Part 2 - No the FCC is not Repealing "Net Neutrality."

Part I generated some feedback that I'd like to address. Sorry, this is a bit "outline-y" I didn't have time to fully flesh everything out. Primarily two points:

1. With Title II gone, where else in the law is net neutrality protected?
2. Isn't the debate broader than just the legalities?

I think all sides agree that if there were a true free market for internet access, net neutrality would result naturally, and heavy regulation would not be necessary to enforce it. So....

Where else is net neutrality in the law?

47 CFR Part 8 - https://www.law.cornell.edu/cfr/text/47/part-8

This is where Section 706 of the Telecommunications Act of 1996 is codified. This is the part of the regulations that the FCC's proposed order would modify. Part 8.11 would be removed. All the rest would remain, including:

• Sec. 8.5 - No Blocking
• Sec. 8.6 - No throttling
• Sec. 8.9 - No paid prioritization

These still apply to ISPs relationship with end-users. ISPs are in a difficult position. The actually have two sets of "customers." End users on one side, and "edge providers" on the other (edge providers are Facebook, Google, Netflix, etc. - content companies).

47 CFR enforces net neutrality between ISPs and end users. That's not changing. The "little guy" is protected. Title II was an attempt to do the same between ISPs and edge providers. (See the discussion below about this issue). TL;DR - net neutrality is being co-opted by large edge providers to avoid having to invest in infrastructure.

Anti-trust

Anti-trust law is well established with over 100 years of court precedents. The Title II reclassification barred anti-trust lawsuits against ISPs. This FCC change restores FTC oversight and makes ISPs subject to Anti-trust law again. Many of the provisions of Title II mirror Anti-trust law. This makes sense because Title II was designed to regulate a telephone monopoly. The following are prohibited by anti-trust law. But most importantly, they are illegal only when a free market does not exist. This is the proper way to punish exploitation and not innovation.

• Price discrimination - Charging different prices to different customers (in our case either end users or content providers like Netflix, or YouTube. (ISPs could charge more if it reflected increased costs, just as they can still throttle traffic under Title II for "network management")
• Tying - requiring the purchase of one product to get another. It's illegal if it harms competition.
• Group Boycotts - All ISPs couldn't get together and block Netflix for example. Or a monopoly ISP could also not do the same thing on its own.
• Market division - Charter and Comcast could not agree to divide the country (or a city, or state) between them to avoid competition, for example.

Quick read on Anti-trust: https://www.ftc.gov/tips-advice/competition-guidance/guide-antitrust-laws/antitrust-laws

Section 706 of the Telecommunications Act of 1996.

Section 706 allows the FCC and each state communications commission to promote a competitive market and spread of broadband access to all. Specifically, the FCC must:

.... encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans.... by utilizing, in a manner consistent with the public interest, convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment.

The "Advanced Telecommunications Capability" mentioned is defined:

The term “advanced telecommunications capability” is defined, without regard to any transmission media or technology, as high-speed, switched, broadband telecommunications capability that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications using any technology.

So, the FCC has a duty to promote deployment of broadband that allows users to send and receive high-quality voice, data, graphics, and video telecommunications using any technology. Sounds a lot like net neutrality.

In fact, the court in Verizon v. FCC struck down the FCCs original Open Internet Order, BUT agreed that the FCC has great authority under 706, and could promote net neutrality rules using 706 without Title II if done properly. The FCC began to craft such an order to comply with the court's requirements when they shifted gears and decided to use Title II instead.

So this approach is court tested and approved. Title II classification is not. It could, and likely would be challenged by the ISPs.

Other issues:

Net neutrality will be ineffective anyway.

Net neutrality is a lot like pure "democracy" or pure "libertarianism" - it's a great ideal and a very popular principle, but it doesn't survive contact with the real world very well.

Title II contains a provision allowing throttling, traffic shaping and blocking for purposes of network management. Optimizing and maintaining service on the network. This exception is HUGE. Almost anything can easily be justified as necessary for network management.

Consider Netflix and other streaming video services. They are the 800-pound gorilla in the net neutrality debate. On peak days, Netflix is 37% of all internet traffic in the United States. All other traffic will be crowded out if providers don't throttle or shape Netflix. Add other streaming video, and it's 70% of traffic. Throttling is happening right now, I guarantee. Title II and net neutrality allows that.

More info on streaming video:

https://venturebeat.com/2015/12/07/streaming-services-now-account-for-over-70-of-peak-traffic-in-north-america-netflix-dominates-with-37/

Net neutrality is increasingly unnecessary

The internet today doesn't operate like the internet of 15 years ago. Net neutrality rules are becoming less necessary.

In the past, The internet was largely point-to-point and unencrypted. Blocking Ted's website was a simple matter of knowing Ted's IP address. The rise of several technologies has made it nearly impossible for ISPs to block traffic in any granular way. The "cloud", VPNs, HTTPS, and CDNs (Content Distribution Networks).

• The "cloud" - many companies host their services on Amazon, Google, or Microsoft's cloud infrastructure. From the ISP's perspective, they see traffic from Amazon's cloud. They can't tell if it's Ted's website, or some other service. And they can't block it without affecting other traffic from Amazon.
• HTTPS - encrypts traffic between content providers and the end user. So the ISP can't tell if you're checking email, a website, or listening to audio. If you add a VPN, then your location is masked too.
• Lastly, CDNs - are similar to the cloud. An evil ISP can't tell what content you're downloading or from whom.

Other issues do remain unsolved, and are certainly open for debate.

The largest ISPs are also content providers. There is a conflict of interest there. What's the Net Neutrality answer: slow their own content? Do we separate ISP business from content? This is the real issue. Most examples of net neutrality violation I see mentioned are ISPs favoring their own content. I think it's a legitimate debate to have.


Are edge providers customers too? This isn't a typical two-party transaction. On the internet, the edge providers generate the demand, but don't pay for the traffic. The end users pay. This is why Google, Facebook, etc. favor Title II regulation. It allows them to keep access to the ISP networks without helping foot the bill. In a real sense, Facebook, etc. have gotten net neutrality advocates to side with them in the battle between massive corporate edge providers and massive corporate ISPs. Far from protecting the "little guy," net neutrality is a huge boon to Google, Facebook, Netflix, and other large content companies. It saves them from having to share infrastructure costs, despite being massive users of the infrastructure of others.

No, the FCC is NOT Repealing "Net Neutrality."

"Net neutrality" is not going away.


Net neutrality is, indeed, good for everyone. That's not really what the FCC is changing. A lot of the opposition to this change is really an overreaction. Some is spurred by misunderstanding, some by a reflexive anti-corporatism, and some is fueled by previous and current FCC commissioners who took regulatory control unilaterally, and don't want to relinquish it.


As a lawyer who has also worked in IT for over two decades, allow me to try and clarify what's going on, and dispel some of the hysteria that's all over the internet these days - with references to the actual law, for those who care.


What's being changed is this: Broadband ISPs are being re-classified as Title I entities instead of Title II under the Communications Act of 1934. Broadband ISPs were Title I entities from the dawn of the internet till 2015.


Title II classification is NOT net neutrality.


Net neutrality principles are different. They existed and were enforced prior to this change in 2015. Neither Title II nor the FCC created them. They developed along with the Internet itself, and the government has endorsed them as guiding principles in regulation of the internet. They will continue to exist and be enforced after this change is done. Just not by the FCC using the tools in Title II. Enforcement has always been by a combination of FCC (under Title I), FTC, and Anti-trust law. That enforcement will continue.


A note about the examples currently circulating online of past violations of net neutrality by ISPs:


ISPs have only been Title II entities since June 2015. So, whenever you hear examples of what ISPs have tried to do in the past to violate net neutrality, remember that ALL of those situations were resolved by the FCC, FTC, and the courts enforcing net neutrality *before* they were classified as Title II entities. In other words - after this change is implemented, we will still have all the same tools that solved all of those problems. Anyone who tries to tell you that title II classification was necessary to solve any of these issues is lying, misinformed, or just giving in to the hysteria of others.


History and effects of Title II classification:


The initial reclassification of ISPs as Title II entities was done at the urging of President Obama following a court ruling which struck down one attempt by the FCC to enforce net neutrality. The court decision offered another path to regulation besides making ISPs Title II entities. The FCC commission at the time chose instead, at the President's urging, to simply reclassify ISPs.


Title II classification was one method of allowing the FCC to regulate ISPs and enforce PRE-EXISTING net neutrality principles. And a very heavy-handed method. It's akin to preventing speeding by placing every licensed driver in the country on criminal probation - with GPS tracking, and all the other restrictions and requirements that come with it.


Remember, Title II was designed to regulate a government-enabled monopolistic phone company.


Are there some positive provisions that mesh with the goals of net neutrality? - Yes. Title II does prohibit discrimination and preferences among users of the service. (47 USC 202). It requires safeguarding personal information. (47 USC 222). And it gives access to utility conduits in a uniform manner proscribed by the FCC. (47 USC 224).


But those goods are paired with a heavy, intrusive set of requirements and grants of authority to the FCC. The requirements imposed on ISPs are neither simple, nor cheap - and go far beyond net neutrality, intruding into all aspects of the business. Sure, Verizon, or Comcast may be able to comply. But imagine the following list applied to small, local, or regional ISPs (XMission, Utopia, Rise Broadband, etc). Among other things, Title II:

• Gives the FCC power to set and approve rates (47 USC 205)
• Requires filing of fee schedules (47 USC 203)
• Requires filing of all contracts with other carriers (47 USC 211)
• Allows FCC to inventory and set the value of all corporate assets, and allows access to all corporate records and free access to all corporate physical property. (47 USC 213)
• Requires prior approval of the FCC to expand ISP networks. (and they are only allowed to do so if it's in the public interest). (47 USC 214).
• Gives the FCC power to modify or void contracts with equipment providers. (47 USC 215)
• Gives the FCC power to intervene in corporate management and obtain trade secrets and new technology to make them "available to the people of the United States." (47 USC 218)
• Requires filing of annual reports including: stock classes, values, and the names of the largest shareholders, corporate finances, corporate payroll info - including all employee salaries, value of all corporate equipment, etc. (47 USC 219)
• Allows the FCC to create and enforce accounting methods and practices, including capital asset depreciation schedules. (47 USC 220)

Is it any wonder the ISPs oppose Title II regulation?


Title II itself contains literally nothing about net neutrality as applied to a modern switched IP network. Such a concept didn't exist in 1934. What it does contain is massive regulatory compliance burdens for ISPs and sweeping powers for the FCC to violate traditional contract and corporate law principles. It will not be a big deal for the large ISPs and their large legal departments, but it will prevent smaller ISPs from forming or being successful.


If we feel the system used to enforce net neutrality from the dawn of the Internet until 2015 is inadequate, Title II classification is a big, blunt hammer of a solution. Let's take the lighter-touch path, and have Congress address any problems that arise.


Read the FCC Proposal here: http://transition.fcc.gov/Daily_Releases/Daily_Business/2017/db1122/DOC-347927A1.pdf


Read the Communications Act of 1934 here: https://transition.fcc.gov/Reports/1934new.pdf

"It"

We all have our Boogeymen. 

(With apologies to Stephen King)

What is "It"?

"It" is a constitutional right, upheld by the Supreme Court - subject to a "balancing test" of competing interests.

"It" is a personal right, and one's exercise of "It" is no one else's business.

"It" results in thousands of innocent deaths every year in the United States.

"It" is seen by its most extreme opponents as unnecessary violence, reckless, even "murder" which should be banned.

"It" protects the individual's most private and fundamental rights from infringement by others. Hence, "It" should not be subject to ANY restrictions, according to its most ardent supporters.

"Its" supporters worry that popular "reasonable" regulations and restrictions are a slippery slope, eventually leading to a complete ban.

"It" is not seen as a serious concern in other developed countries. It is in the United States.

"It," or one's support of "It", is seen as a litmus test in one of the two major U.S. political parties.

"It" inspires protests, marches, boycotts, prayer, and other collective action by both supporters and opponents. Supporters and opponents do not trust or believe in the good faith of the other side.

"Its" leading organization for supporters has been promoting "It" for over 100 years. This organization rates candidates and spends millions of dollars every election cycle to promote "It."

"Its" providers are harassed, demonized and threatened at times.

"It" is seen as sometimes necessary, even essential in some tragic cases, by most Americans. But most wish "It" were not such a "necessary evil." Most Americans are moderate in their opinions of "It."

"It" is a right most Americans never exercise.

"It" is periodically thrust into the national consciousness by cases of horrific abuse.

"It" disproportionately affects those in poverty and minorities. Yet they are the most frequent users of "It."

"It" is sometimes used by those who feel they have no other choice and who's life or health is under imminent threat.... however....

.... "It" is more commonly used for less serious - some would say frivolous - reasons.

"It" has been the subject of numerous attempts by individual states to limit or restrict "It." Most of these limits have been struck down in court.

"It" is the right to.....?

Abortion?.... Yes.
Bear arms?.... Yes.

Each of the above statements is true of both those issues (and possibly others).

We all have issues that we feel strongly about. We all defend our view of rights, liberty, and personal privacy. Though we have (sometimes sharply) different ideas about right and wrong, fundamental liberty, and the role of government in enforcing or protecting our "rights" -- if we are passionate -- we often think about and categorize the issues similarly.

Hopefully, before we demonize those on the other side, we can stand back and understand how they see the issue.