Net Neutrality, ICANN, and other issued related to internet infrastructure

Why We Need Title II And Strong Net Neutrality Rules; Or, Fool Me Twice, Shame On Me. Fool Me Every Time — I’m the FCC!

As we slog away once again on Federal Communication Commission (FCC) Chairman Ajit Pai’s summer blockbuster reboot “Net Neutrality: The Mummy Returns!,” it’s worth noting in passing the anniversary a previous Pai celebration of industry self-regulation, #DitchTheBox. I bring this up not merely as a fairly bitter bit of Cassandrafreude, but to remind everyone why only those who most desperately want to believe ever put any faith in “industry self-regulation” — especially when that industry is the cable industry.

 

The cable operators, along with the telcos and other broadband access providers, all claim to loooove the basic idea of net neutrality and a “free and open Internet.” Mind you, we still have the occasional True Believer trying to tell us how good for us it would be if ISPs could “innovate” in exciting pricing plans like “screwing with your video streaming to charge you extra” or “blocking/degrading your efforts to access peer-to-peer applications without telling you.” But as an industry, the major broadband providers have recognized that they need some kind of fig leaf concession (preferably cemented into law by a compliant Congress). And so we have seen the cable companies falling all over themselves to swear their undying support for net neutrality and promises to do nothing to harm the open Internet.

 

So a brief review of the history of cable industry self-regulatory promises, and Chairman Pai’s willingness to believe them, seems in order for the day.

 

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NCTA Agrees Title II Virtuous Cycle Totally Working; Or, Pai’s Economics v. the Actual Real World.

Last week, NCTA, the trade association for the industry formerly known as cable, posted this amazing graph and blog post showing that the “virtuous cycle” the FCC predicted would happen when it adopted the open Internet rules (aka Net Neutrality) back in December 2010. Indeed, as the NCTA graph (based on the latest Akamai State of the Internet Report) shows, the average speed of broadband connections has not only continued to rise since the FCC first adopted net neutrality rules in 2010, but the rate of increase has accelerated since the FCC adopted the Title II Reclassification Order in February 2015. Finally, as NCTA also points out, in the approximately 10 years since the FCC first began to enforce net neutrality through the “Internet Policy Statement” and the Comcast/Bittorrent Complaint, the cost of moving bits from their source to your home has dropped 90% on a per bit basis. (Whether we are actually still paying too much because of our lack of competition in the broadband market is something of a different question.)

 

Perhaps unsurprisingly, this matches the findings from Free Press’ Dr. Erik Turner in this massive and meticulously documented report, “Broadband Investments And Where To Find Them.” But it’s still nice to see NCTA confirm it. One of the advantages of having blogged on net neutrality for 10 years is I can point to things like this 2006 blog post and say: “Hey, I totally predicted that. Glad to see things working as I predicted they would.” This contrasts with the net neutrality haters, who as far back as 2006 that predicted that preventing ISPs from discriminating and prioritizing traffic would result on average broadband quality getting consistently worse a bandwidth kept treating the Internet “like a truck you can just load things on” instead “of a series of tubes.”

 

 

So why did the self-appointed experts get it so wrong? And why do they still fixate on criteria like “ISP CAPEX” that neither Congress nor anyone outside the economics world cares about (and which a reviewing court utterly will not give a crap about) if better faster broadband is getting deployed as we all predicted and Congress directed?

 

 

The answer boils down to the old cliche: “Among economists, the real world is often a special case.” So while all of us out here in the real world focus on things like “hey, is broadband actually getting deployed, and is it getting better and faster and stuff so we can do all the things that make better faster broadband so critical in everyone’s lives these days,” economists poo-poo such concerns as being part of an “economics free zone.” Questioning this navel gazing in Econ Cloud Cuckoo Land will evoke sneers about how silly you must be for not understanding why the actual real world is irrelevant to the purity and wonderfulness of “real” economics. For some odd reason, a lot of folks eat this superior attitude up with a spoon and fail to ask the follow up question like “you know you didn’t actually address the substance of the argument, right?”

 

Anyway, I will below unpack all of this by: (a) reviewing what we actually predicted about the virtuous cycle; (b) reminding folks about the predictions of doom and gloom from the haters in Econ Cloud Cuckoo Lad (that’s a literary reference, btw, for when the usual suspects want to get all fake outragey to avoid dealing with substance); (c) reviewing why the evidence is consistent with the pro-Net Neutrality prediction and falsifies the anti-Net Neutrality prediction; and (d) why this means that if Pai tries to base his roll back of Title II/net neutrality by embracing the Singer/USTA CAPEX argument and ignoring all the other evidence, he is going down in flames in the D.C. Circuit.

 

(I would love include a section on what ISP CAPEX actually should look like, which casts further doubt on the question of the relevancy of any modest drop in ISP CAPEX over time as a useful measure, but I’m gonna have to save that for a later follow up.)

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Will Pai “Pull A Putin” And Hack the FCC Process? Or Will He Get Over Himself and Start Acting Like The Chairman?

In my 20+ years of doing telecom policy, I have never seen a Chairman so badly botch a proceeding as Chairman Ajit Pai has managed to do with his efforts to repeal Net Neutrality. For all the fun that I am sure Pai is having (and believe me, I understand the fun of getting all snarky on policy), Pai’s failure to protect the integrity of the process runs the serious risk of undermining public confidence in the Federal Communications Commission’s basic processes, and by extension contributing to the general “hacking of our democracy” by undermining faith in our most basic institutions of self-governance.

 

Yeah, I know, that sounds over the top. I wish I didn’t have to write that. I also wish we didn’t have a President who calls press critical of him “the enemy of the American people,” triggering massive harassment of reporters by his followers. What both Trump and Pai seem to fail to understand is that when you are in charge, what you say and do matters much more than what you said and did before you were in charge. You either grow up and step into the challenge or you end up doing serious harm not only to your own agenda, but to the institution as a whole. Worse, in a time when the President and his team actually welcomed Russia’s “hacking” of our election, and remain under suspicion for coordinating with Russia for support, Pai’s conduct creates concern and distrust that he will also “pull a Putin” by welcoming (or worse, collaborating with) efforts to de-legitimize the FCC’s public comment system and hack the public debate around net neutrality generally.

 

Fortunately, as I told former Democratic FCC Commissioner Julius Genachowski when he was in danger of making the FCC’s process a laughingstock in the public eye, Pai can still recover and rescue himself and the FCC from his self-destructive conduct. Instead of calling his critics enemies of capitalism and free speech, instead of obsessing about his own hurt feelings while displaying a troubling indifference to identity stealing bots filing comments that support his own proposal and failing to follow up on his own claims that the FCC comment system suffered a critical cyber-attack – Pai needs to follow in the footsteps of Michael Powell, Kevin Martin and Tom Wheeler when they faced similar insults (and in Powell’s case, racial slurs). Welcome robust public debate and criticism, condemn the actually illegal hacking used by his supporters, and stop whining about his own hurt feelings. Michael Powell managed to take being called a War Criminal and son of a war criminal for supposedly allowing the press to sell us on the Iraq War, as well as the same kind of racist bullshit that Pai or any other prominent person of color sadly has to endure in an America where racists feel increasingly emboldened. Pai can chose to step up in the same way his Republican and Democratic predecessors did, or continue to contribute to the overall erosion of trust in our institutions of self-governance generally and his handling of the FCC specifically.

 

I unpack all this below . . .

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Also posted in "A Republic, if you can keep it", How Democracy Works, Or Doesn't, Life In The Sausage Factory, Tales of the Sausage Factory | Tagged , , , , , , | 1 Comment (Comments closed)

Welcome Back to the Net Neutrality Fight Summer Blockbuster Reboot!

Hi everyone! Back from a 3 month sabbatical and my Mom’s heart surgery, and just in time for the nth+1 replay round on Network Neutrality. As with so many things, I can’t believe we are going to reboot this franchise once again and run through pretty much the same arguments. But as with repeal of Obamacare, Republicans would rather focus themselves on undoing Obama’s legacy rather than moving on and getting stuff done. Since they run the show, we play this game again.

 

Regular followers of this blog will know I have been fighting the net neutrality fights since they began back in 1998 (when it was the “open access” fight and the telcos were on our side). I have seen a steady stream of victories and defeats. Time and again, we have found ourselves backed into a corner and had to rally when everything seemed hopeless. However, as I explained back in 2010, there are reasons why network neutrality refuses to die, but that doesn’t mean we’ll win (this round) either. So, in the spirit of movie reboots and sequels, I will quote Captain Kirk to Captain Picard: “I take it the odds are against us and the situation is grim . . . Sounds like fun!”

 

While I had certainly hoped the Republicans would see reason — Pai has made it clear that he is as obsessed with exterminating net neutrality and every other pro-competitive and pro-consumer policy at the FCC. Pai is obsessed with demolishing every single accomplishment of Wheeler’s as Kahn was to have his revenge on Kirk (which did not, in fact, work out very well for Kahn).  But Pai, and Blackburn and Senator Lee go beyond the usual Obama/Wheeler derangement syndrome (“Wheeler, hates it precious!“) This is full on Davros and the Daleks utter willingness to destroy reality.

 

Now I’ve heard people ask: “But the Republicans control the FCC. They control both houses of Congress. They are determined to ignore the millions of people who have already made their opposition plain, and ignore all the mountains of evidence that sits before them. What can we possibly do?”

 

Well, I have a message for Chairman Davros and his army of industry Daleks.

 

Stay tuned . . . .

Also posted in "A Republic, if you can keep it", Cable, Tales of the Sausage Factory | Comments closed

FCC Tells You About Your Phone Transition — Y’all Might Want To Pay Attention.

I’ve been writing about the “shut down of the phone system” (and the shift to a new one) since 2012. The FCC adopted a final set of rules to govern how this process will work last July. Because this is a big deal, and because the telecoms are likely to try to move ahead on this quickly, the FCC is having an educational event on Monday, September 26. You can find the agenda here.

 

For communities, this may seem a long way off. But I feel I really need to evangelize to people here the difference between a process that is done right and a royal unholy screw up that brings down critical communication services. This is not something ILECs can just do by themselves without working with the community — even where they want to just roll in and get the work done. Doing this right, and without triggering a massive local dust-up and push-back a la Fire Island, is going to take serious coordinated effort and consultation between the phone companies and the local communities.

 

Yes, astoundingly, this is one of those times when everyone (at least at the beginning), has incentive to come to the table and at least try to work together. No, it’s not going to be all happy dances and unicorns and rainbows. Companies still want to avoid spending money, local residents like their current system that they understand just fine, and local governments are going to be wondering how the heck they pay for replacement equipment and services. But the FCC has put together a reasonable framework to push parties to resolve these issues with enough oversight to keep any player that participates in good faith from getting squashed or stalled indefinitely.

 

So, all you folks who might want to get in on this — show up. You can either be there in person or watch the livestream. Monday, September 26, between 1-2 p.m. For the agenda, click here.

 

Stay tuned . . .

Also posted in General, PSTN Transition, Tales of the Sausage Factory | Comments closed

Cleveland and the Return Of Broadband Redlining.

I am the last person to deny anyone a good snarky gloat. So while I don’t agree entirely with AT&T’s policy blog post taking a jab at reports of Google Fiber stumbling in deployment, I don’t deny they’re entitled to a good snarky blog post. (Google, I point out, denies any disappointment or plans to slow down.) “Broadband investment is not for the feint hearted,”

 

But the irony faeries love to make sport. The following week National Digital Inclusion Alliance (NDIA) had a blog post of their own. Using the publicly available data from the FCC’s Form 477 Report, NDIA showed that in Cleveland’s poorest neighborhoods (which are also predominantly African American), AT&T does not offer wireline broadband better than 1.5 mbps DSL – about the same speed and quality since they first deployed DSL in the neighborhood. This contrasts with AT&T’s announcement last month that it will now make its gigabit broadband service available in downtown Cleveland and certain other neighborhoods.

 

Put more clearly, if you live in the right neighborhood in Cleveland, AT&T will offer you broadband access literally 1,000 times faster than what is available in other neighborhoods in Cleveland. Unsurprisingly for anyone familiar with the history of redlining, the neighborhoods with crappy broadband availability are primarily poor and primarily African American. Mind you, I don’t think AT&T is deliberately trying to be racist about this. They are participating in the HUD program to bring broadband to low-income housing, for example.

 

There are two important, but rather different issues here — one immediate to AT&T, one much more broadly with regard to policy. NDIA created the maps to demonstrate that a significant number of people who qualify for the $5 broadband for those on SNAP support that AT&T committed to provide as a condition of its acquisition of DIRECTV can’t get it because the advertised broadband in their neighborhood is soooo crappy that they fall outside the merger condition (the merger requires AT&T to make it available in areas where they advertise availability of 3 mbps). Based on this article from CNN Money, it looks like AT&T is doing the smart thing and voluntarily offering the discount to those on SNAP who don’t have access to even 3 mbps AT&T DSL.

 

The more important issue is the return of redlining on a massive scale. Thanks to improvements the FCC has made over the years in the annual mandatory broadband provider reporting form (Form 477), we can now construct maps like this for neighborhoods all over the country, and not just from AT&T. As I argued repeatedly when telcos, cable cos and Silicon Valley joined forces to enact “franchise reform” deregulation in 2005-07 that eliminated pre-existing anti-redlining requirements – profit maximizing firms are gonna act to maximize profit. They are not going to spend money upgrading facilities if they don’t consider it a good investment.

 

Again, I want to make clear that there is nothing intrinsically bad or good about AT&T. Getting mad at companies for behaving in highly predictable ways based on market incentives is like getting mad at cats for eating birds in your backyard. And while I have no doubt we will see the usual deflections that range from “but Google-“ to “mobile gives these neighborhoods what they need” (although has anyone done any actual, systemic surveys of whether we have sufficient towers and backhaul in these neighborhoods to provide speed and quality comparable to VDSL or cable?) to “just wait for 5G,” the digital inequality continues. I humbly suggest that, after 10 years of waiting and blaming others, perhaps we need a new policy approach.

 

More below . . .

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Ninth Circuit Knee-Caps Federal Trade Commission. Or: “You Know Nothing, Josh Wright.”

Back in October 2014, before the Federal Communications Commission (FCC) reclassified as Title II, both the FCC and the Federal Trade Commission (FTC) brought complaints against AT&T Mobility for failure to disclose the extent they throttled “unlimited” customers once they passed a fairly low monthly limit. You can see the FCC Notice of Apparent Liability (NAL) here. You can see the FTC complaint, filed in the district court for Northern California, here (press release here). As some of you may remember, the FCC was still debating whether or not to reclassify broadband as a Title II telecom service.  Opponents of FCC reclassification (or, indeed, of any FCC jurisdiction over broadband) pointed to the FTC enforcement action as proof that the FTC could handle consumer protection for broadband and the FCC should avoid exercising jurisdiction over broadband altogether.

 

In particular, as noted in this Washington Post piece, FTC Commissioner Maureen Olhausen (R) and then-FTC Commissioner Joshua Wright (R), both vocal opponents of FCC oversight of broadband generally and reclassification specifically, tweeted that the FTC complaint showed the FTC could require broadband providers to keep their promises to consumers without FCC net neutrality rules. Wright would subsequently reiterate this position in Congressional testimony, pointing to the FTC’s enforcement complaint under Section 5 of the Federal Trade Commission Act (FTCA) (15 U.S.C. 45) as an “unfair and deceptive” practice to prove that the FTC could adequately protect consumers from potential harms from broadband providers.

 

Turns out, according to the Ninth Circuit, not so much. As with so much the anti-FCC crowd asserted during the net neutrality debate, this turns out (pending appeal) to be dead wrong. Why? Contrary to what some people seem to think, most notably the usual suspects at Cable’s Team Rocket (who are quoted here as saying “reclassifying broadband means the FTC can’t police any practices of common carriers, at least in the Ninth Circuit” which is either an utterly wrong reading of the case or an incredibly disingenuous remark for implying that reclassification had something to do with this decision. You can see their full press release, which borders on the Trump-esque for its incoherence, here.)

 

As I explain below, the Ninth Circuit’s decision did not rest on reclassification of broadband. To the contrary, the court made it explicitly clear that it refused to consider the impact of reclassification because, even assuming mobile broadband was not a Title II service, AT&T Mobility is a “common carrier” by virtue of offering plain, ordinary mobile voice service (aka “commercial mobile radio service,” aka CMRS). The Ninth Circuit agreed with AT&T that because AT&T offers some services as common carrier services, AT&T Mobility is a “common carrier” for purposes of Section 5(a)(2) of the FTCA and thus exempt from FTC enforcement even for its non-common carrier services.

 

Given that Tech Freedom and the rest of the anti-FCC gang wanted this case to show how the Federal Trade Commission could handle all things broadband, I can forgive — and even pity — Tech Freedom’s desperate effort in their press release to somehow make this the fault of the FCC for reclassifying and conjuring an imaginary “gap” in broadband privacy protection rather than admit Congress gave that job to the FCC. After all, denial is one of the stages of grief, and it must come as quite a shock to Cable’s Team Rocket to once again see that Team PK-chu was right after all (even if it doesn’t make me particularly happy that we were, for reasons I will explain below). But this is policy, not therapy.  As of today, instead of two cops on the beat for broadband consumer protection access, we have one — the Federal Communications Commission. Fortunately for consumers, the FCC has been taking this job quite seriously with both enforcement actions and rulemakings. So while I consider it unfortunate that Ninth Circuit has cut out the FTC on non-common carrier related actions by companies offering a mix of common carrier and non-common carrier services, the only people who need to panic are Tech Freedom and the rest of the anti-FCC crowd.

 

OTOH, longer term, this does create a more general concern for consumer protection in more deregulated industries (such as airlines) covered by the exemptions in Section 5 of the FTCA. Yes, I know most folks reading this blog think the universe revolves around broadband, but this decision impacts airlines, bus services, private mail services like UPS, and any other company offering a common carrier service “subject to the Acts to regulate Commerce.” (15 U.S.C. 45(a)(2))  (Also meat packers and a few other named exceptions). So while I am hopeful the FTC appeals this to the full Ninth Circuit for en banc review (and even the Supreme Court, if necessary) from a general consumer protection perspective, the only direct result of this case for broadband policy is to underscore how important it is for the FCC to do its job despite the industry nay-sayers and their Libertarian cheerleaders.

 

More below . . .

 

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Update on Muni Broadband Decision. The Fate of Pinetop, N.C.

Last week, I wrote about the 6th Circuit’s decision in the muni broadband caseTN v. FCC. I mentioned in passing that the opinion pretty much keeps the status quo. Then I found from a reader about Pinetop, N.C.

 

As reported here and here, Greenlight, the muni provider of Wilson, N.C., took advantage of the FCC’s 2015 Order and began offering gigabit broadband in Pinetop, population 1400. Pinetop lies in Edgecomb County, next door to Wilson County. Under the 2010 N.C. anti-muni law, Greenlight could serve anyone in Wilson County but not go outside Wilson County to neighboring Edgecomb  County. But Wilson decided to take a shot and honor Pintetop’s request to provide service (Greenlight already provides electric service in Pinetop as a muni electric provider, so it wasn’t much of a leap).

 

The legal situation on this is now somewhat complicated. The 6th Cir. had not stayed the FCC’s preemption order in 2015, so it was totally legal for Greenlight to offer service. What is unclear now is how to read NC law now that it is “un-preempted” by the Sixth Circuit overturning the FCC. I admit I have no idea how to even begin to answer this question.

 

But it’s not an abstract legal question. The availability of broadband in Pinetop matters a great deal to the people of Pinetop.

 

Stay tuned . . . .

Also posted in Cable, How Democracy Works, Or Doesn't, Life In The Sausage Factory, Tales of the Sausage Factory | 1 Comment (Comments closed)

FCC Loses It’s Muni Broadband Test Case. What Comes Next?

Sometimes the law is clear. Sometimes it isn’t.

 

While that seems obvious, we often miss it in policy debates. But it is rather important to keep in mind when reading Tennessee v. FCCIn a case released August 10, the Sixth Circuit reversed the Federal Communications Commission (FCC) 2015 Order preempting restrictions the state of Tennessee and the state of North Carolina imposed on their municipalities with regard to providing broadband service. While Commissioners Pai and O’Reilly are certainly entitled to their victory laps, it is equally important to applaud Chairman Wheeler and Commissioners Rosenworcel and Clyburn for doing what they believed was both the right policy and the right call under the law. The petitions from the City of Wilson, NC and from the Electric Power Board of Chattanooga, TN raised novel questions of law. The FCC’s Order was a test case. On a very narrow and murky legal question, the FCC majority bet wrong — at least according to the 6th Circuit.

 

For myself, not surprisingly, I thought the FCC majority had the better argument. But I can’t say the Sixth Circuit was utterly wrong in holding the contrary. The limits of the Tenth Amendment and preemption power are generally unclear. The interpretation of Section 706 (47 U.S.C. 1302) as providing authority to the FCC remains relatively undefined. Based on the language in the dissent in Verizon v. FCC, which inspired munibroadband proponents to bring the petition and support the case, it looked like a good shot. Similarly, the facts of the case — already existing munibroadband providers, clear demand for them to expand their services, a willingness to expand service but for the relevant state laws restricting service — made this a favorable fact pattern.

 

Unfortunately, sometimes the best bet in the world doesn’t pay off. But that is why people bring test cases — to try to resolve questions in the law that move policy in the direction those bringing the case favor. It is neither an overreach nor illegal for Petitioners to bring test cases, to have an agency resolve them, and for the agency and those who brought the petition to the agency to defend them in court. To the contrary, this is how the rule of law works under the principles of the common law.

 

I stress this point because whether you bring conservative test cases to challenge laws and test limits or progressive cases to challenge laws and test limits — or cases that don’t easily fit in the conservative/progressive paradigm — we want agencies to actually address these cases in a timely fashion. As I remarked many years ago, when the FCC’s efforts to encourage competition in the 700 MHz auction resulted in a mixed result, we need  agencies to be willing to actually address novel circumstances and try new things because otherwise the law will ossify and we lose one of the most important elements of administrative law, the ability of an agency to respond to changing circumstances and provide a suitable record for Congressional action where necessary.

 

Bellow, I give a brief recap of the case and a forecast on what comes next for the muni broadband movement . . .

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Also posted in How Democracy Works, Or Doesn't, Life In The Sausage Factory, Tales of the Sausage Factory | 1 Comment (Comments closed)

NCTA Shocked — SHOCKED! — to Discover Ex Parte Process At FCC.

Every now and then, I am reminded that the cable news networks such as Fox and MSNBC are members of NCTA. But seeing this recent blog post reminded me. While faux outrage and hypocrisy are hardly rare in Policyland, you rarely find this level of self-righteous sanctimony outside of cable news.

 

As some folks may recall, I recently opined that AT&T choosing to sulk like Achilles in his tent rather than engage meaningfully in the ongoing rulemaking process. NCTA — which also opposes the BDS proceeding and has adopted the same strategy of acting like a disappointed 6 year old — chooses to deliberately misconstrue this as something other than the FCC’s standard, open ex parte process. What magnifies this almost to the level of self-parody is that NCTA is engaged in exactly this behavior on set-top boxes (STBs), where it has popped out with a sudden alternative #ditchthebox to the FCC’s #unlockthebox proposal.

 

In all cases, of course, NCTA paradoxically insists that any refusal to negotiate around their proposals is somehow a sign that the FCC has impermissibly pre-decided. But if the FCC considers anyone else’s response to their proposals, or engages with stakeholders outside of the comment and/or reply comment period, it is a “smoke filled room.”

 

Mind you, hypocrisy and faux outrage are pretty standard stock in trade for NCTA, as I’ve noted before. But for those who don’t follow how the Sausage Gets Made here in Telecomland, I provide a review of the relevant process below. For the tl;dr version. Let me just quote NCTA’s own blog post:

 

“First, it’s jaw-droppingly hard to conceive that an advocate who has consistently complained about the “ILEC monopoly” in the BDS market for more than a decade would suggest that the biggest ILEC should join the second biggest ILEC in negotiating a regulatory regime that raises obstacles to emerging competitors.”

 

I couldn’t have said it better myself. It is rather jaw droppingly hard to conceive that I have suddenly abandoned all principles and advocacy of the last 15 years to behave as NCTA suggests. That ought to suggest to folk genuinely interested that NCTA has chosen to knowingly and willfully utterly misinterpreted what I said. Likewise, it is rather “jaw-droppingly” obvious that NCTA has no more interest in promoting transparency than it does in letting go of its monopoly control over set-top boxes.

 

A bit more about how FCC processes actually work, and what I meant (and continue to mean) when I call on stakeholders and the public to continue to actively engage, below . . . .

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Also posted in Life In The Sausage Factory, Tales of the Sausage Factory | 2 Comments (Comments closed)
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