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How Internet Companies Are Driving a Public Utility Regulation Approach to Net Neutrality

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WASHINGTON, September 12, 2014 – In what would have seemed highly unlikely just a few months ago, growing support for public utility regulation is emerging. Tech companies, politicians, internet service providers, and component makers have started to outline their views regarding their policy approach to the issue of net neutrality. In order to understand the views of the major players and their respective camps, it is helpful to look back in time a bit.

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power lines via pixabay

In January 2014, the D.C. Circuit Court of Appeals ruled, in Verizon Communications v. Federal Communications Commission, that the FCC lacked the authority to enforce both the anti-blocking and anti-discrimination clauses of the agency’s 2010 Open Internet Order unless broadband providers were reclassified as common carriers, and subject to the regulation as “telecommunications services” under Title II of the Communications Act.

Although the FCC arguably has the authority to reclassify internet access service as a “telecommunications,” such a move would be a significant reversal of agency decisions. About 10 years ago, the FCC chose to make fiber-optics exempt from common carrier regulation; then it took the same path for cable-modem services, and for digital subscriber line (DSL) service over copper wires.

Is ‘Light Regulation’ Still Regulation?

While FCC Chairman Tom Wheeler has said that he is keeping the option of Title II regulation on the table, the thrust of his efforts have been aimed at regulating broadband providers without having to treat them as regulated entities.

The agency has argued that the D.C. Circuit has already authorized, using Section 706 of the Telecommunications Act of 1996, (1) the transparency requirement in his proposed network neutrality rules; (2) a “no blocking” requirement; and (3) the enforcement of a “commercially unreasonable” standard against potentially discriminatory practices by internet service providers.

Wheeler believes that his agency can enforce the no blocking goal and the non-discrimination rule under Section 706 of the Telecommunications Act of 1996. In a February 19 statement he said that the court agreed that the section “gives the FCC authority to encourage broadband deployment by, among other things, removing barriers to infrastructure deployment, encouraging innovation, and promoting competition.”

“The D.C. Circuit ruled that the FCC has the legal authority to issue enforceable rules of the road to preserve Internet freedom and openness.”

-FCC Chairman Tom Wheeler 

While major ISPs like Comcast and Time Warner Cable have said that they will continue to adhere to the principles of the 2010 Open Internet Order, critics of these companies want concrete safeguards. On January 30, a coalition of 86 groups, including the American Civil Liberties Union, Free Press, Demand Progress and Reddit, called for reclassification under Title II. In late February, Netflix signed a multiyear agreement with Comcast in which the video streaming company paid Comcast for a direct connection to Comcast’s network. It made a similar agreement with Verizon. Netflix has called for stronger net neutrality rules to protect an open internet.

Early Support for Wheeler’s Section 706 Approach

Some saw Wheeler’s proposition of enforcing net neutrality rules through Section 706 as a plausible way forward. In May, a huge coalition of tech companies, led by Google, Microsoft, Yahoo, Amazon, Facebook and Twitter, asked the FCC to protect users and companies “on both fixed and mobile platforms against blocking, discrimination, and paid prioritization.” Other companies that signed the letter include eBay, KickStarter, Reddit, WordPress, Mozilla, Dropbox, LinkedIn, Foursquare, Digg, Meetup and Lyft. However, these companies didn’t explicitly state which route – Section 706 or Title II reclassification — they supported.

A renewed push for reclassification started in July. In its FCC filing, Netflix made clear its staunch support for reclassification. In addition to advocacy groups like Free Press, Public Knowledge and EFF, both The New York Times editorial board and former FCC Commissioner Michael Copps, who now heads the advocacy group Common Cause, have argued for the common carrier solution. Tech companies Etsy and Dwolla have also joined this camp along with tech incubator Y Combinator, whose founder Alexis Ohanian argued that only reclassification would give the FCC the necessary authority to halt paid prioritization.

“The FCC cannot impose a nondiscrimination rule–unless it classifies broadband providers under Title II,” wrote Ohanian in a letter to the FCC. “The Court also held that, without classifying broadband providers under Title II, the FCC could not ban charging fees for priority access, even though the FCC recognized such fees would be a ‘significant departure from historical and current practice.’ ”

On Wednesday, September 10, the Battle for the Net’s “Slow Lane Protest” saw more than 10,000 websites participate, including Netflix, WordPress, Vimeo, Tumblr, FourSquare, KickStarter and Dropbox, display a symbolic loading icon on their respective sites that encouraged visitors to contact members of Congress, the White House and the FCC about net neutrality. This symbolic internet slowdown generated “nearly 300,000 calls and more than 2 million emails to Congress,” while “722,364 people filed comments at the FCC,” a press release from Fight for the Future stated.

Absent from the “slowdown” participants were tech giants Apple, Facebook, Google, Microsoft and Yahoo. These companies have signed on to coalitions that support open internet principles, and Google took to its “Take Action” page to voice its opposition for paid prioritization. Google did not respond to a request for comment as to why the company did not participate in Wednesday’s protest.

ISPs, Carriers & Equipment Companies Oppose Reclassification

Although ISPs like Comcast and Time Warner have been vague. Many of them are proponents of light regulation that they state has allowed them to grow and thrive. Comcast’s most recent post on their blog cements their stance against reclassification, together with a seemingly strong statement of support for open internet rules under Section 706. However, Comcast does not actually say that it supports this route; rather, it states that “The Courts have laid out a clear path and clear authority (under Section 706 of the Telecommunications Act) for the FCC to adopt robust and legally enforceable Open Internet rules.”

Other major carriers have taken a similar approach. Verizon has been an opponent of reclassification, a viewpoint reiterated in their filing with the FCC on July 17. Ars Technica reported that Verizon said Title II reclassification would require web services like Netflix to pay Verizon. In May, AT&T stated that they believed reclassification would “cause risks and harms that dwarf any putative benefits.” The telecommunications giant said in a filing with the FCC on July 17th that it supported a Section 706 approach to enforcing net neutrality and ending paid prioritization.

In a filing submitted on July 15, the Telecommunications Industry Association said that reclassification would “thwart cycle of investment, competition and innovation” in the broadband space. Many members of the TIA, such as Cisco, IBM, Intel, Panasonic, Broadcom, D-Link and Nokia, penned a letter to the FCC on September 9 in which they made similar comments.

 

FCC

Federal Communications Commission Implements Rules for Affordable Connectivity Program

The agency implemented new rules on the Affordable Connectivity Program, which makes a new subsidy permanent.

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Photo of Jessica Rosenworcel by Rob Kunzig of Morning Consult

WASHINGTON, January 24, 2022 – The Federal Communications Commission adopted rules Friday for its Affordable Connectivity Program that changes and, in some cases narrows, the eligibility requirements for the subsidy to allow for more households to be connected.

An extension of the former Emergency Broadband Benefit Program, which offered discounts to broadband service providers to subsidize connectivity and devices, the new program will make it easier for providers to get in the program by automatically making eligible providers in good standing.

Additionally, the FCC maintains that the monthly discount on broadband service is limited to one internet discount per household rather than allowing the benefit for separate members of a household. “Adopting a one-per-household limitation best ensures that Program funding is available to the largest possible number of eligible households,” the agency said in its report.

To accommodate the volume of eligible households enrolling in the ACP, the FCC allowed providers until March 22 – 60 days after its Friday order is published in the Federal Register– to make necessary changes to ensure that the ACP can be applied to providers’ currently sold plans.

“So much of our day to day—work, education, healthcare and more—has migrated online. As a result, it’s more apparent than ever before that broadband is no longer nice-to-have, it’s need-to-have, for everyone, everywhere,” said FCC Chairwoman Jessica Rosenworcel. “But there are far too many households across the country that are wrestling with how to pay for gas and groceries and also keep up with the broadband bill. This program, like its predecessor, can make a meaningful difference.”

The Infrastructure Investment and Jobs Act transformed the EBB to the longer-term Affordable Connectivity Program by allocating an additional $14.2 billion to it.

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FCC

FCC Chairwoman Rosenworcel Shares Proposal to Promote Broadband Competition In Apartment Buildings

If adopted, the FCC’s regulations would increase broadband options for tenants.

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FCC Chairwoman Jessica Rosenworcel

WASHINGTON, January 21, 2022––Federal Communications Commission Chairwoman Jessica Rosenworcel shared a draft regulation that aims to would promote competition and greater broadband choice for tenants in apartment buildings.

If adopted, the regulations would prevent practices that keep tenants from choosing their own broadband provider.

“With more than one-third of the U.S. population living in apartments, mobile home parks, condominiums, and public housing, it’s time to crack down on practices that lock out broadband competition and consumer choice,” said Rosenworcel.

The proposal would prohibit broadband providers from entering into revenue-sharing agreements with apartment building owners. If approved by her fellow commissioners and hence adopted as official agency rules, the regulation would also require providers to disclose any existing marketing arrangements they have with building owners to tenants.

“Consumers deserve access to a choice of providers in their buildings. I look forward to having my colleagues join me in lifting the obstacles to competitive choice for broadband for the millions of tenants across the nation,” Rosenworcel said.

Her proposal builds on a September 2021 notice that invited a new round of comments during an examination of broadband access In apartment and office buildings. The FCC said the proceedings revealed “a pattern of new practices that inhibit competition, contrary to the Commission’s goals, and limit opportunities for competitive providers to offer service for apartment, condo and office building unit tenants.”

More than one third of the U.S. population lives in condominiums or apartment buildings.

Exclusive agreements between broadband providers and buildings owners limit options for tenants, who are precluded from access to new carriers. “Across the country throughout the pandemic, the need for more and better broadband access has never been clearer,” Rosenworcel added.

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FCC

FCC Announces Largest Approval Yet for Rural Digital Opportunity Fund: $1 Billion

The agency said Thursday it has approved $1 billion to 69 providers in 32 states.

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Photo illustration from the Pelican Institute

WASHINGTON, December 16, 2021 – The Federal Communications Commission announced its largest approval yet from the $9.2-billion Rural Digital Opportunity Fund, greenlighting on Thursday $1 billion from a reverse auction process that ended with award announcements in December but that the new-look agency has been scrutinizing in recent months.

The agency said in a press release that this fifth round of approvals includes 69 providers who are expected to serve 518,000 locations in 32 states over 10 years. Its previous round approved $700 million worth of applications to cover 26 states. Previous rounds approved $554 million for broadband in 19 states, $311 million in 36 states, and $163 million in 21 states.

The agency still has some way to approve the entirety of the fund, as it’s asked providers that were previously awarded RDOF money in December to revisit their applications to see if the areas they have bid for are not already served. So far, a growing list have defaulted on their respective areas, some saying it was newer FCC maps that showed them what they didn’t previously know. The agency said Thursday that about 5,000 census blocks have been cleared as a result of that process.

The FCC also said Thursday it saved $350 million from winning bidders that have either failed to get state certification or didn’t follow through on their applications. In one winning bidder’s case, the FCC said Thursday Hotwire violated the application rules by changing its ownership structure.

“This latest round of funding will open up even more opportunities to connect hundreds of thousands of Americans to high-speed, reliable broadband service,” said FCC Chairwoman Jessica Rosenworcel.  “Today’s actions reflect the hard work we’ve put in over the past year to ensure that applicants meet their obligations and follow our rules.  With thoughtful oversight, this program can direct funding to areas that need broadband and to providers who are qualified to do the job.”

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