Now that the FCC has released its new reclassification order, it is worth remembering past complaints about the FCC’s transparency and process problems. Their relevance will become more clear as the unforeseen consequences of the FCC’s reclassification order become more apparent.
In 2010, when FCC Chairman Martin released a draft order, Free Press complained before the vote:
We appreciate the opportunity to comment on the report, though the truncated comment cycle coming after the Chairman’s office circulated a draft Order leads us to believe this is an exercise in optics, not a serious attempt to give consideration to this critical issue.
A 2010 Court decision, in which Free Press was a plaintiff, concluded that the FCC had not fulfilled its “obligation to make its views known to the public in a concrete and focused form:
”Two weeks before the Chairman‘s response period closed, and before most of the responses were received, a draft of the order was circulated internally. The final vote occurred within a week of the response deadline. This is not the agency engagement the APA contemplates. In this context, we have little choice but to conclude that the FCC did not, through the FNPR, fulfill its ―obligation to make its views known to the public in a concrete and focused form so as to make criticism or formulation of alternatives possible.
In 2012, Free Press/Save The Internet issued a statement complaining that the FCC “still has not made public its actual media ownership order”:
On Monday, attempting to respond to a growing chorus of critics, the Federal Communications Commission issued a statement claiming it has conducted its media ownership review transparently. The FCC also gave the public 30 days to comment on recently released summary data about female and minority ownership. However, the Commission still has not made public its actual media ownership order, conducted proper analysis of the impact of proposed rule changes on ownership diversity, or scheduled any public hearings on the issue.
Free Press President and CEO Craig Aaron made the following statement:
"The FCC should retract this misleading statement. Under Chairman Julius Genachowski, the FCC’s push for more harmful media consolidation has been anything but transparent. The FCC's latest attempt to sugarcoat its bitter media consolidation pill is not going to fool anyone. … Furthermore, it's disingenuous for the FCC to suggest that its process now is more transparent than the one former Chairman Martin used to adopt similar rules. Genachowski's FCC has yet to publish any details of its final proposal, offering only vague snippets in press releases.
In 2008, a Democratic House Commerce Committee staff report complained that Chairman Martin refused to publish the text of proposed rules well enough before a vote so that the public could meaningfully comment on the specific rules.
In an undated letter received by the Committee a few weeks later, Chairman Martin specifically agreed to adhere to the requirements of the Administrative Procedure Act (APA) and to make all but one of the management improvements requested by Chairman Dingell. In his letter, however, Chairman Martin refused to agree to "publish the text of proposed rules sufficiently in advance of Commission meetings for both (i) the public to have a meaningful opportunity to comment and (ii) the Commissioners to have a meaningful opportunity to review such comments.” While Chairman Martin is technically correct that the APA does not require that he publish the actual text, his reply was a red flag that all was not well. Transparency was plainly not a priority.
Unsurprisingly, transparency has not become a priority. As a result, not only are the new rules unclear to observers (“it will still be a while before it's clear what they mean.” -- Vox, Tim Lee), but even the FCC does not appear to understand what the rules it just passed actually mean.
“Asked at a press conference what this means, FCC Chairman Tom Wheeler replied: “We don’t really know. We don’t know where things will go next.” -- Wall Street Journal
These are the sort of things that more transparency and better process could have avoided. Instead, we plunge into the unknown bound only by the discretion of an agency that doesn't really understand the rules it just passed and cannot bind future Commissions to its evolving whims.
We may still disagree in some particulars, but a recent Huffington Post oped by former FCC officials Kevin Werbach and Phil Weisner (supporters of net neutrality regulations) contained a number of important points that we hope more regulation advocates will recognize.
For example, they acknowledge that end-to-end is not simply a natural state, but involves a lot of business negotiations.
If the Internet story is one of a neutral network, it's also one of private firms negotiating arrangements and managing their networks as they see fit.
Werbach and Weiser then get into the heart of the current debate. This is significant, because, I presume, they are not simply speculating based on public information here.
Under what we understand the FCC proposal to be, access providers can't block, can't degrade, can't arbitrarily favor certain applications, and can't favor their own traffic. If you read the past decade of network neutrality literature, those are the dangers usually mentioned. So what's everyone so mad about?
The major change in the new proposal concerns so-called paid prioritization agreements. In other words, the new rules appear to allow a broadband provider to offer content providers the option of faster or more reliable delivery for a supplemental fee. Under the old rules, the FCC didn't prohibit such deals, but said it was skeptical they would meet its discrimination test.
In the new proposal, the FCC appears to mandate that paid prioritization offerings be "commercially reasonable." This requirement presumably would insist on the availability on the same terms to all, with the FCC reviewing such offerings on a case-by-case basis. Such a requirement might also include the condition that any paid prioritization offerings are only reasonable when the broadband provider offers a sufficiently robust level of non-prioritized broadband.
Werbach and Weiser go on to point out that Title II "common carrier" regulations also allow "different levels of service -- paid prioritization in other words -- as long as the prioritized service level was available to all comers." The rhetoric of the net neutrality debate -- "toll roads", "fast lanes", "gatekeepers" -- is useful red meat for net neutrality advocates, but ignores the fact that these things have always existed, and in fact created the internet we know.
Saying the FCC action will "force companies to pay tolls" or "create a two-tier Internet" makes it seem as though companies such as Netflix and Google currently use the Internet for free. They don't. They pay access providers; they pay intermediaries called transit providers; they pay CDNs; and they pay to build or buy their own infrastructure. Some pay more than others. Big players like Microsoft, Amazon, Google, Facebook, and Apple spend billions every year to speed the performance of their services to end users. They would like to pay less, and network operators would like to charge more; that's the way business negotiations work.
Sprint acquiring T-Mobile runs risk of "regulatory contagion," says TF's Jon Henke
Sprint, America's #3 wireless provider, is attempting to buy T-Mobile, the industry's fourth-largest player. It's unclear if regulators will approve the deal, but they're certainly looking at it closely. Writing in The Hill, TF's Jon Henke warns that because of the merger's controversy, the FCC could require numerous conditions that could then spread to the rest of the industry, effectively regulating wireless companies without any of the transparency and deliberation real regulations would require. He writes:
...
Read the full article, and check out our other work on competition in the telecom market.
"This Week in Law" talks Net neutrality and the Comcast-TWC merger with TF's Szoka and Henke
Friday, TF's Berin Szoka and Jon Henke appeared on This Week in Law to talk about the Comcast-Netflix deal, Net neutrality, whether parodied logos violate federal laws, "Secret" apps, and more. You can get more info and download the episode on TWiL's site, or watch the video below:
The discussion at Reddit over the new New America Foundation broadband cost study is interesting. A great deal of the discussion seems to be about the fact that broadband costs and speeds in other countries aren't quite so superb, especially in less dense countries or rural areas.
Higher broadband speeds and lower costs tend to be associated with relatively dense countries/regions, government ownership or control of the providers and taxpayer subsidies.
While the study is interesting, the fact remains that direct comparisons are extremely difficult with so many variables, and the tradeoffs are not always apparent.
Code Words in Tech Policy & the Politicians Who Use Them
Senator Rockefeller has detected code words from Republican FCC nominee Michael O'Rielly.
When O'Rielly reiterated that he advocated a "flexible" and a "light hand" on regulation, Rockefeller interrupted, "To me those are code words."
In order to assist the Senate Commerce Committee with their investigation, I have uncovered other governments officials who use these code words...
Acting FCC Chair Mignon Clyburn: “We have taken a light regulatory approach, but have touched when necessary."
FCC Commissioner Jessica Rosenworcel: " I believe a light-touch approach is an essential part of ensuring that nascent communications services have the chance to develop and thrive."
President Obama: “We believe in a light touch when it comes to regulations.”
Chairman Rockefeller (and Waxman): "To accomplish these objectives, the Commission should consider all viable options. This includes a change in classification, provided that doing so entails a light regulatory touch..."
Chairman Rockefeller: "the FCC's light-touch approach to network neutrality prevailed, and that is a good thing."
Chairman Rockefeller: "This takes a light-touch approach and keeps the playing field free…"
White House OSTP & NEC: "The Obama Administration has made a number of contributions to the rapid growth of highspeed broadband, including … a light-touch, multi-stakeholder approach to regulation that has fostered both innovation in applications and deployment of infrastructure."
Jason Furman, Chairman of Obama's Council of Economic Advisors: "We also must recognize that investments in infrastructure depend critically on a stable, predictable and light touch regulatory regime. ... a multi-stakeholder approach that depends on a light touch..."
As for TechFreedom, we support an Up Up Down Down Left Right Left Right B A Start approach to regulatory policy.
The White House recently announced positive steps to speed up broadband deployment "by reducing barriers for companies to install broadband infrastructure on Federal properties and roads."
The steps include an "interactive mapping tool that allows carriers and communities to view and identify opportunities to leverage Federal properties for the deployment of high-speed Internet networks", and a "“Dig Once” guide" to help synchronize deployment with street construction.
As we wrote in Wired earlier this year, "If we really want more ISPs building better broadband, let’s start by not making it so damned hard to build."
Why can't we have a rational debate about Net Neutrality?
Things like this, from Free Press…
Verizon wants to change that structure by setting up tolls in both directions — blocking certain websites or charging them for priority access to Web users — and by serving as a self-appointed editor for all Internet content.
Meanwhile, from “Verizon’s Commitment to Our Broadband Internet Access Customers"…
We will not prevent you or other users of our service from sending and receiving the lawful content of your choice … We will not unduly discriminate against any lawful Internet content, application, or service in a manner that causes meaningful harm to competition or to you or other users of our service.
This commitment is readily available at the Verizon website and is legally enforceable by the Federal Trade Commission. Yet we continue to have what amounts to a “have you stopped beating your wife?” debate.
Proponents of net neutrality regulations want to focus on whether the Internet will become something less without regulations. In reality, the question is whether networks can provide more.
