Benton Institute for Broadband & Society - Net Neutrality

Repealing the Repeal

benton — Wed, 23 May 2018 16:00:56 +0000

On May 11, 2018, the FCC announced that the Office of Management and Budget (OMB) had approved, for a period of three years, the information collection associated with the Commission’s Restoring Internet Freedom Order. However, on May 16, the U.S. Senate voted to reverse the FCC's repeal of net neutrality rules.

The Senate approved a Congressional Review Act (CRA) resolution that would simply undo the FCC's December 2017 vote to deregulate the broadband industry. If the CRA is approved by the House of Representatives and signed by President Donald Trump, Internet service providers would have to continue following rules, adopted in 2015, that prohibit blocking, throttling, and paid prioritization.

The Restoring Internet Freedom Order is also being challenged in court in a case that will be heard by the United States Court of Appeals for the District of Columbia Circuit (known informally as the D.C. Circuit).

Trump FCC Repeals Net Neutrality Rules

benton — Wed, 10 Jan 2018 16:07:19 +0000

FCC Acts to “Restore Internet Freedom”

On December 14, 2017, the FCC reversed it’s 2015 Open Internet Order and re-reclassified broadband Internet access service as an information service. The Declaratory Ruling and Report and Order did the following:

Declaratory Ruling

Restores the classification of broadband Internet access service as an “information service” under Title I of the Communications Act—the classification affirmed by the Supreme Court in the 2005 Brand X case. Reinstates the classification of mobile broadband Internet access service as a private mobile service.
Finds that the regulatory uncertainty created by utility-style Title II regulation has reduced Internet service provider (ISP) investment in networks, as well as hampered innovation, particularly among small ISPs serving rural consumers.
Finds that public policy, in addition to legal analysis, supports the information service classification, because it is more likely to encourage broadband investment and innovation, thereby furthering the goal of closing the digital divide and benefitting the entire Internet ecosystem.
Restores broadband consumer protection authority to the Federal Trade Commission (FTC), enabling it to apply its extensive expertise to provide uniform online protections against unfair, deceptive, and anticompetitive practices.

Report and Order

Requires that ISPs disclose information about their practices to consumers, entrepreneurs, and the Commission, including any blocking, throttling, paid prioritization, or affiliated prioritization.
Finds that transparency, combined with market forces as well as antitrust and consumer protection laws, achieves benefits comparable to those of the 2015 “bright line” rules at a lower cost. Eliminates the vague and expansive Internet Conduct Standard, under which the FCC could micromanage innovative business models.

The FCC’s new transparency rules must be approved by the Office of Information and Regulatory Affairs in the White House’s Office of Management and Budget. The process will likely take months.

2015 Open Internet Rules

benton — Wed, 10 Jan 2018 16:06:15 +0000

Wheeler FCC Reclassifies Broadband Internet Access Service

The second court blow to the “light-touch” regulatory approach led then-FCC Chairman Tom Wheeler to launch a new net neutrality proceeding in April 2014. At the time, Wheeler indicated that reclassification of broadband Internet access service remained a “clear alternative.” On February 26, 2015, the FCC adopted “clear, bright-line” rules based on a “Modern Title II.” For both fixed and mobile broadband Internet access service providers, the FCC rules stated:

A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not block lawful content, applications, services, or non-harmful devices, subject to reasonable network management. A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not impair or degrade lawful Internet traffic on the basis of Internet content, application, or service, or use of a non-harmful device, subject to reasonable network management. A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not engage in paid prioritization.
Any person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not unreasonably interfere with or unreasonably disadvantage (i) end users’ ability to select, access, and use broadband Internet access service or the lawful Internet content, applications, services, or devices of their choice, or (ii) edge providers’ ability to make lawful content, applications, services, or devices available to end users. Reasonable network management shall not be considered a violation of this rule.
A person engaged in the provision of broadband Internet access service shall publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings.
Although broadband service providers again challenged the FCC’s rules, the U.S. Court of Appeals for the District of Columbia Circuit upheld them in June 2016. The court ruled that the agency could reclassify broadband service as a telecommunications service, thus giving the FCC the ability to enforce the rules.

2010 Open Internet Rules

benton — Wed, 10 Jan 2018 16:04:58 +0000

Genachowski FCC codifies Martin’s Internet Policy Statement

In December 2010, the FCC, under the leadership of then-Chairman Julius Genachowski, approved three basic net neutrality rules:

Transparency. Fixed and mobile broadband providers must disclose the network management practices, performance characteristics, and terms and conditions of their broadband services;
No blocking. Fixed broadband providers may not block lawful content, applications, services, or non-harmful devices; mobile broadband providers may not block lawful websites or block applications that compete with their voice or video telephony services; and
No unreasonable discrimination. Fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic.

The rules followed directly from the 2005 Internet policy statement and relied on Title I authority and Section 706 of the Telecommunications Act of 1996, which directs the FCC to take actions that encourage the deployment of broadband.

In 2014, the U.S. Court of Appeals for the D.C. Circuit overturned the FCC’s 2010 Open Internet rules. The court ruled that since the FCC had previously classified broadband providers as information service providers under Title I, the FCC had relinquished its right to regulate them like common carriers unless it reclassified broadband as a telecommunications service.

Comcast Throttles Peer-to-Peer Traffic

benton — Wed, 10 Jan 2018 16:03:59 +0000

First blow to “information service” classification

In 2008, the FCC, under Chairman Kevin Martin, ruled Comcast was slowing peer-to-peer traffic – and the practice appeared to be more widespread than the company had disclosed. The FCC ordered Comcast to stop its “invasive” interference on its broadband network and to create a new network management plan. Comcast took the FCC’s anti-throttling order to the court, arguing that the commission had no hard rules against the company’s network management practices.

In 2010, the U.S. Court of Appeals for the District of Columbia Circuit overturned the FCC’s Comcast ruling, saying the agency lacked “any statutorily mandated responsibility” to enforce network neutrality rules under Title I. The ruling was the first big blow to the “light-touch”/Title I approach broadband service regulation.

In 2011, Comcast agreed to abide by the 2005 Internet policy statement as a condition of its acquisition of NBC/Universal. That agreement expires in 2018.

"Use my pipes free"

benton — Wed, 10 Jan 2018 16:02:50 +0000

SBC’s Ed Whitacre complains about companies using his network to make money

In 2005, Ed Whitacre, CEO of SBC, complained to BusinessWeek about companies like Google and Vonage. “Now what they would like to do is use my pipes free, but I ain’t going to let them do that because we have spent this capital and we have to have a return on it.” Although Google, Vonage, and their customers were paying for broadband access, Whitacre apparently wanted those companies to pay an extra toll for using the network to make even more money for SBC.

In 2006, AT&T pledged to maintain a “neutral network” in exchange for U.S. government approval of its proposed acquisition of BellSouth.

The Internet Policy Statement

benton — Wed, 10 Jan 2018 16:01:40 +0000

What are broadband consumers entitled to?

In August 2005, the FCC, led by Chairman Kevin Martin, and relying on Title I/information services authority, adopted an Internet policy statement reflecting Powell’s “four freedoms.” The policy statement said broadband consumers are entitled to:

Access the lawful Internet content of their choice;
Run applications and use services of their choice, subject to the needs of law enforcement;
Connect their choice of legal devices that do not harm the network; and
Competition among network providers, application and service providers, and content providers.

Brand X Decision

benton — Wed, 10 Jan 2018 16:00:41 +0000

Supreme Court OKs FCC’s classification of broadband

In June 2005, the Supreme Court decided a case, National Cable & Telecommunications Association (NCTA) v. Brand X, which questioned whether the FCC had lawfully interpreted the Communications Act by deciding that cable broadband providers did not provide a telecommunications service.

The U.S. Court of Appeals for the Ninth Circuit had determined that cable modem service was a telecommunications service, but the Supreme Court held that the Ninth Circuit should have followed the Supreme Court's 1984 decision in Chevron v. Natural Resources Defense Council. That decision required federal courts to defer to an agency's construction of a statute if that statute was within the agency's jurisdiction to administer and the agency's interpretation was reasonable, even if it differed from the court's own interpretation. In the Brand X case, the Supreme Court held that the FCC's construction was reasonable.

Four Internet Freedoms

benton — Wed, 10 Jan 2018 15:33:00 +0000

In 2004, then-FCC Chairman Powell challenged broadband service providers to preserve four “Internet Freedoms”:

Freedom to Access Content. Consumers should have access to their choice of legal content.
Freedom to Use Applications. Consumers should be able to run applications of their choice.
Freedom to Attach Personal Devices. Consumers should be permitted to attach any devices they choose to the connection in their homes.
Freedom to Obtain Service Plan Information. Consumers should receive meaningful information regarding their service plans.

Information Service or Telecommunications Service?

benton — Wed, 10 Jan 2018 15:27:58 +0000

Prior to 2002, broadband internet access service was provided mainly by traditional telephone companies over a digital subscriber line (DSL) and was regulated like telephone service under Title II of the Communications Act of 1934.

In a 2002 Declaratory Ruling, the Federal Communications Commission, under then-Chairman Michael Powell, classified cable modem service as an interstate information service. An “information service,” according to Title I of the Communications Act of 1934, is “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.”

The Declaratory Ruling explicitly ruled that high-speed internet access is not a “telecommunications service,” defined as “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.”

The far-reaching ruling was not bipartisan. Then-FCC Commissioner Michael Copps warned, “Today we take a gigantic leap down the road of removing core communications services from the statutory frameworks established by Congress, substituting our own judgment for that of Congress and playing a game of regulatory musical chairs by moving technologies and services from one statutory definition to another.”

For the sake of regulatory parity, the FCC would later regulate DSL, wireless broadband, and broadband over power lines as information services as well.