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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

Proposed Rules to Improve National Alert System Unnecessary, Say Critics

Proposed rules to improve EAS security and operational readiness are unnecessary, say commenters.

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Photo of Federal Emergency Management Agency

WASHINGTON, January 18, 2023 – Participants to the national public warning system claim that the Federal Communications Commission’s October rulemaking to improve its security and operational readiness will unduly increase resource and monetary burdens on participants. 

The national warning system is composed of the Emergency Alert System, which transmits important emergency information to affected areas over television and radio, and the Wireless Emergency Alert System, which delivers that information to the public on their wireless devices. Participation in the system is voluntary for wireless providers, but radio and television broadcasters are required to deliver Presidential alerts via the EAS. 

In the Notice of Proposed Rulemaking, the FCC sought comment on ways to strengthen the operational readiness of the warning system by requiring EAS participants to report compromises of equipment and WEA participants to annually certify to having a cybersecurity risk management plan in place. It further asked that commercial mobile service providers “take steps to ensure that only valid alerts are displayed on consumer devices,” citing several instances where false alerts were given following a system hack. 

Measures are unnecessary 

Participants argued that such measures are unnecessary in reply comments to the Commission.  

The proposals in the Notice are “unnecessary and will not meaningfully enhance operational readiness or security of EAS,” stated the National Association of Broadcasters in its comments, claiming that the Notice “presents only scant evidence of EAS equipment failures and new security threats, and thus does not justify the myriad measures proposed.” 

Furthermore, NAB claimed, the notice fails to present a clear rationale for how the Commission’s heightened situational awareness would improve EAS readiness. 

ACA Connects, a trade association representing small and mid-sized telecom and TV operators, added that the Notice identifies only two EAS security breaches in the past ten years, which, as the company said, is “hardly an epidemic.” 

Participating mobile service providers have cyber risk management plans in place already, making any separate cyber certification requirement for WEA unnecessary and likely to cause fragmentation of service-specific plans, claimed wireless trade association, CTIA. 

Increased participant burden 

The Federal Emergency Management Agency, which is responsible for national-level activation and tests of the systems, stated in its comments that it is concerned about the potential increased burden placed upon participants. 

EAS participants voluntarily and at no cost provide state and local alerts and mobile service providers voluntarily participate in WEA without compensation. FEMA argued that some stakeholders may “have difficulty justifying additional resources necessary to comply with increasing regulation.” 

The proposed reporting, certification, and cyber management obligations are far too complex for many EAS participants to implement, stated NAB, claiming that the Commission’s estimation of costs are “wildly unrealistic,” not considering additional hires such a plan would require. 

Mobile provider AT&T added that requirements for updating cybersecurity plans would divert valuable resources from the ongoing, broad cybersecurity efforts that participants engage in daily. The proposed authentication would inhibit the timely release of critical emergency alerts without completely eliminating false WEA messages, it continued.  

The Center for internet Security, however, supported the FCC’s proposed actions, claiming that it moves forward with “critically important” measures to protect the nation’s alert systems from cyber threats. 

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5G

CES 2023: Commissioner Starks Highlights Environmental Benefits of 5G Connectivity

Starks also said federal housing support should be linked to the Affordable Connectivity Program.

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Photo of FCC Commissioner Geoffrey Starks (left) and CTA’s J. David Grossman

LAS VEGAS, January 7, 2023 – Commissioner Geoffrey Starks of the Federal Communications Commission spoke at the Consumer Electronics Show Saturday, touting connectivity assistance for individuals who benefit from housing assistance as well as the potential environmental benefits of 5G.

The FCC-administered Affordable Connectivity Program subsidizes monthly internet bills and one-time devices purchases for low-income Americans. Although many groups are eligible – e.g., Medicaid and Supplemental Nutrition Assistance Program enrollees – Starks said his attention is primarily on those who rely on housing support.

“If you are having trouble putting food on your table, you should not have to worry about connectivity as well,” Starks said. “If we are helping you to get housed, we should be able to connect that house,” he added.

Environmental benefits of 5G

In addition to economic benefits, 5G-enabled technologies will offer many environmental benefits, Starks argued. He said the FCC should consider how to “ensure folks do more while using less,” particularly in the spheres of spectral and energy efficiency.

“This is going to take a whole-of-nation (approach),” Starks said. “When you talk to your local folks – mayors – state and other federal partners, making sure that they know smart cities (and) smart grid technology…making sure that we’re all unified on thinking about this is exactly where we need to go to in order to drive down the carbon emissions.”

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FCC

FCC Commissioners Tout 5G, Spectrum and Permitting Reform

Commissioner Geoffrey Starks argued that expanding connectivity would enable sustainable, environmentally-friendly technologies.

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Photo of FCC Commissioner Geoffrey Starks

WASHINGTON, December 15, 2022 – High-level Federal Communications Commission officials addressed the 40th Annual Institute on Telecommunications Policy and Regulation on Thursday, touting 5G technologies, increased spectrum access, and permitting reform as the broadband industry braces for what promises to be an action-packed 2023.

In his keynote, Commissioner Geoffrey Starks argued that expanding connectivity would enable sustainable, environmentally friendly technologies such as 5G-enabled precision agriculture. During a subsequent panel, Joel Taubenblatt, acting chief of the FCC’s Wireless Telecommunications Bureau, predicted robust innovation in 5G-powered technology sectors including transportation, energy and finance.

Starks, Taubenblatt, and Commissioner Brendan Carr each voiced support for robust spectrum availability. Carr reiterated his outspoken opposition to popular social-media app TikTok, and earlier in the day, Commissioner Nathan Simington proposed raising cybersecurity requirements on wireless device manufactures.

The Infrastructure, Investment and Jobs Act allocated $65 billion to broadband, the largest single investment to date. Policymakers and industry leaders have voiced concern that regulatory mismanagement could blunt the funds’ impact. Testifying before a U.S. Senate subcommittee Tuesday, representatives from trade groups US Telecom and NCTA – The Internet & Television Association warned lawmakers against onerous regulation, especially opaque permitting processes on federal lands.

To ensure the efficient use of unprecedented broadband funding initiatives, federal and state authorities should streamline permitting processes, Carr said. The commissioner told Broadband Breakfast he supports expanding small cell infrastructure reforms, such as approval shot clocks and limitations on unreasonable fees, to the wireline sector.

Carr, in his featured remarks, said regulators should craft policy to avoid overbuilding and prioritize building to the least unserved communities. He once again advocated tech-neutral policies that allow fixed-wireless and satellite broadband to fairly compete with fiber.

Permitting and access barriers at multiple levels of government

Representatives from broadband industry groups detailed potential regulatory barriers to deployment in a webinar held Wednesday.

At the local level, providers must obtain access to utility poles, which can be owned by a range of entities including municipalities and utility companies. State broadband offices could likely coordinate with providers and regulators to ease this process, suggested Teresa Ferguson, senior director of broadband and infrastructure funding at the National Rural Telecommunications Cooperative.

At the federal level, Congress has signaled interest in streamlining permitting processes, said Angela Simpson, general counsel and vice president of legal and regulatory affairs at the Competitive Carriers Association, noting the body introduced 28 reform bills this session. Earlier this month, a bipartisan coalition of senators wrote to the U.S. Departments of Interior, Agriculture, and Commerce, urging them to update federal permitting guidelines.

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