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Net Neutrality

European Union Takes Its Own Open Internet Stance

WASHINGTON, November 6, 2009 – While the U.S. takes steps to make so-called Network Neutrality principles mandatory under official rules, the European Union moved forward this week with its own set of internet access requirements. Under the proposed EU rules, “national telecoms authorities will have the powers to set minimum quality levels for network transmission services” so as to promote Net neutrality or “net freedoms” for European citizens.

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WASHINGTON, November 6, 2009 – While the U.S. takes steps to make so-called Network Neutrality principles mandatory under official rules, the European Union moved forward this week with its own set of internet access requirements.

Under the proposed EU rules, “national telecoms authorities will have the powers to set minimum quality levels for network transmission services” so as to promote Net neutrality or “net freedoms” for European citizens.

In addition, owing to new transparency requirements, consumers must be informed – before signing a contract – about the nature of the service to which they are subscribing. Such disclosures must include traffic management techniques and their impact on service quality, as well as any other limitations (such as bandwidth caps or available connection speed),” according to a document posted Thursday on the portal web site of the European Union.

The Net neutrality principles outlined above are part of a telecom reform package that members of the European Parliament and the EU Council of Ministers agreed upon this week following intense negotiations.

The reforms were originally proposed by the European Commission in November 2007, though the sections to “reinforce the neutral character of the internet” and an internet freedom provision, are both new. If the final text of the reform package is passed by Parliament and Council in the next eight weeks without amendments, the new rules could go into force in early 2010.

The Net neutrality section of the telecom package holds that the new rules will ensure that European consumers can choose among competing broadband service providers. “Internet service providers have powerful tools at their disposal that allow them to differentiate between the various data transmissions on the internet, such as voice or ‘peer-to-peer’ communication.

Even though traffic management may allow premium high-quality internet protocol TV services to develop and can help ensure secure communications, the same techniques may also be used to degrade the quality of other services to unacceptably low levels or to strengthen dominant positions on the market,” according to the EU document.

The European Commission said this week that it plans to continue to “keep the neutrality of the internet under close scrutiny and to use its existing powers as well as new instruments available under the reform package to report regularly on the state of play in net neutrality to the European Parliament and the Council of Ministers.”

EU Telecoms Commissioner Viviane Reding noted that “Under the reformed rules, the Commission will be Europe’s first line of defense when it comes to net neutrality.”

Last month in the United States, the Federal Communications Commission approved controversial proposed rules governing internet access. Meanwhile, a number of bills filed in Congress seek to either prevent or support Net neutrality regulation.

Net neutrality was not the only tough issue the EU has addressed in its reform package. Another important section has to do with a persons’ right to use the Internet until convicted of a crime. “Three-strikes-laws,” which could cut off internet access without a prior fair and impartial procedure or without effective and timely judicial review, will certainly not become part of European law,” clarified Reding.

Also in the telecom package are clauses concerning consumer rights, data security, and competition.

The consumer protection clause states that “names, email addresses and bank account information of the customers of telecoms and internet service providers, and especially the data about every phone call and internet session, need to be kept safe from accidentally or deliberately ending up in the wrong hands.”

The rules introduce mandatory notifications for personal data breaches for the first time in the EU and give internet service providers the right to take legal action against spammers.

The package makes it mandatory for European consumers to be able to change within one working day a fixed or mobile operator while keeping their old telephone number. Consumers cannot sign a new service contract with an operator for more than 24 months. The package further requires that consumers receive better information on the communications services they sign up for and that European citizens have better access to emergency services when using new technologies.

The rules seek to eliminate political interference in national telecom regulators duties and to protect “against arbitrary dismissal for the heads of national regulators.”

The legislative package would also establish a new European telecommunications authority and seeks to make radio spectrum available for wireless broadband services in areas where building a new fiber network is too expensive.

Winter covered technology policy issues for five-and-a-half years as a reporter for the National Journal Group. She has worked for USA Today, the Washington Times, the Magazine Group, the State Department’s International Visitor’s Program, and the Council on Hemispheric Affairs. She also taught English at a university in Tegucigalpa, Honduras.

FCC

GOP Congresswoman Says FCC Puts Politics Over the Law

‘Our founders provided Congress with legislative authority to ensure lawmaking is done by elected officials, not unaccountable bureaucrats.’

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Photo of Rep. Cathy McMorris Rodgers, R–Wash., obtained from Flickr.

WASHINGTON, October 28, 2022 – Rep. Cathy McMorris Rodgers, R–Wash., accused the Federal Communications Commission of politicized actions in excess of its statutory authority, in a letter sent in September and apparently released by the agency last week.

To prevent possible FCC overreach, McMorris Rodgers, the ranking member of the House Energy and Commerce Committee, asked FCC Chairwoman Jessica Rosenworcel to provide a list of pending and expected rulemakings, and the congressional authorizations therefor. Rosenworcel responded earlier this month in a letter released with the congresswoman’s original correspondence.

The Washington Republican wrote that the Biden administration has been overly reliant on executive orders and cited recent Supreme Court precedent as evidence. McMorris Rodgers highlighted the Environmental Protection Agency’s loss in West Virginia v. EPA, in which the Court invoked the “major questions doctrine,” a legal doctrine limiting of the executive branch’s ability to permissively interpret Congress’s statutory language. She also referenced the Court’s rejection of the Center for Disease Control’s eviction moratorium and the Occupational Health and Safety Administration’s vaccine or testing mandate.

“Our founders provided Congress with legislative authority to ensure lawmaking is done by elected officials, not unaccountable bureaucrats,” McMorris Rodgers wrote.

“I assure you the Committee and its members will exercise our robust investigative and legislative powers to not only forcefully reassert our Article I responsibilities, but to ensure the FCC under Democrat leadership does not continue to exceed Congressional authorizations,” she added.

Is net neutrality coming back?

In April 2021, McMorris Rodgers co-signed a letter with numerous congresspeople urging Rosenworcel to reject net neutrality, a policy supported by the chairwoman.

Today’s FCC is evenly split between Republicans and Democrats, one commissioner short of the standard five. President Joe Biden nominated Gigi Sohn for the fifth spot, but her nomination is stalled due to Republican opposition in the Senate. Since Sohn supports net neutrality, some experts believe the FCC may once again pursue the policy should Sohn be confirmed.

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Expert Opinion

Johnny Kampis: Democrats Needlessly Push Another Round of Net Neutrality Legislation

The Net Neutrality and Broadband Justice Act may harm the ability of broadband infrastructure to grow.

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The author of this Expert Opinion is Johnny Kampis, director of telecom policy for the Taxpayers Protection Alliance.

It ain’t broke, but Democrats keep trying to “fix” it.

July 28 saw the introduction of a bill to reimplement Title II regulations on broadband providers, paving the way for a second attempt at “net neutrality” rules for the internet.

Led by Sen. Ed Markey, D-Mass., along with co-sponsors Sen. Ron Wyden, D-Ore., and Rep. Doris Matsui, D-Calif., the comically named Net Neutrality and Broadband Justice Act would classify ISPs as common carriers and give the Federal Communications Commission significant power to regulate internet issues such as pricing, competition, and consumer privacy.

Markey claims that the deregulation of the internet under former FCC Chairman Ajit Pai left broadband consumers unprotected. But as data has shown, and Taxpayers Protection Alliance’s own investigation highlighted, no widespread throttling, blocking or other consumer harm occurred after the Title II rules were repealed.

Randolph May, president of the Free State Foundation, noted after Markey’s bill was released that nearly all service providers’ terms of service contain legally enforceable commitments to not block or throttle the access of their subscribers to lawful content.

Markey said his legislation, which would codify broadband access as an essential service, will equip the FCC with the tools it needs to increase broadband accessibility.

The country already has the tools it needs to close the digital divide, with billions in taxpayer dollars flowing to every state to boost broadband access. For example, less than $10 billion in federal funding was dedicated to broadband in 2019, but an incredible $127 billion-plus in taxpayer dollars will be dedicated to closing the digital divide in the coming years. That doesn’t even count the nearly $800 billion in COVID-19 relief and stimulus funding that could be used for multiple issues, including broadband growth.

The bill’s proponents say that the FCC can foster a more competitive market with the passage of the legislation. FCC’s data already indicate the market is extremely competitive, with 99 percent of the U.S. population able to choose between at least two broadband providers. That doesn’t even account for wireless carriers and their rapid development of 5G.

The Net Neutrality and Broadband Justice Act may instead harm the ability of broadband infrastructure to grow without funneling even more taxpayer money toward the cause. Studies have shown that private provider investment increased after the regulatory uncertainty of Title II rules were removed. Prior to the reversal of the 2015 Open Internet Order, broadband network investment dropped more than 5.6 percent, the first decline outside of a recession, the FCC reported.

US Telecom reported that capital expenditures by ISPs totalled $79.4 billion in 2020 and grew to $86.1 billion in 2021.

Michael Powell, president and CEO of NCTA – The Internet & Television Association, called the issue of net neutrality “an increasingly stale debate” with justifications for it that “seem increasingly limp.”

“In the wake of the once-in-a-lifetime infrastructure bill, we need to be focused collectively on closing the digital divide and not taking a ride on the net neutrality carousel for the umpteenth time for no discernable reason,” he said. “Building broadband to unserved parts of this country is a massive, complex, and expensive undertaking. Slapping an outdated and burdensome regulatory regime on broadband networks surely will damage the mission to deploy next-generation internet technology throughout America and get everyone connected.”

Again, the specter of Title II regulations rears its ugly head for no discernible reason other than the government’s insatiable need for control. The broadband market has proven itself as a market that functions better with a light-touch approach, so we hope that Congress says not to this misguided bill.

Johnny Kampis is director of telecom policy for the Taxpayers Protection Alliance. This piece is exclusive to Broadband Breakfast.

Broadband Breakfast accepts commentary from informed observers of the broadband scene. Please send pieces to commentary@breakfast.media. The views expressed in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC.

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Net Neutrality

Democrats Seek to Codify Net Neutrality as Fifth FCC Commissioner Hangs

Some say the bill would add heavy regulation that will harm investments and consumers.

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Photo of Senator Edward Markey (D-MA) during virtual press conference on Thursday

WASHINGTON, August 1, 2022 – Democratic Senators introduced Thursday a bill that would enshrine into law the concept of net neutrality, which would prevent internet service providers from tinkering with internet traffic, in a move that comes ahead of midterm elections that could alter whether the Federal Communications Commission gets its Democratic fifth commissioner to take unilateral action on the matter.

The Net Neutrality and Broadband Justice Act would give the FCC regulatory authority over broadband by classifying those services as Title II as defined in the 1934 Communications Act. Under Title II, the FCC would have greater regulatory muscle to make providers respect the principle of common carriage – that is, the traffic on their networks will not be throttled, sped up or given preference. Under the current light touch Title I – which was reinstituted by the 2017 commission under chairman Ajit Pai – the FCC does not have that authority, and the commission has previously been blocked by courts to bring net neutrality under Title I.

“My legislation would reverse the damaging approach adopted by the Trump FCC, which left broadband access unregulated, and consumers unprotected. It would give the FCC the tools it needs to protect the free and open internet, creating a just broadband future for everyone in our country,” Senator Edward Markey, D-Mass., said during a virtual press conference hosted by Public Knowledge on Thursday.

Markey noted that the majority of Americans and Republicans favor restoring net neutrality rules in the country.

Public Knowledge, an advocacy group for an open internet, was co-founded by Gigi Sohn, who was nominated by President Joe Biden to be the fifth FCC commissioner. The vote to confirm in the Senate has not happened yet, as some Republicans have complained about Sohn’s ability to be impartial on the commission.

“We’ve gone 544 days into the Biden administration without a fully functional agency. It’s time for Senate leadership to end this senseless delay and get the agency back to full capacity,” said Matt Wood, vice president of policy and general counsel at Free Press Action, in a press release welcoming the bill.

Reintroduction of bill comes as Sohn’s nomination to FCC appears to falter 

Sohn, who would be the party tiebreaker on the commission, would have bolstered the FCC’s chance to press for a reclassification of broadband services under Title II. But the longer a vote is not held, the less optimistic some say they are getting that a vote will be held before a midterm election in November that could flip the Senate red.

“Confirmation is still possible, but with the extended August recess and looming midterm election, there aren’t a lot of legislative days to get the job done,” said former FCC Chairman Richard Wiley at an event late last month.

Republican Commissioner Nathan Simington previously said that he would welcome congressional action on net neutrality – instead of an FCC vote on it.

“I have previously stated that the FCC’s 2015 Net Neutrality rules were the right approach,” said FCC Commissioner Geoffrey Starks in a press release. “That approach is undergirded by a voluminous record and overwhelming public support, and it has been tested in court. The Net Neutrality and Broadband Justice Act would codify just that,”

The bill comes after FCC Chairwoman Jessica Rosenworcel has repeatedly said that she believes net neutrality should be the guiding principle for the internet economy. Rosenworcel was defiant in her support of the principle in response to a letter from Republican representatives who encouraged her not to change her mind on it.

She added in a statement after the bill’s introduction that despite the FCC having the authority it needs to implement net neutrality, “legislation that helps ensure it is the law of the land is welcome.”

“For anyone who wants more innovation, more voices and less corporate control of the internet, net neutrality is an absolute no-brainer,” said Ron Wyden, D-OR, who co-introduced the bill. In 2018, Verizon admitted to throttling the wireless speeds used by California firefighters who were working on a large fire – one of the examples used to illustrate the imposition of such rules.

As such, California has gone its own way in lieu of inaction from Washington. The state won a court battle this year from broadband industry that challenged its own net neutrality law. The law made AT&T pull free sponsored applications to residents.

Critics of the net neutrality measure from the broadband industry

But broadband service providers and the commission that reversed net neutrality rules don’t see it that way. They say that regulations imposed by a net neutrality framework hinders innovation and competition in the market – including being able to provide free access to certain applications.

Michael Powell, CEO of trade association NCTA, said this bill will have a negative effect on closing the digital divide.

“In the wake of the once-in-a-lifetime infrastructure bill, we need to be focused collectively on closing the digital divide and not taking a ride on the net neutrality carousel for the umpteenth time for no discernable reason,” he said.

“Slapping an outdated and burdensome regulatory regime on broadband networks surely will damage the mission to deploy next-generation internet technology throughout America and get everyone connected,” said Powell.

The Wireless Internet Service Providers Association also came out against the bill, saying heavy regulation would hamper their ability to serve underserved areas of the country. “The bill’s Title II requirements would create real threats to their ongoing viability,” the release said.

“Net neutrality may be a mixed bag, but common carrier regulation would inhibit competition, private investment and innovation, and further confound the complex task of eradicating the digital divide,” it added.

Another trade group USTelecom said it is concerned such regulation would hamper investments in broadband networks. “There is bipartisan support for net neutrality, but legislative proposals that would put any of this progress at risk are not the right answer,” said CEO Jonathan Spalter in a release. “Let’s keep our focus on moving consumers’ internet experiences forward, not backward.”

Non-profit research institution the Free State Foundation added that this type of bill will impose heavy-handed regulation that will harm consumers.

“[T]here is no present evidence, and there hasn’t been any for years, that ISPs have engaged in any deliberate discriminatory conduct,” said the FSF in a press release. “Almost all ISPs’ terms of service contain legally enforceable commitments not to block or throttle subscribers’ access to lawful content.

“To the extent that a couple of old incidents are cited that conceivably would run afoul of stringent anti-discrimination prohibitions, they have been isolated and quickly remedied,” the FSF added. “That’s why the net neutrality advocates are left to conjecture about what ‘might,’ ‘could,’ or ‘possibly’ happen absent new regulation, rather than identifying any existing problem warranting costly new regulatory mandates.”

With reporting by Riley Haight.

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