Senator Harry Reid Would Support Title II

Looks like Title II, the only authority capable of supporting real net neutrality rules after a court decision in January, is now politically feasible. For months, opponents of Title II suggested that Congress would destroy the FCC if it chose the Title II path. One skeptic of strong net neutrality rules wrote: “Republicans and pro-telco Democrats in Congress will grind the FCC to a standstill, starve its budget, and do everything in their power to inflict permanent harm on the agency.”  Since then, over a dozen Senators and dozens of Congressmen (and dozens of companies, investors, and trade associations) have come out strongly for Title II.  Even the FCC Chairman apparently mentioned politics as a reason against Title II.

Senator Reid’s letter makes clear: if the FCC does the right thing and stands up a rule under Title II, the Majority Leader would lead the fight to defend the rule. That’s a far cry from where we were months ago, when one could plausibly claim that the FCC would successfully be defunded and crippled for adopting real net neutrality.

Kudos to Senator Reid. This is a game changer. It allows us to argue on the merits, rather than have the FCC hide behind their political fears. From Bloomberg:

Senate Leader Harry Reid Pledges to Support Open-Internet Rules

2014-07-29 21:17:28.128 GMT

By Todd Shields
July 29 (Bloomberg) — Senate Majority Leader Harry Reid said in a letter he would support “any Open Internet rules” passed by U.S. regulators, language welcomed by supporters of strict rules opposed by telephone and cable companies.
The pledge gives the Federal Communications Commission political cover to regulate Web services like a utility, rather than relying on less robust rules that allow for so-called fast lanes on the Internet, said David Segal, executive director of Demand Progress, a Takoma Park, Maryland-based policy group that received the letter dated yesterday.
Reid’s support is “a reason for the FCC to move ahead with the strongest rule possible,” Segal said in an interview. Other groups that are urging the FCC to approve rules requiring Internet service providers to treat Web content equally also received the letter from Reid, Segal said.

From Vice:

Senate Majority Leader Harry Reid has given the Federal Communications Commission a much-needed political boost as the agency decides whether to move toward a more robust Open Internet policy favored by many net neutrality advocates.

“First, Reid’s letter undercuts the FCC’s argument that Senate Democrats won’t support a Title II order,” Segal said. “Second, it undercuts the FCC’s argument that there won’t be much of a political fight over a 706 order. Reid makes clear that he expects a political fight either way, and with his backing, now the FCC can decide this issue based on the merits, not on the politics.”

Segal makes a good point. The simple fact is that many Republican lawmakers oppose any kind of net neutrality rules whatsoever, whether issued under the authority of Section 706 or Title II. …

“Here’s why this letter matters,” Aaron told Motherboard. “There’s no longer any question that Tom Wheeler has the political support to do the right thing. And the right thing is reclassifying broadband access providers as common carriers under Title II of the Communications Act. Senator Reid makes clear that when Wheeler reclassifies that the Senate leadership will have his back.”

From National Journal:

Reid’s letter did not urge the FCC to use its authority under Title II. But he acknowledged that liberal groups are pressing the FCC on the issue and said he would support “any Open Internet rules” the FCC enacts.

David Segal, the executive director of the advocacy group Demand Progress, said the letter shows Senate Democrats will defend the FCC if it uses the Title II option and that Republicans would likely fight the rules no matter what authority the FCC uses.

Support for Title II–the Sound Basis for Open Internet Rules

The following have urged the FCC to reverse course and pursue Title II.

US Senators

  1. Ed Markey
  2. Barbara Boxer
  3.  Al Franken
  4. Bernie Sanders
  5. Charles Schumer
  6. Ron Wyden
  7. Richard Blumenthal
  8. Jeff Merkley
  9. Elizabeth Warren
  10. Sheldon Whitehouse
  11. Ben Cardin
  12. Kristen Gillibrand
  13. Corey Booker

Members of the House

  1. Keith Ellison
  2. Raúl M. Grijalva
  3. Earl Blumenauer
  4. Michael E. Capuano
  5. André D. Carson
  6. John Conyers, Jr.
  7. David N. Cicilline
  8. Peter De Fazio
  9. Donna F. Edwards
  10. Sam Farr
  11. Alan Grayson
  12. Rush Holt
  13. Mike Honda
  14. Jared Huffman
  15. Marcy Kaptur
  16. Barbara Lee
  17. John Lewis
  18. Zoe Lofgren
  19. Alan Lowenthal
  20. Betty McCollum
  21. Jim McDermott
  22. Jim McGovern
  23. Jerrold Nadler
  24. Eleanor Holmes Norton
  25. Beto O’Rourke
  26. Mark Pocan
  27. Charles B. Rangel
  28. Tim Ryan
  29. John Sarbanes
  30. Jan Schakowsky
  31. Bobby Scott
  32. José E. Serrano
  33. Carol Shea-Porter
  34. Mark Takano
  35. John F. Tierney
  36. Pete Visclosky
  37. Michel Michaud

Mayors

  1. Bill De Blasio (NYC)
  2. Edwin Lee (SF)
  3. Charlie Hales (Portland)

Companies

  1. Y Combinator
  2. Union Square Ventures
  3. Netflix
  4. Automattic/WordPress.com
  5. Reddit
  6. Dwolla
  7. Meetup
  8. Kickstarter
  9. Etsy
  10. General Assembly
  11. FourSquare
  12. Gilt
  13. Spotify
  14. Upworthy
  15. Vimeo
  16. Cogent
  17. Opera Software ASA
  18. Codecademy
  19. CodeCombat
  20. Contextly
  21. OpenCurriculum
  22. Touchcast
  23. Heyzap
  24. VHX
  25. Pocket
  26. Warby Parker
  27. Mozilla
  28. Floor64/Techdirt.com
  29. Golden Frog
  30. Data Foundry
  31. ThoughtWorks
  32. Gandi
  33. MobileWorks
  34. LendUp
  35. Distinc.tt
  36. TerrAvion
  37. Rewheel

Trade Associations

  1. AARP
  2. CCIA
  3. COMPTEL
  4. Engine
  5. NTCA
  6. Writers Guild of America, West
  7. i2Coalition

Investment Firms

  1. Trillium Asset Management
  2. Calvert Investments
  3. Arjuna Capital/Baldwin Brothers Inc.
  4. Zevin Asset Management
  5. First Affirmative Financial Network
  6. Clean Yield Asset Management
  7. Colorado Sustainable Financial Planning
  8. Nathan Cummings Foundation
  9. Park Foundation
  10. As You Sow Foundation

Public Interest Organizations

  1. Free Press
  2. Electronic Frontier Foundation
  3. Public Knowledge
  4. Fight for the Future
  5. Demand Progress
  6. National Hispanic Media Coalition
  7. Open MIC
  8. New America Foundation Open Technology Institute
  9. MoveOn
  10. American Civil Liberties Union (ACLU)
  11. Consumers Union
  12. Common Cause
  13. Voices for Internet Freedom
  14. CREDO
  15. ColorofChange
  16. Center for Media Justice
  17. Future of Music Coalition
  18. Benton Foundation

The following would support the FCC if it pursued Title II.

  1. Senator Bill Nelson (urging consideration of Title II)
  2. Senator Harry Reid (would “lead the fight” to defend “any” open Internet rules)
  3. Senator Jay Rockefeller (urging FCC to consider “all viable options”)
  4. Congressman Henry Waxman (proposing the “undisputed Title II” authority as a backstop)
  5. Congresswoman Anna Eshoo (“specifically” welcoming consideration of Title II)
  6. Yahoo (as a “last resort”)
  7. AOL  (as a “backstop”)

Thirty Companies Believe Title II is Essential for an Open Internet

The FCC Chairman Tom Wheeler has proposed to end net neutrality–while claiming to uphold it. Comcast and AT&T unsurprisingly support the Chairman’s proposal, even though they have fought net neutrality for over a decade, tooth and nail. So that should probably tell you all you need to know about the Chairman’s proposal. Oh, also millions of Americans, hundreds of companies, venture investors, churches, and consumer groups and democracy activists stridently oppose the Chairman’s proposal.

Indeed, you can look at the proposal’s language: it authorizes for ISPs “negotiating individualized, differentiated arrangements with similarly situated edge providers.” That is legal-speak for: ISPs congesting their networks then discriminating technically, creating fast lanes and auctioning them off to large companies, while leaving everyone else in a crappy slow lane and killing startup innovation and jobs.  (At least, that’s what over 1 million people are saying.) Chairman Wheeler is actually resting his proposal on a part of the law (called Section 706 of the 1996 Telecom Act) that requires giving the ISPs “substantial room for … discrimination in terms” and simply cannot “bar broadband providers from charging” websites for fast lanes. Meaning, you can’t do net neutrality under Section 706–you can only authorize discrimination and new tolls.

Hundreds of companies have made it clear they don’t want a world of individualized deals and slow lanes, but the Chairman’s office seems to insist that people specifically point to Title II (the part of the law that he should use instead of Section 706) as the essential evidence of disagreement with the Chairman proposal. That’s a little odd–it’s very clear, for example, that the Internet Association Comments (an association of the largest tech companies) is deeply opposed to almost every facet of the Chairman’s proposal, from his exempting mobile and interconnection to permitting discrimination and paid prioritization. The Internet Association is just focusing on substance, not jurisdiction, in its comments.

Nonetheless, I have been keeping a list of companies that have filed something in the FCC docket specifically and explicitly calling on the FCC to rely on Title II not Section 706.  If you have more, please let me know.

  1. Y Combinator
  2. Netflix
  3. Automattic/WordPress.com
  4. Union Square Ventures
  5. Reddit
  6. Dwolla
  7. Meetup
  8. Kickstarter
  9. Etsy
  10. General Assembly
  11. FourSquare
  12. Gilt
  13. Spotify
  14. Upworthy
  15. Vimeo
  16. Cogent
  17. Opera Software ASA
  18. Codecademy
  19. CodeCombat
  20. Contextly
  21. OpenCurriculum
  22. Touchcast
  23. Heyzap
  24. TerrAvion
  25. VHX
  26. MobileWorks
  27. LendUp
  28. Distinc.tt
  29. Pocket
  30. Warby Parker
  31. Rewheel
  32. Mozilla
  33. Floor64/Techdirt.com

Why You Should Care About Net Neutrality

I wrote an article for the Chaldean News, a paper in Michigan for the Iraqi-Catholic-American community.  Continue reading

Education Start-ups File Comments with FCC Demanding Net Neutrality

Earlier today, four education start-ups urged the FCC to classify broadband providers under Title II of the Communications Act, and to ban technical discrimination and paid prioritization.

Here are the comments in full:

Codecademy

Codecombat

General Assembly

OpenCurriculum

New America Foundation’s Education Policy Program also filed a letter with the Department of Education.

FCC’s “Commercial Reasonableness” Standard Already a Dismal Failure

T-Mobile filed a petition today making it clear that the FCC’s commercial reasonableness standard is a failure.

Anyone following net neutrality knows that the FCC is proposing to authorize discrimination and pay-for-priority deals known as fast lanes. The FCC is claiming we need not worry, however, because the FCC can make sure that entrepreneurs and users face only “commercially reasonable” discrimination. That is loosely defined: even exclusive deals are presumed commercially reasonable. And, if a startup wants to prove that it’s being offered a commercially unreasonable discriminatory deal, it must sue one of the world’s largest companies (be it Verizon or AT&T or eventually Comcast) at the FCC (or ask the FCC’s “ombudsman” to do it). The startup would then have to meet an extremely vague standard regarding harm to competition, to consumers, or to civic participation, contributing any funds they may have to their favorite lawyers, expert witnesses, and economists. (Yes, ironic, to have a test turning on harm to competition, consumers, and civic participation, since the FCC’s authorization of discrimination, on its face, harms all three.)

Said another way: under the FCC’s rule, discrimination will be authorized and startups would have no recourse at all.

Nonetheless, some at the FCC keep asserting that the vague “commercial reasonableness” standard will be an important safeguard and we should give it a chance (a chance to change the Internet as we know it, perhaps irreversibly).

The commercial reasonableness standard was first used in an order involving data roaming–deals between AT&T and Verizon Wireless and smaller carriers, like T-Mobile. The FCC set out 16 factors (plus a catch-all “other” factor) to determine whether data roaming deals were commercially reasonable.

T-Mobile filed a petition essentially explaining that the FCC’s factors provide far too little guidance to the market and have been ineffective. 

Since adoption of the data roaming rule, however, carriers have continued to report that “the negotiation of data roaming agreements has not meaningfully progressed.” Problems have included offers of wholesale data roaming rates many orders of magnitude higher than the offering carrier’s retail rates to its own data customers, delays of more than eight months to obtain even initial responses to roaming requests, requests for detailed long-term traffic projections and proposed hefty penalties for any resulting deviations from those projections, and testing procedures and queues that would drag on for undisclosed or indeterminate periods of time.
 
These issues continue to persist today, and in some cases are getting worse.
 
Now the FCC wants to bring this approach to the Internet. It’s a bad idea. 

If It Ain’t Broke: “Status Quo” From 2004 FCC Has Often Acted to Protect Net Neutrality

The cable and phone companies are telling people in DC that the Internet has benefited from “no” net neutrality rules. They claim, since there were no rules for a decade, we don’t need them now. They’ve got the story exactly backwards: we have had active FCC interventions on net neutrality. That’s one reason we have had a neutral Internet till now. Indeed, since 2004, we have had enforcement actions, policy statements, merger conditions, spectrum conditions, and a rule. The first time we have had the FCC announce that it would not ensure neutrality but would instead authorize fast lanes … was Chairman Wheeler’s comments earlier this year.  

I explain that here. This post was originally part of the comments filed with the FCC by Engine Advocacy, an organization based in San Francisco that advocates for startups in DC. 

While often imperfect, the FCC has done much to ensure an open internet. Carriers have not historically engaged in rampant discrimination partly due to the threat of FCC action. In 2004, the FCC’s Chairman issued a speech about the “Four Freedoms” online, which promised to keep the Internet an open platform. In 2005, the FCC punished Madison River, a small telephone company that was blocking Vonage, an application that powered online phone calls competing with Madison River’s own service. In 2005, the FCC adopted an Internet Policy Statement and pledged to respond to any violations of the statement with swift action. In 2008, after it was discovered that Comcast, the largest ISP in the nation, was interfering with some of the internet’s most popular technologies—a set of five peer-to-peer (P2P) technologies—the FCC enjoined Comcast in a bipartisan decision. Much of the cable industry was engaging in such actions, so this wasn’t a small exception. In 2010, the FCC adopted the Open Internet Order that was only recently struck down.

Additionally, in the years since 2005, the FCC has conditioned spectrum assignments and mergers on net neutrality rules. The largest three broadband providers have been (or remain) subject to net neutrality for many years. AT&T accepted two-year net neutrality conditions in its merger with BellSouth, and SBC accepted a two-year condition in its merger with AT&T. Verizon accepted a similar condition in its merger with MCI.  Verizon purchased a 22MHz band of spectrum (the C block) in the FCC’s 2008 700MHz auction for $4.7 billion dollars, and did so subject to open internet conditions modeled on the Internet Policy Statement. Comcast has been subject to network neutrality rules since its merger with NBC in 2011, and the merger condition extends for seven years. Both Verizon and Comcast’s conditions still apply today. Moreover, Congress imposed contractual obligations on internet networks built with stimulus funds—nondiscrimination and interconnection obligations that, at a minimum, adhered to the internet Policy Statement, among other obligations.

In light of these merger obligations, license conditions, FCC adjudications and rulemaking, stimulus conditions, and consistent threats of FCC action, startups have enjoyed a generally neutral network that is conducive to, and necessary for, innovation. These actions provided some certainty that startups would not be arbitrarily blocked, subject to technical or economic discrimination, or forced to pay carriers so that the carriers’ consumers can access all the innovation online. 

Following the Verizon v. FCC decision, and under the Chairman’s proposal, that will likely change, in ways that harm entrepreneurship and the public interest.

The past decade of tech innovation may not have been possible in an environment where the carriers could discriminate technically and could set and charge exorbitant and discriminatory prices for running internet applications. Without the FCC, established tech players could have paid for preferences, sharing their revenues with carriers in order to receive better service (or exclusive deals) and to crush new competitors and disruptive innovators. Venture investors would have moved their money elsewhere, away from tech startups who would be unable to compete with incumbents. Would-be entrepreneurs would have taken jobs at established companies or started companies in other nations. The FCC played an important role. The Chairman and this FCC shouldn’t break that. 

See the comments for all footnotes.

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