The Need For A Code Of Ethics With The Internet Of Things
Seattle Strengthens Privacy Protections For Broadband And Cable Users

Update: Net Neutrality, Adminstrative Law, The Courts, And Next Steps

Federal communications Commission logo A lot has happened since Federal Communications Commission (FCC) Chairman Ajit Pai disclosed his plan last week to kill net neutrality. While the FCC commissioners will vote on May 18 about the rules changes, a federal law could affect the outcome. First, Wired reported:

"A 1946 law called the Administrative Procedure Act bans federal agencies making “capricious” decisions. The law is meant, in part, to keep regulations from yo-yoing back and forth every time a new party gained control of the White House. The FCC successfully argued in favor of Title II reclassification in federal court just last summer. That effort means Pai might have to make the case that things had changed enough since then to justify a complete reversal in policy."

Read the text of the Administrative Procedure Act (APA). Learn more here.

The recent actions (e.g., privacy, net neutrality) by the Republican-led FCC have definitely resulted in both uncertainty and a yo-yoing of rules. At times, it feels like watching a tennis match. While Pai and other advocates of killing net neutrality have claimed that infrastructure investment has declined due to the reclassification by the FCC, the reality:

"During a hearing earlier this year, senator Edward Markey (D-Massachusetts) pointed to US Census Bureau estimates that broadband investment increased slightly from $86.6 in 2014 to $87.2 billion in 2015..."

Data for 2016 isn't available yet. As I mentioned in a prior post, telecommunications companies made conscious decisions and could have diverted money from other spending to infrastructure. They didn't and chose this legislation path instead. Again from Wired's analysis:

"Other business considerations could also play into changes in telecom spending on network infrastructure, such as a desire to wait and let previous investments pay for themselves before making new ones. The CEO of Verizon, for example, told shareholders that Title II didn’t affect the company’s investment plans. And Martin points out that a recent auction in which companies spent $19.8 billion to buy rights to use more of the wireless spectrum doesn’t exactly look like an industry shy of investing."

"If the infrastructure argument doesn’t fly, Pai could also argue that the rules are unnecessary because proverbial fast and slow lanes for the internet never existed. The problem is that’s not true. The Bush-era FCC ordered Comcast to stop throttling BitTorrent traffic in 2008... Under a secret agreement with AT&T, Apple blocked iPhone users from making Skype calls over the carrier’s network until the FCC pressured the companies into reversing the policy in 2009..."

Read the entire Wired analysis. It makes it crystal clear how corporate ISPs are trying to rig the system for themselves and against consumers.

Second, a recent decision by a federal court rejected big telecom's petition to have the existing FCC's net neutrality rules overturned. On Monday, Ars Technica reported:

"The US Court of Appeals for the District of Columbia Circuit denied the broadband industry's petition for a rehearing of a case that upheld net neutrality rules last year. A three-judge panel ruled 2-1 in favor of the FCC in June 2016, but ISPs wanted an en banc review in front of all of the court's judges. The request for an en banc review was denied in the order issued today."

What to make of this? The bottom line is that the circuit court decided to uphold the reclassification of broadband ISPs as common carriers and the FCC's net neutrality rules. While big telecom could appeal the decision with the Supreme Court, that seems unlikely since they know that the FCC, led by Chairman Ajit Pai, a Republican, has a majority of Republican commissioners who will vote to overturn net neutrality rules on May 18. And, Chairman Pai will have to overcome any challenges with the APA.

In response to the court decision, FCC Chairman Pai issued this statement:

"In light of the fact that the Commission on May 18 will begin the process of repealing the FCC’s Title II regulations, it is not surprising, as Judges Srinivasan and Tatel pointed out, that the D.C. Circuit would decide not to grant the petitions for rehearing en banc. Their opinion is important going forward, however, because it makes clear that the FCC has the authority to classify broadband Internet access service as an information service..."

Chairman Pai seems hell-bent upon ignoring the historical problems in the broadband industry that plagued consumers, in order to change the rules in favor of big telecom. Those problems led to the reclassification by the FCC. A prior blog post listed some of those problems:

"The lack of ISP competition in key markets meant consumers in the United States pay more for broadband and get slower speeds compared to other countries. Rural consumers and low-income areas lacked broadband services. There were numerous complaints by consumers about usage Based Internet Pricing. There were privacy abuses and settlement agreements by ISPs involving technologies such as deep-packet inspection and 'Supercookies' to track customers online, despite consumers' wishes not to be tracked. Many consumers didn't get the broadband speeds ISP promised. Some consumers sued their ISPs, and the New York State Attorney General invited residents to check their broadband speed with this tool. Tim Berners-Lee, the founder of the internet, cited in March three reasons why the Internet is in trouble. His number one reason: consumers had lost control of their personal information... Some consumers found that their ISP hijacked their online search results without notice nor consent. An ISP in Kansas admitted in 2008 to secret snooping after pressure from Congress."

Third, big telecom is engaged in some savvy, deceptive maneuvering. Ars Technica discussed bizarre claims by Verizon:

"... Verizon's general counsel, Craig Silliman, wants you to believe that Verizon never opposed net neutrality rules, even though it sued the FCC to eliminate them. He's also making the claim that the FCC isn't even talking about eliminating the net neutrality rules, even though FCC Chairman Ajit Pai is proposing to do exactly that."

Watch the Verizon video with Verizon's Silliman. When Silliman said, "changing the legal footing," he is referring to comments by others that the FTC should regulate broadband services, and not the FCC. That places the burden on consumers and the FTC to sue when broadband providers don't deliver the services promised; assuming that broadband providers disclose in their terms-of-service and privacy policies what they will deliver. With regulation by the FCC, consumers would have been in charge of their privacy, big telecom would have been forced to be transparent and explain what they were doing, and big telecom couldn't slice up the internet into slow and fast lanes forcing consumers to pay more to access certain sites.

During the last fight about neutrality in 2014, about about 90 tech companies sent a letter to FCC Chairman Tom Wheeler (Adobe PDF) encouraging the FCC to support for a free and open internet, where consumers decide where to go online with the broadband services purchased. Several notable companies signed that 2014 letter: Amazon, Dropbox, Ebay, Facebook, Gawker, Google, Microsoft, Mozilla, Netflix, Twitter, Vonage, and Yahoo. I did not see Verizon (nor Comcast) in the list of signers.

That's some brilliant and deceptive maneuvering. Big telcom can appear reasonable and deny talking about killing net neutrality rules while knowing that their representative, Chairman Pai and his fellow Republican commissioners at the FCC, will do it for them. Again, from Ars Technica:

"No major Internet service provider has done more to prevent implementation of net neutrality rules in the US than Verizon. After years of fighting the rules in courts of law and public opinion, Verizon is about to get what it wants as the FCC—now led by a former Verizon lawyer—prepares to eliminate the rules and the legal authority that allows them to be enforced."

Fourth, the FCC released its Notice of Proposed Rule Making (NPRM): Proceeding 17-108, "Restoring Internet Freedom" - April 26, 2017 (Adobe PDF). Just as before in 2014 - 15, the new rule is open to public comments. This means, it is time for citizens and voters to take action.

FCC Chairman Pai and others claim that the Internet was working well before, and net neutrality rules are unnecessary and a government intrusion. Ordinary broadband customers can have a great impact. It is time for consumers to submit comments to the FCC. About 25,578 people have already submitted comments. For example, a comment by Darion from Austin, Texas:

"The FCC Open Internet Rules (net neutrality rules) are extremely important to me. I urge you to protect them. Most Americans only have one choice for true high speed Internet access: our local cable company. Cable companies (and wireless carriers) are actively lobbying Congress and the FCC for the power to: i) Block sites and apps, to charge them "access fees;" ii) Slow sites and apps to a crawl, to establish paid "fast lanes" (normal speed) and slow lanes (artificially low speeds); and iii) Impose arbitrarily low data caps, so they can charge sites to escape those caps, or privilege their own services ("zero rating").
They're doing it so they can use their monopoly power to stand between me and the sites I want to access, extorting money from us both. I'll be forced to pay more to access the sites I want, and sites will have to pay a kind of protection money to every major cable company or wireless carrier—just to continue working properly!

The FCC's Open Internet Rules are the only thing standing in their way. I'm sending this to letter to my two senators, my representative, the White House, and the FCC. First, to the FCC: don’t interfere with my ability to access what I want on the Internet, or with websites' ability to reach me. You should leave the existing rules in place, and enforce them.

To my senators: you have the power to stop FCC Chair Ajit Pai from abusing the rules by refusing to vote for his reconfirmation. I expect you to use that power. Pai, a former Verizon employee, has made it clear he intends to gut the rules to please his former employer and other major carriers, despite overwhelming support for the rules from voters in both parties... To the White House: Ajit Pai, a former Verizon employee, is acting in the interests of his former employer, not the American people. America deserves better... To my representative: please publicly oppose Ajit Pai's plan to oppose the rules... I would be happy to speak more with anyone on your staff about the rules and why they’re so important to me. Please notify me of any opportunities to meet with you or your staff."

Be brief. Use your own words. Submit your comments soon, since the deadline fast approaches. Also, tell your elected officials. Participate in local marches and protests. Join the Fight For The Future. Support the EFF.

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