Net Neutrality’s Babes in Toyland

12 Mar 2015 | Author: | No comments yet »

Congress: What The FCC Did In 300 Pages, We Could Do In Six — ‘Without The Overreach’.

Over several years, leading lights of the Web—among them Netflix,Google and Tumblr—importuned the Obama White House to align itself with the cause of net neutrality. “Net neutrality,” like so many progressivist-y causes—climate change, health care for all—is a phrase designed to be embraced rather than understood. After a year of acrimonious wrangling, threats and an unprecedented online campaign, the Federal Communications Commission on Thursday finally released its new rules on regulating the internet.

Republicans in Congress charged with overseeing the FCC responded Thursday to the release of the agency’s aggressive Internet regulations, saying their congressional proposal would do a better job of protecting net neutrality with far less government interference. “The world finally gets to read and understand just what the White House, acting by proxy via a partisan FCC vote, has done to impose the federal government’s heavy hand to regulate the Internet as a utility,” South Dakota Republican Sen. The 313-page document is now being scrutinised by an army of communications lawyers as the cable and telecoms industry considers whether – or more likely when – to sue the regulator in the hopes of overturning the new rules.

The FCC released the 400-page document on Thursday, two weeks after it passed new regulations, which many fear will turn the internet into a public commodity and thereby stifle innovation. By classifying providers in this way, the FCC gives itself more power to mandate that providers treat all traffic flowing across their networks more or less equally. The introduction lays out the rapidly changing Internet landscape, the rise of giants like Netflix and Etsy, the shift toward over-the-top content services, the Oscar for Amazon’s “Transparent,” and more.

Providers may not prioritize certain services or applications over others, nor may they create “fast lanes” for those companies willing to pay to have their content delivered to consumers faster. Until now, the world only knew the rules’ general thrust: Broadband would be reclassified as utility, Internet Service Providers (ISPs) would be barred from prioritizing Web traffic and the FCC would override any state restrictions on municipal broadband.

The rules followed a call from Barack Obama for the “strongest possible” regulations to protect net neutrality – the principle that all services and information should have equal access to the internet. Greg Walden said in a statement Thursday following the release. (RELATED: FCC FINALLY Releases Net Neutrality Internet Regulations) Thune chairs the Senate Committee on Commerce, Science, and Transportation, Upton the House Committee on Energy and Commerce and Walden the House Communications and Technology Subcommittee. This evenhanded treatment of Internet traffic is what’s meant by the term “net neutrality.” What’s most surprising about the bill is the extent to which the FCC won’t regulate providers. The open Internet drives the American economy and serves, every day, as a critical tool for America’s citizens to conduct commerce, communicate, educate, entertain, and engage in the world around them.

Title II allows it to take measures such as setting retail rates and even mandating that providers lease (or “unbundle”) portions of their networks to competitors. One surprise is the FCC’s requirement that ISPs are “just and reasonable” when it comes to traffic transmission, and that potential violation cases will be decided on an individual basis. “Some things are going to play out in ways we won’t know for a while,” says J.G. Harrington, special counsel at Cooley LLP’s Regulatory Communications practice. “One example in the order…they talk about Verizon and what it was doing with customers with unlimited data plans where it was limiting the speed once you hit a certain point. But it must remain open: open for commerce, innovation, and speech; open for consumers and for the innovation created by applications developers and content companies; and open for expansion and investment by America’s broadband providers. The FCC cited streaming video initiatives by Dish Network Corp., CBS Corp. and Time Warner Inc.’s HBO as examples of innovation that blossomed under earlier open-Internet rules.

Verizon withdrew that service through that plan while this proceeding was pending, but the order doesn’t actually say if that would be illegal.” Now that the rules have been posted on the FCC’s website, they have to be published in the Federal Register, the daily journal of the U.S. government. The order also does not make specific rules about interconnect points – the places at which the networks of content providers meet those of broadband providers, such as Comcast and Verizon. ISPs will have 30 days to appeal, which they are widely expected to do. “Telecom lawyers in Washington popped the corks on the Champagne,” Roger Entner, telecommunications expert and lead analyst and founder of Recon Analytics in Boston, told The New York Times. “It will be at a least a hundred million in billable hours for them. Here, it uses some crucial terminology: Section 706 of the Telecommunications Act is what the agency had relied on as the grounding for its previous Open Internet Order, which was overturned by the courts.

Republican FCC commissioner Ajit Pai said he was “sad to witness the FCC’s unprecedented attempt to replace that freedom with government control”. Last year, Netflix paid large sums to both of those companies to be able to hook directly into their networks, bypassing the Internet backbone and avoiding congestion. Title II of the Communications Act gives the F.C.C. much broader powers, and by simply invoking it, it would be bringing the full authority of the agency to bear on Internet providers.

But it seems like companies that are pursuing their commercial interests including us have to arrive at something like that.” The Internet’s descent into the Washington heart of darkness is a perfect example of that famous Santayana-ism: Those who cannot remember the past are condemned to repeat it. He said the regulator was turning its back on 20-years of light regulation without justification. “We are flip-flopping for one reason and one reason alone: president Obama told us to do so,” he said. For our purposes, the personification of this forgotten wisdom would be David Karp, the 28-year-old founder of the Web’s popular blogging platform, Tumblr. It has received $2.2 million in donations from progressive billionaire George Soros’ Open Society Foundations and $3.9 million from the Ford Foundation.

The order does allow broadband providers to prioritize traffic in the interest of “reasonable network management,” but it imposed strict rules concerning what is and is not “reasonable.” Throttling an application that is slowing down network access for everyone during peak hours might be considered reasonable. And one of Free Press’ co-founders, Robert McChesney, a communications professor at the University of Illinois, Urbana-Champaign, has not been shy about his desire to see the internet regulated heavily. (RELATED: A Leading Net Neutrality Activist’s Neo-Marxist Views) “In the end, there is no real answer but to remove brick by brick the capitalist system itself, rebuilding the entire society on socialist principles,” McChesney wrote in a 2009 essay. “The news is not a commercial product. FCC officials sought to address charges that they were imposing “utility-style” regulation on the internet. “The order bars the kinds of tariffing, rate regulation, unbundling requirements and administrative burdens that are the hallmarks of traditional utility regulation. Since the commission vote, the text has undergone final edits to respond to the dissents of the two Republicans on the five-member agency led by Chairman Tom Wheeler, a Democrat. Once we accept this, we can talk about the kind of media policies and subsidies we want,” McChesney once argued. “The unthinkable has become thinkable, and the free-market Internet – one of freedom’s greatest triumphs – is set to be reduced to a public utility, subject to pervasive economic regulation and, in turn, to content control,” American Commitment’s Kerpen wrote in an open letter to McChesney after the FCC voted 3-2 in favor of the regulations.

McChesney, who is currently on Free Press’ board of directors, made a series of progressive proposals in a 2010 book, “The Life and Death of American Journalism.” He suggested spending $35 billion on federal subsidies for public media outlets. And in the paragraphs that follow, the F.C.C. suggests that expansion of broadband usage through both landlines and the broadcast spectrum requires expanded regulations. President Barack Obama welcomed the rules, saying they will protect innovation and “create a level playing field for the next generation of entrepreneurs.”

Karp and the rest of the 20-something and 30-something Peter Pans in the app development world should find their way to the 80-something communications lawyers and lobbyists retired in Florida for a tutorial on what it’s like trying to get Washington off your back once it has climbed on. The original proposal of Tom Wheeler, the F.C.C. chairman, envisioned basing the new net neutrality rules on Section 706, not Title II, but he immediately came under intense criticism. Briefly, in 1987 the FCC proposed partially deregulating its ancient control of long-distance telephone rates; and it proposed allowing more competition among AT&T, other national carriers and the regional Bell operating companies, or Baby Bells. Wheeler initially tried to remain within the narrower universe of Section 706 regulations, but he also called for suggestions and criticism, specifically including the possibility of using Title II. Iowa Utilities Board (involving, among other things, the “pick and choose” rule), Justice Antonin Scalia said the 1996 act “is in many important respects a model of ambiguity or indeed even self-contradiction.” For sure.

The Commission also asked about whether it should adopt other bright-line rules or different standards using other sources of Commission authority, including Title II. A congressional staffer called the law “a communication lawyer’s dream.” About the only faction unabashedly cheering the FCC’s capture of the Internet is the Occupy-everything left. The outpouring of public response to the F.C.C.’s initial proposal was extraordinary, especially after John Oliver, the HBO satirist, called on viewers to bombard the agency with critical emails.

Here, the F.C.C. is engaging in a kind of regulatory martial art: It is making a virtue of its own apparent unpopularity during that period by citing that criticism as a basis for the need to invoke Title II. Now that it is calling on Title II, it may need to lay the foundation for a future court battle, and it is doing so by explaining the reasons for the shift here and in some of the subsequent sections. Congress could not have imagined when it enacted the APA almost 70 years ago that the day would come when nearly four million Americans would exercise their right to comment on a proposed rulemaking.

Along the partisan divide, the Internet providers—AT&T, Verizon,Comcast—are seen largely as part of the Republican donor base, while the new Web companies and their high-asset employees trend Democratic for reasons, they say, of social conscience. Public input has “improve[d] the quality of agency rulemaking by ensuring that agency regulations will be ‘tested by exposure to diverse public comment.’” There is general consensus in the record on the need for the commission to provide certainty with clear, enforceable rules.

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