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FCC Wrestles With Depth, Breadth of Net Neutrality Comments

WASHINGTON, February 8, 2010 – The Federal Communications Commission has received thousands of comments both lauding and criticizing its proposed plan to address the controversial issue of network neutrality.

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WASHINGTON, February 8, 2010 – The Federal Communications Commission has received thousands of comments both lauding and criticizing its proposed plan to address the controversial issue of network neutrality.

The media and communications communities spent hundreds if not thousands of hours carefully crafting their arguments as their members view net neutrality as a linchpin to the future of Internet innovation and economic growth.

Content distributors, consumers and parties concerned about limitations on free speech largely favor net neutrality in their filed comments.

Some content makers also support the concept, but the largest content makers appear to oppose it.

Net neutrality supporters argued that a free and open Internet is necessary for innovation and that a lack of competition among service providers removes market protection from infringement.

“The success of the open Internet as a tool for economic growth and expression belies the premise that service differentiation is necessary or desirable,” submitted the City of Philadelphia’s government.

Sony also believes an open, unfettered Internet is best for the nation’s future: “This investment has been predicated on consumers having unfettered access to the legal content, applications and services of their choice” the electronics giant wrote. “Future investment requires the preservation of this underlying principle to protect the common interests of consumers, network operators, content developers and application providers in the Internet ecosystem. Moreover, SEL believes that ultimately the commission’s proposed network neutrality rules, if implemented, would lead to more expansive broadband deployment and greater consumer uptake of broadband connectivity and services.”

Phone firm Vonage wants the FCC to go further: “It recommends that the commission modify each of the first three principles to clarify that a provider of broadband Internet access service ‘may not prevent or hinder’ users from obtaining lawful content or applications or attaching lawful devices to the network. This change will better capture the harm to consumers that the commission designed these principles to prevent: degradation of service as well as a complete loss of service.”

Skype chimed in with concerns about unfair Internet transmission blockage by carriers: “Evidence suggests that carriers have the incentive and ability to harm innovation in the communications application market either by outright blocking or more subtle forms of discrimination. Because these applications offer consumers additional choice and savings, they should not be delayed, obstructed or throttled by broadband access providers. The commission’s openness policies should apply in a competitively neutral way across all broadband platforms.”

Google also cautioned that lack of an open Internet could harm innovation: “The Internet has created unprecedented benefits and opportunity for every facet of our society.  For this reason, the FCC must take the broadest view when assessing how the assurance of open broadband networks affects risks, investment and innovations associated with broadband infrastructure, and the overlay services, content and applications that ride upon it. In brief, the open Internet drives overall investment and innovation in technology and in other sectors, maximizes free speech and civic participation, and engenders more sources to create the fastest and greatest innovations.”

The Internet search giant also touched on issues surrounding the use of deep packet inspection.

The Electronic Frontier Foundation and other commenters brought up the Madison River case: “Already, we have seen some troubling examples of protocol-based discrimination by ISPs. In 2005, Madison River Communications selectively blocked voice-over-IP (VoIP) services that could compete with its wireline telephone services.”

Many of these groups also expressed concern about possible content discrimination. For example, “EFF is also concerned that content-based discrimination may be looming on the horizon. The entertainment industry, for example, has been pressing ISPs to implement network-based measures to address the problem of online copyright infringement.”

DISH Network was one of the few content distributors to support network neutrality. It wrote that: “Nondiscrimination rules are necessary, because vertically-integrated broadband providers have the incentive and ability to discriminate against competitors like DISH. By favoring their own video services or degrading services of competitors, telco and cable providers can drive customers away from competitive direct broadcast satellite services.  Permitting such anticompetitive behavior does not serve the public interest.”

The opposition to network neutrality comes not only from internet service providers but also from those who seek firmer copyright enforcement. The following is a summary of the most common and unusual claims they make.

The Motion Picture Association of America claims to support the principles but pushes further with concerns about content piracy. It says that “to make clear that ISPs are not only permitted, but encouraged, to work with content owners to employ the best available tools and technologies to combat online content theft. Service providers also should be encouraged to work with content owners to implement consumer education programs that can help law-abiding Internet users find legitimate sources for online creative works, while simultaneously warning repeat infringers that they risk consequences if they continue to violate the law.”

AT&T uses some of the strongest language slamming a net neutrality plan, asserting that robust competition already exists: “Unfortunately, the commission’s [notice of proposed rule making] charts an unwise, unwarranted and unprecedented reversal in course.” The telecommunications firms says that “far from being a ‘cozy duopoly’ as some pundits claim, wired broadband Internet access services are robustly competitive, as evidenced by increased speeds, rapidly growing usage, significantly declining prices on a per-bits-consumed basis, and very substantial customer ‘churn’ rates for both cable and telco broadband providers.”

Most of the commenters also say the FCC is trying to solve a problem that does not exist. For example, AT&T adds that “new regulation, moreover, without any credible data-driven evidence of any market failure amid this robust competition.  Instead, it bases its hyper-regulatory proposals solely on the basis of speculation that a market failure might arise someday in the future.”

Verizon Communications and other firms claimed that the inability to manage their network properly would result in overcrowding and potentially a limit on innovation.

Verizon also claimed that net neutrality violates the First and Fifth amendments. “Contrary to claims of net neutrality proponents who assert that government regulations would promote First Amendment interests, the First Amendment protects against governmental restrictions on speech. Here, by restricting providers’ ability to offer their own differentiated services, whether by using their own content or innovative content and services offered in collaboration with others, the proposed rules would impose direct restraints on speech in violation of the First Amendment.”

It said net neutrality would impinge upon the Fifth Amendment by “requiring the compulsory dedication of private property to the use of others with no express statutory authorization and without compensation.”

Comcast, which some in the broadband community believe is the impetus for the FCC’s net neutrality rulemaking, said: “In light of these real risks, rules should only be adopted if a record is built that includes concrete facts and data demonstrating (1) actual – not conjectural – harms that would be remedied by the proposed rules; (2) actual – not hypothetical – benefits that would be gained by adoption of the proposed rules; and (3) that the harms and benefits outweigh the real risks to continued innovation and investment.  To date there is no such record.”

Comcast also finds the rules to do more harm than good: “(1) The proposed rules apply only to a narrow class of Internet service providers, ignoring whether the Internet is “open” at all of its layers; (2) The proposed “nondiscrimination” rule would prohibit network operators from adopting a number of reasonable practices that potentially could have significant benefits for consumers and the public interest; and  (3) The proposed “transparency” rule would create a new and burdensome legal duty for network operators while failing to impose corresponding duties on other key participants in the Internet ecosystem.”

Wireless providers also oppose network neutrality under network management grounds. Their main belief is that wireless networks operate differently from wired networks and so should receive the same regulation. They feel that they must deal with a lower amount of spectrum and must manage their networks more heavily. Additionally, the section on the connectivity of devices is truly something they feel their networks cannot handle. They also believe that their market — unlike the wireline market — is truly competitive with constant price drops and a wide variety of choices along with competition from WiFi hot spots and WiMax.

Pros and Cons Have Merit, But Is FCC Authority at Stake?

While the comments in support and opposition have merit, one of the biggest issues covered by the comments was whether or not the FCC has the authority to take these actions.

The FCC is using authority given it under Title I and II, which say, respectively, that the agency has ancillary authority and can regulate broadcast services. However, Time Warner disagrees: “Having appropriately classified broadband Internet access service as a Title I service, the commission cannot now seek to apply core aspects of Title II by regulatory fiat.”

Verizon said: “In 2005, when the commission confirmed that wireline broadband Internet access service is an information service outside the scope of Title II regulation, it found that such services were “offered by two established platform providers, which continue to expand rapidly, and by several existing and emerging platforms and providers.”

Google and Public Knowledge oppose this view and claim that the FCC does have the authority to provide this regulation. Google says the commission actually has authority under more than just Title I and II – it also can claim authority under Title’s II and VI. Google states: “Communications using last-mile broadband facilities – whether copper, fiber, or wireless – constitute “interstate… communication by wire or radio.” In the Wireline Broadband Order and Cable Modem Declaratory Ruling,  the commission held that it had ancillary jurisdiction over wireline and cable  broadband Internet access service providers, explaining that their “services are unquestionably ‘wire communications’ as defined in [the Act].”

The FCC also has determined in the Wireless Broadband Classification Order that wireless broadband Internet access service, offered using mobile, portable or fixed technologies, is “interstate . . . communications by radio.” Internet-based video programming is now significantly impacting both television broadcasting and cable, altering the economics  of these marketplaces and affecting local programming, diversity of viewpoints, service delivery, and the FCC’s overall regulation in these areas. Broadband Internet access services also enable consumers to place Internet-based VoIP calls to “traditional land-line telephone[s] connected to the public switched telephone network.” The widespread use of VoIP and related services as cheaper and more feature-rich alternatives to Title II services has significant effects on traditional telephone providers’ practices and pricing, as well on network interconnection between Title II and IP networks that consumers use to reach each other, going to the heart of  the Commission’s Title II responsibilities.  In light of the impact of these Internet-based services on services regulated under Titles II, III and VI, as well as the effect upon the FCC’s regulatory framework under those Titles, precedent confirms the FCC may exercise its ancillary jurisdiction to fulfill its explicit mandates. “

The issues surround net neutrality have been discussed for years in both official and unofficial capacities, but with the FCC’s recent proposal of a rulemaking, the concerns have a forum for further discussion and may actually be addressed.

Rahul Gaitonde has been writing for BroadbandBreakfast.com since the fall of 2009, and in May of 2010 he became Deputy Editor. He was a fellow at George Mason University’s Long Term Governance Project, a researcher at the International Center for Applied Studies in Information Technology and worked at the National Telecommunications and Information Administration. He holds a Masters of Public Policy from George Mason University, where his research focused on the economic and social benefits of broadband expansion. He has written extensively about Universal Service Fund reform, the Broadband Technology Opportunities Program and the Broadband Data Improvement Act

FCC

FCC Seeks Comment on Higher Broadband Speeds and Increased Security Measures for Certain Carriers

FCC will consider raising the speed standard for certain carriers that receive fixed monthly funding from the agency.

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Screenshot of FCC Commissioner Geoffrey Sparks

WASHINGTON, May 19, 2022 – The Federal Communications Commission voted at its open meeting Thursday to seek comment on enhancing the Alternative Connect America Cost Model program, which would raise speed deployment obligations and align security goals with the Infrastructure, Investment and Jobs Act.

The ACAM program, established in 2016, provides fixed monthly funding to certain carriers serving high-cost and hard-to-reach areas in return for commitments to provide broadband service to all eligible locations.

The ACAM broadband coalition requested that broadband deployment obligations be raised from the current federal standard of 25 Megabits per second download and 3 Mbps upload to 100/20 Mbps, the standard now set by the IIJA that will then be required of ACAM carriers to deliver.

Baseline cybersecurity proposal

The FCC is also requesting comment on whether it should “require A-CAM carriers and carriers receiving high-cost support to have a baseline cybersecurity and supply chain risk management plans.”

Commissioner Geoffrey Sparks indicated that the FCC will focus its efforts on harmonizing ACAM’s modification proposal with cyber security standards indicated in the Broadband, Equity, Access and Deployment program, which is managed by the Commerce Department’s National Telecommunications and Information Administration and that will be disbursing billions in broadband infrastructure funding.

“Networks that are subsidized or built with federal funds must be secure,” Sparks said. “This is evident in the constant barrage of attacks on American networks from hostile state and non-state actors.”

FCC Chairwoman Jessica Rosenworcel, who said the FCC is looking to align its goals with the IIJA, concluded that “this is not the only effort we’re making to ensure that new broadband programs are working hand-in-glove with long-standing FCC efforts.”

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FCC

Treasury Department Joins FCC, USDA and NTIA in Collaborating on Broadband Funding

Agency leaders sign pact to formalize information-sharing on broadband deployment projects.

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Photo of Janet Yellen from January 2018 by the European Central Bank

WASHINGTON, May 13, 2022—Just in advance of the deadline for the release of the funding requirements under the Infrastructure Investment and Jobs act, the four principal federal agencies responsible for broadband funding released an interagency agreement to share information about and collaborate regarding the collection and reporting of certain data and metrics relating to broadband deployment.

The agencies are the Federal Communications Commission, the U.S. Department of Agriculture, the National Telecommunications and Information Administration of the Commerce Department, and the U.S. Department of the Treasury.

The Memorandum of Understanding is the latest development in federal efforts to coordinate high-speed internet spending, and the Treasury Department is the new addition to agreement.

The other three agencies signed a prior memorandum in June 2021 to coordinate the distribution of federal high-speed internet funds. That June 2021 Memorandum of Understanding remains in effect.

The respective Cabinet and Agency leaders announced that their agencies will consult with one another and share information on data collected from programs administered by the FCC, the USDA’s Rural Utilities Service, programs administered or coordinated by NTIA, and Treasury’s Coronavirus Capital Projects Fund and State and Local Fiscal Recovery Fund.

“No matter who you are or where you live in this country, you need access to high-speed internet to have a fair shot at 21st century success. The FCC, NTIA, USDA and Treasury are working together like never before to meet this shared goal,” said FCC Chairwoman Jessica Rosenworcel. “Our new interagency agreement will allow us to collaborate more efficiently and deepen our current data sharing relationships[and] get everyone, everywhere connected to the high-speed internet they need.”

Agriculture Secretary Tom Vilsack said, “When we invest in rural infrastructure, we invest in the livelihoods and health of people in rural America. High-speed internet is the new electricity.  It is necessary for Americans to do their jobs, to participate equally in school learning, to have access to health care and to stay connected.”

“USDA remains committed to being a strong partner with rural communities and our state, Tribal and federal partners in building ‘future-proof’ broadband infrastructure in unserved and underserved areas so that we finally reach 100 percent high-speed broadband coverage across the country.”

“Our whole-of-government effort to expand broadband adoption must be coordinated and efficient if we are going to achieve our mission,” said Alan Davidson, Assistant Secretary of Commerce for Communications and Information and head of the NTIA, the agency responsible for administering the vast bulk of the broadband funding.

“This MOU will allow us to build the tools we need for even better data-sharing and transparency in the future,” he said.

“Treasury is proud to work with our federal agency partners to achieve President Biden’s goal of closing the nation’s digital divide,” said U.S. Treasury Secretary Janet L. Yellen.  “Access to affordable, high-speed internet is critical to the continued strength of our economy and a necessity for every American household, school, and business.”

As part of the signed agreement, each federal agency partner will share information about projects that have received or will receive funding from the previously mentioned federal funding sources.  More information on what the interagency Memorandum of Understanding entails can be found on the FCC’s website.  The agreement is effective at the date of its signing, May 11, 2022.

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Expert Opinion

Christopher Mitchell: Former Sen. Heitkamp’s Attacks on Gigi Sohn for FCC are Wildly Off-Base

Former North Dakota senator sounds practical, but she is misreading quotes or taking them out of context.

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The author of this Expert Opinion is Chris Mitchell, director of the Community Broadband Networks Initiative at Institute for Local Self-Reliance

Gigi Sohn is still up for confirmation by the Senate to complete the Federal Communications Commission – an independent agency in the executive branch of the federal government that has been stuck at a 2-2 split of Democrats and Republicans since President Biden took office. The FCC is supposed to operate with five commissioners, with the party of the President in power having 3 seats.

She was the obvious choice in December of 2020, when it was clear that Joe Biden would take office. With decades of history in telecom and media-related policy as well as a recent stint as Counselor to Tom Wheeler when he was Chair of the FCC, she would be among the most-qualified people to serve on it since I began working in telecom in 2007. And by among, I mean at the top.

I’ve known Gigi for many years and respected her from the first time I saw her in action. She isn’t a political agent trying to figure out the best path to the top. She has strong beliefs, and she’ll tell you what they are in a wonderful Long Island blur of passion. She respects other beliefs and ideas but she isn’t going to pretend she agrees with you when she doesn’t.

Maybe my word isn’t that persuasive, because I tend to agree with Sohn on many issues. But a lot of people with far more credibility among conservatives have spoken up on Gigi. So I hadn’t written anything about this because I assumed it would take time but Gigi would get confirmed. Plus, I focus my work outside DC and there is a lot going on that is keeping us busy.

Gigi was always under fire by the likes of the Wall Street Journal Opinion page, which has made baseless claims about her not being committed to free speech, using tortured logic around denying mergers. If I went off every time that bunch embarrassed the good work of their reporters, I wouldn’t do anything else.

But then some allies forwarded me claims coming from former North Dakota Senator Heidi Heitkamp – someone I have listened to being interviewed on podcasts and generally thought well of because she sounds practical. But the attacks from Heitkamp on Gigi are so off-base that I had to respond because I’m often working with people in rural communities for whom this issue is not theoretical. They have suffered for more than a decade of federal and state mismanagement of broadband expansion programs. Their towns are struggling as hospitals close and jobs move away to areas with better access. Their children have fewer educational opportunities. They face greater risk from communications failures in natural disasters. Getting this right is important.

Multiple off-base complaints about Gigi Sohn and rural America

Heitkamp makes multiple claims that Gigi’s confirmation would be bad for rural America based on misreading quotes or taking them out of context to pretend that Gigi is not concerned with rural broadband challenges. Like this:

  • During an April 2021 interview with Bloomberg Government, saying ‘What [have we gotten] for [the federal government’s existing] $50 billion investment? Not much.’

Is this a sign that Gigi thinks we shouldn’t spend money in rural America?  That is what Heitkamp wants you to believe. But the very next passage in that article says this:

  • ‘What do we get for a $50 billion investment? Not much,’ she said in an interview. ‘What we don’t want is to be in the position we are today: where we built networks that were for then, and not for now, and not for the future.’

The article is about whether money spent on rural broadband subsidies should be built using yesterday’s or tomorrow’s technology. Gigi has been on the right side of this question – we should be making sure that investments in rural America will permanently solve the problem.

Heitkamp was Senator from 2013-2019, a time when the federal government gave multiple billions of dollars to the biggest telecom monopolies – like AT&T. They didn’t even meet the pathetic requirements of that program. Like, at all.

Don’t just take my word for it. Minnesota’s Blandin Foundation has long been a national model for seeking broadband solutions that really work. That work is run by Bernadine Joselyn, someone I have worked with off and on and who has put real thought into rural policy. Regarding the billions of dollars under Connect America Fund, she was quoted here:

  • Those speeds were ‘such a waste of public dollars,’ said Bernadine Joselyn, public policy director for the Blandin Foundation, a Grand Rapids, Minnesota, nonprofit focused on rural issues. ‘If you’re going to make an investment in broadband, you want it to be future proof, especially with public funds. I think it’s reasonable to expect it would benefit a community for decades.’

Heitkamp’s time would be far better used exposing the policies in DC that sent billions to AT&T and bankrupt companies like Frontier that failed to connect rural America.  Instead, she is running a national campaign to tank Gigi’s nomination because Gigi dared to suggest that subsidies to rural America should actually benefit rural residents and businesses. Because Gigi also believes that we should balance rural investment with subsidies to cities, where millions more Americans are ignored or poorly served by cable monopolies and where little girls do their homework at Taco Bell in the city of Salinas just like their peers in rural McDonald’s parking lots.

North Dakota once broke free of big monopolies

Here is the savage irony of Heitkamp running down Gigi with this attack. Heitkcamp is positioning herself as the savior of rural America while selling it out to the monopolies that have refused to invest in it. And she does it while knowing that her former constituents in North Dakota won’t be as harmed as the rest of the country because North Dakota is already wired. 77 percent of the rural areas in the state can connect to the Internet via future-proof, fiber networks, compared to just 20 percent of rural Americans as a whole. North Dakota broke free of the big monopolies that refused to invest outside of the cities, when local cooperatives and independent telcos bought the lines from those monopolies decades ago to better serve their subscribers.

Tanking Gigi’s nomination on these grounds sends a message that rural subsidies should continue going to those companies that simply extract wealth from rural areas. Gigi stands to make sure we invest in networks that are accountable to rural communities rather than handing billions to companies that are better at astroturf marketing campaigns than connecting farms with fiber. I understand why the telecom monopolies are frequently happy to bankroll misinformation campaigns to further their interests. I’m confused why so many people are so easily taken by them.

Gigi is deeply respected by the people who oppose damn near everything she does. I want to see Gigi on the FCC for the same reason her opponents do – because she is not the type to sell out for a buck. She is the model for who we need on the FCC.

Editor’s Note: This piece was authored by Christopher Mitchell, director of the Institute for Local Self Reliance’s Community Broadband Network Initiative. His work focuses on helping communities ensure that the telecommunications networks upon which they depend are accountable to the community. He was honored as one of the 2012 Top 25 in Public Sector Technology by Government Technology, which honors the top “Doers, Drivers, and Dreamers” in the nation each year. This piece was originally published on MuniNetworks.org on April 26, 2022, and is reprinted with permission.

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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