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Net Neutrality

Comcast-BitTorrent, Wireless Net Neutrality Issues Stir Debate at Broadband Policy Summit

June 14 – Critics and proponents of Network Neutrality squaring off on the topic on Friday agreed that recent actions by both cable and wireless providers had had re-vivified the debate about the topic.

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WASHINGTON, June 14 – Critics and proponents of Network Neutrality squaring off on the topic on Friday agreed that recent actions by both cable and wireless providers had had re-vivified the debate about the topic.

Comcast’s actions blocking upsteam traffic using the peer-to-peer program BitTorrent – currently under investigation by the Federal Communications Commission – continued to be a source of controversy between the cable industry and Net Neutrality advocates.

The debate, “Net Neutrality: It’s Back Again!”, took place at the Broadband Policy Summit IV, sponsored by Pike and Fischer.

Gigi Sohn, President of the non-profit group Public Knowledge, blasted Comcast’s practice, and the company’s response, after the Electronic Frontier Foundation and the Associated Press reported about its tactics, last fall.

Comcast “lied about it, and they continue to lie about it,” said Sohn.

Dan Brenner, senior vice president of law and regulatory policy for the National Cable and Telecommunications Association (NCTA), didn’t respond directly. He did concede, however, that because of the work of non-profit groups like Public Knowledge and Free Press, “a lot of things have heated up” for the cable industry on Net Neutrality.

However, said Mike McCurry, partner of Public Strategies, which runs the AT&T-funded group Hands Off the Internet, said “Nothing has moved forward, in my mind, to suggest that we need to immediately move forward to rulemaking” in favor of Net Neutrality.

McCurry also said that consumers are closely watching the actions of network providers. “Any discrimination that flies in the face of [Net Neutrality] principles is instantly noted and debated.”

To that, Ben Scott, policy director for Free Press, replied: “Do you know how long the forged packet resets were being deployed” by Comcast before they were discovered?

Scott said that Free Press, which was joined by Public Knowlege in filing the petition against Comcast that is currently under consideration by the FCC, was likely to go to court if the FCC does not fine Comcast.

However, the most substantive disagreement of the morning came over the state of wireless Net Neutrality.

Brian Bieron, senior director of federal government affairs for eBay, went mano-o-mano with Christopher Guttman-McCabe, vice president of regulatory affairs for CTIA, the cellular telecommunications association.

Web auctioneer EBay owns Internet telephone Skype, and has sought guarantees from the FCC that Skype-style applications will be free to run on the wireless data networks of cellular carriers. An vote on eBay’s petition at the FCC was expected to have been made last Thursday, but delayed.

Bieron said that “the cellular network is a network that is more closed; the gatekeeper role is accepted [and] many carriers do not guarantee openness” in the applications and services that they offer.

Guttman-McCabe countered: “To say that this market is not moving forward and developing is a staggering comment.”

“Third party developers in the cellular world essentially don’t exist,” replied Bieron. Who are the Yahoos, Google and eBays of the cellular world?

What about T-Mobile, countered Guttman-McCabe? Why can’t T-Mobile be the application provider?

Because “T-Mobile is a network provider,” said Bieron.

Guttman-McCabe had also noted that Google and Skype both have applications on the Blackberry, among other wireless devices.

The two men also disagreed about the nature of competition in the wireless market. Guttman-McCabe cited Apple as an example of a vibrant new entrant. Speaking about the fact that Apple’s iPhone is available only on a single wireless carrier’s network, he continued: “People blamed that on AT&T, [but] Apple did that in about 20 other countries. Apple wanted that exclusivity.”

“I think that is what makes the market interesting” and vibrant, said Guttman-McCabe; witness Verizon attempting to turn a new LG phone into “an iPhone killer.”

These may be examples of competition, replied Bieron, but “in the Internet world, you don’t have a company like Apple signing a deal with broadband providers. In the future, we might, it is just a different [world].”

Guttman-McCabe had the last word of the debate, however: “The foundation [of Bieron’s statement] was that [the marketplace] was closed, and I challenge that.”

Also participating in the morning panel was Kathryn Brown, senior vice president of public policy development and corporate responsibility for Verizon Communications. She agreed with Guttman-McCabe that “the world is changing” and that wireless innovation is happening dramatically.

She also said that Verizon is willing to participate in open-forum discussions — to which groups like Public Knowledge would be invited — to discuss standard-settings for wireless devices.

With regard to the Comcast fiasco, Brown said that “Verizon is building capacity on the network to 100 Megabits per second.” While not disavowing the need for network management, she said that Verizon was more about “manag[ing] more capacity, not less capacity.”

She also said that Verizon had agreed not to impede or block traffic on the network, and also that “consumers need to get what they pay for” with regard to broadband service. “They need to know what they are getting” in terms of their speed and service offerings.

Net Neutrality

FCC’s Simington Welcomes Congressional Action on Net Neutrality

The commissioner prefers going the route of legislation over Democratic FCC commissioners leading the charge for neutrality protections.

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Photo of Federal Communications Commissioner Nathan Simington, left

WASHINGTON, June 1, 2022 – Federal Communications Commissioner Nathan Simington said last week he would welcome congressional legislation to address debates over policy on net neutrality that continue to rage as the commission considers provisions that would protect the principle.

In a keynote address at an event Thursday on net neutrality hosted by think tank The R Street Institute, the Republican commissioner — who has opposed the net neutrality provisions imposed in 2015 by the commission under the former President Barack Obama – indicated he would prefer legislative action on net neutrality policy to proposals of Democratic FCC commissioners to regulate it through policy of the commission.

“Personally I would welcome congressional action to put this issue to rest,” said Simington, “I think a good law would focus on preventing blocking.”

Under the administration of former President Donald Trump, the FCC had in 2017 reversed the Obama-era net neutrality provisions, which prevented internet service providers from having a hand manipulating the data traffic over their networks to do things like provide faster or free access to certain applications.

Simington’s comment is significant for two reasons: because it comes after FCC Chairwoman Jessica Rosenworcel told lawmakers earlier this year that she is committed to the idea of the restoration of net neutrality principles; and because the commission is on the cusp of a Senate-approved fifth commissioner in Democrat and net neutrality advocate Gigi Sohn, which would break the 2-2 party split and would signal less friction when approving the Democratic agenda.

Thursday’s event also featured a panel that discussed issues such as whether a new agency must be created to deal with issues of net neutrality or whether an existing body such as the Federal Trade Commission can fulfill that role.

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Net Neutrality

Ninth Circuit Court of Appeals Denies Efforts to Eliminate California Net Neutrality Law

A coalition of telecommunication trade associations were unable to sway the court.

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Photo of FCC Chairwoman Jessica Rosenworcel

April 20, 2022 – The U.S. Court of Appeals for the Ninth Circuit on Wednesday denied the efforts of telecommunications trade groups to to rehear its prior decision upholding California’s 2018 net neutrality law.

In January, the court turned back industry trade groups, including US Telecom, the cable industry groups NCTA and ACA Connects, and the wireless association CTIA, who had sought to overturn California’s SB 822 on the grounds that the Federal Communications Commission federal rules on net neutrality conflict with California’s state level rules.

Then, the appeals court found that because the FCC determined – in a prior ruling during the Trump administration – that it no longer had authority over broadband consumer protection, California’s broadband consumer protection law could go into effect.

On Wednesday, the appeals court refused to reconsider whether the California law had been preempted by the FCC’s decision.

In January 2018, the FCC – administered by then-Commissioner Ajit Pai – rescinded rules put in place in 2015 by the Obama administration that had reclassified broadband services from “information services” to “telecommunication services.” The latter category is subject to far more regulations.

Later that year, California passed SB 822, putting net neutrality requirements in place for California consumers, even after the rules had been gutted at the federal level by the FCC.

On the federal level, the D.C. Circuit Court of Appeals upheld the Trump administration’s removal of net neutrality requirements in October 2019. Although the Pai FCC’s reclassification was largely upheld by the D.C. circuit court, the victory was tempered by the court’s decision, by a two-to-one margin, to vacate the FCC’s having purported to preempt “any state or local requirements that are inconsistent with [the FCC’s] de-regulatory approach.”

In a tweet about Wednesday’s ruling, FCC Chairman Jessica Rosenworcel said:

  • The 9th Circuit just denied the effort to rehear its decision upholding California’s #netneutrality law. This is big. Because when the FCC rolled back its open internet policies, states stepped in. I support net neutrality and we need once again to make it the law of the land.

“As expected, the 9th U.S. Circuit Court of Appeals has rejected yet another attempt by internet service providers to overturn California’s strong net neutrality law,” said John Bergmayer, Legal Director at Public Knowledge.

“The California net neutrality law is now undefeated in court after four attempts to eliminate it,” he said. Net neutrality protections nationally continue to be common sense and popular with the public among all ideologies. It’s good news that Californians will continue to enjoy this important consumer protection, and we look forward to a full Federal Communications Commission restoring net neutrality nationwide.”

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Net Neutrality

Federal Appeals Court Upholds California’s Net Neutrality Rules

The ruling prevents internet providers in the state from abandoning net neutrality for broadband customers.

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Photo of Mary Schroeder, Chief Judge of the Ninth Circuit Court, from the May 2006 Swarthmore commencement address

January 28, 2022 – The Ninth Circuit Court of Appeals on Friday ruled against broadband companies seeking to block a state net neutrality law, and internet policy advocates are calling it a win for consumers in California.

The ruling comes after industry trade groups, including US Telecom, the cable industry groups NCTA and ACA Connects, and the wireless association CTIA, sought to overturn California’s law on the grounds that the Federal Communications Commission’s now-abandoned federal rules on net neutrality conflict with California’s state level rules.

The court found that because the FCC determined – in a prior ruling during the Trump administration – that it no longer had authority over broadband consumer protection, California’s broadband consumer protection law could go into effect.

SB 822, or the California Internet Consumer Protection and Net Neutrality Act of 2018, restricts internet service providers from some activities. For example, the state law prevents paid prioritization, or agreements that would optimize data transfer rates large companies including Facebook, Google and Netflix.

The law also prohibits so-called “zero-rating” practices that some believe exploit consumers by allowing free access to some services but not others.

John Bergmayer, legal director at Public Knowledge, called the ruling a “great decision and a major victory for internet users in California and nationwide.”

“When the FCC has its full complement of commissioners, it should put into place rules at least as strong as California’s nationwide, making some state measures unnecessary. But even after that happens, this decision clarifies that states have room to enact broadband consumer protection laws that go beyond the federal baseline.”

But Randy May, president of the Free State Foundation, said “like a lot of Ninth Circuit decisions, it is arguable that the court got the law wrong regarding whether California’s net neutrality law is preempted. Given the inherently interstate nature of today’s tightly integrated broadband internet networks, there’s a good chance that other circuits might reach a different conclusion regarding preemption.

May said that the risks of a patchwork of state regulations “should prompt Congress to resolve the decades-old net neutrality controversy by adopting a new law that prevents consumer harm while recognizing the technologically dynamic nature of today’s Internet ecosystem.”

The opinion was authored by Ninth Circuit Chief Judge Mary Schroeder and joined by Judge Danielle Forrest with a concurrence by Judge J. Clifford Wallace.

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