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Net Neutrality

Trump Administration Spokesmen Support FCC Chairman Pai’s Net Neutrality Reversal

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WASHINGTON, July 20, 2017 — Bolstering Federal Communications Commission Chairman Ajit Pai in advance of his Senate confirmation hearing, the White House late Tuesday said the Trump Administration was committed to Pai’s plans to roll back net neutrality regulations put in place by former FCC Chairman Tom Wheeler.

“The administration believes that rules of the road are important for everyone – website providers, internet service providers, and consumers alike,” said White House Principal Deputy Press Secretary Sarah Huckabee Sanders.

Sanders said that she was replying to a request made of White House Press Secretary Sean Spicer, by BroadbandBreakfast.com, as to whether Trump supported the net neutrality regulations. A large number of Silicon Valley companies support former President Obama’s net neutrality rules. These companies highlighted their importance during its “made in America” week.

The Obama administration went about imposing such rules the wrong way, said Huckabee Sanders. She was referring to Wheeler’s decision to reclassify broadband internet service under Title II of the 1934 Communicaitons Act governing regulated telephone utilities, rather than under Title I’s provision for lightly-regulated information services.

“We support the FCC chair’s efforts to review and consider rolling back these rules, and believe that the best way to get fair rules for everyone is for Congress to take action and create regulatory and economic certainty,” she said.

Neither Huckabee Sanders nor Spicer responded to emails asking for comment on how the White House’s support for rolling back network neutrality regulations fits with an agenda to promote “made in America” industries.

Massachusetts Sen. Edward Markey, a Democrat and longtime proponent of network neutrality, said that the Trump administration’s stance on network neutrality was another example of deregulation run amok.

“President Trump and his Republican allies are waging an all-out assault on every front they can on our core democratic values,” Markey said. “Whether it’s health care, immigration, climate change, or net neutrality, they want to end the vital protections that safeguard our families and to hand over power to corporations and special interests.”

But Markey added that consumers, Congress, and the courts would stop the Trump deregulatory agenda.

“Entrepreneurs, grassroots advocates, online companies and millions of Americans are committed to protecting net neutrality, and they will continue to make their voices heard.”

(Photo of Ed Markey by WEBN-TV used with permission.)

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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Supreme Court’s EPA Decision Unlikely to Significantly Affect Federal Communications Commission

But landmark administrative law ruling could add more burden on agency in justifying decisions.

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Photo of Free State Foundation President Randy May courtesy the foundation

WASHINGTON, July 7, 2022 – The Federal Communications Commission is unlikely to be affected by a Supreme Court decision last week that limits the scope of decision-making by agencies on certain matters, but it could add to the commission’s task of proving that their decisions are in-line with the laws they administer, experts told Broadband Breakfast.

The June 30 high court ruling found, in West Virginia v. EPA, that the Environmental Protection Agency has limited regulatory authority, and that Congress alone has the power to decide on “major questions” of “vast economic or political significance.” The court effectively decided in favor of the so-called “major questions” doctrine, a conservative legal theory that seeks to maintain separation of powers by allocating “major questions” as the responsibility of Congress alone.

In turn, that theory contrasts with but does not explicitly overrule the still-valid doctrine known as Chevron deference. Chevron deference holds that where federal agencies are given legislative delegation by Congress, they are allowed reasonable interpretation of that authority.

Several experts are concerned, according to Protocol, that the ruling could affect the plans of tech regulators to implement laws under their jurisdiction. FCC Chairwoman Jessica Rosenworcel recently reaffirmed her support for net neutrality rules to prevent internet service providers from slowing or blocking web traffic, and supporters fear that the EPA decision could prevent further action at the FCC.

But experts Broadband Breakfast spoke to don’t exactly see it that way for the commission.

Chevron deference ‘increasingly in eclipse.’

“Ninety-eight percent of the decisions that the FCC makes – at least – are not going to be considered major question cases if they ever get to review,” Randolph May, founder and president of the Free State Foundation, said in an interview with Broadband Breakfast, adding that the doctrine of Chevron deference (after the 1984 Supreme Court decision Chevron v. Natural Resources Defense Council) is “increasingly in eclipse.”

Meanwhile, Harold Feld, senior vice president of internet advocacy group Public Knowledge, also told this publication that while, “I don’t think the major question doctrine applies to much of what the FCC does.”

It may, however, have an impact on the timeliness of the agency, including any decision it makes on net neutrality, he said.

Harold Feld

There will be an additional need to prove that the actions of the agency are in line with not merely a reasonable interpretation of the statutory authority but also consistent with previous practices, he said.

Agencies must also consider “how expansive is [a statute] really until it becomes a major question that Congress has to be even more specific about.”

The impact for agencies in the lower courts must also be considered, continued Feld. For decades, Chevron deference has been the standard in the courts. It allows for agencies to have a framework to determine how lower courts will analyze cases, he said. The undermining of Chevron deference will bring back the “wacky uncertainty that caused the Supreme Court to implement Chevron in the first place.”

The ambiguity that results from the ruling may have a greater impact on the Federal Trade Commission, Feld said. “It is clear that Congress intended the FTC to do rulemaking, but it is also clear that they haven’t done it before,” Feld explained. “So do they need special authorization from Congress now?”

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Innovation

Network Measurement Organization Says it Can Measure Throttling Practices of Service Providers

Measurement Lab said research it has conducted can show when there are network performance issues.

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Photo of Lai Yi Ohlsen, director of Measurement Lab

WASHINGTON, July 7, 2022 – Research fellows from Measurement Lab, an open-source project dedicated to providing internet measurement data, said in a presentation on Wednesday that they have research to show that their network diagnostic tool can go beyond internet speed measurements and can identify traffic prioritization and throttling practices on service provider networks.

Measurement Lab says its mission is to track and measure internet connectivity and use, deploying its version of the open-source measurement software NDT as a performance metric for a connections’ bulk transport capacity.

But on Wednesday, the lab’s fellows said the tool can also help identify potential traffic prioritization strategies run by internet service providers. NDT can provide a graph of internal network behavior to find whether traffic blockage occurs within the internet service provider of the user or elsewhere.

NDT can also run measurement on a network to determine the quality of experience, or user satisfaction, within the network, the research fellows claim.

“Although network operators, policymakers, or any entity that does not control either end of network connections are interested in measuring [quality of experience] of the end-users, measuring it at scale is non-trivial,” read the research report. Researchers associated with M-Lab said that the process described can allow third-party users to make active or passive measurements in determining the quality of connections.

Since 2017, internet service providers have been free to prioritize traffic on their networks after the Federal Communications Commission overturned rules imposing net neutrality, which forbids providers from preferring certain traffic. FCC Chairwoman Jessica Rosenworcel has repeatedly said she thinks the re-imposition of net neutrality rules is the best path forward for the internet economy.

Tool can help providers improve network experience

The lab’s tool can be used to determine the expected network performance as well as incidences of performance degradation, which the fellows said can help network operators improve performance and potentially prevent future incidences.

“It’s important to measure such that we can understand the individual’s ability to participate in basic activities such as paying bills, having access to information about their democracy,” said Lai Yi Ohlsen, director of the Measurement Lab at a Broadband Money Ask Me Anything event in June.

Through a four-step process, researchers can “depict a holistic picture of all the changes that happened before and during anomalous events,” read the lab’s research report.

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