WASHINGTON, July 22, 2014 – As the Federal Communications Commission received more than a million comments on the agency’s push for net neutrality regulations governing the conduct of broadband providers, critics argued on July 15 that net neutrality is a counter-intuitive solution in search of a problem.
Moreover, these critics said, “common carriage” regulation under the Communications Act would actually prohibit broadband providers from engaging in paid discrimination against content providers like proponents claim.
An event hosted by the Digital Policy Institute included Babette Boliek, associate professor of law at Pepperdine University, former FCC Commissioner Harold Furchtgott-Roth, Hal Singer, principal at Economists Incorporated, and Brent Skorup, research fellow at the Mercatus Institute at George Mason University.
Although net neutrality proponents fear internet service providers might block or degrade services they don’t like, Skorup said that such behavior would be bad for business. ISPs concern themselves first and foremost with bringing consumers fast broadband connections. Degrading their platform would be to “shoot themselves in the foot.”
Boliek said she’d like no regulation at all from the Federal Communications Commission. Managing any concerns that ISPs would block or degrade a service like Netflix, “is exactly what antitrust and consumer protection laws would protect you from.” This approach waits to solve a problem until it actually arises.
Hastily slapping net neutrality rules on the internet would raise prices, stifle innovation, reduce quality of internet services in the United States, Furchtgott-Roth said.
There is precedence for less regulated industries outperforming heavily regulated ones, Boliek added.
“It is no surprise that the technology that has had this lighter regulatory touch has enjoyed greater investment, greater information, greater growth, and greater consumer satisfaction,” Boliek said. “This happened when landlines were still controlled under Title I. Cable, on the other hand, did not have this severe regulation that is Title II. And we know the story of cable and broadband. It has taken off at a greater speed, rate and popularity.”
Mobile is part of the story, too, she said. Initially treated like landlines telephones under Title II, mobile phones were “abysmal,” Boliek said. “Cell phones did not take off until after those regulations had been lifted.”
The experts at the panel agreed that if regulation is to happen, it’s better to lean toward a “light-handed approach.”
But proponents take the opposite view. Michael Weinberg, vice president at Public Knowledge, said on July 15 that Title II was “the only way to protect a single, open internet.” Democratic senators Ed Markey of Massachusetts, Al Franken of Minnesota, Chuck Schumer of New York, and Ron Wyden of Oregon reinforced their desire for common carriage regulation in a joint letter to FCC Chairman Tom Wheeler. They argued that Section 706 of the Telecom Act of 1996 – the provision upon which Wheeler has thus far relied in his efforts to impose net neutrality – was inadequate to meet the requirement that businesses serve everyone.
“Sanctioning paid prioritization would allow discrimination and irrevocably change the internet as we know it,” the senators wrote. “Small businesses, content creators and internet users must not be held hostage by an increasingly consolidated broadband industry. Start-ups should not find themselves unable to get a foot in the door, deterred from making the kind of investments that make the internet the engine for creativity and economic growth we know today. Consumers should not be faced with fewer choices at ever higher prices while ISPs monetize their data and dictate who succeeds and who fails online.”
At the Digital Policy Institute event, economist Singer said that Title II was nothing but harmful.
“Using Title II to solve this problem is the equivalent of using a fire hose in your kitchen to eliminate the risk of a fire,” Singer said. “Certainly, it does the job but the ancillary harm it can cause swamps the benefits, especially if there’s a less invasive remedy that will do the trick.”
While proponents argue that forbearance, or the ability for the FCC to excuse compliance with portions of the regulations, eases concerns about Title II reclassification, Singer said it’s “pretty far-fetched” to assume that every single future commission will “forbear” the same way every time.
Singer did, however, take the more moderate approach that abuses should be judged on a case-by-case basis.
“Title II doesn’t strike the right balance, which is weighing the incentives of the ISPs to invest at the core against the incentives of the content providers to invest at the edges.”
More importantly, Title II “does not do what proponents purport it does” – namely, prevent discrimination, Furchtgott-Roth said. Even under Title II rules, common carriers can still discriminate, albeit in a more diminished capacity.
“It’s hard to believe that Congress intended the old monopoly telephone price regulation to apply to the broadband networks that we have today, which very fast moving [and] dynamic,” he said.
Singer and Furchtgott-Roth questioned whether Wheeler would have the three votes necessary to pass net neutrality rules under either Section 706 or Title II.
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.
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.”
Federal Appeals Court Upholds California’s Net Neutrality Rules
The ruling prevents internet providers in the state from abandoning net neutrality for broadband customers.
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.
Rosenworcel Stands Firm on Net Neutrality in Face of Lawmakers Urging Status Quo
The FCC chairwoman responded to a letter by members of Congress resisting calls to back down on net neutrality.
WASHINGTON, January 4, 2022 – Federal Communications Commission Chairwoman Jessica Rosenworcel said in a letter to lawmakers last week that she continues to stand by her view that the restoration of net neutrality principles would be the best move for the internet economy.
Rosenworcel was responding to an April letter by over two dozen members of Congress, who urged the chairwoman to maintain the current “light touch” regulations imposed by the 2017 commission, led by chairman Ajit Pai, who was appointed by then-President Donald Trump. That change rolled back net neutrality rules imposed by the 2015 Obama-era commission, which prevented internet service providers from influencing the content on their networks, including barring carriers from providing certain services for free over their networks – also known as “zero rating.”
In her letter on December 28, Rosenworcel, who was confirmed as commissioner of the agency by the Senate earlier that month, said the net neutrality principles of 2015 were the “strongest foundation” for the internet economy as a whole and is “fundamental” to the “foundation of openness.”
“Those principles drove investment on the edges of the network, which network operators responded to by investing in infrastructure that allows consumers to access the services of their choosing,” Rosenworcel said in the letter.
“I stand ready to work with Congress on this topic, as necessary,” she added. “However, I continue to support net neutrality and believe that the Commission has the authority to adopt net neutrality rules.”
The lawmakers – which include Cathy McMorris Rodgers, R-Washington, and Bob Latta, R-Ohio – used as support the efforts of service providers to maintain a robust network during the pandemic, as well as their willingness to waive late fees and open Wi-Fi hotspots as additional reasons for the commission not to impose further regulations on business. The letter also noted that the Department of Justice’s withdrawal of a lawsuit against a net neutrality law in California led to two providers axing services that relied on zero rating protections.
The lawmakers challenged previous comments made by Rosenworcel, who said that it was unfortunate that California had to fill a void left by the net neutrality rollbacks. But Rosenworcel reiterated those comments. “It is unfortunate that individual states have had to fill the void left behind after the misguided roll back of the Commission’s net neutrality policies,” she said in her letter.
And while the lawmakers said they “agree that harmful practices such as blocking, throttling, and anticompetitive behavior should not be permitted…we can achieve this without heavy-handed overregulation.”
The current make-up of the FCC includes two Democrats and two Republicans. President Joe Biden’s pick for a fifth Democratic commissioner to break the party deadlock, net neutrality advocate Gigi Sohn, is still awaiting a confirmation vote by the Senate.
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