#section 706

[libraryadvocates]

How fast is fast enough? Comments on FCC broadband deployment report - District Dispatch

ALA submitted comments to the FCC about the standards for broadband deployment to libraries and the role of mobile internet access.

Last Friday, we submitted comments to the FCC raising two issues particularly relevant to libraries and their public missions: first, the criteria and standards for broadband deployment to public institutions like libraries and schools; second, the role of mobile internet access in connecting consumers to information.

[techfreedom]

3/17 Briefing: Does FCC Power Trump State Broadband Laws?

WASHINGTON D.C. — The FCC’s claim of authority to preempt state broadband laws goes on trial. On Thursday, March 17, the Sixth Circuit will hear oral arguments on whether the FCC can lawfully preempt parts of laws in North Carolina and Tennessee that govern how, and where, municipal broadband networks may operate.

The two states object both to (a) the FCC’s 2010 reinterpretation of Section 706 as an independent grant of authority to regulate any form of communications in any way that the FCC claims promotes broadband and (b) the specific use of that supposed power to preempt state law, as an infringement of a state’s sovereignty over its municipalities.

Join us Thursday, March 17 at 11 am ET (8am PT) for a call with reporters and bloggers. TechFreedom President Berin Szoka will be present at the oral arguments taking place in Cincinnati at 9am. Szoka will begin the call with his take on the arguments, joined by veteran telecom lawyer Ray Gifford of Wilkinson Barker Knauer LLP. The two will take Q&A from participants. Please RSVP here.

When: March 17 at 11am (8am PT)

Call-in number: [phone]

We can always be reached for comment and interviews at [email protected].

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All briefs in the case are available here. See more of our work on Section 706 and the FCC, including:

“The Feds Lost on Net Neutrality, But Won Control of Internet,” an op-ed in Wired by Berin Szoka and Geoffrey Manne

Amicus brief from TechFreedom, ICLE and CEI making the legal case against the FCC’s interpretation of Section 706

[techfreedom]

How the FCC Overruled State Municipal Broadband: Berin Szoka in WashingTech

In the ongoing effort to provide greater access to fast, affordable internet, many have looked to municipal broadband as the solution. However, these government-run broadband networks are often anticompetitive and costly for taxpayers.

TechFreedom President Berin Szoka joins Joe Miller on WashingTech’s policy podcast to discuss the FCC’s history of regulation, how the FCC has overstepped its Section 706 authority in preempting state restrictions on municipal broadband, and how the government should move forward on municipal broadband regulations. Listen to the full podcast here.

[techfreedom]

‘Net Neutrality’ Court Fight is Really About FCC Power

If FCC Wins, It Could Impose New Taxes, Ban Encryption

WASHINGTON D.C. — Today, the FCC goes to court over “net neutrality” regulation — for the third time. The D.C. Circuit hears oral arguments on U.S. Telecom Association v. FCC, a case with vast implications for the Internet, including the raging debate over crippling encryption.

TechFreedom is leading a group of intervenor-plaintiffs challenging the statutory reinterpretations that undergird the FCC’s Open Internet Order. The group includes Cari.net, a small hosting provider, and leading Silicon Valley entrepreneurs and investors, including several pioneers of Voice over Internet Protocol (VoIP) service.

Join us Tuesday, December 8th at 10 a.m. ET for a recap of the oral arguments that took place today. Please RSVP here.

“‘Net neutrality’ is a red herring,” said Berin Szoka, president of TechFreedom. “The real issue is, and always has been, the FCC’s attempt to invent authority to regulate the Internet despite clear direction from Congress that the Internet remain ‘unfettered’ by regulation.”

“Congress could have resolved this issue years ago—and likely would have if the FCC had stayed within the bounds of law,” explained Szoka. “Republicans led a veto-proof majority in 2006 to give the FCC clear authority over core net neutrality concerns. Democrats tried to broker a deal in 2010. This year, Republicans have offered to essentially reinstate the FCC’s 2010 rules. All that remains in the way of a legislative deal is the FCC’s obstinance — and the angry clicktivist mob that has made it impossible for Congressional Democrats to finally resolve this fight without giving the FCC a blank check to regulate the Internet or impose billions in new broadband taxes.”

“In 2010, the FCC’s institutional obsession with self-aggrandizement led it to the preposterous claim that Section 706 allows it to regulate any form of ‘communications’ in any way that it claims, however tenuously, will promote broadband investment,” continued Szoka. “After the court struck down the FCC’s 2010 rules last year, the FCC could have used this power to tailor its rules to ensure that they did not impose full-blown common carriage. Instead, the FCC chose the most draconian route possible: equating the Internet with the telephone network in order to claim the sweeping discretion given to the FCC in 1934 to both tame and perpetuate the AT&T telephone monopoly.”

”The FCC claims it will only use its vast new powers to police broadband, but its legal theories erase the once-clear line that protected ‘edge’ companies from heavy-handed Title II regulation,” warned Szoka. “Even worse, expanding the definition of ‘telecommunications’ could allow the FCC to give the FBI what it knows Congress cannot, politically: a ban on end-to-end encryption. The FCC could use its logic for reclassifying mobile broadband to impose the 1994 Community Assistance to Law Enforcement Act on edge services like chat and video platforms.”

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We can be reached for comment at [email protected]. See some of our work on net neutrality and Title II, including:

TechFreedom’s opening brief and reply brief challenging the FCC’s Internet regulation

“3 Reasons Why We’re Challenging the FCC in Court,” a statement from TechFreedom summarizing its motion to intervene against the FCC’s Open Internet Order

Highlights from legal and policy comments filed by TechFreedom and the International Center for Law & Economics on net neutrality, and our reply comments

“The FCC’s Net Neutrality Victory is Anything But,” an op-ed by Geoffrey Manne, in Wired

Coalition letter urging Congress to rein in the FCC’s authority to regulate the Internet

Amicus brief led by TechFreedom in Sixth Circuit litigation over the meaning of Section 706

[techfreedom]

FCC Falls Short on Broadband Deployment

Today, TechFreedom and the International Center for Law and Economics filed comments with the Federal Communications Commission in response to a notice of inquiry regarding the promotion of broadband deployment that was included in the Commission’s latest Broadband Progress Report.

The comments urge the FCC “not merely to channel its unique resources towards broadband deployment, but to combine its own collective expertise with that outside the Commission, and to ensure that this work remains a priority for the FCC going forward. If the FCC should lose in court on its re-interpretation of Section 706, preemption of state laws under Section 706, Title II reclassification, etc., this diversification will ensure that the FCC does not wind up empty-handed. Simply put, it is the only way for the FCC to avoid putting all its eggs in one basket.”

The Commission is currently failing to adequately promote broadband deployment, but there are several steps it could take to remedy this problem. For a start, the FCC should evaluate what progress has been made under the Broadband Action Agenda within the National Broadband Plan, and then produce an updated version of the plan with clear steps and benchmarks for promoting broadband.

The FCC should also work to revitalize the Federal-State Advanced Services Joint Conference. The Conference, which was established to facilitate dialogue among federal and state governments on broadband deployment, has convened only once since 2009, and its members consist only of the five FCC commissioners and four public utility commission members from around the country. Because of the limitations on membership in the Conference, the Commission should also establish an advisory committee with members from the federal, state and local levels of government, as well as from the private sector, academia and other interested organizations.

Ultimately, the notice of inquiry regarding the promotion of broadband deployment is an encouraging start, but the FCC still has much to do in order to live up to its responsibility to promote deployment.

[techfreedom]

The FCC’s Other Absurd Power Grab

Muni Broadband Preemption is Illegal, Counter-Productive

Overshadowed by the unveiling of net neutrality rules yesterday, the FCC also released its Order on municipal broadband petitions filed by utilities in Chattanooga, Tennessee and Wilson, North Carolina. The Commission had voted on February 26th to preempt state laws in TN and NC that restrict the expansion of government-run broadband networks.

“This is just another empty political stunt,” said Berin Szoka, President of TechFreedom. “For months, the FCC has claimed that states are prohibiting muni broadband. In fact, they’re merely imposing safeguards to protect taxpayers from having to subsidize networks outside their municipality, to ensure a level playing field between government-run and private providers, and so on. The FCC’s contorted jurisdictional theory won’t allow it to strike down absolute bans, only these generally sensible safeguards. So, perversely, the FCC may actually encourage states to ban muni broadband outright — which would be an ironically self-fulfilling prophecy.”

“This is a polarizing distraction from the real issue: clearing barriers to broadband deployment and building fiber-ready infrastructure, primarily at the local level,” continued Szoka. “If cities want faster broadband and more competition, they should start by cutting fees and red tape. Every time a street is dug up, a ‘Dig Once’ conduit should be installed underneath and leased to private providers. Such policies could greatly speed up broadband upgrades and entry by new providers like Google Fiber. Ultimately, these pro-deployment reforms must be implemented by Congress, state legislators and municipalities. Federal preemption legislation to set consistent standards may well be appropriate, just as it was when Congress clearly ordered the FCC to ensure that local zoning laws didn’t hamstring home installation of satellite TV dishes. But by starting yet another partisan fight about the FCC’s overreach, Tom Wheeler is poisoning the waters for real pro-deployment reforms.”

“The FCC is trying to sidestep its 2004 loss at the Supreme Court on this issue,” explained Szoka, citing Nixon v. Missouri Municipal League, in which the Court struck down the FCC’s preemption of an outright state ban on muni broadband because, while Section 253 of the Communications Act specifically authorized FCC preemption, it failed to make “unmistakably clear” whether that applied to state laws governing muni broadband.

“The FCC knows it’s on far weaker legal ground today,” concluded Szoka. “Section 706 doesn’t mention preemption at all; indeed, only by claiming that Section 706 is inherently ambiguous can the FCC argue with any plausibility that Section 706 confers any authority at all. Of course, Section 706 can’t be both ambiguous and unmistakably clear, so the FCC is trying to change the legal standard, claiming the Communications Act gives it sweeping preemption powers over any state laws governing telecom services short of outright bans. This flies in the face of other Supreme Court decisions recognizing states’ ‘absolute discretion’ to limit the powers of their municipal corporations. And even before a court reaches these federalism questions, it may reject the FCC’s absurd claim that Section 706 gives the agency carte blanche to do whatever it asserts will somehow promote broadband.”

Szoka can be reached for comment at [email protected], and and see our other work on Section 706 and promoting broadband deployment, including:

“We Need More Google Fibers, Not Government-Run Internet,” a statement on President Obama’s white paper on “Community-Based Broadband Solutions”

“The FCC’s Section 706 Power Grab is Dangerous, and Ignores Marketplace Realities,” a summary of our comments on the FCC’s annual report on broadband deployment

“The Feds Lost on Net Neutrality, But Won Control of the Internet,” Berin Szoka and Geoffrey Manne in Wired.com

“Don’t Blame Big Cable. It’s Local Governments That Choke Broadband Competition,” Berin Szoka and Jon Henke in Wired.com

“Net Neutrality Regulation is Bad for Consumers and Probably Illegal,” a summary of TechFreedom’s legal comments to the FCC on Net Neutrality

A Third Way on Muni Broadband, TechFreedom & ICLE statement, summarizing comments opposing petitions asking the FCC to preempt state laws governing muni broadband

[techfreedom]

FCC Cynically Downplaying Broadband Deployment to Justify Regulatory Powergrabs

WASHINGTON D.C. — Today, for the fourth time since 2010, the FCC voted to issue an annual Broadband Deployment Report claiming that U.S. broadband deployment has not been “reasonable and timely” (based on December 2013 market data). The report justified this determination, which the FCC is required to make by Section 706 of the 1996 Telecommunications Act, by raising its speed benchmark from 4 Mbps (enough for one Netflix HD stream) to 25 Mbps (enough for seven simultaneous HD streams). Last week, TechFreedom filed a written ex parte highlighting the good news about broadband deployment in 2013 and 2014, and urging the FCC not to distort its assessment of broadband deployment by arbitrarily raising its speed benchmark.

“The FCC has been playing political games with the 706 report since 2010, when it suddenly declared deployment inadequate in order to justify its net neutrality regulations,” said Berin Szoka, president of TechFreedom. “Just a month ago, Wheeler raised the speed benchmark 250% — to 10 Mbps. Now he’s raising it by another 250%, and assessing 2013 deployment data by the ‘need’ of the top 1% that had 4K televisions that year. This new threshold may titillate John Oliver’s clicktivist ‘monsters,’ but it’s a new low in cynical, elitist politics at the FCC: Repeatedly raising the speed benchmark allows Wheeler to thump his chest about faster speeds even as he pushes through a reckless, ideologically-driven regulatory agenda that would, in fact, slow the investment needed to drive speed upgrades. Tom Wheeler would rather talk about broadband upgrades than actually help ensure they happen.”

“Pretending broadband providers aren’t staying ahead of user demand provides some political and legal cover for Wheeler to justify the two biggest power grabs in FCC history,” continued Szoka. “First, the more negative the FCC’s depiction of the broadband market, the more emboldened it will be to exercise the power it has, absurdly, claimed under Section 706 to regulate the entire Internet. Wheeler’s plan to use 706 to preempt state laws on muni broadband is just more political theater, since it’s sure to fail in court on federalism grounds. Next up may be FCC regulation of privacy and cybersecurity — Silicon Valley, beware! Second, Wheeler will cite the supposed lack of broadband competition to justify reclassifying broadband under Title II rules designed for true monopolies — and to back off his promises of broad forbearance from Title II’s many unnecessary provisions.”

“Meanwhile, in the real world, the broadband picture has never been brighter. 2013 saw continued increases in broadband speeds, and the U.S. far outstripped the rest of the world in mobile broadband,” concluded Szoka. “2014 also saw massive upgrades of outdated telco DSL networks to next-generation VDSL2 technologies, bringing 25+ Mbps service to over half the country, but you won’t see any of that in the report because it’s based entirely on 2013 data — measured against a benchmark that won’t be needed for years. The sooner the FCC stops playing Report Theater, the sooner we can focus on what Congress intended: ensuring that all Americans have meaningful Internet access, not the ‘needs’ of urban elites and — and the sooner we can focus on making private broadband deployment easier, especially by new players like Google Fiber.”

Background

The FCC’s own data show that the number of connections of at least 10 Mbps increased by 104% in 2013.

In 2013, U.S. carriers spent about four times more on network infrastructure per subscriber than the rest of the world, and 4G LTE networks reaching 30% of Americans, compared to just 4% of Europeans.

An estimated 2% of Americans have a 4K television and not until 2018 is the number expected to reach even 10%.

Americans sit an average of 7-10’ from their televisions. At 8’, the difference between HD and 4K is imperceptible on screens smaller than 60”. At 10’, the screen must be at least 75’.

Netflix has admitted that a 4K stream will only require 15 Mbps anyway but consistently overstates its ‘recommendations’. Even on Google Fiber’s 1,000 Mbps service, the average Netflix streaming speed is just 3.7 Mbps.

Szoka can be reached for comment at [email protected], and and see our other work on Section 706 and promoting broadband deployment, including:

“The FCC’s Section 706 Power Grab is Dangerous, and Ignores Marketplace Realities,” a summary of our comments on the FCC’s annual report on broadband deployment

“The Feds Lost on Net Neutrality, But Won Control of the Internet,” Berin Szoka and Geoffrey Manne in Wired.com

“Don’t Blame Big Cable. It’s Local Governments That Choke Broadband Competition,” Berin Szoka and Jon Henke in Wired.com

“Net Neutrality Regulation is Bad for Consumers and Probably Illegal,” a summary of TechFreedom’s legal comments to the FCC on Net Neutrality

A Third Way on Muni Broadband, TechFreedom & ICLE statement, summarizing comments opposing petitions asking the FCC to preempt state laws governing muni broadband

[techfreedom]

Are Democrats Serious about Net Neutrality?

WASHINGTON D.C. — Today, House and Senate Subcommittees held hearings on a Republican discussion draft for legislation to protect an Open Internet and FCC Chairman Tom Wheeler’s separate proposal to reclassify broadband under Title II of the Communications Act.

“It’s disappointing that Democrats seem unwilling even to discuss a legislative solution that could finally resolve the decade-long net neutrality debate,” said Berin Szoka, President of TechFreedom. “Instead of just objecting to the Thune-Upton discussion draft, why not propose amendments? Have they forgotten how ‘regular order’ is supposed to work?”

“If Republicans really want to stop the FCC from imposing Title II on the Internet, they need to offer a grand bargain,” suggested Szoka. “Republicans can’t accept a deal that leaves the FCC with a blank check to regulate the Internet. The same edge companies also pushing for net neutrality regulation should also fear that the FCC will use Section 706 to regulate them, too. Democrats are fixated on letting the FCC use 706 to preempt state laws on muni broadband, yet delude themselves if they think this will stand up in court. The solution is obvious: clarify that Congress never intended 706 as a sweeping grant of authority but preempt state laws that truly hinder muni broadband deployment. Most Congressional Democrats voted for that compromise in the Comm Act Update of 2006.”

“Muni broadband should be authorized only as a last resort,” concluded Szoka. “Cities should first have to cut red tape and fees, and offer to lease access to smart infrastructure like Dig Once conduits and poles. There are a host of other ways Congress could implement the lessons learned by Google Fiber, Verizon and other private companies as they’ve struggled to deploy new networks. If Democrats won’t even discuss that deal, we’ll know that their talk of net neutrality and broadband competition has merely been cover for their real goal: returning to the bad old days of regulated monopoly.”

Szoka can be reached for comment at [email protected]. See more of our work on net neutrality and Title II, including:

Coalition letter urging Congress to rein in the FCC’s authority on net neutrality, which was entered into the Congressional record today

DontBreakThe.Net, TechFreedom-led grassroots, coalition effort against Title II

There’s No Middle Ground on Title II, Berin Szoka

A Third Way on Muni Broadband: Governments Must Remove Barriers to Private Broadband Deployment, Berin Szoka

Tech Policy Offers Republicans Best Opportunity to Lead, Berin Szoka

Highlights from legal and policy comments filed by TechFreedom and the International Center for Law & Economics on net neutrality, and our reply comments