Net Vitality Should Be the Cornerstone of U.S. Broadband Policy

By guest blogger PROF. STUART N. BROTMAN, faculty member at Harvard Law School and author of the study Net Vitality: Identifying the Top-Tier Global Broadband Internet Leaders published by The Media Institute.  Prof. Brotman is a member of the Institute’s Global Internet Freedom Advisory Council.  The full version of this article appeared in The Hill on April 24, 2015.

The Federal Communication Commission’s recent Open Internet Order is intended to develop an enforceable regulatory scheme to ensure that net neutrality would be achieved.  One of its rationales is that unless such government intervention is put in place, the United States is likely to slip into the category of Internet also-rans, hurting innovation and our economy as a whole as Internet “fast lanes” and “slow lanes” thwart competition and impede consumer demand.

But how accurate is this perception?  The Internet, after all, is not just a network of networks, but rather a complex ecosystem comprised of applications and content, devices, and networks.  The interdependency of these three pillars creates the rich experience of the Internet, not just in the United States, but all around the world.

And consumer usage patterns continue to be extraordinarily dynamic, as well.  More people now access the Internet through mobile devices, such as smartphones and tablets, than on desktops and laptops tethered in homes, for example.  And more people now rely on apps rather than browsers to get the information and help they need more readily.  Policies premised on fixed residential use of fiber-based broadband do not seem to recognize that these seismic changes already have occurred.  >> Read More

The FCC’s Wheeler of Fortune

LAS VEGAS – Federal Communications Commission (FCC) Chairman Tom Wheeler’s speech yesterday to broadcasters attending the NAB (National Association of Broadcasters) Show here dealt primarily with broadcast-specific subjects.  But as expected, he also used the occasion to tout the Commission’s new Open Internet Order, arguing that broadcasters should support it because, like the must-carry rules, the order “assures that your use of the Internet will be free from the risk of discrimination or hold-up by a gatekeeper.”

To characterize this claim as 100-proof claptrap would be to understate the case.  Put simply, no Internet service provider has, or would have, the tiniest interest in discriminating against anything broadcasters might want to put online.  Indeed, net neutrality is widely embraced by the phone and cable companies.

The real issue is the way in which the FCC – through Title II regulation – proposes to define and enforce net neutrality in the future.

Much has been said about the inefficiencies and investment-reducing effects of Title II regulation, and most all of it is true.  But the less-well-discussed aspect is the potential in it for activist groups and ideologues like Free Press and kindred organizations to exploit this order in attempts to impose certain types of content controls.  >> Read More

Is This What Net Neutrality Is Really About?

Recent congressional hearings held in the wake of the Federal Communication Commission’s (FCC) net neutrality ruling provide a glimpse into what is so deeply wrong with this regulation, and why so many activist groups were behind it.

It’s an aspect of this matter of which you were perhaps unaware while the FCC was considering its regulatory strategy. Perhaps you thought net neutrality meant what was said of it: that it was intended to prevent the blocking or throttling of websites, or of “paid prioritization.”

Silly you.  Actually, those were the interests of those companies — like Google and Netflix — that saw in governmental sway over the Internet commercial benefits for themselves.  But what about those groups and individuals who had political or ideological interests, and who played such outsized roles in the deal?

You know, groups like Free Press, Media Matters, Public Knowledge and New America’s Open Technology Institute?  Or what about the large grant-giving foundations, like Ford, MacArthur, Knight, and George Soros’s Open Society Institute that, in addition to munificently funding third-party net neutrality activists, directly lobbied the FCC themselves?

It should now be clear, even to those who weren’t paying attention earlier, that the primary interest these groups had, and have, in net neutrality is their desire to insinuate government in the regulation of speech on the Internet.  >> Read More

 

What Changed the FCC Chairman’s Mind?

On the occasion last week of the Federal Communications Commission (FCC)’s passage of “net neutrality” regulations, Tom Wheeler, chairman of the Commission, announced that it was “the proudest day of my public policy life.”  It’s not known whether that statement is a reflection of how little Wheeler feels he’s accomplished in life, or an embarrassing attempt to take credit for something that was forced on him.

What we do know is that the regulation that passed with his vote – and those of the other two Democrats on the Commission – was not the much sounder one Wheeler initially proposed, but a radical version that carries within it opportunities for mischief and much worse than that.

So what happened to change Wheeler’s mind?  The most obvious explanation is the interjection of President Obama who, a few weeks before the vote, publicly stated his view that the FCC should subject Internet service providers (ISPs) to utility-like regulation.  This is the explanation for Wheeler’s switch held by most insiders, and there’s no doubt that these FCC commissioners, their notional “independence” notwithstanding, move like earlier ones to the music of their parties and the presidents who appoint them. >> Read More

Who’s Behind the Push for Net Neutrality?

If “net neutrality” were a life form, it would be classified as a simple organism.  And that lack of complexity, as it happens, is its very appeal to certain “progressives,” garden-variety regulators, and large Internet companies, who see in government regulation of the Internet opportunities to cement and extend their franchises.

The brave and gifted Federal Communications Commission (FCC) Commissioner Ajit Pai, and former commissioner Robert McDowell, are doing all they can to point out the many already identifiable problems, as well as potential pitfalls, that line the path of this regulatory nightmare.  Among those problems are higher user fees to consumers, a slowdown in the rate of investment in broadband infrastructure, regulatory creep, and the wrong kind of example to set before foreign dictators and tyrants.

Alas, none of this is likely to deter the three Democratic FCC commissioners, as instructed by the White House, from passing this regulation.

What has not been much discussed in all of this is the role in the promotion of net neutrality played by some of the actors: activist groups like Free Press, Public Knowledge, and Media Matters; huge grant-giving foundations like the Ford, Soros, and Knight foundations; and companies like Google.   >>Read More

‘Forbearing’ the Constitution: Net Neutrality and the FCC

So the latest word is that the Federal Communications Commission (FCC), a branch of government that, amusingly, is still referred to as an “independent” agency, is about to enact so-called net neutrality regulations under Title II of the Communications Act.

This, because according to its fans at the Commission, such regulations are needed in order to ensure a “fair and open” Internet.  Because, however, even the most passionate among them understand the many problems this would otherwise cause, the majority Democratic commissioners are said to be poised to enact regulations that forbear the full imposition of Title ll rules.

Meantime, Congress is considering enacting a law that would itself aim to protect net neutrality, but would do so in such a way as to deprive the FCC of its ability to regulate Internet service providers as a utility under Title II.

If (you’ll forgive the expression) one googles the word “forbearance,” the first definition that comes up reads: “The action of refraining from exercising a legal right…. ” — and there’s the rub!

With every passing day it becomes clearer that the Internet is the future of the press, and the plain language of the First Amendment bars the government from abridging freedom of speech or of the press.  >>Read More

FCC’s Net Neutrality Plan Is Another Step in the Regulation of Speech

So the latest development on the speech regulation front is Federal Communications Commission (FCC) Chairman Tom Wheeler’s rumored plan to create a “hybrid” regulatory structure in the name of “net neutrality,” the condition which, as it happens, has already been attained.

Under Wheeler’s plan, Internet regulation would be split between a highly regulated back end, where content providers deal with Internet service providers (ISPs), and a more lightly regulated front end, where consumers get their content from ISPs.  This, so it’s said, is a way to get around the decision of a federal appeals court that invalidated an earlier FCC attempt to institute net neutrality regulations.

So it is that net neutrality has gone from what Bob Kahn, the inventor of the Transmission Control Protocol, has called a “slogan,” to what Scott Cleland derides as an industrial policy benefiting Silicon Valley at the expense of consumers.

Those who have a sense of history, and a wider angle of vision on the policy process, may be struck by something else.  The FCC’s plan, coming at the very time that the Federal Election Commission is looking for ways to regulate political speech on the Internet, the Justice Department is spying on journalists, and the National Security Agency (NSA) is intercepting citizens’ phone calls and e-mail, would add yet another way in which government could insert itself into the speech business.  >> Read More

The FCC’s Net Neutrality Vote

Not unlike the way that people present themselves as avatars in cyberspace, policymakers in Washington present themselves behind a veneer that is usually as predictable as it is tiresome. But not always!  Once or twice a decade some public official will do something that surprises, and in doing so leaves all the other players gobsmacked and reeling.

This is precisely what has happened at the FCC in recent days as the newly installed chairman, Tom Wheeler, acting in the wake of a court order, has proposed a reform of that agency’s so-called net neutrality regulations.  In a nutshell, the Wheeler proposal would allow ISPs to provide, for a fee, faster lanes to the consumer for content providers.

If you are one of those people who don’t find the idea of paying more for better things to be a deeply radical idea, your problem is that you’re unschooled in the ways of political posturing, rhetoric, and the lay of the land.  You don’t understand that, to Democrats especially, the “free and open Internet” cannot allow upgrades of the sort that would make any content provider (and that provider’s customers) happier than any other provider or its customers.  Distributive justice, you know.

In the grip of this construct, the Internet must remain a static and unchanging highway, never in need of pothole filling or additional traffic lanes.

Which is not to say that Republicans, too, don’t like Wheeler’s proposal.  Indeed, the confounding fact is that both of the Republicans on the Commission voted against the proposal while all three of the Democrats voted for it!  And in truth the Republicans are correctly concerned about the precedential effect of net neutrality on the formerly unregulated Internet.  In his statement opposing the measure, Republican Commissioner O’Rielly made this argument cogently, just as former commissioner McDowell had before him.

Still, there is the gnawing concern that, given the way the pieces are deployed on the board right now, it might have been better in the long run if the Republicans had given Wheeler some support for breaking from the Democratic ranks.

Whatever the future may hold, one thing is clear: The final resolution of this matter is nowhere in sight.

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

 

Net Neutrality: Fast Lanes and the Usual Suspects

You can sometimes judge the quality of a thing by those who oppose it.  In the case of FCC Chairman Wheeler’s plan to allow the sale of “fast lanes” by Internet service providers, we have the usual suspects.

There is, for instance, Rep. Bernie Sanders (I-Vt.), about whom it’s impossible to say a single flattering thing, and organizations like Public Knowledge, Common Cause, and Free Press, whose role, these days, is to be the routinely embarrassing coiners of nonsensical slogans like “Net Neutrality: The First Amendment of the Internet.”

So these, and more, have been roused to high dudgeon by a plan that would allow ISPs to give Internet content providers the opportunity to pay more for a speedier route to consumers.  (Oh no, not that!)

The Media Institute has spent a lot of time with “net neutrality,” and we were pleased that under former FCC chairman Genachowski the FCC adopted a “lite” form of it.  But we also said it was a solution in search of a problem, and that the only lasting effect of it would be to set a precedent for regulation of the theretofore unregulated Internet.

Still, judging by the negative reaction to the modest plan offered by Wheeler – a plan that was in direct response to a court order, and that reportedly keeps in place restrictions against all the kinds of dastardly things ISPs were falsely accused of planning to do – there’s a core of people who can’t get away from the “cause.”

One of the more flamboyant of the bunch is former FCC commissioner Michael Copps, who, on the subject, is reported to have relieved himself of this nugget: “If the Commission subverts the Open Internet by creating a fast lane for the 1 percent and slow lanes for the 99 percent, it would be an insult to both citizens and to the promise of the Net.”

Time will tell whether more people think it’s Wheeler’s plan, or Copps’s statement, which is the greater insult.

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

Net Neutrality Decision: A Welcome Development

Tuesday’s decision by the D.C. Circuit Court of Appeals, striking down the FCC’s so-called “net neutrality” regulations, is a welcome development.  As noted by many, these regulations amount to a solution in search of a problem, with the only lasting and real-world effects being the creation of the precedent of governmental oversight of the previously unregulated Internet.

Moreover, and as argued in this space a little over a year ago, there is an international dimension to net neutrality, as the existence of these regulations in the U.S.A. advances the agendas of countries like Russia and China in regulating the Internet through the International Telecommunication Union.

Writing today in the Wall Street Journal, former FCC commissioner Robert McDowell makes a convincing case that, for this reason too, the FCC should abandon any further attempts to promote net neutrality.

For the new FCC chairman, Tom Wheeler, this development threatens the very real prospect of becoming his signature activity for the duration of his term.  This, because if, at the urging of Internet companies like Google, plus the Obama Administration, Wheeler is importuned to try to resurrect the net neutrality rules, he basically has but two options.  One is to appeal the Circuit Court’s decision, and the other is to attempt to reclassify broadband provision as a “telecommunications service,” rather than an “information service,” something that would allow the imposition of net neutrality regs (and who knows what else) by the same authority that the FCC regulates telephone service.

But if Wheeler goes the reclassification route, it will set off congressional fireworks of a sort that will land him and the FCC in a protracted war with telecom companies, and Republican legislators, without any guarantee of success.

Still, one can only imagine the angst among the net neutrality crowd following yesterday’s decision. As reported in The Hill by Kate Tummarello, Internet companies have “pushed net neutrality with an almost religious fervor.”  Indeed, one of the most ardent pushers, the ludicrous organization called Free Press, coined the sophomoric slogan: “Net neutrality, the First Amendment of the Internet.”

So it’s not at all clear what the FCC’s next step will be, but suffice to say that the Circuit Court’s decision is going to make for some very interesting times there … and elsewhere.

                                               

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.