Federal Communications Chairman chairman Ajit Pai said Monday (Oct. 5) that the commission plans to vote at its October meeting on its response to a federal appeals court remand on its Restoring Internet Freedom (RIF) ISP deregulation order.

Pai said the item addressed the court's issues and “affirms that the FCC stands by the Restoring Internet Freedom Order, consistent with the practical reality consumers have experienced since December 2017 of an internet economy that is better, stronger and freer than ever.”

Related: Court Upholds Most of FCC ISP Dereg

The U.S. Court of Appeals for the D.C. Circuit upheld the bulk of the agency's decision to reclassify ISPs as Title I information service providers that aren’t subject to Title II common-carrier regulations and to eliminate the rules against blocking, throttling, paid prioritization, and a general conduct rule. The court also said the FCC was within its authority and the decision was not arbitrary and capricious, but it said the FCC had not sufficiently explained the impact of that deregulation — eliminating rules against blocking, throttling and paid prioritization — on public safety, the regulation of pole attachments and its Lifeline broadband/phone subsidy program. 

Related: NCTA Says RIF Order Is on Firm Ground

The fact that the Republican-led FCC would defend the Republican majority-backed order is no surprise, but Democratic commissioner Jessica Rosenworcel, who voted against the RIF order, was not pleased. 

“This is crazy,” Rosenworcel said in response to the chairman. “The internet should be open and available for all. That’s what net neutrality is about. It’s why people from across this country rose up to voice their frustration and anger with the [FCC] when it decided to ignore their wishes and roll back net neutrality. Now the courts have asked us for a do-over. But instead of taking this opportunity to right what this agency got wrong, we are going to double down on our mistake.”

In a blog post on the Oct. 27 meeting agenda, Pai attributed pushback on that RIF order to "far-left special-interest groups, Hollywood stars, and Silicon Valley tech giants, as well as many in the media," whom he said "tried to scare the American people about what would happen once the FCC adopted the Restoring Internet Freedom Order."

Sen. Ed Markey (D-Mass.), one of Congress' strongest proponents of strong net neutrality rules joined Rosenworcel in blasting the FCC for "undermining" net neutrality. 

“The FCC was wrong when it repealed the net neutrality rules, and it’s wrong again today,” he said. “By failing to course-correct what the D.C. Circuit Court accurately described as an action ‘unhinged from the realities of modern broadband service,’ the Commission is continuing to take us down a path towards a less free and open internet. The FCC should restore the Open Internet Order and the Commission’s clear authority over broadband in order to protect not only the free flow of ideas, but also to make clear that the FCC has the power to ensure public safety and promote broadband access. 

“At a time when the coronavirus pandemic has made us more dependent than ever on broadband and wildfires are devastating the West, we need the FCC to step up, not double down on its past failures to promote the public interest."

USTelecom told the FCC this week it supports a free and open Internet, just one defined as "unencumbered by unnecessary regulations." 

It was filing reply comments in a court remand of portions of the FCC's 2018 Restoring Internet Freedom order, most of which the court upheld. 

Related: NCTA Says Record Supports FCC Net Neutrality Dereg 

The court asked the FCC to better explain why it had concluded that reclassifying internet access as an information service not subject to common carrier mandatory access rules and eliminating the rules against blocking, throttling and paid prioritization did not harm public safety, pole attachments or the FCC's low income broadband subsidies. 

USTelecom said the RIF order benefitted public safety and did not undermine either the pole attachment regulatory framework or the Lifeline broadband subsidy. 

As have other ISP commenters, USTelecom pointed to the increased investment prompted by the deregulation as benefitting first responders generally and the consumers "who rely on such infrastructure to generate and receive important public-safety communications." 

Those who have suggested there could be some negative impact on public safety are generally referring to the ability to block or throttle if that affected first responder communications. 

But in its final analysis, USTelecom says the record clearly demonstrates that "the overwhelming benefits of the restored Title I classification vastly outweigh the purported costs (if any) of abandoning the outdated, common carrier regulatory framework applicable to broadband for the scant two years preceding the RIF Order." 

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. 

In a new twist on the year's long legal journey of net neutrality rules, there is a new judge hearing oral argument in the Feb. 1 challenge by Mozilla et al. to the FCC's recent rollback of rules.

Judge Judith Rogers is out and judge Robert Wilkins is in, according to the oral argument calendar on the court's site. There was no explanation for the switch.

The original panel had been Judges Rogers, Patricia Millett and Stephen Williams, with Rogers presiding. With Rogers out, Millett will be presiding. One attorney familiar with both said that the biggest difference will likely be that while Rogers is pretty much a by the book stickler for holding the parties to their time limits, Millett is looser with those limits.

As to the differences between Rogers and Wilkins, he says not much ideologically. "However, Wilkins has much less of a track record on tech issues," he says. "Like all the D.C. Circuit judges, he is very smart. He is more active in oral argument than Judge Rogers, so the dynamic may be slightly different in that regard."

At issue is the FCC's Restoring Internet Freedom order repealing rules against blocking, throttling and paid prioritization and reclassifying internet access as a Title I information service not subject to any common carrier regs.

A trio of Democratic senators are grilling mobile carriers about allegations they were throttling internet traffic. 

The FCC last fall eliminated the rule against throttling traffic as part of its Restoring Internet Freedom (RIF) order, though ISPs said they had no plans to do so, and if they did they would have to inform the FCC and the public per the transparency requirement in the RIF order. 

In letters to AT&T, Verizon, Sprint and T-Mobile, Sens. Edward J. Markey (D-Mass.), Richard Blumenthal (D-Conn.), and Ron Wyden (D-Ore.) said "all online traffic should be treated equally, and internet service providers should not discriminate against particular content or applications for competitive advantage purposes or otherwise,” citing reports they had throttled content from Netflix, YouTube, Amazon, and NBC Sports, and wanted answers to the following questions: "Has your company put into practice policies to throttle or prioritize internet traffic for consumers? What is the purpose of these policies?

"Are consumers able to opt-in or opt-out of traffic differentiation? Does a customer’s choice change the price or affect their service, such as data allocation or requiring a different plan?

"How do you determine which network traffic receives faster or slower treatment? Is it based on content, behavior, or IP address?"

Asked about the senators' letter and the allegations of throttling, FCC chair Ajit Pai said that his understanding that the data that went into that throttling conclusion (the study was based on data collected from an app called “Wehe," according to the senators) had not been made available for vetting, but that any issues could be addressed by the Federal Trade Commission to the extent someone wanted to invoke its authority and that process was sufficient to protect consumers and competition.

CTIA, which represents telcom ISPs, said when the Wehe study first gained attention that it had "failed to account for basic wireless network engineering, consumer preference, and how mobile content is distributed over the internet."

CTIA says that what the app is actually detecting is "is basic wireless network management and operators delivering the service consumers choose," or it is measuring data management by content providers which, it says, "have data practices in place – outside the control of providers – that reduce video resolution of data traffic flowing through their sites or apps depending on the consumer’s mobile device."

FCC chair Ajit Pai plans a strong Capitol Hill defense of his Restoring Internet Freedom Order, which rolled back net neutrality regulations as of last month.

That is according to his prepared testimony for a July 25 FCC oversight hearing in the House Communications Subcommittee.

Pai had choice words for those who branded the order, which nullified rules against blocking, throttling and paid prioritization, the death of the internet.

At the time the order was adopted (back in December 2017), "there were many hysterical predictions of doom and gloom," he said. "The sky has not fallen. Indeed, the only thing that has fallen is the credibility of the Chicken Littles' who made such dire predictions."

Pai branded the 2015 Open Internet order and it rules a failed policy that the FCC had now abandoned, turning primary policing powers over ISPs to the Federal Trade Commission, from which it had been stripped by the 2015 order.

Pai said the bottom line is that the internet remains free and open and repealing the rules was the light touch the market needed to invest in the kind of faster, better, cheaper broadband that can help close the digital divide.

Pai's statement was also notable for what it did not talk about in what he billed as "the work of the Federal Communications Commission to advance the public interest." While there were were many references and whole sections devoted to broadband and spectrum for broadband, and wireless broadband, and broadband spectrum auctions, and 5G.

There was no mention of the FCC's broadcast deregulatory efforts or ATSC 3.0, the next gen standard that the FCC is helping roll out, or its recent decision to refer the Sinclair-Tribune merger for hearing.

He did point out that Congress' passage of the RAY BAUM Act did provide extra money to make sure LPTVs and translators got some financial help, and there was enough repack money for a consumer education campaign for all the repack-related channel moves.

WASHINGTON — The issue of network neutrality remains D.C.’s biggest digital divide, and one that shows no sign of healing anytime soon.

Last week’s trigger of the Republican Federal Communications Commission’s net neutrality regulation rollback fired up the ongoing angst of activists, along with the branding battle between those forces and their computer company allies against internet service providers and fans of broadband deregulation.

Related: Net Neutrality Activists Get It in Gear

What both sides have in common is that they were each calling for help from Congress, in very different forms. But there were no signs that either legislative approach was a near-term solution to the split over how the government should regulate the net, and who should get regulated.

ISPs are willing to accept a return of some of the regulations that were recently eliminated, and under the FCC’s authority — just not under Title II — and likely with some wiggle room for pro-consumer paid prioritization. Opponents consider that last phrase an oxymoron, except for carve-outs for items such as telemedicine and connected cars.

Stirring the Branding Pot

There was also a big branding battle being waged over just what the rollback meant.

The doom and gloom predictions of the death of the internet were branded as chicken little overreaction by ISPs, while promises by the big web providers that nothing about users’ online experience would change were branded as a strategy to lull consumers into a false sense of security before turning up the blocking and throttling heat, like web user-lobsters in an ISP pot.

Net-Neutrality Rollback Fans: Sky Isn't Falling

USTelecom even used activists’ own online protests, which were based on their assertions that speech could be blocked, to demonstrate that those swift net roads were still open.

The activist legislative push is for the Congressional Review Act nullification of the rule rollback, which its backers said was still a going concern, despite the fact that it is almost 50 votes short of even getting it placed on the House floor calendar for any vote.

On the other side, ISPs, joined by their Republican allies, continue to call for bipartisan legislation. That still sounds like a nonstarter for Democrats, though, a development that House Energy & Commerce Committee leadership was putting a pin in even as they called for support for their draft legislation.

“After repeated attempts to start good faith negotiations, it appears our Democratic colleagues are more interested in coming up with political slogans than legislative solutions,” said House Energy and Commerce Committee chair Greg Walden (R-Ore.) and Communications & Technology Subcommittee chair Marsha Blackburn (R-Tenn.).

Meanwhile, the Federal Trade Commission, which as of last week is the primary cop on the network neutrality enforcement beat, signaled it was on patrol, but that it too might need some congressional backup.

“Using our existing authority, we will work hard to ensure broadband providers keep their promises to consumers and are not engaged in anticompetitive practices,” said an FTC spokesperson. FTC chairman Joseph Simons was not available for comment. “As we monitor the marketplace, we will work with Congress to address any additional resources we might need.”

Tag Team Enforcement

One criticism of the FTC as net neutrality enforcer involves whether it has the needed technical expertise in network management and how traffic is handled. But the FTC and FCC have said they will work together and share resources in their tag-team net enforcement regime.

The FCC’s principal role will be to enforce enhanced ISP transparency requirements, which must be publicly posted.

The nation’s largest ISP, Comcast, was promoting as well as posting last week, with Comcast Cable CEO Dave Watson pointing out in a blog post that the MSO doesn’t block, throttle, prioritize for pay or discriminate in favor of its own content.

That is an enforceable commitment, but could change if Comcast shifts its business plan and informs the FCC and the public accordingly. But the FTC could still take action if it concluded the company’s business model was unfair or anticompetitive.

In addition to the legislative attempts at regulatory certainty, the U.S. Court of Appeals for the D.C. Circuit will again be weighing in, given the multiple legal challenges to the reg rollback that will be heard in that court.

"[The old rules] left the giants of the internet totally unregulated, even though they have the power to block, throttle and give away customer data without transparency. This 'special' treatment threatened the internet more than anything else. ... [T]he internet is an ecosystem where every player has to play by the same set of rules. Everyone is special on the internet." –Kim Keenan, Internet Innovation Alliance

Today, June 11, the Federal Communications Commission’s order on “Restoring Internet Freedom” goes into effect. If you are reading this online, either through a wired connection or perhaps on a tablet or phone, you already know the most important thing about it: The internet is still here, and it’s not broken.

Not only does the internet still work, it’s getting better. While investment slowed during the period when the previous FCC’s old Title II rules were in place (2015-2017), we have seen announcements of higher capital spending in broadband and investments focused on deployment of advanced technology since the current FCC’s decision to “restore the longstanding, bipartisan light-touch regulatory framework that has fostered rapid Internet growth, openness, and freedom for nearly 20 years.” The race to 5G technology will only push this further, with expected IT infrastructure investments of $326 billion by 2025 and one estimate of $500 billion in capital expenditures in the mobile sector alone.

Equally important, since the FCC’s announcement there have been no notable instances of customers alleging blocking of their legitimate access to online content, nor of throttling consumer speeds on the internet. A significant related development is that the FCC’s decision also restored exclusive authority over consumer protection online to the Federal Trade Commission, the expert agency with over 100 years of experience in this area. The internet will continue to thrive.

The headlines concerning the privacy of consumers’ data on the internet are not a result of the new rules – in fact, the big story here in recent months concerns a company to whom the old rules did not even apply. This highlights a key problem with the previous FCC’s rules; they did not pertain to every internet-related company but instead singled out one set of companies (ironically, the group that has the least control over consumers’ data) for harsher treatment. They left the giants of the internet totally unregulated, even though they have the power to block, throttle, and give away customer data without transparency. This “special” treatment threatened the internet more than anything else. Change means that we have to understand that the internet is an ecosystem where every player has to play by the same set of rules. Everyone is special on the internet.

Gains in investment are hugely important, not just for telecom but for the economy overall. As noted telecom and internet analyst Mary Meeker recently noted, tech companies account for a quarter of U.S. market capitalization, with a correspondingly important role in total U.S. corporate capital spending. So policies that benefit this sector have an immediate positive effect on the economy as a whole.

Meeker’s analysis also includes a very helpful way to think about all this. She distills complicated data down to a simple but powerful equation: “Innovation + Competition = Driving Product Improvements/Usefulness/Usage.”

This is great shorthand for what I and others have long argued: investment is key to innovation. Our markets are competitive, with consumers having many choices as to how they access broadband and content on the internet. Where innovation and competition exist, regulations, such as the ones that take effect today, will encourage product improvement, leading to greater usefulness and even more usage of the internet. This is what the FCC meant by “restoring internet freedom.” We do not need, and have not needed, burdensome monopoly regulation applying only to some companies while letting others – including those who are essentially exercising monopoly power – to go unregulated. Access to the internet is highly competitive, so lighter regulation will promote investment in broadband internet as these companies compete to gain users, knowing that these users will use the internet more frequently because of the improvements that competition has brought. It is a virtuous cycle – if we get the policies right. The FCC has returned broadband regulation to light-touch rules that work.

As internet companies become a more powerful force in national life, they should expect additional scrutiny from regulators and from internet users themselves. No matter the players and their perspectives, it is important to get the policies right here for betterment of the whole ecosystem. At the end of the day, we need a federal law with one set of clear rules that apply to everyone in the internet ecosystem: no blocking or throttling of legitimate online content or unfair discrimination against content. We also need robust privacy protections that apply to all companies equally, so that consumers have one set of privacy protections everywhere on the internet and no matter how they access the internet.

This is the best way forward, and it would also resolve the debate over “net neutrality” once and for all. In the meantime, look upwards – the sky has not fallen and the internet remains intact.

Kim Keenan is co-chair of the Internet Innovation Alliance (IIA) and executive vice president for marketing and research at Odyssey Media. She formerly served as the president and CEO of the Multicultural Media, Telecom & Internet Council (MMTC).

WASHINGTON — The Federal Communications Commission has made its rather ponderous case (in more than 200 pages) for rolling back network neutrality regulations and turning over its enforcement to the Federal Trade Commission.

Its language in the “Restoring Internet Freedom Order” includes this case-by-case enforcement by other agencies of perceived non-neutral actions. It also covers all of the internet ecosystem — including the Googles and Facebooks and Twitters or the world — and suggests this approach is preferable to “thou shalt not” mandates on internet service providers alone. That way, it does not nip “new innovative business arrangements” in the bud and allows the “ever-evolving internet ecosystem” to, well, ever evolve.

Democrats were not buying into that, and instead collected enough supporters, including one moderate Republican in Sen. Susan Collins of Maine, to force a vote on nullifying the rollback of the FCC’s Title II-based internet rules (see Rules). That is a long shot, but one also aimed at picking off more Republicans at midterm election time, given the importance of the net neutrality issue among millennials.

The order defines just what ISPs will have to disclose under enhanced rules that still manage to reduce the reporting requirements in the 2015 order. The following practices listed are not barred by FCC rules, but are ones the FTC or the Justice Department could decide were anticompetitive or unfair.

• Blocking: “Any practice (other than reasonable network management elsewhere disclosed) that blocks or otherwise prevents end-user access to lawful content, applications, service, or non-harmful devices, including a description of what is blocked.”

• Throttling: “Any practice (other than reasonable network management elsewhere disclosed) that degrades or impairs access to lawful internet traffic on the basis of content, application, service, user or use of a non-harmful device, including a description of what is throttled.”

• Affiliated Prioritization: “Any practice that directly or indirectly favors some traffic over other traffic, including through use of techniques such as traffic shaping, prioritization or resource reservation, to benefit an affiliate, including identification of the affiliate.”

• Paid Prioritization: “Any practice that directly or indirectly favors some traffic over other traffic, including through use of techniques such as traffic shaping, prioritization or resource reservation, in exchange for consideration, monetary or otherwise.”

• Congestion Management: “Descriptions of congestion management practices, if any. These descriptions should include the types of traffic subject to the practices; the purposes served by the practices; the practices’ effects on end users’ experience; criteria used in practices, such as indicators of congestion that trigger a practice, including any usage limits triggering the practice, and the typical frequency of congestion; usage limits and the consequences of exceeding them; and references to engineering standards, where appropriate.”

• Application-Specific Behavior: “Whether and why the ISP blocks or rate-controls specific protocols or protocol ports, modifies protocol fields in ways not prescribed by the protocol standard, or otherwise inhibits or favors certain applications or classes of applications.”

• Device Attachment Rules: “Any restrictions on the types of devices and any approval procedures for devices to connect to the network.”

• Security: “Any practices used to ensure end-user security or security of the network, including types of triggering conditions that cause a mechanism to be invoked (but excluding information that could reasonably be used to circumvent network security).”

The order points out that it relies on other agencies’ enforcement of lawbreakers.

WASHINGTON — Should the federal government regulate the Internet?

That single, simple question is spawning arguably a more voluminous response from American citizens than any other issue in the history of the Federal Communications Commission.

And yet, for all the attention given net neutrality, from the record number of comments to the commission to John Oliver’s ratings-smashing, FCC site-crashing rant — few beyond the big corporate interests fully understand what network neutrality means.

Advocates for net neutrality rules — operators of social-media platforms, advocacy groups and others — have said bright-line rules are needed to prevent internet-service providers from restricting or controlling web access for business purposes, or perhaps even political ends.

Fans of deregulation, led by Republican FCC chairman Ajit Pai, have said such rules have heretofore not been needed. Their argument: They hurt investment and innovation and are unnecessary because antitrust laws and enforceable pledges of good conduct by ISPs are sufficient protections.

In just 10 days, the FCC will vote on Pai’s sweeping deregulatory order, which essentially abolishes “net neutrality” regulations (still an ambiguous term for most). It’s just the regulator’s latest attempt to figure out how to approach a transformative technology that reaches into every corner of our lives, and to do so based on rules that were originally written in the days of the telegraph.

It will be at least the fourth attempt to get net neutrality right (see timeline), and it reflects the difficulty the FCC faces in using such archaic rules to harness a 21st century platform.

Because the future may have outstripped the FCC’s ability to interpret and reinterpret the will of Congress, factions on both sides are calling for both Republicans and Democrats to pass forward-thinking legislation and provide some badly needed regulatory certainty. On the scorched earth of the Beltway, though, common ground will be hard to find.

New Rules Won’t End the Fight
Despite all the chatter — both sides are launching massive public digital ad campaigns — one thing is clear: the Dec. 14 vote will be the beginning of more protests, lawsuits and a new regulatory view of cable companies, telcos and other ISPs, as well as so-called “edge providers,” websites such as Google, Facebook, Twitter or Netflix, which need ISPs to reach end users.

Pai made it clear that the gatekeeper mantle was shifting from ISPs (under terms set by his predecessor, Democrat Tom Wheeler, in 2015) to edge providers when he accused social-media firms of discriminating on the basis of viewpoint. He said that Twitter, not broadband providers, was a bigger threat to internet openness, and that he was trying to level the playing field.

It’s a fascinating turn of perspective for big cable operators, who once were considered the most lethal monopolies in media during the height of their power in the 1990s, but are now overshadowed in reach by Netflix, Facebook and other edge providers.

Pai’s deregulatory leveling drew many cheers from industry, but it also created a vacuum Congress will need to fill, if lawmakers can stop fighting long enough.

Pai signaled it was high time the government relinquished the rules from the previous administration after a couple of years of common carrier status that he, and those ISPs, say has depressed investment and innovation, but he has also long suggested he would welcome direction from Congress.

After all, Pai’s approach could be undone by the next chairman, whose approach could be undone again depending on the political will and winds. Most agree that the internet has become too central to the life of the country, and world, to be subject to a game of regulatory Ping-Pong.

Republican FCC member Michael O’Rielly suggested that the best course of action for the agency, and what it was doing in the order, was to “put things back the way they were and let Congress decide whether any further actions are justified.”

The “Restoring Internet Freedom” order was overtly billed as a back to the future moment, returning Internet regulation to the pre-Wheeler days of a light regulatory touch. But with the rise of connected Internet of Things (IoT) decvices, net-neutrality activists saw Pai’s plan as turning the keys to that new and expanding broadband kingdom over to ISP gatekeepers.

Title II fans were understandably apoplectic, given that rules explicitly prohibiting blocking, throttling and paid prioritization will be gone, replaced by a regime based on disclosure of network practices.

If an ISP’s practices are deemed anti-competitive, enforcement would be handled by the Justice Department or the Federal Trade Commission, not by the FCC.

ISPs, led by cable giant Comcast, are promising not to block or throttle, but paid prioritization is still very much on the table. Early on, Pai reversed the FCC’s finding that sponsored data plans — which allow providers to charge firms to “sponsor” a subscriber’s data use in specific cases — were likely a violation of net neutrality. The FCC chairman pointed out that such plans reduced prices for consumers, who get to access that content for free, and are a way to differentiate services.

It is hard to argue that Google does not prioritize access to content for a price, for example.

Some see the coming Dec. 14 vote on a final order as a SOPA/PIPA moment, a reference to the Internet backlash in 2012 that famously killed a bipartisan online privacy bill, the Stop Online Piracy Act (SOPA)/PROTECT IP Act (PIPA). Passions certainly seem to be running as high around the issue today, but there’s also much more confusion, as both sides claim the position of Internet “freedom” — and define the concept differently.

The debate has already turned ugly. Pro-Title II activists slammed Pai as out to kill the internet and cast him as a lackey for big telcos and cable companies. Then some extreme elements started tweeting death threats to his family, filling Reddit with posts attacking him, and protestors posted signs on his street calling out his children by name and saying their dad was murdering democracy in cold blood.

In May, John Oliver, host of the HBO satirical comedy series Last Week Tonight, had also “joked” that Pai looked like a weed whacker-wielding serial killer.

Several activist groups were quick to condemn the hate speech, saying protestors needed to stick to the issues.

Opponents Marshal Forces
Certainly the web denizens who flew to the command of Oliver the last time around are looking for a reprise of the SOPA/PIPA backlash and will again take to the internet to push back, as they did when they drove millions of comments to the FCC net neutrality docket.

Activists plan to protest at Verizon retail stores this week — Pai is a former lawyer for the telecom — and Evan Greer, campaign director at Worcester, Mass.-based digital-rights advocacy group Fight for the Future, said more than 200,000 calls were generated to Congress within the first 24 hours after the order was announced. “We’ve never seen numbers like this when it wasn’t part of a coordinated day of action,” Greer said.

But the chairman has two solid votes in Republican commissioners Michael O’Reilly and Brendan Carr, a former Pai aide.

Pai’s proposal was sufficiently sweeping that it prompted speculation that it was actually meant to spur action in Congress, where work on a bipartisan bill to clarify just what the FCC’s regulatory authority is has been slow. Those talks were said to be stalled over Democrats’ refusal to back off Title II as the requisite authority; the Republicans being just as dead set against Title II; and the general distrust among the political players in a toxic D.C. atmosphere.

MoffettNathanson principal and senior analyst Craig Moffett said the draft order “went much further than we ever could’ve imagined in not only reversing Title II, but in dismantling virtually all of the important tenets of net neutrality itself.“

But perhaps it should not have been so surprising. The move also squares with Pai’s long-held regulatory philosophy, as well as an approach to regulation proposed by President Donald Trump’s transition team, where the Federal Trade Commission and Justice Department assume authority over areas formerly overseen by the FCC.

Though consistency has not been a particular hallmark, Trump is on the record as saying Title II should be repealed. And Pai has long complained that Title II was the handiwork of former President Barack Obama more so than Wheeler, who initially proposed a non-Title II approach.

Leveling the Field
While some Senate Democrats — notably the beleaguered Al Franken of Minnesota — have been calling for net neutrality regulations to be applied to edge providers like Google and Facebook, Pai has instead leveled the playing field in the other direction.

“Ultimately, it’s hard to clamp down on ISPs while gray-area corporations like Google and Facebook continue to operate with relatively little oversight or restriction,” said Jameson Zimmer, operator of website BroadbandNow, which provides data on ISPs, their plans and prices. Zimmer said he thinks ISPs will take a page from those edge providers.

Pai’s order, to some, felt much like a seminal moment in the history of network regulation. He appeared to make that clear last week, saying it was edge providers like Twitter who were discriminating based on viewpoints, citing conservative ones. He said edge providers were a bigger threat to the open internet than ISPs and talked about the need to level the playing field.

Edge providers, once the garage-startup darlings, have become the power players no longer immune from talk of reigning in that power through government action.

Revelations about how advertisements on social-media platforms were used by Russia to interfere in the 2016 election put an even brighter spotlight on edge provider conduct. But ISPs and others had already been trying to refocus the government’s attention on those power players.

Pai’s sweeping deregulation will put ISPs and edge providers on a similar regulatory footing, free to adopt various models for monetizing their businesses as long as the government does not conclude they are anticompetitive.

That means that any efforts to legislate new rules on how content will be treated will be hard-pressed not to include firms such as Google and Facebook.

They may have started in garages or dormitories, but the combined market capitalization of edge providers dwarfs that of ISPs, and the degree to which the wield power over what web surfers see, in terms of content and advertising, means they will not be able to escape the scrutiny of a Pai FCC.

Former FCC chairman Wheeler’s forward, and fallback, position was that it was ISPs who were the big threat. Even presented with the size and scale of a Google — whose goal is to amass all the information in the world — the argument is that there is little competition for access, while web surfers don’t have to use Google or be on Facebook.

Pai clearly sees it very differently. Edge providers have gotten a virtual pass, critics have said, because of the veneer of the garage startup hagiography and partly because of powerful edge provider lobbying at a time — over the past eight years — when the web was morphing into the transformative force it has become.

The result has been that while Amazon and Google and Facebook together dwarf the ISPs, Washington has not seemed to catch on, at least from the vantage of the providers.

Putting ISPs and edge providers on the same general regulatory, or deregulatory, footing, as the FCC has done, will make it harder to treat them so differently.

Tom Larsen, senior vice president of government and public relations at MSO Mediacom Communications, expressed what is a general industry frustration with that bifurcated view in an interview for C-SPAN’s The Communicators series. “I tend to look at things very simply,” he told C-SPAN’s Peter Slen. “I follow the money. If you look at who makes the most money out of the internet ecosystem, it is obviously the edge providers.”

Travis LeBlanc, the Wheeler FCC’s Title II enforcer who is now a partner at Washington, D.C., law firm Boies Schiller Flexner LLP, agreed that more regulation of edge providers is in the cards. “Do I think we will reach a point where the U.S. realizes it needs to regulate ISPs as well as very substantial platforms that are virtual pipes [the Googles and Facebooks and Amazons] as opposed to the actual pipes? Yes, we are likely to see that.”

He said the recent hearings around Russian election meddling signal that Washington is gearing up to have that conversation about the degree free-market principles should be able to control the rules around the Internet. He said some edge platforms can communicate with “way more people” than any ISP has access to. But LeBlanc said he would not “begin to suggest” that ISPs and edge providers should get equal regulatory treatment. He said it was more a case of two distinct entities that need to be regulated, but not necessarily with the same rules.

For instance, he said, there are a lot of differences between Facebook and Comcast. First and foremost, he said, no consumer pays a monthly subscription to Facebook. Facebook also only has a window on a user’s online activity, while an ISP has a window into all of a subscriber’s apps and services.

It would be a mistake to assume that Congressional Democrats are simply falling in line behind edge providers and for a continued bifurcated regulatory approach.

A top Hill Democratic aide, speaking not for attribution, said of a cancelled network neutrality hearing where Republicans wanted to hear from the CEOs of Google, Amazon and Facebook, that those companies don’t speak for Democrats. That might be the reason Democrats offered their own list of witnesses that featured smaller players, rather than “a bunch of rich white guys,” he said.

If Republicans and Democrats get serious about net-neutrality legislation — and Republicans have been sounding like they are willing to talk — look for edge providers to be part of the conversation. In the meantime, ISPs will be free to experiment with new business models, as have edge providers, under the presumably watchful eye of the FTC and Justice Department.

TIMELINE: Mileposts on the Road to ‘Restoring Internet Freedom’
1999: FCC chair William Kennard tells the San Francisco Chronicle the government must exercise “vigilant restraint” toward internet regulation.
2000: FCC chair Michael Powell classifies cable modem service as an information service.
2003: Law professor Tim Wu coins the phrase “net neutrality.”
2004: FCC chair Michael Powell introduces his four internet freedoms.
2005: In Brand X decision, the Supreme Court upholds information service classification for cable broadband service; FCC extends classification to phone broadband.
2005: New FCC chairman Kevin Martin essentially codifies Powell’s freedoms as FCC guidance.
2005: AT&T CEO Ed Whitacre signals edge providers are freeloaders on networks that his company built and needs to monetize.
2008: The FCC, with Republican Martin joining Democrats, says Comcast violates guidance by slowing BitTorrent traffic; Comcast appeals.
2010: Comcast sues FCC over BitTorrent decision. FCC loses, with court saying guidelines were unenforceable.
2010: FCC chairman Julius Genachowski strikes a deal with most ISPs over compromise Open Internet rules that are not based on Title II.
2011: Verizon sues FCC over rules.
2014: Court overturns 2010 order, but signals FCC can come up with different approach to regulate the internet.
2014: FCC chairman Tom Wheeler signals a non-Title II “different approach” to reinstating the rules.
2014: President Barack Obama posts an online video saying the FCC should reclassify ISPs under Title II of the Communications Act.
2015: Wheeler says Title II it is.
2016: Title II-based Open Internet order passes; ISPs sue; court upholds FCC’s decision; appealed to Supreme Court.
2017: In April, Pai announces plan to roll back Title II.
2017: FCC circulates November order to both roll back Title II and eliminate most net neutrality rules. Schedules Dec. 14 vote.

SOURCE:Multichannel News research

In a sweeping decision, FCC chair Ajit Pai is proposing to essentially wipe the slate clean of most net-neutrality regulations adopted under the Title II-based 2015 Open Internet order by the then Tom Wheeler-led FCC.

The Restoring Internet Freedom Draft Order  circulated earlier today (Nov. 21) repeals the bright-line rules against blocking, degrading and paid prioritization and pre-empts any attempts by states and localities to impose their own versions, according to senior FCC officials speaking on background.

The order will be publicly released Wednesday (Nov. 22), and is certain to get major pushback from Democrats on the Hill and activists elsewhere. 

The FCC concluded that the costs of the rules, which were substantial, outweigh the benefits. Eliminating virtually all the rules could leave the field open for Congress to adopt its own targeted, bright-line rules, as some Republicans were indicating following circulation of the item.

But it retains and even adds a transparency requirement that ISPs will have to publicly disclose if they engage in blocking, throttling, affiliate prioritization, or paid prioritization, and just what they are blocking or prioritizing.

The FCC will use transparency as the means of getting at potential anticompetitive conduct.

The Department of Justice could then decide whether those were threats to competition, and the Federal Trade Commission can police the internet practices of ISPs as it does with Google or Facebook, using its authority against unfair or deceptive activity.

ISPs have pledged not to block of throttle, and the officials said the FCC expects them to hold to those promises.

The Restoring Internet Freedom Draft Order will change ISPs from a telecommunications service under "heavy handed" Title II to an information service under "light touch" Title I, they said.

Mobile broadband would return to a private mobile radio service designation, so both wired and wireless would no longer be under Title II mandatory access conditions.

The FCC order re-evaluates the agency's authority under Sec. 706 and concludes it is not an independent grant of authority. Sec. 706 is the congressional directive to ensure that advanced telecommunications is made available to all Americans in a reasonable and timely fashion.

It modifies the transparency rule with the targeted disclosure additions. The item would eliminate additional reporting obligations under the Title II order because the costs outweigh consumer benefits.

The item eliminates the general-conduct standard as too vague.

Officials said they had vetted the millions of comments on the item, but pointed out that there were millions of form letters on both sides. They said to the extent the comments just stated opinions and did not offer new facts did not have much bearing on the order.

They said 7.5 million of those comments were the same comment submitted repeatedly.

"The time has come to overturn the market disrupting net neutrality and common carrier regulations that sacrificed decades of precedent and the independence of the agency for political ends while doing nothing to protect actual consumers,"said Commisioner Michael O'Rielly. "The Internet was a vibrant place of commerce and public discourse before the rules ever took effect and will continue to flourish after we discard this unnecessary and harmful regulatory overhang. I look forward to reviewing the Chairman’s proposal and working together to ensure that the order contains the necessary legal and analytical foundations, including preemption, to implement sound policy and withstand the challenges that are certain to ensue."

Democratic FCC commissioner Jessica Rosenworcel, who voted for the 2015 Open Internet order, labeled the new order offensive and called for public hearings on it before the Dec. 14 vote, saying: “Today the FCC circulated its sweeping rollback of our net-neutrality rules. Following actions earlier this year to erase consumer privacy protections, the Commission now wants to wipe out court-tested rules and a decade’s work in order to favor cable and telephone companies. This is ridiculous and offensive to the millions of Americans who use the Internet every day.

"Our Internet economy is the envy of the world because it is open to all," she continued. "This proposal tears at the foundation of that openness. It hands broadband providers the power to decide what voices to amplify, which sites we can visit, what connections we can make, and what communities we create. It throttles access, stalls opportunity, and censors content. It would be a big blunder for a slim majority of the FCC to approve these rules and saddle every Internet user with the cruel consequences.

"I’ve called for public hearings before any change is made to these rules, just as Republican and Democratic Commissions have done in the past," Rosenworcel added. "We should go directly to the American public to find out what they think about this proposal before any vote is taken to harm net neutrality.”