The Biden administration is fighting a two-front war in its campaign to re-regulate internet service providers (ISPs), fronts that opponents fear could include price regulation as ammunition.

The Federal Communications Commission's Democratic majority voted October 19 to propose reclassifying internet access as a Title II telecommunications service subject to some common-carrier regulations and to restore net neutrality rules. And while FCC chair Jessica Rosenworcel has said that will not include price regulation, opponents fear the reclassification could open the door to back-door price controls to achieve universal access.

This month, the FCC is scheduled to vote on rules implementing a section of the Infrastructure Investment and Jobs Act of 2021, rules that would create a framework for equal access to broadband service by preventing digital discrimination. It will almost certainly pass with a 3-2 Democratic majority.

Also Read: White House Promotes Democratizing Impact of Broadband Investment

The Biden administration has told the FCC it should adopt a broad definition of digital discrimination, including in pricing, as it comes up with rules for handing out tens of billions of dollars in broadband buildout subsidies intended to achieve universal deployment by decade's end. 

The FCC is planning to adopt such a broad definition, one that includes both intentional and unintentional negative impacts.

ISPs have said that unintentional impacts should not be part of the definition. NTIA, the administration's chief telecommunications adviser, disagrees. ISPs have claimed that a definition that included impacts would divert needed investment in maintaining and improving their networks, but the Biden administration advised the FCC that those claims should be “resisted.”

Republican commissioner Brendan Carr, who voted against the Title II reclassification item, clearly sees the dual ISP regulation effort as a one-two punch at innovation and investment, and is punching back.

In a lengthy statement, Carr said: “For the first time ever, those rules would give the federal government a roving mandate to micromanage nearly every aspect of how the Internet functions — from how ISPs allocate capital and where they build, to the services that consumers can purchase; from the profits that ISPs can realize and how they market and advertise services, to the discounts and promotions that consumers can receive.”

The FCC is scheduled to vote on the new rule proposal — which will still require a final vote after time for public input — at its November 15 public meeting.

Fans of Title II-based network neutrality rules are once again flooding the Federal Communications Commission’s net-neutrality comment docket with identical calls for restoration of the rules, as the Democrat-controlled agency has proposed. 

The docket already has almost 20,000 comments and, as such, is the commission’s most active proceeding, far outstripping the second-place docket for rules on international communications and spectrum issues, which has less than 3,000.

The comments contain language the same as that on a website from battleforthenet.com, which is a project of Fight for the Future and Demand Progress, supporters of classifying high-speed internet access under Title II of the Communications Act. 

Those groups have made it easy to give the FCC the following piece of the respective commenters mind: “I strongly support the FCC’s current effort to reinstate net neutrality and Title II authority, which is critical for an open internet, expanding broadband access, privacy protections and public safety. The agency must move forward a strong rule that rejects zero rating, ensures interconnection and allows for state preemption.” 

A check of comments posted on November 2 found page after page of submissions sporting that exact language. 

The last time the FCC weighed into the net neutrality rule arena — on the way to eliminating the rules under the previous chair, Republican Ajit Pai — the number and types of comments became a major flashpoint, prompting outside investigations, including by the New York State Attorney General and the FBI.
Current FCC chair Jessica Rosenworcel, then a commissioner, was very vocal about what she said were millions of fake comments. She was not suggesting that comments with the same wording were fake, but that comments had been ginned up by email generators using stolen names and bogus domains to boost comment totals.

The current net neutrality docket has a ways to go to reach the astronomical heights of the 2017 docket flood, which at one point reached 18 million submissions, though by one analysis at least a quarter of those were fake.

The docket also became the most active in 2020 when the FCC sought input on a court ruling upholding most, but not all, of the FCC's decision to scrap the rule. That number was “only” in the thousands.

Two former Obama-era solicitors general are arguing the FCC should not restore network neutrality rules eliminated under Republican chair Ajit Pai.

In a new paper co-written by Donald B. Verrilli Jr. and Ian Heath Gershengorn, the veteran legal minds get together to advise that the Federal Communications Commission does not have the authority to reclassify broadband access as a telecommunications service subject to common carrier regulations, specifically nondiscriminatory access regs and that the commission needs to let Congress weigh in.

Democratic FCC chair Jessica Rosenworcel now has a majority in support of restoring those rules, but Verrilli and Gershengorn say that would be the wrong way to go.

While they laud the goal of “enacting core open internet principles so that all consumers

can enjoy free and unimpeded access to lawful internet content of their choosing,” they said if the FCC tries to do so by reclassifying internet access, the Supreme Court will simply overrule it on the grounds that it lacks authority.

According to the “major questions” doctrine that would guide any Supreme Court decision, they say, the FCC would have “clear congressional authorization” and even Congress can't agree on what authority the regulator has under statute.

“Nothing in Title II of the Communications Act itself or in any other statute gives the Commission the clear and unambiguous authority to classify broadband as a Title II telecommunications service subject to common carrier regulation, and the Commission cannot reasonably conclude otherwise,” they wrote.

“Any attempt by the Commission to impose such broad regulatory requirements under current statutes would be struck down by the Supreme Court,” Verrilli and Gershengorn wrote. “And the contentious litigation leading to that inevitable result would waste countless resources for the government, industry, and the public, while distracting all parties from more promising efforts, such as obtaining congressional action to resolve these important issues.”

Given that, they said, the FCC “should not go down that path.”

Some could argue that regulating internet-service providers as some kind of online gatekeeper is fighting the last war, though ISPs would say they have never been the enemy when it comes to access to content.

Edge providers have taken over as the major target of Congress over the issue of the power of Big Tech to affect access to communications.

Internet service providers in California will have to hew to new net neutrality rules, a federal appeals court signaled Wednesday (April 20).

In a one-paragraph dismissal, the 9th U.S. Circuit Court of Appeals denied cable and telco broadband operators‘ appeal of California's net neutrality law.

“The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc,” the court said in a one-paragraph ruling. “The petition for rehearing is DENIED [that all-caps emphasis was the court’s].‘

FCC Chairwoman Jessica Rosenworcel signaled it was time for nationwide net neutrality rules to return. The 9th Circuit just denied the effort to rehear its decision upholding California’s #netneutrality law," she tweeted. "This is big. Because when the FCC rolled back its open internet policies, states stepped in. I support net neutrality and we need once again to make it the law of the land."

It will almost certainly take the Senate confirming a fifth commissioner, and third Democrat, for that to happen. Currently the FCC is at a 2-2 political tie and the Republicans are no fans for the FCC's former rules.

“This is hardly a surprise,” said Andrew Schwartzman of the court decision. Schwartzman is senior counselor to the Benton Institute for Broadband and Society, and an attorney schooled in appeals court decisions and net neutrality cases. “The 9th Circuit’s unanimous panel opinion affirming the lower court’s decision allowing the new law to go into effect followed established principles. Its finding that federal law does not preclude California from adopting its own network-neutrality rules is rock solid," Schwartzman said.

California enacted the California Internet Consumer Protection and Net Neutrality Act after the Federal Communications Commission under Republican chairman Ajit Pai eliminated the federal rules against blocking, throttling and anti-competitive paid prioritization of internet access.

Also: California Net Neutrality Victory Draws Crowd

ACA Connects, NCTA–The Internet & Television Association, US Telecom and CTIA, representing cable, telco and wireless ISPs, had asked the 9th Circuit to overturn a U.S. District Court‘s decision not to grant a preliminary injunction against the law. But the three-judge 9th Circuit panel (Judges Mary M. Schroeder, J. Clifford Wallace and Danielle J. Forrest) — one of the most liberal circuits in the federal appeals court system — instead upheld the lower court.

The panel agreed with the district court that the FCC lacked the authority to pre-empt the state law because in reclassifying internet access as an information service under Title I of the Communications Act, the FCC no longer had the authority to regulate the way it did when it was considered a Title II telecommunications service.

It also pointed to the U.S. Court of Appeals for the D.C. Circuit upholding the FCC reclassification but striking down the accompanying order asserting preemption of state net neutrality rules.

The Trump Administration had challenged the California law, but the Biden DOJ withdrew that challenge last year.

The California law was passed in 2018, but its implementation was stayed pending the ultimate legal determination on the FCC's Restoring Internet Freedom Order eliminating the rules — the federal appeals court upheld the majority of the decision (Oct. 1, 2019) — as well as of various motions in the California district court. ■

A federal appeals court has refused to block enforcement of California‘s network neutrality rules, which internet service providers are challenging.

Cable ISPs — including those represented by ACA Connects and NCTA-the Internet & Television Association — had asked the 9th U.S. Circuit Court of Appeals to overturn a District Court's decision not to grant a preliminary injunction against the California Internet Consumer Protection and Net Neutrality Act.

But the three-judge 9th Circuit panel (Judges Mary M. Schroeder, J. Clifford Wallace and Danielle J. Forrest) — one of the most liberal circuits in the federal appeals court system — instead upheld the lower court.

Also: ACA Connects Makes Its Case Against Calfornia Law

ISPs had argued the California law was pre-empted by the Federal Communications Commission's 2018 decision to eliminate rules against blocking, throttling and anticompetitive paid prioritization, a move that had prompted California to create rules of its own.

The appeals court agreed with the district court that the FCC lacked the authority to pre-empt the state law because in reclassifying internet access as an information service under Title I of the Communications Act, the FCC no longer had the authority to regulate the way it did when it was a Title II telecommunications service.

It pointed to the U.S. Court of Appeals for the D.C. Circuit upholding the FCC reclassification but striking down the accompanying order asserting pre-emption of state net neutrality rules.

Also: California Net Neutrality Law Victory Draws Crowd

The 9th Circuit panel also rejected the ISPs’ contention that the California law was pre-empted because it conflicted with the underlying FCC policy or because interstate service was the sole province of the federal law.

The underlying case against the California law has yet to be adjudicated. This ruling only settled whether enforcement should be delayed until the underlying ISP challenge is resolved.

“Like a lot of 9th Circuit decisions, it is arguable that the court got the law wrong regarding whether California's net neutrality law is pre-empted," Randolph May, president of the market-oriented think tank Free State Foundation. “Given the inherently interstate nature of today’s tightly integrated broadband internet networks, there’s a good chance that other circuits might reach a different conclusion regarding pre-emption. But the risks of Internet service providers being subjected to a legacy common carrier regulatory regime established initially to regulate railroads in the 19th century and then Ma Bell last century, and a patchwork of varying state regulatory regimes with different mandates, should prompt Congress to resolve the decades-old net neutrality controversy by adopting a new law that prevents consumer harm while recognizing the technologically dynamic nature of today’s Internet ecosystem." 

Also joining the ACA Connects appeal were CTIA, representing wireless ISPs, and USTelecom, representing telecom ISPs.

They can appeal the panel decision to the full court if they choose.

“Today is a great day for the free and open internet," said California Democrat Rep. Anna Eshoo (D-Calif.), a big supporter of net neutrality rules. "The Ninth Circuit Court of Appeals upheld California’s net neutrality law, the strongest in the nation, a major win for small businesses and internet users across my state,” said Eshoo. “A free and open internet is critical for innovation, free expression, and our economy. Now Congress and the FCC should follow California’s lead and expand net neutrality to all Americans as I’ve advocated for years.” ■ 

Acting Federal Communications Commission chairwoman Jessica Rosenworcel would not comment on the degree to which the president's failure to name a third Democratic commissioner has prevented it from taking action on some big issues — like restoring network neutrality rules — but she suggested the agency has been hard at work on other things and was still supportive of making net neutrality rules the law of the land, however that is achieved.

Her comments came at a press conference with reporters following the FCC's July monthly public meeting. The press conference was not open to the public but Rosenworcel said she hoped to make them so soon.

Asked whether, as President Joe Biden’s competition executive order urged, the FCC planned to restore the rules barring internet service providers from engaging in blocking, throttling and paid prioritization, she said she had long been a supporter of the rules and objected to the previous FCC's elimination of them.

She said she had no plans to announce on that front, but was grateful for Biden's support of network neutrality, which she called an important competition and consumer protection issue.

Also Read: FCC Pre-empts Inside Wiring Ordinance

Rosenworcel was also asked whether she had consulted with the White House on the FCC-related issues before the order was released. She did not say yes or no, but did say that, across the board, there have been informal conversations with folks in Congress and the Administration and that when either asks why things “are the way they are,” the FCC is quick to supply its subject matter expertise.

As to whether the FCC could get a Republican commissioner on board with a net neutrality item, Rosenworcel suggested that while she can talk about the issue with the current (politically tied 2-2) commission, with a “full dias” (a Democratic majority) she might be able to have other options.

That “might” should be a “definitely” since Biden is highly unlikely to name a commissioner who does not support restoration of the rules. Names reportedly being considered for the third Democratic seat include Gigi Sohn, a former top adviser to FCC chairman Tom Wheeler; Edward “Smitty” Smith, a partner at law firm DLA Piper who has experience with overseeing multibillion-dollar broadband subsidies at the National Telecommunications & Information Administration and at the FCC; Anna Gomez of powerhouse D.C. law firm Wiley; and Parul Desai, the FCC's deputy chief, Telecommunications Consumers Division, Enforcement Bureau, currently detailed (since September 2019) to the House Communications Subcommittee.

Rosenworcel did say she was hopeful the FCC planned to take a fresh look at broadband competition in apartment buildings. The Biden executive order asks the FCC to “initiate a rulemaking to prevent landlords and cable and internet service providers from inhibiting tenants’ choices among providers.”

The president can only urge, not order, an independent agency to act, but Rosenworcel signaled she was on the same page when it came to competition in multi-dwelling units.

The Administrative Conference of the U.S. (ASUC)* has recommended federal agencies take a number of steps to address the issues of mass computer generated and falsely attributed comments.

Free State Foundation President Randolph May, who is a member of the conference, also had some advice in a separate statement. 

Both the recommendations and statement were published in the Federal Register.

Mass, duplicative and falsely attributed comments were all big issues in the FCC's last public comment docket on proposed changes to net neutrality rules, something May pointed out in his comments.

ACUS describes itself as "an independent federal agency charged with convening expert representatives from the public and private sectors to recommend improvements to administrative process and procedure."

In this case, it is recommending that agencies like the FCC, who must give members of the public the opportunity to weigh in on proposed rules for the agency's consideration, find better ways to manage what can be a flood of comments in the digital age.

"Not all agencies will encounter mass, computer-generated, or falsely attributed comments. But some agencies have confronted all three, sometimes in the same rulemaking," ACUS said, and could have been talking about the FCC net neutrality comment docket.

Among the recommendations are for agencies to 1) "welcome" the filing of mass, "identical or substantively identical," comments as a single comment over multiple signatures; and 2) "consider alternative approaches to managing the display of comments online, such as by posting only a single representative example of identical comments in the online rulemaking docket or by breaking out and posting only non-identical content in the docket," to make it easier to navigate the system.

But if an agency does do that, it should include the multiple comments in any reported total of comments received.

Also Read: FBI Investigating FCC Docket

When it comes to falsely attributed comments, ACUS suggests that agencies should give those to whom the comments have been falsely attributed a chance to have those comments anonymized or removed from the online docket. It should also note in the docket what actions it has taken.

ACUS did not say the FCC can't take into account falsely attributed comments when making a decision, but says it should note any such comments it relied on. Beyond that, it said the FCC should inform the public generally about its policies concerning posting and use of mass generated and falsely attributed comments.

In his comments, Randolph May said he hoped that ACUS would next tackle the issue of the appropriateness of curbing the kind of mass computer-generated filings that turned the net neutrality docket into a a comment "nuclear" option that deluged the FCC with 22 million comments that overwhelmed the system and "often rendered the ability to search for comments that might possibly contain relevant data and information well-nigh impossible."

May said he recognized the value of widespread participation by interested parties, but that there ought to be a way to discourage the kind of comment war that erupted in the FCC's net neutrality docket.

He also pointed out that the comment war suggested both sides thought that the volume of comment should influence the outcome. As an independent agency, the FCC is charged with making its decisions in the public interest using its expert judgment, not based on how many people are prompted or able to comment on either side.

While acting Federal Communications Commission chair Jessica Rosenworcel was prominently in the picture at President Joe Biden's signing ceremony for an executive order on competition that urged various regulatory steps by the agency to promote high-speed, low-cost broadband, there was another commissioner in attendance: Republican Nathan Simington.

Also Read: Biden Launches Potential Broadband Regulatory Blitz

With the FCC currently at a 2-2 political tie, courting Simington could be key to getting things done if Biden is not yet ready to name a permanent chair and/or pick a third Democrat.

In a statement following the ceremony, the FCC‘s newest member — and still something of a question mark in terms of exactly where he would come down on the re-regulatory effort — praised what he called Biden’s “vociferous commitment to capitalism and competition in service of consumer welfare and innovation,” and said he was confident the executive order, which drew lots of pushback from USTelecom and NCTA-The Internet & Television Association, would be “thoughtfully implemented with due consideration of costs, risks and harms balanced against vital consumer interests.”

Also Read: Nathan Simington's Unlikely Path to FCC

That certainly leaves Simington free to criticize any effort he feels did not sufficiently take into account the costs and harms of regulation.

For example, the executive order urges the FCC to restore network neutrality rules. Simington said new net neutrality rules would be better left to Congress and that, if the FCC tried to re-regulate, it would be hard pressed not to apply those rules to Big Tech players. He said that trying to do so would be “an epochal realignment in corporate regulation” whose “potential for disruption, waste and chilling effects is difficult to overstate.”

Like other Republicans who can see the re-regulatory writing on the wall in a Democratic administration, Simington does not oppose new net neutrality rules so long as they are not under a monopoly-era Title II classification of internet access. And, he added, Congress would have “an opportunity for Congress to protect speech rights that would not be protected merely by [the FCC] reclassifying broadband internet access under Title II.”

But Simington sounded almost enthusiastic about working with the other side to affect the president’s order, which the FCC is under no obligation to do since it is an independent agency.

“I look forward to working with my colleagues on the commission and my counterparts in the executive branch to realize a bipartisan vision of openness, competition, and consumer choice consistent with the principles of internet freedom adopted under Chairman [Michael] Powell and supported by every chair since,” he said. 

With the war on the pandemic still not won, California’s veterans are at risk of losing access to a mobile internet app, called VA Video Connect, that enables veterans to receive telehealth services without incurring data usage charges. This is a consequence of California’s newly effective "net neutrality" law that flatly prohibits Internet service providers from offering consumers so-called "free data" plans, sometimes also called "sponsored data" or “zero-rated” offerings, unless an entire “category” of supposedly similar services receives the same treatment. 

While government-imposed “net neutrality” mandates may sound superficially appealing in theory, in reality they often harm consumers. In this instance, those harmed may include our veterans.

With free data offerings, access to various Internet content, such as the VA’s telehealth application, is subsidized by the wireless broadband providers or by third party websites and applications. As a result, consumers receive a price break or avoid potential data usage charges. Not surprisingly, the free data programs are popular with consumers, and low-income persons naturally stand to benefit the most. 

For now, California's net neutrality law is the most overreaching in the nation. Its threatened harmful effects should be a cautionary tale, not only for other states, but for the Federal Communications Commission, which likely is considering adopting similar new prohibitions governing Internet service provider offerings. 

According to a March 24 report in Politico, “officials at the Department of Veterans Affairs are privately sounding the alarm that California's new net neutrality law could cut off veterans nationwide from a key telehealth app.” The reason California’s ban on free data offerings likely will impact vets and consumers across the nation is that, unlike traditional voice telephone calls in last century’s analog era, it is highly impractical and burdensome, and in some instances impossible, to segregate interstate and intrastate Internet traffic. Thus, Internet providers, such as AT&T, T-Mobile, Tracfone, and Verizon, that offer the VA Video Connect app, almost always implement uniform nationwide protocols. 

Why would California threaten to make it more costly – and, therefore, more difficult – vets to take advantage of an innovative telehealth program by banning the wireless carriers’ free data programs? Simply put, because of an overly rigid ideological view of what “net neutrality” means. The most rabid net neutrality proponents, including Big Tech companies, persuaded California's legislature that it's somehow wrong for Internet service providers to allow certain content websites and applications, such as the VA’s in this case, to bear some small portion of the massive costs of constructing and operating broadband networks, rather than having consumers bear the entire costs. 

In this view, popular free data offerings supposedly constitute an invidious form of non-neutral “discrimination.” According to this theory, there could be an adverse impact on websites and applications that don’t themselves offer free data programs. An outright ban on these offeringssupposedly protects hypothetical competitors from hypothetical injury from hypothetical discrimination. 

If banning free data apps is a core "net neutrality” principle, then it's one that deserves to be jettisoned. In the technologically dynamic, rapidly evolving, competitive Internet ecosystem, Internet service provider practices should not be categorically restricted based on hypothetical harms. In the real world, free data programs are popular and benefit consumers. The VA Video Connect app is a prime example of such a consumer benefit. 

In light of the embarrassment caused to California by the potential take-down of the VA’s telehealth app, it will not be surprising if the state’s officials reach some interpretative accommodation that creates a “free data” exemption for certain applications, say, those relating to government-provided telehealth applications or “telehealth” sites more generally. That will be good for veterans and perhaps others. 

But the uncertainty that already has been created just serves to illustrate the harm all too likely to ensue when government diktats put Internet service providers into straight jackets that require regulatory contortions to remedy the consumer harm the diktats create in the first place. A regime that requires the government to define and approve specific categories of acceptable websites and apps invites arbitrariness, manipulation, and favoritism. 

The far better course is for Congress, the FCC, and the states to adhere to a policy grounded in Internet freedom that presumptively permits innovative services such as VA Video Connect and other free data offerings. In the event any specific claims are raised that consumers and competition are being harmed, those concerns can be addressed on a case-by-case basis by the Federal Trade Commission or Department of Justice.

Randolph May is President of the Free State Foundation, a think tank in Rockville, Maryland, and Seth Cooper is a Senior Fellow. They are co-editors of the book, A Reader on Net Neutrality and Restoring Internet Freedom.

*This piece was originally published on Real Clear Markets.

Acting Federal Communications Commission chairwoman Jessica Rosenworcel has sent a clear signal that she is still a big fan of network neutrality rules, and that she is no fan of the Trump administration petition to the agency to regulate social media using Section 230 of the Communications Decency Act of 1996.

That was made known as she presided over her first public meeting as acting chair, wielding the gavel from home and saying there was much on the FCC’s plate.

The commission’s being currently at a 2-2 political tie, she pointed out, will obviously have an impact on the timing of big-ticket items.

Asked about those two issues and how she planned to proceed, Rosenworcel said she had made it clear that as a commissioner she did not favor commission action on the petition from the National Telecommunications & Information Administration asking the agency to cut back on internet service providers’ protections under Section 230.

ALSO READ: ISPs Prepare for Flood of Broadband Billions

“I do not believe the FCC should be the president’s speech police,” she said. While she said she had no other insights on the petition, filed by the Trump administration in July 2020, clearly it is not getting traction if she remains chairwoman. 

On that topic, asked if she anticipated having the “acting” removed from her title, she said she would leave that up to the White House.

With respect to net neutrality, Rosenworcel said the record reflected that she supported net neutrality — she voted against the Restoring Internet Freedom order that eliminated the rules against blocking, throttling and paid prioritization — and that the FCC was “assessing right now what the best way forward is, conscious of the composition of the commission.” Most on both sides argue the best way would be for Congress to clearly establish exactly what the FCC’s authority over net neutrality is. 

Rosenworcel was asked about her plan for a top-to-bottom review of the agency, but suggested it was regular procedure for anyone taking over an agency to review issues in every bureau to see if they need a revamp.

One signal Rosenworcel has clearly sent is that there needs to be more intra- and inter-agency cooperation, communication and coordination, including around national security reviews of communications companies and tech.

EBB Must Flow

One big-ticket item that can’t wait is the FCC’s standing up of the $3.2 billion Emergency Broadband Connectivity Fund (EBB).

The commission has until next week to come up with a framework for handing out that money. It will be based on the Lifeline subsidy program already in place, but unlike Lifeline it is a six-month program using that $3.2 billion congressional allocation rather than an ongoing subsidy funded by fees on telecom bills.

At last week’s hearing, Republican commissioner Brendan Carr very publicly said he thought priority should be given to remote learning, an issue right in Rosenworcel’s wheelhouse. But she signaled the FCC was bound by the language of the legislation, which cited multiple constituencies of equal eligibility.

The Biden Justice Department has dropped the Trump Justice Department's challenge to California's net neutrality law.

The court issued a one line statement: "Plaintiff the United States of America, by and through its counsel, hereby gives notice of its voluntary dismissal of this case."

Congressional Democrats had pressed the new administration to drop their support of the legal challenge.

Also Read: OTI Says Court Should Deny Blocking California Law

DOJ under Trump had argued that the FCC elimination of rules against blocking, throttling and paid prioritization preempted California's attempt to reinstate them in that state, an argument ISPs made in joining DOJ in that legal challenge before the U.S. District Court for the Eastern District of California.

Attorney Andrew Schwartzman, who backs the California law, said DOJ's dropping of the case was no surprise--given the change in administration and view of net neutrality rules, which Democrats favor--but that it was important because "the views of the United States weigh heavily on preemption questions of the kind raised here."

A hearing on a motion for preliminary injunction in the case, now absent DOJ representatives, is scheduled for Feb. 23. 

Also Read: Judge Moves California Net Neutrality Law Hearing

"Those of us who support the California law believe that challenges to it lack a valid basis," said Schwartzman. "In light of the fact that the FCC disclaimed any jurisdiction over broadband internet service, the FCC's claim of a policy of "non-regulation" leaves the states free to regulate.

The law was passed after the FCC's Restoring Internet Freedom (RIF) order scrapped its net neutrality rules banning blocking, throttling and paid prioritization. The FCC's RIF deregulation of internet access included a preemption of state regs that conflicted with that decision. But in 2018, California passed its own tough net neutrality rules anyway to fill what it saw as a regulatory void.

Justice then filed suit in support of the FCC, as did ISPs.

Acting FCC chairwoman Jessica Rosenworcel, who had voted against the FCC order eliminating net neutrality rules, praised the move.

“I am pleased that the Department of Justice has withdrawn this lawsuit," she said in a statement. "When the FCC, over my objection, rolled back its net neutrality policies, states like California sought to fill the void with their own laws. By taking this step, Washington is listening to the American people, who overwhelmingly support an open internet, and is charting a course to once again make net neutrality the law of the land.”

“We applaud the DOJ for dropping this harmful legal challenge," said Joshua Stager, senior counsel at New America’s Open Technology Institute. "The Trump administration initiated the lawsuit as a frontal attack on both net neutrality and California’s right to protect consumers. The Biden administration must restore net neutrality, and dropping this case is a good start.

“In 2018, Sacramento legislators passed this law to ensure that Californians get the internet service they paid for without unreasonable interference from their internet provider. That law is needed now more than ever as millions of Californians rely on internet service to get through simultaneous public health, economic, and climate crises. The Department of Justice never should have stood in the way of this law.”

Democrats on the Federal Communications Commission are taking issue with chairman Ajit Pai's announcement last week that the agency would clarify edge providers' Section 230 immunity from civil liability over third-party content, as the White House has asked. Pai also said he has been assured by commission lawyers that it has the authority to do so.

That came during a public meeting Tuesday (Oct. 27) in statements on the FCC's defense of its network-neutrality deregulation order.

Democrats pointed out that the FCC had cited Section 230 of the 1996 Communications Decency Act in defending its elimination of net neutrality regulations and its adoption of an "information services" definition for internet access that squared better with Section 230's grant of immunity that allowed the marketplace more freedom.

Section 230 allows social media sites to host third-party speech without being subject to legal action based on the content that is posted or what they do with it.

Senior Democrat Jessica Rosenworcel pointed out that Section 230 had been in the news lately as "we all grapple with the frustrations of social media."

Related: FCC Will Clarify Section 230

Some of those include Republican legislators claiming censorship of conservative speech, Democrats claiming promotion of hate speech and the facilitation of election interference, and President Donald Trump's claim that Big Tech is out to un-elect him.

But Rosenworcel said the FCC was trying to have it both ways in upholding its net dereg and pursuing its Section 230 clarification. 

“Three years ago, the FCC insisted that Section 230’s references to a competitive, free market for the internet compelled this agency to roll back net neutrality," which she called "bunk" then and now. "But now the agency’s approach to Section 230 is even more confounding. Because following a push from the Administration, the FCC has reversed course. It now insists that this provision of the law compels the agency to regulate certain speech online. In the end, it’s not just the hypocrisy that disappoints, or the intellectual contortions required to make sense of this. It’s the dishonesty. It can’t be that the FCC points to Section 230 to disavow authority over broadband but then uses the same law to insist it can turn around and serve as the President’s speech police."

Fellow Democratic commissioner Geoffrey Starks echoed that sentiment.

"I’m struck by the majority’s inconsistency in affirming the RIF Order even as the Chairman has announced his plan to circulate a rulemaking on Section 230,” Starks said in his meeting statement on the RIF item, from which he dissented. “After all, in the RIF Order the majority pointed to Section 230 as evidence of Congress’s intent that broadband should receive a 'free market approach' as an information service.

“It’s absurdly ironic that some of net neutrality’s strongest opponents now argue that the commission should interpret Section 230 to control the speech of private companies,” Starks added. “These pieces don’t fit together. You can’t pretend to have a light-touch regulatory framework when you’re proposing to regulate online content with a heavy hand. This ideological about-face shows that the imminent Section 230 rulemaking is more about pleasing the President than making good policy."

Pai has explained his decision to proceed with a Section 230 rulemaking this way: “Throughout my tenure at the Federal Communications Commission, I have favored regulatory parity, transparency, and free expression. Social media companies have a First Amendment right to free speech. But they do not have a First Amendment right to a special immunity denied to other media outlets, such as newspapers and broadcasters.”

Randolph May said Twitter rejected his effort to promote a tweet (below) associated with his FSF Perspective: “Don’t Regulate the Internet as a Public Utility."

"In light of all the positive feedback I’ve received regarding my FSF Perspectives and my associated tweet, I decided to spend $50 to promote the tweet further —something I’ve only done 2-3 times in 10 years--he told Multichannel News in an email. "[T]o my surprise, Twitter rejected it as 'political.' This is the same Twitter, I think, which proclaims vociferously it favors 'net neutrality.' I guess the neutrality doesn’t apply to tweets opposing its net neutrality position!"

According to Twitter's ad policy, it "prohibits the promotion of political content,"  which includes ads that contain "advocacy for or against regulation." 

That policy stems from complaints that social media advertising and promotion was being used by outside elements to influence and disrupt U.S. elections.

Free State Foundation is a free market think tank backed by some major media outlets.

The American Association of Retired Persons (AARP) said the FCC should restore net neutrality rules and that ISPs are glossing over the issues the deregulatory ruling raises. 

It was filing reply comments in the FCC's court-ordered review of how reclassifying internet access as a Title I information service not subject to Title II common carrier mandatory access rules and eliminating the rules against blocking, throttling and paid prioritization affected public safety, pole attachments or the FCC's low income broadband subsidies. 

AARP signaled it was not surprised the ISPs were "glossing over" specific issues in their comments, though it was surprised Comcast suggested that there had not been any problems with the FCC's Title I classification in the past, saying that was unsupported by the evidentiary record, a nice way of saying that was not true.  

"[T]hese parties do not offer the Commission a plausible path forward, and instead rehash the alleged benefits of Title I classification on broadband investment, all the while ignoring the patent failure of current universal service and competition policies to survive the stress test imposed by the COVID-19 crisis," AARP said. 

Its members are in the categories of highest morbidity with the novel coronavirus.  

AARP also told the FCC that if it makes any changes to the rules, it should put them out in a Notice of Proposed Rulemaking so the public can respond to them before the FCC adopts them.  

Common Cause and New America's Open Technology Institute said the FCC is shortchanging the net neutrality issue by not launching a rulemaking looking into the impact of its network neutrality deregulation on public safety, broadband deployment and low-income subsidies. 

That came in comments on a federal appeals court's remand of a portion of the FCC's 2017 Restoring Internet Freedom (RIF) Order back to the commission for a better explanation of that impact. 

The FCC had issued a public notice seeking comment on those specific issues in a public notice, but the groups said that was not sufficient, particularly given what they argue are the serious negative impacts of the RIF order on all three. 

Related: FCC Defends 'Light Touch' Net Neutrality Reg Remake

"The Court’s remand order addresses complex issues that strike at the heart of the Commission’s core Congressional mandates—universal service, broadband competition, and public safety," they said. "These critical issues demand more than a simple, four-page Public Notice. The Commission should give this remand the seriousness it deserves and issue a Notice of Proposed Rulemaking [NPRM]." 

They said the point of the court's remand was its admonition to the FCC that it had largely ignored the impact of its decision on those things, so to "rush through" it with a public notice rather than a full review and accounting" does not inspire confidence that the Commission has learned any lessons from the remand. 

They said that NRPM process would also give public safety officials more time to weigh in given they were kind of busy at the moment with fighting a pandemic. "The record would be incomplete without their full participation."

The FCC earlier this week declined to extend the public notice comment period for a second time--initial comments were due April 20--despite requests by the cities of New York and L.A. and Santa Clara public safety officials, sometime Common Cause and OTI also cited, though the FCC was denying the request at about the same time the commenters were saying it should be granted. 

Their bottom line was the RIF order ignored critical issues and created problems for public safety and low-income Lifeline broadband subsidy recipients, they argued, symptoms or the larger problem of its reclassification of internet access from a telecom service to an information service, a course it should now correct.

The FCC has posted more than 300 comments to its record-breaking net neutrality docket in the past day.

That comes after the commission earlier this week sought comment on several issues identified by the federal court that upheld the Restoring Internet Freedom Order, which eliminated network neutrality rules and reclassified internet access as an information service.

Related: FCC Settles Net Neutrality Docket Suit

On Feb. 20, before the new comments started being posted, the comment total stood at 23,953,021. As of Friday afternoon, Feb. 21, the total had increased by 307 comments to 23,953,328.

A quick survey of a couple dozen comments filed so far found none focused on the issues the FCC asked to hear about.

The FCC is seeking comment on three issues related to its Restoring Internet Freedom (RIF) order, issues the court remanded back to it for further action.

The U.S. Court of Appeals for the D.C. Circuit upheld the bulk of the FCC's decision to reclassify ISPs as Title I information service providers not subject to Title II common carrier regs and to eliminate the rules against blocking, throttling, paid prioritization, and a general conduct rule. But the court said the FCC needed to better explain the impact of those decisions on public safety, the regulation of pole attachments, and its Lifeline broadband/phone subsidy program.

The comments appear to be, generally, a continuation of net neutrality fans' unhappiness with the Pai FCC deregulation.

"Keep the internet open. ISPs should serve the people and have no role in controlling or prioritizing content, adjusting speed or any other manipulation of throughput or content that adversely effects a totally open internet," read one comment.

"The internet should be free and open. Having gate keepers determine what services and level of service I receive from other internet companies is ridiculous," said another.

The FCC's net neutrality comment docket has been something of a flashpoint given the number of bogus comments filed, how the FCC handled them, and the docket's role in a campaign by comedian John Oliver flooded the FCC with input.

In fact, one commenter called for a reprise: "I hope John Oliver does another special on this and you [sic] comment system gets bombarded again to show this agency that people care about this issue and you have irreparably harmed them all so that a few fat cats can make more money."

The docket was also the subject of outside investigations, including by the New York State Attorney General and FBI.

Related: Rep. Pallone Says FBI Investigating FCC Comment Docket

Pai has conceded there were opportunities for mischief in the docket—which ultimately manifested itself in bogus comments, including ones from a Russian addresses—but he signaled that was the price of erring on the side of inclusiveness. But just how many were filed, and what the FCC's procedures for at least trying to verify their veracity, became an ongoing dialog, though some Dems would say monologue, with the FCC in the run-up to the FCC's December 2017 vote to roll back net neutrality regs. 

Friday (Dec. 13) is the deadline for Mozilla and others to appeal the net neutrality decision upholding the FCC's reclassification of internet access as an information service and elimination of the rules against blocking, throttling and paid prioritization. 

In a victory for ISPs, on Oct. 1, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously upheld most of the Republican-led FCC's deregulation of internet access in the 2017 Restoring Internet Freedom (RIF) order.  

Friday at midnight is the deadline for appealing that three-judge panel decision to the full court. 

Mozilla had taken the lead in challenging the RIF order in that court. 

In that October decision, the court said that the FCC was reasonable in reclassifying internet access as a Title I service rather than a Title II common carrier service, as the previous FCC had classified it. "Regulation of broadband Internet has been the subject of protracted litigation, with broadband providers subjected to and then released from common carrier regulation over the previous decade," said the court. "We decline to yet again flick the on-off switch of common-carrier regulation under these circumstances." 

The judges pointed to precedent from the Supreme Court's Brand X case, which held that internet access could be classified under Title I, and deference to the FCC's subject matter expertise (so-called Chevron deference) in ruling that the FCC's order should not be vacated as arbitrary and capricious.

Each petitioner in the case is free to file its own rehearing petition, but they will likely team up on multiple shots. The petitioners were grouped during the case into governmental (state challenges) and nongovernmental. It is likely some of those might file separately because they have different interests--preemption in the case of states, for example. 

Another reason that there will more likely be several grouped petitions than a single appeal is that the petitions should track with the issues they advocated for, since the court frowns on bringing up new arguments on appeal. In addition, there are word limits and everyone might not get enough ink (or electrons) if they were one or only a couple, of petitions. 

If the full court does not take that appeal, the next stop is the Supreme Court. 

President Donald Trump tweeted congratulations to FCC chair Ajit Pai on last week's court decision upholding the baseline deregulation of internet access and elimination of rules against blocking, throttling and paid prioritization. 

He was claiming it as yet another "win" for his administration (The President has been on the record as supporting ISP deregulation):

[embed]https://twitter.com/realDonaldTrump/status/1181175266409889793[/embed]

In response, Democratic FCC commissioner Jessica Rosenworcel, who voted against the deregulation and last week criticized the court decision, tweeted back: 

[embed]https://twitter.com/JRosenworcel/status/1181196209278636032[/embed]

The U.S. Court of Appeals for the D.C. Circuit last week upheld the Pai FCC's Restoring Internet Freedom Order. But it said a blanket preemption of state efforts to reregulate went beyond the FCC's authority. It also said the FCC needed to better explain the impact of its decision on public safety, poll attachments and broadband subsidies to low-income residents, which FCC officials have said would not be a heavy lift.  

Federal Communications Commission chairman Ajit Pai was doing something of a victory dance after a federal court said his internet deregulation generally cleared the legal bar for reasonable agency decision-making, leaving his deregulatory approach to the ’net mostly in place.

According to top FCC officials (paraphrased from a background call with The Wire and others), these were the seven key victories for the FCC in the decision by the U.S. Court of Appeals for the D.C. Circuit released on Oct. 1.

1.) The court upheld the Restoring Internet Freedom order’s reclassification of broadband internet access as a reasonable exercise of the FCC’s discretion, pointing to the Supreme Court precedent in the 2005 Brand X decision.

2.) The court said the FCC was within its discretion to rule that the DNS (domain name system) and caching functions of broadband access did not make it a telecommunications service versus an information service.

3.) The court upheld the FCC’s definition of mobile broadband as a private (Title I) service rather than a commercial service.

4.) The court said the FCC was reasonable to conclude that section 706 of the Communications Act (the FCC mandate to ensure advanced communications is being deployed in a reasonable and timely manner) was not an independent grant of regulatory authority. The previous FCC had said it was.

5.) The court upheld the FCC’s advanced transparency rule, which ensures that the blocking, throttling and paid prioritization allowed under the order are disclosed to customers. That is how the FCC, Justice Department and Federal Trade Commission can together monitor ISP conduct for anticompetitive actions.

6.) The court held the FCC’s decision to eliminate the rules was reasonable because the harms the rules had been designed to prevent could be addressed with that transparency and antitrust oversight.

7.) The court said the FCC’s contention that reclassifying broadband access would boost broadband investment — agency critics had branded that as bogus — was based on “substantial evidence.”

WASHINGTON — Call it legal ping-pong, regulatory pinball or judicial rinse and repeat — it was called all of those and more — but a new decision out of a federal court here on the FCC’s latest set of net neutrality rules has ISPs and virtually everyone else calling for Congress to finally step in and clarify just what authority the agency has and should use over internet access.

Good luck with that.

Such was the fallout over the court’s decision to uphold the Federal Communications Commission’s reclassification of internet access service as a Title I information service, rather than a Title II telecommunications service subject to common carrier, mandatory access regulations. In the process, the three-judge panel from the U.S. Court of Appeals for the D.C. Circuit left alone the FCC’s decision to eliminate rules against blocking, throttling and paid prioritization and deeded most internet oversight to the Federal Trade Commission and the Justice Department.

This latest legal volley only muddied the waters further when it came to whether or not states can step in — as California, most notably, has done — to regulate in the absence of the FCC rules. California actually went beyond the 2015 Open Internet rules the current FCC deregulated, though its law has yet to go into effect after the DOJ sued and the sides took a breather to wait for this appeal decision, released on Oct. 1.

Pre-emptive Moves Curbed

While the FCC, under current chairman Ajit Pai, had pre-empted any state efforts to reregulate in the 2017 Restoring Internet Freedom deregulatory order, the D.C. Circuit said the commission had exceeded its authority, and could only pre-empt state efforts on a case-by-case basis under the “conflict pre-emption” provision that covers regulations that conflict with federal laws.

There was some disagreement over whether or not the court’s decision to wipe out that blanket pre-emption opened the door to a potential 50 state internet regulatory regimes. FCC officials speaking on background didn’t see it that way, but activists on foreground said they did and would be pushing states to pass their own tough new laws.

Mozilla vice president of public policy, trust and security Alan Davidson, the lead name on the rule challenge, said the decision provided a path forward to state-level action to do what the FCC did not, citing California and Vermont as taking the lead with already passed laws.

ISPs were celebrating while activists were considering next steps and vowing to push for the Save the Internet Act, a bill that passed the House and would reinstate Title II and related rules.

ISPs were calling for legislation, too, but they will not be signing on to any proposal that tries to codify Title II — particularly when fresh from a court victory where it was decided the FCC had reasonably reclassified to Title I.

Activists were taking some comfort in the fact that the D.C. appeals judges based their decision in part on Brand X, the Supreme Court’s 2005 precedent that internet access could be reasonably classified under Title I. The court also extended the so-called Chevron deference given to expert agencies, which is that courts put at least a pinky — some would say a thumb — on the judicial scale for agency decisions, under the theory that agencies generally know more about the impacts of communications policy decisions than judges. Net-neutrality activists said the judges recognized that, although a lot had changed since the 2005 Brand X decision, their hands were tied, or at least they felt they were, by that precedent.

So what will actually happen next?

The FCC has to come back to the court with a better justification for its assertion that its deregulatory moves would not adversely affect public safety, pole-attachment regulations and Lifeline broadband subsidies. FCC officials who spoke on background said they had no concerns about providing those explanations.

Activists and Democrats will push for:

• Title II legislation. ”The fight is on,” said Sen. Edward Markey (D-Mass.), a network neutrality fan, though arguably it has never been off.
• State-by-state action. New York Attorney General Letitia James signaled her state may be one of those to act. “We stand committed to protecting our residents by treating all internet traffic equally, defending access, innovation and competition,” she said in an e-mailed statement to Multichannel News.

ISPs will back compromise legislation, but from a stronger position than when the case had yet to be decided. FCC officials speaking on background said chairman Pai also continues to believe that the ideal scenario is for Congress to step in and resolve the issue once and for all, even if that ultimately means restoring some of the rules the FCC eliminated.

“We stand committed to protecting our residents by treating all Internet traffic equally, defending access, innovation and competition.” — Letitia James, New York state attorney general

A Congress bickering over impeachment and divided over Title II is not likely to find common ground any time soon amidst all the scorched earth.

If net neutrality fans want to continue the pingpong/pinball/rinse and repeat route, they have several options, said attorney Andy Schwartzman, who argued for restoring the rules:

• They can seek full court review of the three-judge decision, which he thinks is unlikely to be granted.
• They can appeal directly to the Supreme Court, though Schwartzman said that would not be a favorable venue given the makeup of the court. For example, newest Justice Brett Kavanaugh is a veteran of the D.C. Circuit and no fan of the old net neutrality rules. That would risk an even worse precedent from that highest court.
• They can “take their medicine” and try for a Congressional fix, though that is likely a long-term play given the political divide over the issue of Title II and the general political divide.

The FCC could also challenge the pre-emption portion of the decision. One of the three judges dissented strongly from pre-emption, “setting up an important defense for the FCC should it challenge this part of the decision,” said Roslyn Layton, visiting scholar with the American Enterprise Institute. An FCC official speaking on background would not rule out such a challenge, but agreed the dissent provided strong ammunition for such an appeal.

And, of course, if a Democrat wins the White House in 2020, a new chairman could try and justify yet another 180-degree turn on Title II.

In the meantime, Michael Powell, president and CEO of NCTA-The Internet & Television Association and the former FCC chairman who first offered up Open Internet principles, said: “As a practical matter, the decision will have little impact on consumers’ internet experience. It does nothing to change our industry’s enduring commitment to providing consumers with the same open internet experience that has been delivered for decades.”

The FCC has denied a network neutrality complaint against Verizon Wireless for lack of evidence, saying it also independently investigated the allegations and concluded no enforcement action.  

The FCC's Enforcement Bureau said Tuesday (Aug. 6) that it was denying the complaint, filed by Verizon customer Alex Nguyen, who the FCC said had sought $81 billion in forfeitures (this story initially incorrectly identified that figure as damages). 

The complaint alleged that Verizon had both violated the 2015 net neutrality rules and C Block rules by (a) unlawfully interfering with customers’ ability to use devices or applications of their choice on Verizon’s network; (b) interfering with edge providers’ ability to develop devices and applications of their choice; and (c) failing to adequately disclose its network management practices." 

But the Enforcement Bureau said Nguyen had not met his burden of proof because, "[r]ather than support its claims with sworn affidavits from witnesses with personal knowledge of the facts, the Nguyen Complaint rests almost entirely on unverified news reports and blog posts." 

The bureau said that while the complaint lists 22 devices, it offers no "verified evidence" (like a sworn affidavit) that anyone tried to use any of the devices on the network.  

Nguyen also claimed that Verizon disabled or made companies disable certain functionalities on Verizon devices, but, again, offers no "verifiable evidence."

"A complainant has the burden in a formal complaint proceeding under section 208 of the Act, and under the Title II Order [the alleged conduct occurred before the FCC repealed that Title II regime] and C Block rules, to demonstrate by a preponderance of the evidence that the alleged conduct occurred and that it violated the Act or a Commission rule or order.27 Reviewing the entire record here, we find that Nguyen failed to meet that burden by providing reliable evidence in support of the violations alleged in the Complaint."

By contrast, it said, Verizon had submitted "unrebutted evidence" supporting its denials of the conduct.  

Nguyen also asked the bureau to initiate its own investigation so it could turn up evidence and take action. The bureau said it did, and "did not take enforcement action." 

Nguyen had plenty of bones to pick with how his complaint was characterized and treated at the FCC.

He pointed out that he had not asked for $81 billion in damages (the FCC had actually called that $81 billion a forfeiture, which this story had initially incorrectly labeled damages], but only $965 plus $25 per month for every month since May 2015 in damages. Nguyen did ask for Verizon forfeitures to go to the treasury. 

Nguyen told Multichannel News that all the facts in his complaint were supported by either firsthand knowledge or documentation. "[The FCC order] falsely claims I didn't provide firsthand knowledge, even though I clearly did in my filings, exhibits, and replies to interrogatories," he said. "Apparently, the current EB chief doesn't consider my bills from Verizon verified, reliable, or first-hand evidence," he said. 

"Similarly," he said, "the Order dismisses as 'unverified information' * Public statements and filings by Samsung and Verizon itself; * Research papers and articles from the National Association of Broadcasters and NextRadio; * A sworn declaration by Worldcall Interconnect CEO Lowell Feldman; *Commit messages in Google's source code repositories, and *Reporting from the NYT, WSJ, Recode, and Walt Mossberg, among others." 

One of the state Attorneys General suing the Federal Communications Commission over its net-neutrality regulation rollback got to use the agency’s own website to take shots at that decision.

That is by way of the latest installment of Democratic commissioner Jessica Rosenworcel’s Broadband Conversations podcast with high-profile women.

Rosenworcel is herself a big opponent of that Republican-led deregulation, so it is no surprise that Massachusetts AG Maura Healey got on the FCC platform to suggest ISPs would get to favor their own content under the agency’s new regime. (The online transcript originally said “savor” their own content, which many others do when that content is, say, Netflix’s Shtisel or binge-watching The West Wing, but The Wire digresses.)

“I support net neutrality, and I know that you have sued my agency, the FCC, over its effort to roll back our net neutrality rules late in 2017,” Rosenworcel pointed out in giving her the opening.

Healey explained why she had joined with almost two dozen other AGs to sue. She said the result of that FCC deregulation was going to be a slower, more-expensive, more-restricted internet, and that was a form of discrimination.

But if Healey was scoring points with Rosenworcel — she was — for her aggressive stance against the FCC’s Restoring Internet Freedom order, it was understandable. She was a point guard and captain of her basketball team at Harvard and even played professionally on a European team before trading her sneakers for putting legal moves on the FCC.

The latest twist in the net neutrality debate has prompted a renewed interest in regulatory federalism. Opponents of the Federal Communications Commission’s Restoring Internet Freedom Order (RIF Order) have turned to state governor’s mansions and legislatures, seeking to restore at the state level regulatory restrictions that the commission repealed at the federal level. To date, six states have adopted executive orders and four have passed statutes that purport to impose net neutrality mandates on broadband providers.

Most commentary on state net neutrality has focused on whether the RIF Order preempts these state-level initiatives. But there is a second, less-often-discussed limitation on state power to regulate broadband network management practices: the Dormant Commerce Clause.

The Dormant Commerce Clause doctrine prevents states from imposing undue burdens on interstate commerce. Previous courts have relied on this doctrine to limit state attempts to regulate online conduct. The Internet is a national (indeed, global) network, meaning that state attempts to regulate the flow of traffic on that network are likely to have extraterritorial effects that burden interstate commerce. As a result, claims these rules contravene the Dormant Commerce Clause could well prove a difficult obstacle for state attempts to resurrect net neutrality restrictions.

Regulations Without Borders

Like early state attempts to regulate online conduct, state-level network traffic management regulations are susceptible to a Dormant Commerce Clause challenge. The Internet is a national (indeed, global) network, meaning that attempts to regulate the flow of traffic on that network are likely to have extraterritorial effects. If state net neutrality rules survive a pre-emption analysis, states should be ready for the claim that such regulations unreasonably burden interstate commerce and, therefore, contravene the Dormant Commerce Clause doctrine.

The party challenging the law bears the burden of showing the impact on interstate commerce. As an initial matter, it is not clear that the existing state-level net neutrality initiatives are limited to in-state conduct. For example, Vermont’s executive order prevents state agencies from contracting for broadband service unless the broadband provider certifies that it does not “engage in paid prioritization … to any Internet customer.” Similarly, Hawaii requires agencies to contract only with providers that “demonstrate and contractually agree to support and practice net neutrality principles where all Internet traffic is treated equally.”

Facially, these restrictions can be read to apply not only to contracts with in-state consumers, but with all consumers nationwide (or indeed worldwide). But even if the court construes these restrictions to apply only to contracts with in-state consumers, such regulations can disrupt the orderly flow of interstate traffic. Permissible network management practices would differ from state to state, depending on whether and how each state chose to regulate. Even if all states adopted facially identical statutes, fragmentation is likely to occur over time as 50 different sovereigns may reasonably disagree on enforcement. For example, what constitutes “reasonable network management” may differ from state to state.

Broadband providers are thus left with two alternatives: operate a nationwide network that meets the standards of the most stringent state — meaning that state’s law burdens out-of-state communications that would otherwise be legal — or Balkanize the network and make the delivery of network traffic less efficient, which burdens the delivery of out-of-state communications.

Of course, there is also a political dimension to states’ willingness to take net neutrality actions.

To the extent that the residents of states such as Vermont and California feel more strongly in favor of net neutrality protections than consumers in other parts of the country, the states’ willingness to enact a rule, risk a federal pre-emption challenge and expend public time and resources on enforcement keeps the political issue alive and signals the strength of their interest to national lawmakers, influencing the national debate. In this sense, it is perhaps unsurprising that the primary catalysts of state net neutrality rules are not state public utility commissioners, but governors and state legislators. They are directly elected by their constituents and, therefore, are well placed to read their constituents’ preferences and communicate them nationally.

A Check on States’ Power

But the Dormant Commerce Clause doctrine checks this political activism, to make sure that these states’ efforts to register their discontent with federal policy do not unduly burden residents of other states whose preferences differ.

It is difficult to predict in advance how courts may resolve Dormant Commerce Clause claims in this context, given the need to develop a robust record of the burdens and benefits of particular state laws and executive actions. But at a minimum, one can say that the various state initiatives are susceptible to a Dormant Commerce Clause challenge.

The FCC is correct that broadband is an inherently interstate service and that traffic management practices are best determined by a national regulator to control the spillover effects that would otherwise occur with state-level action. For states that insist upon taking that power into their own hands, pre-emption of state net neutrality laws or executive orders will be the first obstacle, and this is where the battle has been joined thus far. But even if the state actions survive a pre-emption challenge, the Dormant Commerce Clause doctrine will be yet another gauntlet that must be overcome in their quest to undermine the Restoring Internet Freedom Order.

Daniel A. Lyons, a professor of law at Boston College Law School, is a member of the Free State Foundation’s board of academic advisers.

The Maine legislature has voted to approve an online privacy bill, which now goes to governor Janet Mills for her signature. 

The bill, "An Act to Protect the Privacy of Online Customer Information," which passed unanimously, applies only to ISPs. Such provider may not use, disclose, sell or allow access to customer personal information without the consent of the customer--opt in--and may not refuse service to those who don't consent to such sharing or charge more for customers who don't allow that use.

ISPs can do all that with non-personal information unless the customer disallows it (opt out).

There are plenty of exceptions, for: provision of access service, to market service to that customer, to prevent fraud and abuse, or to provide geolocation info for emergency services, for relatives in the case of risk of death or serious harm to the customer, to provide emergency services.

The bill includes requirements for clear notice of terms of service and reasonable measures to protect personal info from unauthorized use. 

Its provisions stop at state lines, which is one of the reasons ISPs are pushing for national privacy legislation that would preempt what they call a "patchwork" of different state regs. 

The bill's provisions apply to ISPs "operating within the state when providing broadband internet access service to customers that are billed for service received in the state and are physically located in the state."

Mills ran on a platform that included expanding broadband access and last year praised Spectrum for its investment in the state.

Various states have been adopting privacy bills since congress invalidated a former FCC's broadband privacy rules and the FCC under new management ceded primary regulatory oversight of broadband access to the Federal Trade Commission.

On April 10, Democrats in the House voted to reinstate network neutrality regulations adopted by the Federal Communications Commission in 2015. The vote is likely to be futile because President Donald Trump has signaled that he’ll veto the legislation even if it manages to pass in the Senate.

While both Democrats and Republicans support net neutrality principles, there is little prospect of a legislative resolution in the current environment. That’s unlikely to change without a more honest and open discussion in the halls of Congress and the media.

Journalist Matt Taibbi’s new book, Hate Inc., which posits that we’ve been “herded into separate demographic pens” on the “spectrum of permissible thought,” offers a convincing explanation for the parties’ apparently irreconcilable split on net neutrality legislation.

Narrowing Debate’s Parameters

Advocacy groups have largely succeeded in narrowing the range of permissible net neutrality argument to a binary choice — whether or not to reinstate a 2015 Democratic party-line vote for so-called Title II common-carrier regulation at the FCC — a choice that demands total victory for one side and total defeat for the other. When neither option is acceptable to both parties, stalemate is the expected result.

Progress toward a lasting solution would require a change in the prevailing narrative about what is needed for “strong” net neutrality regulation, but as Taibbi notes, “the scripts in societies like ours rarely change.” Anyone who attempts to stray too far outside the “permitted mental parameters” of the binary choice is immediately hit with “flak” from advocacy groups on both sides of the ideological divide.

“As it turns out, there is a utility in keeping us divided,” Taibbi writes. “Fake controversies of increasing absurdity” keep “audiences from seeing larger problems.”

With respect to the internet, other problems — like the systematic abuse of consumer privacy rights and the manipulation of democratic elections — are considerably larger and far more pressing than the narrow slice of issues the FCC’s net neutrality regulations ostensibly addressed. Consider that the Cambridge Analytica scandal and Russian efforts to manipulate the 2016 presidential election both occurred while the FCC’s 2015 regulations were in effect. Is that the internet Democrats really want to save?

The Democrats’ definition of “net neutrality” cannot meet the lofty expectations created by those words or the unmitigated praise they so often receive in the press. It is flatly untrue that the FCC’s 2015 net neutrality regulations “ensured” or “guarantee[d]” internet users would have equal and open access to all online services and content, as many mainstream media outlets have recently reported. It is an indisputable fact that the FCC’s 2015 net neutrality regulations did not stop dominant internet platforms from restricting access to particular internet services and content, because the regulations did not apply to all internet platforms that have the incentive and ability to act as gatekeepers.

The internet is like a canal with multiple locks, any one of which can be used to deny access to websites and services that are upstream from an end user. If the law required that only one lock on the Panama Canal be kept open to all shipping, its other locks could still be used to block any particular ship from passing through. Smartphones and search engines are metaphorical locks on the internet canal; and each has been used to discriminate against content and services on the web.

This plain truth has been trampled by advocates who repeatedly assert that the FCC’s 2015 regulations are the only viable path to “strong” net neutrality. Whenever someone points out that a truly strong approach to net neutrality regulation would prohibit any platform company from using any type of internet lock to control access to content and services, the same advocates complain that person is “changing the subject.”

It isn’t changing the subject to be concerned about the (quite literal) fact that internet platforms have the same ability and incentive as ISPs to deny access to internet content and services. Users either have equal access to internet content or they don’t. When users are denied access to particular content, they don’t care which internet lock was used against them. Neither should the law.

Unfortunately, this sort of flak has proven to be a successful means of choreographing the debate. Advocates for the FCC’s 2015 regulations want to shut down rabble rousers (like me) who advocate for the application of net neutrality regulation to all internet companies equally, because an honest and open debate about the various types of internet locks and who controls them would expose the FCC’s 2015 regulations for what they were: biased laws that let monopolistic internet platforms have their cake (by regulating their potential rivals) and eat it too (by exempting their own monopoly platforms from those regulations).

Big Tech Wins Out

Keeping the one-sided net neutrality debate going is a win for big tech platforms even without a regulatory response. The debate provides enough threat of regulation to make ISPs think twice about trying new business models that could be spun as net neutrality offenses. And while ISPs fret, big tech companies fill the void with their own service offerings, many of which actually do violate net neutrality principles. But big tech companies get away with it, because they’ve established a narrative that exempts themselves from serious net neutrality scrutiny.

Fred Campbell is director of Tech Knowledge, an advocacy group promoting market-oriented technology policies on behalf of the public interest.

WASHINGTON — Net neutrality activists have targeted new Democratic Sen. Kyrsten Sinema of Arizona as a potential obstacle to restoring Title II-based net neutrality rules, though there are a number of other obstacles beyond that.

When Sinema, the first woman elected U.S. senator in that traditionally red state, won the vacated seat of Republican Jeff Flake in November 2018, The New Yorker said it could have been the biggest Democratic victory of the Trump era. But net neutrality activists sure weren’t seeing it that way when it came to the Democrat-backed Save the Internet Act, which has passed the House but needs not only all the Democrats in the Senate but some Republican votes as well.

Last month, Sinema teamed up with Sen. Roger Wicker (R-Miss.), chairman of the Senate Commerce Committee, to form a net neutrality working group focused on “crafting a net neutrality proposal to encourage innovation, boost investment, and close the digital divide.”

Sinema has been working with Republicans on various issues, including joining them to oppose the Green New Deal, voting to confirm Attorney General William Barr when the vast majority of Democrats did not, and most on point for communications watchers, working with Republicans on compromise net neutrality legislation, which is tantamount to heresy in the net neutrality activist playbook.

Activist groups like Demand Progress and numerous Hill Democrats have branded Republican attempts at bipartisan legislation as Trojan Horse efforts to preserve deregulation. So far, those efforts all have excluded common-carrier status under Title II of the Communications Act from the equation, as well as the general conduct standard that expands the Federal Communications Commission’s authority over internet-service conduct beyond bright-line rules.

Demand Progress is suggesting Sinema has jumped on that horse, and was trying to raise money by targeting her for not having signed onto the Save the Internet Act. The group said she is the only holdout among Senate Democrats, which it called totally unacceptable.

“It took more than a year of hard work and grassroots organizing to convince the House of Representatives to pass the Save the Internet Act,” the group said in a fundraising email. “If we’re going to pass the bill in the Senate, we can’t afford to have a Democrat working against us.”

Even with Sinema, prospects for the Democratic-backed ISP reregulation efforts remain slim to none. That’s because more than the two Republicans who broke ranks in the last Congress would need to do so to pass a similar effort, then President Donald Trump would need to sign it. While predicting the president’s actions is a difficult assignment, he is on record supporting the deregulation done under his FCC chairman, Ajit Pai, and has been advised by his administration to veto the attempt to restore the rules.

Unless Democrats and Republicans are able to compromise, the issue is likely to continue to see-saw in the courts, as it has for more than a decade. Currently, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit is considering a challenge to the Save the Internet Act, which eliminated the 2015 Open Internet rules the Democrats’ bill would restore.

Efforts to modernize federal regulations are too often viewed politically through a red or blue filter – either long overdue or a reckless abdication of government responsibility.

Reasonable people certainly agree that tough regulations and rigorous oversight are essential to protecting the nation’s safe food supply. Who can argue that government has a responsibility to ensure we drink clean water and breathe clear air? Requiring inspection and routine monitoring of commercial aviation is a good use of taxpayer money.

But the value of regulation is far less evident when you look at the current telecommunications landscape where many providers are operating under rules established a generation ago (or longer) when the voice and broadband marketplace were far less competitive.

In 1996, Congress wisely instructed the Federal Communications Commission to regularly “review all regulations…that apply to the operations or activities of any provider of telecommunications service” and repeal rules found “no longer necessary in the public interest.”

The current FCC is appropriately heeding that directive with a thorough agency review of legacy communications regulations with a sharp focus on modernization and parity.

As the FCC explained, streamlining and other regulatory reforms “enable carriers to more rapidly shift resources away from maintaining outdated legacy infrastructure and services and towards the construction of next-generation broadband networks bringing innovative new broadband services.“

Indeed, monopoly era regulations and expensive and overwrought record-keeping rules designed for the dial-up era do not improve modern broadband service or drive innovation for consumers. Over time, these costs crowd out investment and commitments to build, upgrade and maintain 21st century broadband infrastructure. These costs are disproportionately burdensome for small and rural providers competing to provide next generation service.

Last year the FCC modernized the rates wireline providers pay to attach equipment to utility poles (in some cases paying rates 1,000 percent higher than cable companies attaching to the same pole). The net effect of bringing parity and fairness to the pole attachment process will both increase broadband deployment and the availability of fiber that will carry 5G network traffic.

Here is another area where the FCC could make more progress.

In 1996, Congress required incumbent local exchange carriers (ILECs) to unbundle and resell portions of their networks to upstart companies at discounted and government-set rates. These network-sharing rules applied exclusively to ILECs in an era before there was substantial competition from facilities-based rivals. Twenty-three years later that expected competition is here. (ILEC’s share of residential local voice markets fell from nearly 100 percent to only 11 percent of U.S. households by the end of 2018.)

Yet, these old-school regulations remain in place.

USTelecom has petitioned the FCC to phase out these outdated unbundling and resale requirements on providers, in favor of allowing the competitive and dynamic marketplace to set terms, a change that will reduce costs for consumers, create jobs and unlock new investment.

If we are to meet the communications needs of this and future generations with the world’s most reliable broadband infrastructure, regulations and incentives must keep up with the lightning speed of technology and innovation.

That common sense objective requires Congress and the FCC to regularly review the rules for telecommunications service and providers, and when appropriate eliminate or modify requirements that have outlived their overall utility and value to the common good.

Jonathan Spalter is president and CEO of USTelecom – The Broadband Association.

It may have been Feb. 1, but it was Groundhog Day for the U.S. Court of Appeals for the D.C. Circuit Friday as it once again heard oral arguments from the government and net neutrality activists, by turns challenging and defending, the FCC's latest approach to regulating the internet, or in this case deregulating it. 

The same court has weighed in multiple times on the issue, but will be doing so once again following that argument, likely sometime in the second quarter, in this latest rule challenge (Mozilla vs. FCC).

It was truly a marathon, and then some, with time limits thrown to the winds as judges peppered the lawyers with questions and follow-ups for almost five hours. The importance of the issue and of the court's ultimate decision was reflected in the scope and breadth of the questions and the various legal and technical technicalities getting the once and twice-over.

At stake in the case is whether the FCC was within its authority to essentially deed oversight of the Internet of everything to the Federal Trade Commission and Justice Department by reclassifying internet access as a Title I service not subject to common carrier rules, in the process eliminating the rules against blocking, throttling or paid prioritization of that access. The court does not have to get into the merits of the FCC's deregulation versus regulation call, only whether the FCC was or was not arbitrary and capricious in reversing the previous FCC's opposite view of the marketplace and need for regulation.

Issues up for discussion included whether the FCC ignored evidence countering its conclusions, whether it can reclassify mobile broadband, and whether it can preempt state and local efforts to regulate the net in the wake of that deregulatory Restoring Internet Freedom order.

The judges were tough on both sides, though the caveat is that judges sometimes play devil's advocate.so it is hard to say who got the worst of it. All three judges mixed it up with Mozilla et al., while Millett dominated the FCC questioning.

Or, put another way, had Punxsutawney Phil been in the courtroom, he would have had a hard time determining whether it would be an early spring or more winter for FCC-enforced bright-line net neutrality rules. 

Mozilla, INCOMPAS, and a host of others, from activist groups to state governments, are challenging the FCC's decision in the Restoring Internet Freedom order to classify ISPs as Title I information services rather than Title II telecom services subject to some common carrier regs. The order eliminated rules against blocking, throttling and paid prioritization.

The FCC argues its order deregulating internet access simply restored the longstanding regulatory classification of broadband internet access service as an “information service” under Title I of the Communications Act", a call upheld by the Supreme Court in the Brand X decision--and return to a "light touch"--critics call it "hands off"--regulatory approach.

Central to the case is that 2005 Supreme Court decision (National Cable & Telecommunications Association v. Brand X Internet Services) upholding an earlier FCC's authority to classify internet access services as information services not subject to mandatory access to their networks by competitors. The Supreme Court concluded the FCC should be accorded so called Chevron deference to that decision, which means the tendency to defer to an agencies expertise in interpreting an ambiguous statute.

The arguments were heard by a three-judge panel of the court, Judges Robert Wilkins, Patricia Millett and Stephen Williams, with Judge Millett presiding. 

Related: GOP FCC KOs Tutle II

Back in May 2017, Williams was on the panel that declined to reverse the 2015 Open Internet Order's bright-line rules against blocking, throttling and paid prioritization--those are the rules the RIF rolled back. That panel did not weigh in on whether that was the right approach to regulating the 'net, only that the FCC was not arbitrary and capricious in concluding it was. But Williams did dissent from applying the Title II-based rules to mobile broadband.

Representing Mozilla et al., was Pantelis Michalopoulos of Michalopoulos, Steptoe & Johnson, who is quite familiar with the net neutrality rules adopted under Tom Wheeler since he defended them when they were challenged in the same court.

Mozilla et al.

In his argument, Michalopoulos said that the order was a "stab in the heart of the Communications Act," telling the court it would end the FCC's oversight "of the main communications service of our time," a marketplace that lacked the competition to make the FCC's transparency requirements a sufficient governor of conduct. He said that when classifying ISPs, the FCC had to answer the question of whether, say, AT&T is offering telecommunications when it delivers Netflix, and it did not.

He said the FCC was just taking regulated parties' word for it, rather than look at a single consumer complaint about their service, much less the 50,000 complaints lodged. But he was asked by Millett whether even 50,000 would provide insight into the many millions of broadband consumers.

Judge Millett said that once the FCC has concluded internet access is an information service, hasn't it necessarily found ISPs are not providing a telecom service. Michalapoulos said no. Millett said it sounded like the services were mutually exclusive to her. 

Of the FCC's argument that internet access is not a telecommunications service, Michalopoulos waxed poetic in rebuttal, saying that it was like a surrealist painting that shows a pipe and says "this is not a pipe," or asking the sun to rotate about the moon and the earth. 

The judges to a man and woman probed him on why the FCC was not within its authority to change its mind and reverse the previous Title II classification. He said it could, but only if it had explained, and considered and provided evidence of why, and that it had not sufficiently done so. 

The judges suggested that Mozilla et al. in their argument continued to turn earlier rulings of the court deferring to the FCC--upholding the old rules for instance--into affirmative rulings by the court, which they were not. 

Michalopoulos said the FCC has ignored evidence that providers have the incentive to hurt edge providers and the ability to do so with impunity absent the rules, another argument for why the decision was arbitrary and capricious and should not get deference from the court. "There is ample evidence in the record that they can get away with impunity because subscribers don't leave when they do block, throttling and degrade," he said, "such as when Time Warner and Comcast throttled Netflix." 

There is some question on who was doing that throttling, however, with some ISPs pointing to Netflix itself and suggesting it was doing the throttling.

Also arguing for the intervenors, Kevin Russell, Goldstein & Russell, who contended that the FCC pointed to consumer protection and antitrust laws as a backstop in the absence of the rules against blocking and throttling, but without the analysis establishing how that would be the case, meaning the decision was arbitrary and capricious under the Administrative Procedure Act.

Judge Williams asked whether he wanted the FCC to write a treatise on competition law. He said no, but that the FCC had an obligation under the Administrative Procedures Act to conduct an analysis of things like tacit collusion absent the rules, but did not. 

Judge Wilkins pointed out that the FCC did do analysis on the transparency rules it imposed as part of the order. Russell said that a big problem is that no matter what practices the ISP discloses as part of the transparency requirement, if there is insufficient competition, a consumer has no alternative. Wilkins conceded that could be an issue, then joked that of course everyone reads those online disclosures anyway. Judge Millett also suggested that the transparency disclosure about blocking, throttling or paid prioritization is being asked to carry a lot of water and wondered if it was allowed to be a graph at the end of a long list of other disclosures. 

What About Public Safety?

Attorney Danielle Goldstein of the City of Santa Clara, among the five attorneys arguing against the order, said the FCC did not sufficiently take public safety implications of its order into account, like putting public safety at the back of the line due to paid prioritization.

Judge Wilkins said he was not suggesting that had ever happened. Gold conceded there was not evidence in the record, but that the implications of paid prioritization were not always visible. He asked if the argument was even ripe for consideration given that they did not know how each law would take shape and how the FCC would react. Isn't this too abstract?

Wu said he did not disagree, but that the question of whether the FCC preempt at all is ripe and the court should invalidate that language.

Stephen Wu of the State of New York argued that the FCC did not have the authority to preempt state attempts to restore net neutrality rules against blocking and throttling, but he got plenty of pushback on that argument.

Wu said the FCC's decision not to regulate does not give it the authority to preempt others' attempt to do so. He said states have inherent authority to regulate in the interests of public safety, for one. 

Judge Williams asked whether Wu was saying the FCC would preempt state consumer protections for things the FCC says are of concern. Wu said it was unclear, but that the FCC was preempting state disclosure laws, which are traditional state consumer protections. 

Judge Wilkins asked whether Wu was saying he wanted the court to write a decision saying the FCC has no authority, "none," to preempt state law in this area. Wu said no, they were saying that when the FCC asserts that it lacks statutory authority over practices, it can't preempt states from exercising their authority over those practices.

When federal power is withdrawn, states must be allowed to step in, said Wu. But even when the FCC is saying that the feds have jurisdiction over interstate communications, asked Wilkins. Wu said the FCC has expanded the meaning of interstate into states' wheelhouse, like disclosure requirements, that "touch upon" providers of interstate communications.

He said it was about states regulating in its core area of concerns, which is what the FCC is trying to preempt, but can't.

The FCC weighs in

Countering Michalopoulos et al. was FCC General Counsel Tom Johnson for the defense, who had plenty of time to go over his notes given the two-plus hours of what was scheduled for a 75 minute petitioner argument. 

Johnson told the court that Brand X and that court's earlier ruling in USTelecom v. FCC had established that the FCC had the authority to do exactly what it did, which was to classify internet access as an information provider. He said the other side was just trying to re-litigate those judgments.

He got further in his argument than Michalopoulos before being stopped by Judge Millett to ask what function on a computer would provide an information service that is distinct from the telecom function, but then the questions came thick and fast, mostly from Millett.

Johnson said under the 1996 Telecom Act handling of emerging computing services, the FCC could look at whether there were two services being offered that might deserve different regulatory treatment. 

Judge Williams asked whether the FCC is relying on more than DNS and caching functionally integrated information processing capabilities to establish that internet access is an information service. Johnson said those were indeed determinative. Judge Millett, who dominated the questioning of Johnson, asked what further processing there was. Johnson said DNS and caching were all that Brand X required to qualify internet access as an information service and all that it was relying on.

Johnson said those services fully satisfy the info service definition, including storage and retrieval as well as processing. He said that the FCC's core area of expertise is network functionality and that DNS and cacheing do not fall under the management exception for a telecommunications service because they do not simply manage transmissions but provide enhanced functionality.

Judge Millett asked why definition of capability does not extend to telephone. He said that cable modem necessarily offers info processing with connection to transmission, while phone service provides transparent transmission (point-to-point) on a standalone basis, so it is Title II.

She asked him to explain how using a phone is different from accessing the 'net and why they both don't have the ability to acquire information. He said the FCC just does not think a phone offers the same, dynamic, experience. But Millett pressed for a clearer difference between their capabilities.

Millett said she was focused on definition of capability and why that does not sweep telephone into information service. 

Johnson said the FCC was looking at the uses by consumers. But Millett said she still did not understand why phones would not also be an information service, and was it the amount of information one can get over the net rather than over the phone.

Johnson went back to issue of functionality. Millett never appeared to get the answer she was looking for. He said there was difference both in kind and degree.

Johnson said that where there was ambiguity, looking at different service characteristics was a legitimate way for the FCC to make a call.

Turning to the policy call, Johnson said the FCC determined that the threat to net freedom was not ISP blocking, for which there was scant evidence but that many Americans don't have access, which the Title II rules were depressing.

Millett asked if the evidence of a slowdown in investment was causation or correlation. Johnson said causation. He said the FCC looked at historical data about the threat of Title II, including on smaller ISPs trying to help close the digital divide.

She pointed to the ISP execs who told investors Title II was not going to affect investment. Johnson said that the FCC had deemed some of those comments to be ambiguous. Johnson said CEO projections in such financial calls were not probative. Millett pointed out that there were legal consequences if what they were telling Wall Street wasn't true.

Wilkins pointed out that the FCC had the right to change from prior policy, but that there was an enhanced explanation required. He said the FCC's deregulatory approach does not need to be better than the previous, just that we believe it to be better. 

Millett asked whether the FCC viewed the lack of evidence of blocking and throttling before 2015 to mean that ISPs felt, or were, at liberty to do so, but didn't? 

He said he didn't know what prior commissions were thinking but that if there were overwhelming incentives to block and throttle you would have seen more evidence, and that it was reasonable for the FCC to make predictive judgments based on that.

Johnson said absence such evidence, the FCC concluded the transparency route as the better way to go than ex ante rules.

Johnson got some tough questioning on what conduct was now no longer against FCC rules, including, say, Hulu paying an ISP to throttle Netflix. Johnson conceded it would be allowable so long as it were disclosed, but ISPs had pledged not to engage in anticompetitive throttling and the Federal Trade Commission could enforce those pledges.

Johnson said the petitioners lack standing to challenge the transparency rule since it did not harm them, and ample authority to impose it, so it was an academic debate. 

Millett asked for an explanation of the impact of paid prioritization.

Johnson said the FCC 1) rejected the argument that prioritizing certain packets would affect best-effort services and 2) concluded that quality of service arrangements will benefit public safety by giving them ability to have dedicated networks, though it did not specifically address that public safety benefit in the order.

Millett latched onto the fact that the order did not talk about the fact that there were really no post hoc (after the fact) remedies for issues with slowing public safety. Johnson said it was up to the other side to show concrete harms.

She was not assuaged. She said if local government can't afford paid prioritization can't afford enterprise services, i.e. their own prioritization, how does prioritization benefit them. Johnson suggested localities do use enterprise services.

Millett was focused on paid prioritization and what it actually meant. Was it a fast lane? Johnson suggested it was only a "few milliseconds faster" lane that would not adversely affect other non-prioritized services.

She asked if Johnson was saying there would be no harm to public safety, or that it was OK if there was. He said what the FCC was saying was that they had picked the best approach, but could not anticipate all harms.

Johnson responded to the challenge to the state preemptions. 

He said the states had not identified something other than the jurisdictionally interstate service that the FCC was regulating, and only the FCC gets to have its hand on that interstate service. He said the FCC was not abandoning the field, but that for a state to reimpose the same rules or more onerous ones would undermine the FCC's decision not to impose onerous Title II regs.

Judge Wilkins wondered why the FCC had not provided some provision that there could be no prioritizing over public safety, then asked why a state could not do that. Johnson said he was not sure that such a targeted public safety reg would necessarily be out of bounds. But Wilkins said the preemption language was broad and would seem to cover that. 

Clearly, the judges had issues with the FCC's relative silence on public safety implications of paid prioritization.

Jonathan Nuechterlein of Sidley Austin wrapped up the arguments for the ISP intervenors, who are just fine with the deregulatory order.

He said that the FCC clearly has discretion under Brand X to make the information service call it has made and deserves the court's deference to its reasonable discretion. He said there is no question that what any ISP does is offer a capability of processing, retrieving, storing and otherwise dealing with information "via telecommunications."

Nuechterlein said paid prioritization does not exist on the pubic internet to his knowledge. He called it a theoretical construct that ISPs would get together to agree on packet delivery. He said talk of fast and slow lanes and dirt roads are entirely speculative.

Michalopoulos countered in his brief rebuttal that there is plenty of paid prioritization.

Nuechterlein said in reference to the suggestion Hulu could pay to throttle Netflix that that would run into antitrust issues, in any event would never happen as a business matter. 

“The U.S. Supreme Court has already affirmed the FCC’s authority to classify broadband as a Title I information service, and after today’s argument we continue to believe that the judiciary will uphold the FCC’s decision to return to that regulatory framework under which the Internet flourished prior to 2015 and is continuing to thrive today," said Matthew Berry, chief of staff to FCC Chairman Ajit Pai.

“Today we fought for an open and free internet that puts consumers first," said Mozilla COO Denelle Dixon. "Mozilla took on this challenge because we believe the FCC needs to follow the rules like everyone else. We argued before the Court that the FCC simply cannot renounce its responsibility to protect consumers on a whim. It’s not permitted by law, and it’s not permitted by sound reasoning. The fight to save net neutrality is on the right side of history. Consumers deserve an open internet. And we look forward to the decision from the Court.”

In the run-up to the arguments, both sides had been getting their thrusts or parries in early.

Evan Greer, executive director for digital rights group Fight for the Future, minced no words: “Comcast, Verizon, and AT&T are going to wish they never picked this fight with the Internet. More than a year after the repeal of net neutrality people are still outraged and paying close attention," she said. "Ajit Pai’s FCC blatantly ignored public opinion and acted with reckless disregard for the law in order to give a massive government handout to some of the most power-hungry corporations in the U.S."

She suggested a court decision in favor of deregulation would not deter them. "Telecom lobbyists were hoping that we would have given up by now. They thought they could outspend and outlast us. They were wrong. Internet activists are continuing to fight in the courts, in Congress, and in the states. Net neutrality is coming back with a vengeance. It’s only a matter of time.”

Matthew Berry, chief of staff to FCC chair Ajit Pai, had said he was confident the court would see it the FCC's way. "The U.S. Supreme Court has already affirmed the FCC’s authority to classify broadband as a Title I information service," he said, "and we have every reason to believe that the judiciary will uphold the FCC’s decision to return to that regulatory framework under which the Internet flourished prior to 2015 and is continuing to thrive today.” 

No matter what the court does, the losing side will likely appeal to the full court, and continue to press Congress to resolve the issue once and for all with net neutrality legislation.

Net neutrality activists are gearing up for a last-ditch effort to drum up support for repealing the FCC's deregulation of net neutrality rules before the Dec. 10 deadline for passing the Congressional Review Act (CRA) resolution.

It would be just the latest in a series of such "days of action."

The resolution already passed in the Senate, but is dozens of votes short in the House as the deadline nears, geared to the June 12, 2018 trigger date for the FCC's Restoring Internet Freedom order, which eliminated the rules against blocking, throttling and paid prioritization that had been established in the Open Internet Order of 2015.

Related: CRA Fans Plan Net Neutrality Protest

On Nov. 29, the groups plan to to collect signatures on what they bill as a heartfelt plea to Congress, along with an "I support net neutrality" photo to put a human face on the effort.

Fight for the Future, which is spearheading the effort, says it already has a couple thousand photos already submitted and activists plan to "flood" lawmakers social media feeds between now and Thursday.

Related: Activists Push Hill on Net Neutrality Rollback

FFTF says Etsy and Tumblr are backing the effort.

The CRA is a way for congress to nullify and agency decision within six months of its adoption. Republicans used it to successfully repeal the FCC's online privacy framework, but with Republicans still in control of the House through the end of the session, the deadline will almost certainly pass without passage of this CRA.

According to FCC chair Ajit Pai, the man who called in a bomb threat to the FCC during the December 2017 meeting has plead guilty.

That threat delayed the FCC's vote to repeal the 2015 Open Internet order by adopting the deregulatory Restoring Internet Freedom order.

Related: Pai Hails Guilty Plea Over Threats to His Family

Pai said that Tyler Barriss had plead guilty in the U.S. District Court for the District of Kansas (Pai's home state) to making the threat. 

“I am deeply grateful to the U.S. Department of Justice, the FBI, local law enforcement, and FCC security officials for their efforts in prosecuting this case and protecting this agency," he said. "We will continue working to carry out the mission of the FCC.”

Pai was heavily criticized for his his advocacy for repealing the rules against blocking, throttling and paid prioritization, but that morphed into more threatening pushback.

The FCC chairman was the subject of racist comments, death threats and other invective from online trolls, and was even accused of choking, strangling and killing the open internet by more mainstream activist groups and passionate Hill Democrats, some of whom also branded Pai and fellow Republicans' actions "un-American."

There were also protests outside Pai's house, including ones targeting his children, during the run-up to the Dec. 14 vote, where a bomb threat briefly cleared the FCC meeting room.

The Trump Administration's response to Gov. Jerry Brown's signing Sunday (Sept. 30) of California's tough new net neutrality law was swift and definitive: Justice is suing the state. But there was plenty of other reaction to the effort to re-regulate broadband access in the face of the FCC's order that such efforts were preempted.

“While not surprising, California’s net neutrality effort reaffirms its leaders’ total lack of understanding of how technology or our economy actually works, particularly its ban on paid prioritization," said FCC commissioner Michael O'Rielly, who voted to deregulate ISPs and eliminate the rules against blocking, throttling and paid prioritization. "If allowed to stand, the law would be incredibly detrimental to American consumers and the continued growth of the Internet. Thankfully, this is precisely why our nation’s founding fathers crafted a Commerce Clause to the U.S. Constitution and why I pushed so hard for the Commission’s December action to include strong preemption provisions. The DOJ’s action to challenge this overreach is both appreciated and appropriate."

Democratic commissioner Jessica Rosenworcel, who strongly opposed the elimination of the rules, saw it a lot differently, and tweeted her thanks to the governor.

[embed]https://twitter.com/JRosenworcel/status/1046554401647841281[/embed]

“The enactment of California’s net neutrality law is a huge victory for the free and open internet,” said Sen. Ed Markey (D-Mass.). “California has shown Washington and the rest of the country that the internet warriors fighting to save net neutrality will not be stopped."

The Taxpayers Protection Alliance argues that new net regs will leave taxpayers on the hook as the feds and states battle it out in court using taxpayer dollars. Then there is the less free data and reduced investment, which it says will not benefit the state's "struggling households." Paid prioritization is a way for companies to subsidize bandwidth use for a particular service, which supporters like the alliance say is consumer-friendly and opponents say is a way to favor one service over another, which isn't neutral.

"[P]assing massive and intrusive internet regulations means fewer options for consumers and internet providers," said Taxpayers Protection Alliance president David Williams. "[T]outed by the law’s backers will be few and far between. Recent data from the Wehe app shows that, even in the post-Title II world, throttling is rare and used solely for network management."

Demand Progress and Public Knowledge, some of net neutrality rules' biggest backers, were celebrating Sunday.

"This is a big day for net neutrality," said Robert Cruickshank, campaign director at Demand Progress. "Gov. Jerry Brown has just restored a free and open internet to the 40 million people of California — the world’s fifth largest economy and home to many major tech companies. This law passed with a large bipartisan majority thanks to an unprecedented outpouring of community activism the likes of which Sacramento has not seen for some time. We now urge the U.S. House of Representatives, especially members representing California, to quickly sign the discharge petition and force a vote to use the Congressional Review Act to restore net neutrality for all 50 states.”

"As is often the case, California is setting a strong example for Congress and other states on the type of net neutrality protections an overwhelming majority of Americans expect," said Public Knowledge VP Chris Lewis. 

"Only in Washington D.C. is this controversial due to the influence of broadband provider lobbyists. Even in California, that influence was strong, but an outpouring of support from consumers and small businesses helped to remind policymakers just how popular net neutrality protections are."

The Writers Guild of American West was also pleased. Content creators are concerned about distributors having too much power over the internet, which they see as an alternative to traditional video distribution channels already controlled by consolidated companies. 

Related: Amazon Slams California Privacy Law

"Once enacted, this landmark net neutrality legislation will serve as a model for states nationwide to follow," said the guild. "The Internet today is where we connect, where we organize and speak freely, and where we can choose what content we consume. With increasing attacks on our First Amendment rights and widespread corporate concentration, preserving an open Internet free from ISP interference is more important now than ever.”

U.S. Telecom, which represents ISPs, called for a 50-state legislative framework for protecting net neutrality. “We all support strong and enforceable net neutrality protections for every American – regardless of where they may live," said USTelecom president Jonathan Spalter. "But this bill is neither the way to get there, nor will it help advance the promise and potential of California’s innovation DNA," he said. "Rather than 50 states stepping in with their own conflicting open internet solutions, we need Congress to step up with a national framework for the whole internet ecosystem and resolve this issue once and for all.”

"This is a true grassroots victory," said California-based progressive group. CREDO Action. "Today, Californians won out against one of the most powerful lobbies in Sacramento. AT&T and other Big Telecom companies opposed this bill with everything they had. Thanks to hundreds of thousands of activists who would not give up the fight against all odds, Californians will have real, meaningful net neutrality protections. We thank Gov. Brown for standing with us and protecting the future of the internet and all our communities who depend on it."

The bill does not go into effect until 2020.

Throttling of its Internet speeds per a lower-priced Verizon data plan had a significant impact on one fire department's ability to provide emergency and potentially life-saving services.

That is according to testimony and documents provided by the fire chief of Santa Clara County, one of the California counties fighting the largest wildfire in the state's history. It came in the legal challenge to the FCC's lifting of regulations against online blocking, throttling and paid prioritization.

Related: Court Sets Briefing Schedule for Net Neutrality Challenge

Initial petitioners' briefs to the U.S. Court of Appeals were due Aug. 20, and in an addendum to one of those, fire chief Anthony Bowden said that county fire personnel had to use other agencies ISPs and their own personal devices and that while Verizon did ultimately lift the throttling, it was only after the fire department had subscribed to a new, more expensive, plan.

That came after, in the midst of responding to the Mendocino Complex Fire, they found that their data rates had been reduced to 1/200th or less of previous speeds, meaning it was essentially nonfunctional, "despite being informed that throttling was actively impeding County Fire's ability to provide crisis-response and essential emergency services," he told the court, adding: "Even small delays in response translate into devastating effects, including loss of property, and, in some cases, loss of life."

Verizon responded that it usually lifts such limits when contacted by emergency services, and should have done so in this case.

Bowden included copies of an email string from July that contained the following from someone identified as a Verizon government accounts manager: 

"All unlimited data plans offered by Verizon have some sort of data throttling built-in, including the $39.99 plan. Verizon does offer plans with no data throughput limitations; these plans require that the customer pay by the GB for use beyond a certain set allotment."

"[P]ublic safety customers have access to plans that do not have data throughput limitations. However, the current plan set for all of SCCFD's lines does have data throttling limitations. We will need to talk about making some plan changes to all lines or a selection of lines to address the data throttling limitation of the current plan."

"This situation has nothing to do with net neutrality or the current proceeding in court," Verizon said in a statement.

"We made a mistake in how we communicated with our customer about the terms of its plan. Like all customers, fire departments choose service plans that are best for them. This customer purchased a government contract plan for a high-speed wireless data allotment at a set monthly cost. Under this plan, users get an unlimited amount of data but speeds are reduced when they exceed their allotment until the next billing cycle. Regardless of the plan emergency responders choose, we have a practice to remove data speed restrictions when contacted in emergency situations.

"We have done that many times, including for emergency personnel responding to these tragic fires. In this situation, we should have lifted the speed restriction when our customer reached out to us. This was a customer support mistake. We are reviewing the situation and will fix any issues going forward."

Public Knowledge, Mozilla, the Benton Foundation, INCOMPAS and others challenging the FCC's Restoring Internet Freedom order say that was not just bad policy but illegal.

Related: Pai Says Net Neutrality Doom and Gloom Predictions Were Baseless

That is coming in a brief with the U.S. Court of Appeals for the D.C. Circuit, which is hearing their challenge to the network neutrality reg rollback--the deadline for initial briefs from non-government parties is Aug. 20. The brief has yet to be made public, but Public Knowledge outlined the highlights.

That group and the others have long argued the FCC was making bad policy decisions when the Republican majority last fall voted to repeal the rules against blocking, throttling and paid prioritization and the title II common carrier regime that underpinned them.

Related: Court Sets Net Neutrality Briefing Schedule

But they also say that decision, under chair Ajit Pai, "broke the law," which is why the court must reverse it and restore the regulations.

Their argument is that the FCC decided the agency lacked all jurisdiction over the internet, a radical move that defined the statute, they say. Also in the "illegal" category, they argue was what they said was the FCC's "cherrypicking" of investment evidence to justify their predetermined outcome of reversing the Title II classification.

The FCC majority said one reason for the reversal was that Title II had discouraged investment, including in broadband buildouts to rural and unserved areas. Public Knowledge et al. argue that the FCC ignored evidence to the contrary in conducting a cost-benefit analysis that only benefited their "ideological preference."

“If the current policy stands, consumers can expect higher bills and fewer online choices, with fewer expressive and creative outlets, they told the court. "Ultimately, the internet will look more and more like the overpriced cable TV bundles of decades past."

Ajit Pai told legislators last week in an FCC oversight hearing that such predictions were "chicken little" fear mongering that had not materialized. Some Senate Dems suggested that was because ISPs were laying low until the court case was settled before flexing their newfound blocking and throttling and degrading muscles.

ISPs say that is not going to happen, and that if any of it does and is anticompetitive, the Federal Trade Commission and Justice Department can prevent that through investigations and lawsuits.

Four House Democrats are pressing FCC chair Ajit Pai for answers about the FCC's mis-identification of a flood of net neutrality comments as a DDoS (distributed denial of service) attack, specifically when he and others at the FCC found out about the inaccurate diagnosis, suggesting the chairman was either wantonly disregarding the Congress and public, or derelict in his duty, depending on when he learned of the attack was not an attack.

That came in a letter Tuesday (Aug. 14) from House Energy & Commerce Committee ranking member Frank Pallone, Jr. (D-N.J.), Communications ranking member Mike Doyle (D-Pa.), and committee members Rep. Jerry McNerney (D-Calif.), and Rep. Debbie Dingell (D-Mich.). 

Last week, the FCC Inspector General released findings that a cyberattack didn’t crash the system. Rather, it was a flood of comments spurred by comedian John Oliver that the FCC was unprepared to handle.

Related: FCC IG Finds Alleged DDOS Attack on Net Neutrality, Wasn't

The Dems suggested that there were only two options, that Pai already knew it was not a DDoS attack but had not shared that information, or that he was ignorant of it, which they suggested would be "dereliction of duty."

“Given the significant media, public, and Congressional attention this alleged cyberattack received for over a year, it is hard to believe that the release of the IG’s Report was the first time that you and your staff realized that no cyberattack occurred,” the Democrats wrote in the letter to Pai. “Such ignorance would signify a dereliction of your duty as the head of the FCC, particularly due to the severity of the allegations and the blatant lack of evidence. Therefore, we want to know when you and your staff first learned that the information the Commission shared about the alleged cyberattack was false.” 

The legislators said they were troubled that Pai had "allowed the public myth created by the FCC to persist and your misrepresentations [that it was a DDoS attack] to remain uncorrected for over a year."

Related: Wheeler Says There Was No DDOS Attack Cover Up

They want some answers, mostly about when Pai and staffers first knew it was not such an attack, and why Pai did not immediately correct previous public statements to the contrary, either publicly or privately to concerned legislators--like themselves--or both.

They want those answers by Aug. 28.

Net neutrality activists have been skeptical about the DDoS assertion, suggesting the problem may just have been the FCC's inability to handle the flood of legitimately filed--if not all legitimately sourced--comments, potentially denying some voices their say on whether to roll back the regs, voices the FCC is supposed to weigh in its decisions.

According to the U.S. attorney's office for the Eastern District of Virginia, a California man has been arrested and charged with threatening to kill the family of FCC chairman Ajit Pai last fall because the man was angry over the repeal of network neutrality rules.

Makara Man, 33, of Norwalk, Calif., allegedly sent three emails to Pai Dec. 19 and 20, 2017, the first claiming a child had committed suicide because of the repeal, the second threatening to kill Pai's family members, and the third including an image of Pai with a framed photo of his family.

Federal agents tracked the emails and confronted Man, who admitting to writing the emails because he wanted to "scare" Pai.

Related: Pai Pulls out of NRECA Speech Over Threats

Man was charged in federal court with threatening to kill an official's family member to interfere with his official duties or retaliate for the performance of those duties. He faces up to a 10-year prison sentence if convicted. 

Related: Pai Calls Out Protestors at His Home

The FCC voted on Dec. 14 to eliminate the rules against blocking, throttling and paid prioritization following a contentious run-up to the vote in which Pai was savaged and harassed and threatened by a fringe element in the net neutrality activist community. The FCC chairman was the subject of racist comments, death threats and other invective from online trolls, and was even accused of choking, strangling and killing the open internet by more mainstream activist groups and Hill Democrats, some of whom also branded Pai and fellow Republicans' actions "un-American."

There were also protests outside Pai's house, including ones targeting his children, during the run-up to the Dec. 14 vote, where a bomb threat briefly cleared the FCC meeting room.

Sen. Ed Markey (D-Mass.) took to the Senate floor Monday afternoon (June 11) to excoriate FCC Chairman Ajit Pai and ISPs over the June 11 rollback of network neutrality regs, and said there would be a vote in the House on the House version of his Senate version of a Congressional Review Act resolution to nullify that reg rollback.

It has already passed the Senate (52 to 47, with three Republicans breaking ranks), but is a far tougher task in the House, where it is some 48 votes short of getting a floor vote.

But Markey said the voice of the people would be raised in anger and descend electronically on his former House colleagues, saying that as of Monday the net regs were "just gone," which they were. He said the FCC had officially stripped consumers of protections so that they must now blindly trust their cable companies and ISPs to protect them. He called it "Big Cable's dream come true.

Net Neutrality Activists Get It in Gear

The senator said it was "just a matter of time before these big companies start to exercise their unfettered right to begin discriminating."

Markey asserted that the FCC had deregulated broadband access even in the face of, and ignoring the will of, 22 million Americans saying they wanted to keep it on the books.

The FCC is under no obligation to vote with a majority of commenters, only to take their views into account.

Both Markey and Senate Minority Leader Chuck Schumer (D-N.Y.) asserted that if there were a vote in the House today on the CRA, it would be approved (though there are only 170 votes for a petition to even get the CRA to a floor vote).

Rep. Mike Doyle (D-Pa.) vowed to keep fighting to nullify the FCC's network neutrality rules rollback, which went into effect Monday (June 11), but in outlining the road ahead, he also put a spotlight on the up-Hill battle.

Doyle is shepherding the House version of a Congressional Review Act (CRA) resolution to nullify FCC chair Ajit Pai's Restoring Internet Freedom Order. It has already passed the Senate, but the House is a far steeper climb.

Related: House CRA Teed Up

In a statement, Doyle slammed the rollback. 

"Americans lost an important right today when the FCC’s order nullifying the federal Net Neutrality policy went into effect,” he said. “People won’t see any major changes today, but unless Net Neutrality is restored, consumers, innovator, and small businesses will see their service deteriorate, their choices decrease and their costs go up over time as Internet Service Providers start throttling internet speeds, blocking content and prioritizing service to hurt their competitors.”

ISPs have been saying nothing would change Monday, so critics are arguing that that is just a strategy to avoid immediate pushback, and, like the lobster in a pot with the water temperature raised slowly, the repercussions will only become apparent over time.

Doyle also said that he currently has 170 votes for a discharge petition that would force Speaker Paul Ryan (R-Wis.) to hold a floor vote on the CRA. Ryan is unlikely to do so otherwise.

"We just need 50 more to get a vote," Doyle said, but that "just" is a big ask since the 170 does not even include all the Democrats, and the 50 more would have to include a couple dozen Republicans.

Net neutrality activists, including in Congress, hope to use the issue of the net neutrality rule rollback to turn more red seats blue in the midterm elections if they can't convince current members to support the CRA, which would have to pass in this Congress or forever hold its peace.

Republicans continue to try to get Democrats to drop the CRA and work on bipartisan net neutrality legislation, but Democrats counter that is a stall tactic and the bills they have offered up would impermissibly narrow the FCC broadband regulatory authority, a price they are not willing to pay to restore bright-line rules against blocking, throttling or even paid prioritization, says one highly placed Democratic Hill staffer.

Former FCC chair Tom Wheeler has challenged the current chair, Ajit Pai, to push for a House vote on the Congressional Review Act (CRA) resolution to nullify Pai's Restoring Internet Freedom order rolling back net-neutrality rules.

That came in an interview for C-SPAN's Communicators series, which was marking the upcoming June 11 end to Wheeler's 2015, Title II-based net-neutrality rules.

Wheeler, who focused his regulatory attention on ISPs as the gatekeepers of the internet, also signaled that had been because of the FCC's limited authority, and that he felt it was time that the "peoples representative" had oversight and made the rules for the edge and access providers.

His answer was essentially an endorsement of the kind of new scrutiny of the edge being advocated by ISPs, Pai and legislators from both parties.

Related: FCC's Carr Says Internet Won't End June 12

"I am a proponent of openness, nondiscrimination and privacy in all venues," Wheeler said. "It just happened that while I was at the FCC, we only had jurisdiction over networks. But there comes a time when we have to say, 'Wait a minute, what are the rules that are going to govern this new environment. And, most important, who's going to make those rules.?'

"Right now, whether you are a platform company, like Google of Facebook, or whether you are networks like AT&T and Comcast, you make the rules," he added. "There ought to be oversight by the people's representatives so that the people's representatives make the rules, not just those who benefit from what those rules might be."

Wheeler was also asked about Facebook's current troubles (Cambridge Analytica, sharing data with Chinese telecoms) and echoed CEO Mark Zuckerberg's general defense that edge providers had built their business based on constant innovation with less introspection on the consequences than might have been appropriate. 

"The goal has been to think more about what can be built rather than the consequences and, so, you shouldn't be surprised at the consequences of sucking in as much data and then that data being used in ways that either weren't imagined or weren't discussed," Wheeler said.

Asked whether Congress should ultimately decide the issue of net neutrality, he said that while Republicans in the past had said that should be the case, now they were saying, "Oh, no, no, Congress shouldn't decide." 

Wheeler was referring to the CRA resolution that would have restored his Title II-based rules; it narrowly passed in the Senate but likely will not pass in the House. Republicans have, in fact, been calling for legislation to reinstate some of those rules, but not under Title II, but can't reach agreement with Democrats who either want Title II or don't trust the Republicans to negotiate in good faith or fear the result would be overly restrictive of the FCC's power to regulate in the space.

Wheeler essentially called out Pai, saying that if Pai had the courage of his convictions that the reg rollback is right for America--Pai said Thursday (June 7) it would lead to faster, cheaper, better internet with more competition--and would stand up to a CRA vote in the House, then he should "call Speaker Ryan and schedule a vote in the House and let's see what the representatives of the American people say about this."

Wheeler had a very different view of what would happen June 11, when the regs are rolled back. "Major local monopolies will be told it is fair to discriminate," he said. "And we should not be surprised if, not overnight, but over time, we begin to see internet services discriminate in a way that benefits their bottom line, rather than a diversity of choices..."

Wheeler talked about why he backed Title II-based rules, which applied some common carrier regulations to ISPS. He said that back in 2015, he concluded that the only way to get to a "just and reasonable" standard by which to judge ISP conduct was with Title II, a conclusion he said came after considering various options. 

Wheeler's initial proposal did not include Title II reclassification, but it morphed at about the same time President Barack Obama went online to call for a Title II-based set of net-neutrality rules, but Wheeler suggested he had his own epiphany.

Wheeler said his Title II "aha moment" came when he lobbied for the cellular industry to be made a common carrier because of the "certainty" that went with it. He said he was hearing ISPs talking about not being made Title II services, and he remembered that certainty argument--made on behalf of some of the same companies now fighting that designation. 

When asked whether he was on board with Title II from the outset, Wheeler conceded he had initially proposed that non-Title II approach, but had asked about Title II and ultimately had heard from "consumers and particularly innovators" worried about being able to deliver innovative products if they were discriminated against. He said discrimination was the "key" issue.

He said his position had evolved, for which he was criticized, and that one problem with Washington is the inability to get off fixed positions.

Asked what impact President Obama's Title II position had on him, Wheeler said it came as the FCC was still wrestling with the right approach. But he said that what was different between President Obama and President Trump was that the former was talking about a filing that his administration had made at the FCC saying this is the way to do this. 

"He was following administrative procedure and not tweeting or picking up the phone or anything like that," Wheeler said.

The President was simply trying to put the administration position in front of the commission, said Wheeler. 

Wheeler said it was "painful" to watch the current FCC undo much of what he had tried to accomplish. He said that stemmed from what he said was Pai's view that what was best for consumers was what was best for companies. 

The Wheeler edition of Communicators airs on C-SPAN at 6:30 p.m. ET on Saturday, June 9, and on C-SPAN2 Monday, June 11, at 8 a.m. and 8 p.m.

The long, long trail winding from the FCC's Dec. 14, 2017, decision to eliminate net neutrality rules and the actual rollback of those rules continues to wind through Washington, with April 27 the next red-letter day.

While some were reporting earlier this week that April 23 was the effective date of the Restoring Internet Freedom order, that was not the case, or at least not the case with the overwhelming majority of the order, which still awaits the turn of another government wheel or two.

The rule rollback will not happen until the FCC sets an effective date, which will not happen until the Office of Management and Budget rules on whether the information collection portions of the transparency portion of the FCC's order do not violate the Paperwork Reduction Act.

Related: INCOMPAS Says FCC Ignored Key Info In Net Neutrality Decision

That can't happen until at least Friday (April 27), which is the deadline for final comments on the specifics of that information collection. If there are no comments--as there were not in the initial comment period, the decision on when the rules against blocking, throttling, paid prioritization and more go into effect could come relatively quickly.

There was a two-month initial comment period for that OMB review, which closed March 19 without any comments being filed according to an FCC spokesperson--the FCC receives those comments as well.

There was a second 30-day comment period on the FCC's summary of the info collection, which opened March 28 and closed April 27. Those comments, if any, are not yet publicly available, but after April 27, the FCC will make any changes to the summary based on those comments and, if OMB approves that, the FCC will publish the supporting statement and comments--again, if any--and can finally release a public notice setting the effective date of the network neutrality rule rollback.

Related: Appeals of Net Neutrality Order Move to D.C. Circuit

If OMB does not approve the new reporting requirements, which is unlikely, the rollback would not go into effect until that was resolved.

The FCC made it clear that its deregulatory move must await OMB approval of that new information collection regime. That is because the information the FCC will be collecting is on how ISPs are managing their networks, or prioritizing traffic in new business models or, theoretically, blocking and throttling traffic, though ISPs have pledged not to do the last two, so it is central to the new net neutrality enforcement regime envisioned by the commission--and derided by its critics.

In order for the Federal Trade Commission or Justice Department to enforce ISP pledges about how they conduct their business, and determine whether those are unfair or anticompetitive, the FTC must have the information on just how they are doing that.

The FCC's now-eliminated presumptive ban on paid prioritization was the "most troubling" part of the FCC's 2015 Open Internet order because it was based in a false premise.

That is according to Richard Bennett, founder of High Tech Forum for Tuesday's (April 17) house Communications Subcommittee informational hearing on the practice.

Paid prioritization is the major sticking point in potential legislation to establish new net neutrality rules both sides of the political aisle and the debate--activists vs. industry--might be able to live with.

Bennett says it is a popular misconception--and certainly a conception popular with net neutrality groups--that paid prioritization (or "optimization," as Bennett calls it) "Perceptibly degrade traditional applications such as video

streaming, the web, or email." He said that is because "traditional applications" have a high tolerance for variations in the speed of delivery because of buffering, meaning one applications fast lane does not necessarily another's slow one.

He says ISPs are in the best position to identify the requirements of the packets they deliver--and activists concede network management is needed. But Bennett says the best way to identify the needs of those packets, and preserve privacy, is to "allow application developers to register applications requiring special treatment, and even to pay for such treatment in some circumstances."

Bennett also argues that the speed at which a Web page now loads is mostly in the control of the Web page owners--the Google's and Amazons and Facebooks, pointing out that while the average speed of broadband networks has increased 35% per year for a decade, Web performance has remained stagnant and even went down in 2016.

INCOMPAS to Hill: Paid Prioritization Must Be Off Limits

But activist arguments go beyond what they can do to what they would do, saying that without rules ISPs could perceptibly degrade traffic even if they did not have to for network management purposes and the government would have to catch them and take action for anticompetitive conduct if that could be proved.

Bennett concludes that the best approach to promoting innovative services is "when they are able to purchase the network services they need without undertaking the breathtaking expense of building the networks of data centers owned by the five largest US firms."

He says a "generally permissive approach to the design and sale of innovative network services–with proper oversight by well-informed regulators–is the best way forward for the Internet."

That is basically the ISP's and Ajit Pai FCC's argument that it is anticompetitive paid prioritization that should be discouraged, either through FTC or Justice Department enforcement against anticompetitive practices, or perhaps via legislation.

Ranking Committee member Mike Doyle (R-Pa.), registered a complaint with Bennett's testimony, saying Bennett had made last-minute changes to his written testimony that lead Doyle to question whether that testimony was credible.

A majority of the nominees for FTC commissioner told a Senate Commerce Committee panel Wednesday (Feb. 14) that they are willing to take a new look at Big Tech firms like Google and Facebook, and regulate them if necessary.

That came at a Senate Commerce Committee nomination hearing on President Donald Trump's four nominees for the Federal Trade Commission: Joseph Simons (Republican chair), Rohit Chopra (Democrat), Noah Joshua Phillips (Republican) and Christine S. Wilson (Republican)

Commerce Committee chair Sen. John Thune (R-S.D.) said he hoped to move the nominations quickly to the floor for a vote, and scheduled a vote for the committee's next markup.

The FTC has been at only two commissioners (there are supposed to be five) for many months.

Thune asked the nominees about antitrust enforcement and calls for more regulatory oversight of "Big Tech" firms like Facebook and Google.

Related: Edge Providers Push for Network Neutrality CRA

Those firms have been increasingly under scrutiny on the Hill and elsewhere both for their size and their business practices, driven in part by the scrutiny of social media in the wake of the Russian election meddling, fake news, and ongoing concerns about online sex trafficking.

Simons said that "at a high level," big is not necessarily either good or bad. He said oftentimes a company's success is because they offer a good service at a low price, and the government shouldn't mess with that. But, he said, if a company is using anticompetitive means to get big or stay big, "then we should be vigorously enforcing the antitrust laws and prohibiting that conduct." He did not say what category he thought either Google or Facebook fell into.

Wilson said she understood there had been investigations into companies in the past--Google, for one, has come under FTC scrutiny for its search practices. She said given the "elapse of time" since those and the changes in technology, "it may make sense to take another look at concerns that have been raised." She said there is no company beyond the reach of the law and that she would support Chairman Simons in looking into potentially unlawful conduct, "and following the facts where they lead."

Phillips called it "the big question." He said he experiences daily the "incredible impact" those companies have on his life and of others, including his children. He said the FCC has a "big role" in applying the law carefully and fairly, and keeping up with trends. He said he would help keep the agency abreast of those developments and, if there are violations of the law, no matter who was committing them, the FTC would enforce it.

Chopra did not appear ready to put the hammer down on Big Tech. He said that unlike most sectors, large tech companies are competing with several other verticals, healthcare, retail, and other sectors. Chopra said it has been a challenge to predict how market dynamics occur and that the FTC needed to engage in constant learning. He also said that it was an area to be humble" and continue to "learn the dynamics."

Ranking member Sen. Bill Nelson (D-Fla.) used the hearing to put in a plug for net neutrality, or more to the point, a knock on the FCC's deeding of net neutrality oversight primarily to the FTC when it reclassified broadband access as a Title I information service in the Dec. 14 Restoring Internet Freedom Order.

"Simply put, the FTC is not the agency for net neutrality." He said that despite the amazing things the FTC does, it "does not have the expertise, resources or authority to adopt forward-looking rules to protect broadband consumers," he said.

Nelson said to look out for a Senate vote on the Congressional Review Act resolution to nullify that Restoring Internet Freedom order and return the Title II-based rules. He said his support for the CRA is not inconsistent with his belief that there needs to be a bipartisan legislative long-term solution with real protections.

Thune added a "here, here" to that call for bipartisan solution, adding: "Hopefully, we will be able to get there in due time."

Sen. Ed Markey (D-Mass.), one of the biggest backers of the net neutrality rules the Ajit Pai FCC rolled back, also talked about the lack of FTC expertise on keeping networks open.

Chopra, a Democrat, said he shared many of Markey's concerns, and those of sitting FCC Democratic Commissioner Terrell McSweeny about overseeing the internet. For one, he cited an ongoing challenge by the FTC in the Ninth Circuit Court of Appeals of a lower court ruling raising the possibility that some players could be exempt from FTC internet oversight, while others are not.

Following up on that, Sen. Richard Blumenthal (D-Conn.) asked all the commissioners to continue to push the appeal of the court decision that a business owned by a common carrier, say Yahoo! owned by Verizon, would share that common carrier's exemption from FTC oversight, creating an enforcement gap over online privacy.

Related: Facebook to Prioritize Trusted News

Simons said he fully expected the Ninth Circuit to overturn that ruling and said it would be a "great idea" to get rid of the common carrier exemption altogether. The other nominees nodded their agreement.Simons said the FTC, if it gets back its authority in the internet space--the FCC rule rollback has not taken effect yet, and is eyeing challenged in court--it will be a vigorous enforcer. He said he did not what types of uncompetitive, unfair or deceptive practices would come up in terms of internet conduct, but if it did the FTC could reach it under statute, and if something came up that it could not reach, he would come talk to the committee.

Markey said the FTC lacked rulemaking authority to block blocking, throttling or paid prioritization, while the FCC had it. Simons said they both had rulemaking authority, just different types. Markey pressed him on the point, but Simons said he would want to talk to the General Counsel's office before saying it did not have rulemaking authority in those areas. "I'm not entirely clear."

Related: FTC Settles with Web Site Over Kids Data Collection

Simons tried to elaborate, but Markey cut him off to move to marketing to children, another of his signature issues. Each commissioner committed to "an active, pro-child, privacy protection policy." Markey said it was time to hold companies accountable.

Former Democratic House Communications Subcommittee chair Rick Boucher, now with the Internet Innovation Alliance, said Democrats should drop their effort to nullify the FCC's Dec. 14 net neutrality rules rollback and instead work toward legislation mirroring the 2010 Open Internet order.

That order put forth the compromise rules based in Title I that virtually all the ISPs agreed to.

Boucher said activists pushing a Congressional Review Act resolution in Congress to roll back the rollback are delaying a legislative solution that would insure an open internet for everyone.

Related: Sen. Kennedy Pressed on Net Neutrality CRA

In a commentary for Bloomberg/BNA, Boucher said the 2010 would be a "useful" model for that legislative solution.

"Codification of the requirements of that rule, along with a provision declaring broadband to be an information service, would be a simple and straightforward legislative enactment giving both Democrats and Republicans satisfaction on their key priorities," he said. "For Democrats, the priority is open internet rules similar to the ones Democrats endorsed with the 2010 Open Internet order.

Related: Coming to Terms With Title II

For Republicans, the statute would return broadband to information-service status. It’s a win-win solution that should receive bipartisan support.”

Boucher said an added benefit of such legislation is that it could create online privacy protections that apply to the edge as well as ISPs, "so that consumers won’t have to wonder what protections they have, depending on how and where they access the internet."

Boucher said he is confident the two sides can come together, a sentiment expressed earlier in the week by former Communications Subcommittee chair and current full committee chair Greg Walden (R-Ore.), but that would appear to be a long shot given the current tenor of debate in D.C. and, specifically, most Democrats hard line on returning to a Title II regime -- a nonstarter for Republicans.

All the Senate's Democrats and a majority of House Dems have said they would support the CRA nullifying the rules and returning to Title II.

Boucher has been consistent in his opposition to Title II. As chairman of the subcommittee back in 2010, he said he would prefer legislation establishing targeted network openness principles to the FCC's proposal of applying Title II regulations to the transmission component of broadband.

Boucher is currently head of the government strategies group at Sidley & Austin in Washington.

AT&T chair Randall Stephenson said it is time for Congress to stop debating and start acting by "writing new laws that govern the internet and protect consumers."

The FCC last month voted to eliminate the rules against blocking, throttling and paid prioritization by ISPs, saying the Federal Trade Commission could sufficiently police conduct that was anticompetitive of unfair without those proscriptive rules.

"We intend to work with Congress, other internet companies and consumer groups in the coming months to push for an 'Internet Bill of Rights' that permanently protects the open internet for all users and encourages continued investment for the next generation of internet innovation," he said in an "open letter/ad" Wednesday (Jan. 24).

ISPs have argued that the FCC's Title II-based Open Internet order and proscriptive rules discouraged investment and innovation, an argument that backers of the rules strongly dispute.

Related: Burger King Takes Aim at FCC Net Neutrality Rollback

"AT&T is committed to an open internet," said Stephenson. "We don’t block websites. We don’t censor online content. And we don’t throttle, discriminate, or degrade network performance based on content. Period."

ISPs, including AT&T, have pledged not to block or throttle, though they have left open the possibility of paid prioritization, pointing to the need to prioritize health (remote diagnosis) or safety (self-driving cars) over cat videos, or to provide new services that can be a differentiator among competitors, with the operative word being "competitors" -- opponents say there is insufficient competition to provide alternatives if paid prioritization does not sit well with broadband subs.

Related: Dems Say Net Neutrality Will Be Mammoth Midterm Issue

While ISPs have said they will promise not to block or throttle, and support the FCC approach, they also recognize that the next FCC, under new political management, could reimpose hard-line regs.

Stephenson said he wants new rules to apply to all segments of the internet ecosystem, ISPs and edge providers alike: "The commitment of one company is not enough. Congressional action is needed to establish an 'Internet Bill of Rights' that applies to all internet companies and guarantees neutrality, transparency, openess, non-discrimination and privacy protection for all internet users."

Stephenson's blog also comes as congressional Democrats are pushing for a legislative solution ISPs do not support -- a Congressional Review Act resolution nullifying the FCC's December vote, which would reinstate the old regs. The CRA is highly unlikely to pass.

Related: Net Neutrality Bill Is Longest of Long Shots [subscription required]

Responding to the open letter, Fred Campbell, director of Tech Knowledge, said: “Tech Knowledge supports a legislative approach to net neutrality that embraces broader principles of internet governance based on traditional consumer protections, including online privacy, that apply equally to all similarly-situated internet companies. Unfortunately, those in Congress who continue to insist on strict regulation of ISPs that exempt so-called edge providers are ignoring serious consumer concerns about privacy and the growing monopoly power of tech giants in Silicon Valley to control online content. An approach to internet regulation grounded in traditional consumer protection and constitutional limits would transcend today’s artificially restrictive and anticompetitive version of the net neutrality debate while remaining true to free market principles that drive innovation and investment.”

The Internet Innovation Alliance said: “We have long advocated for Congressional legislation that would make permanent the core principles of an open Internet. Only Congress can craft a unified regulatory framework that would apply to all entities in the Internet ecosystem and provide the nation’s consumers and businesses with the online protections they deserve. Consumers should have one expectation of fair rules on the Internet rather than a confusing patchwork depending on what sites they visit or how they access the Internet."  

Public Knowledge, a big fan of the rules the FCC overturned, saw it differently.

“Public Knowledge is glad when AT&T, or any company, commits to supporting net neutrality and strong consumer protections online," Public Knowledge said. "Unfortunately, their approach isn’t enough and fails to support the most immediate solution -- reinstating the 2015 net neutrality rules."

An AT&T spokesperson said, "The purpose of today’s open letter calling for an Internet Bill of Rights was to begin a dialog on a comprehensive framework for basic consumer protections on the internet that applies to all internet companies.

"For new technologies, such as self-driving cars, remote surgery and augmented reality, to work, a higher level of internet performance is required," the spokesperson added. "If you’re in a self-driving car, buffering or data delays are not an option. As it relates to prioritization specifically, we don’t know what the ultimate answer is. We want to have a dialog about it with other internet companies and consumer groups, so that Congress is considering all angles as they begin to write the rules of the road on how the internet works, particularly for new innovation and invention, like self-driving cars or augmented reality. Working collaboratively with Congress, we believe we can develop the right set of policies to accomplish all of these goals."

Democratic Montana Gov. Steve Bullock has signed an executive order that means suppliers of government broadband services must not block orthrottle web traffic or engage in paid prioritization, essentially restoring the net-neutrality rules the FCC rolled back last month.

Bullock signed the order in front of computer science students at his old high school, saying: "There has been a lot of talk around the country about how to respond to the recent decision by Federal Communications Commission to repeal net-neutrality rules, which keep the internet free and open. It’s time to actually do something about it."

Bullock called on other governors to follow his lead.

Related: States File Petitions to Undo Internet Rules Rollback

The governor's order stipulates that to receive a contract from the state, a broadband provider "must not block lawful content, throttle, impair or degrade lawful internet traffic on the basis of internet content, engage in paid prioritization, or unreasonably interfere or disadvantage the users’ ability to select, access, and use broadband internet access service."

The Helena, Mont., newspaper Independent Record was reporting that the state has about $50 million in contracts with providers that include Charter Communications, CenturyLink and AT&T.

The FCC's net-neutrality regulation rollback preempts state attempts to write their own internet regs, but a spokesperson was not available to comment on how that would apply to the executive order.

The Internet Association, which represents major edge providers including Google, Amazon and Facebook, signaled it supports planned legal efforts to overturn the FCC's restoring internet freedom order, which lifts prohibitions on ISPs from blocking, throttling or prioritizing 'net access to content.

The FCC signaled in the order that one benefit of the rule rollback is that the government could look more holistically at potential threats to 'net openness by both edge providers and ISPs, rather than just the ISP portion of the 'net ecosystem.

“The final version of Chairman Pai’s rule, as expected, dismantles popular net neutrality protections for consumers. This rule defies the will of a bipartisan majority of Americans and fails to preserve a free and open internet," said IA President Michael Beckman. "IA intends to act as an intervenor in judicial action against this order..."

That means it is not a party to any of the suits, but will support their aim or reversing the decision, which was to reclassify ISPs as non-common carriers and roll back the regs against blocking, throttling and paid prioritization, as well as the general conduct standard meant to get at non-neutral conduct not explicitly prohibited under those bright line rules. IA will be named as an intervenor in the suit and can file a brief, but may or may not get to participate in the oral argument.

IA members will also "continue our push to restore strong, enforceable net neutrality protections through a legislative solution.”

Both sides of the network neutrality debate agree that it would be good for Congress to clarify how the 'net should be regulated, but the "how" and "what" and "by whom" continues to divide them along party and regulatory ideology lines.

A number of net neutrality groups have vowed to sue the FCC over the decision, continuing the legal fight over net neutrality that has been raging for well over a decade.

The FCC continues to edit the Restoring Internet Freedom (net neutrality rule rollback) order, which was approved subject to those edits at the Dec. 14 meeting, but has yet to be released.

The FCC voted to eliminate the rules against blocking, throttling and paid prioritization and reclassify ISPs as Title I information service providers not subject to Title II (common carrier) regs.

The process of post-vote, so-called "editorial privileges" is not unusual, but it has been the subject of criticism from commissioner Michael O'Rielly, who regularly dissented from the process during Tom Wheeler's chairmanship of the FCC in protest of the fact that substantive changes were allowed to be made to items after the commissioners had voted them at public meetings.

Regular meeting watchers had become used to Wheeler ending a meeting with the granting of editorial privileges and a note of the standing objection. (from O'Rielly).

Under FCC Chairman Ajit Pai, the editorial privilege was tightened almost a year ago so that only commissioners can make substantive changes.

Beginning with the Feb. 23 meeting, any substantive changes to a document had to be proposed by a commissioner and then "should only be made in cases in which they are required, pursuant to the Administrative Procedure Act, as a response to new arguments made in a Commissioner’s dissenting statement," Pai said at the time.

"The Order is effective following approval by the OMB under the Paperwork Reduction Act," said an FCC spokesperson. "Once OMB approves it, the FCC will publish a notice in the Federal Register with the effective date, which will be shortly after the Federal Register publication of that notice."

In the meantime, legislators and other government officials in New York, California and Washington (State) aren't waiting around, having pledged to come up with their own net neutrality rules, which is why the Restoring Internet Freedom order preempts such moves, setting up a legal battle if such state laws pass, a second front in the legal war against the rules, which will be challenged by net neutrality activists as well.

Sperling's Best Places (http://www.bestplaces.net/, which assembles info on the best places to live, including schools, crime, house prices, and, apparently, Title II-friendliness, has analyzed Tweets from #StoptheFCC. That is one of the activist hashtags aimed at driving protest against the FCC's vote to rollback Title II-based 'net regs.

Sperling looked, state-by-state, at 145,000 Tweets between Nov. 24--following the FCC's announcement of the Restoring Internet Freedom order, and Nov. 14, when it was approved by the Republican majority, and found that, not surprisingly, D.C. was the tops, by a wide margin, in tweets per capita (per every 100,000 people) with 320.33 (a total of 1,872 tweets). Mississippi brought up the rear at 8.57 (252 tweets).

Not surprisingly given its Silicon Valley residents, and the sheer size of the state, California was number one in raw numbers of tweets with 15,370 (that was only 41.95 per capita given the almost 20 million in population.

That number could be going up as groups including Demand Progress and Fight for the Future drive net neutrality supporters to urge Congress to stop the Trump-era FCC rule rollback via the Congressional Review Act, the same legislative gambit Republicans used to nullify Obama-era regs.

Rep. Mike Doyle (D-Pa.), ranking member of the House Energy & Commerce Committee Communications Subcommittee, said he will propose using the Congressional Review Act (CRA) to overturn the FCC's rollback of net-neutrality rules if FCC chair Ajit Pai does not stand down.

That is the legislative maneuver Republicans used to invalidate a number of Obama-era regs earlier this year, including the repeal of the broadband privacy rules established under the Tom Wheeler-led FCC.

Sen. John Thune (R-S.D.) Tuesday (Dec. 12) called on Congress to step in, as well, to resolve the net-neutrality regulation debate, but not that way.

“The answer to monopolies has always been regulation and competition, and as much as some of the FCC commissioners don’t want to acknowledge it, net neutrality and the regulation of ISPs under Title II are essential for providing real competition in the broadband marketplace," Doyle said.

Doyle said he and dozens of other legislators would be sending a letter Wednesday (Dec. 13) urging Pai not to repeal the regs, but that if the FCC does so Dec. 14, as planned, Doyle would introduce the CRA-based legislation.

It is essentially a shot across the bow since the Republicans controlling Congress are fans of the reg rollback. Republicans did use the CRA to reverse the FCC's vote, under Pai's Democratic predecessor, on a broadband privacy framework.

Mozilla, BitTorrent, Reddit, Etsy and Patreon are among those driving calls to Congress as part of the Break the Internet net neutrality protest scheduled for Tuesday (December 12).

That is according to Fight for the Future, which says it has created a tool that will allow protestors to auto-tweet net neutrality messages every 10 minutes in the 48 hours running up to the FCC's planned December 14 vote.

FCC Chairman Ajit Pai and the two Republican commissioners are expected to vote to approve the chairman's proposal to reclassifying ISPs as Title II information services not subject to Title II common carrier regs--like mandatory access--and eliminate most net neutrality rules.

Net neutrality activists say that is a recipe for "killing" the open internet.

Forces are amassing for mass net-neutrality protests Thursday (Dec. 7), one week out from the planned Dec. 14 vote on FCC chair Ajit Pai's order eliminating regulations against blocking, throttling and paid prioritization.

That is also the day that the Federal Communications Bar Association will host a roast of Pai, which will likely see protests as well, if past is prologue -- former FCC chair Tom Wheeler took some heat at a chair's dinner before he decided to propose Title II-based rules.

More than 600 protests are planned at Verizon stores and congressional offices across the country, Evan Greer of protest organizer Fight for the Future said.

Additionally, more than 150 musicians, artists, actors and comedians have signed a letter to Congress endorsing the protests; they include Alyssa Milano, Rage Against the Machine guitarist Tom Morello, Against Me!, Graham Nash, Amanda Palmer, Michael Stipe, Downtown Boys, Talib Kweli and Wil Wheaton.

"We support the people from across the political spectrum protesting across the country on Dec. 7, and we echo their call for our members of Congress to do their jobs and take action to stop the FCC vote that’s planned for Dec. 14," the letter read.

Hill Democrats have been trying to delay the vote, invoking fake comments in the net-neutrality docket and suggesting, like Russian interference in the presidential election, it needs more investigating, and unlike the case with the election, before any vote is taken.

Pai signaled this week the vote would proceed as planned, and the item would be adopted. He said he is confident he has two other Republican votes, while Democrats will be vociferously in opposition.

He also said in an op ed Wednesday (Dec. 6) that those suggesting his reg rollback would be the end of the internet were trying to "whip Americans into a frenzy by making outlandish claims" and "silly accusations."