided Verizon, AT&T and others when they claimed that their broadband networks should be classified under Title II in order to qualify for those subsidies. You may recall that we wrote about this three years ago, highlighting multiple examples where Verizon specifically begged for Title II classification of its fiber-to-the-premise networks in multiple cities to guarantee that it would get these subsidies.

See, for example, Verizon begging to be classified under Title II in New Jersey.

Or how about something similar in Washington DC: in DC.

Somehow, I imagine that Verizon has no intention of paying back taxpayers for those benefits. I mean, why would it? This is the very same company that has repeatedly promised massive broadband deployment in exchange for subsidies, and then repeatedly failed to deliver and, when called on it, gets local politicians to drop the promises (but not the subsidies).

The Title II shell game appears to be more of the same. Make sure that its networks get declared as Title II to get the subsidies and tax breaks, then avoid any of the requirements/regulations of Title II, but keep all the benefits. Somehow I don't see FCC chair Ajit Pai being too concerned about all of this.

Filed Under: ajit pai, fcc, fiber, subsidies, title ii
Companies: verizon

New York State Eyes Its Own Net Neutrality Law

from the looming-legal-fisticuffs dept

Numerous states say they'll be crafting their own net neutrality protections in the wake of the FCC's recent vote to dismantle the rules. ISPs of course predicted this, which is why Comcast and Verizon successfully lobbied the FCC to include provisions in its "Restoring Internet Freedom" order that bans states from protecting consumers from privacy and net neutrality violations, or other bad behavior by incumbent ISPs. In ISP lobbying land, stopping states from writing protectionist law is an assault on "states rights," but when states actually try to help consumers you'll note the concern for states rights magically disappears.

Regardless, New York State, California and Washington have all indicated that they will attempt to test the FCC's state preemption authority on this front in the new year by crafting their own net neutrality legislation. You'll recall that the FCC already had its wrist slapped by the courts for over-reach when it tried to preempt states from passing anti-community broadband laws, quite literally written by large ISPs, intended to hamstring creative solutions (including public/private partnerships) for the telecom industry's broadband competition logjam.

But even if the FCC wins this new legal fight over state authority, folks like New York Assemblymember Patricia Fahy argue there's numerous steps states and cities can take to protect consumers on the net neutrality front without running afoul of the FCC's order. The text of her proposal (pdf) includes numerous proposals, including refusing to do business with companies that repeatedly violate net neutrality:

"If you are going to be a contractor and want to work with New York, then you must meet the principles,” Fahy tells Fast Company. She hopes that this approach will get around a roadblock known as preemption. The Constitution generally gives the federal government final authority over commercial activities that cross state lines. But while New York can’t require ISPs to uphold net neutrality, it can use its “power of the purse” to punish ISPs that don’t.

"There’s a decent amount of precedent for saying, if you want a state contract, you have to meet such and such requirements,” she says, noting construction contracts contingent on certain labor practices or the use of U.S.-made steel."

Again we'll see how this all pans out in the new year. States will likely face the same problem as the federal government did when trying to define net neutrality violations amidst a sea of ISP lobbying influence. Regardless, the FCC's battles with the states will be just one part of a cavalcade of lawsuits filed against the FCC in the new year for over-stepping its authority, ignoring the public, and rushing through what's potentially the least-popular decision in tech-policy history.

This same sequence of events played out earlier this year when the GOP and Trump administration rushed to kill consumer broadband privacy protections, resulting in numerous states attempting to create their own broadband privacy laws. And while Comcast, Verizon and AT&T lobbyists like to whine that states are wreaking havoc by creating discordant, inconsistent consumer protections, they tend to ignore the fact that this wouldn't be happening if they hadn't spent millions of dollars gutting popular, over-arching protections on the federal level.

Filed Under: broadband, competition, fcc, net neutrality, oversight, states, states rights