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  1. Public support for the concept combined with adoption from the Democrats has sparked renewed optimism. WASHINGTON — Somebody tell John Oliver — the battle over net neutrality is back on. Democrats are expected to use their upcoming control of the House to push for strong net neutrality rules — put in place by the Federal Communications Commission under President Barack Obama but pulled back by President Donald Trump’s FCC — highlighting how the once-wonky concept has become a national issue. While net neutrality advocates are expecting a setback in the near term (a Senate effort to undo the FCC’s decision is expected to fail), public support for the concept combined with adoption from the Democrats has sparked renewed optimism. “The FCC’s repeal sparked an unprecedented political backlash, and we've channeled that internet outrage into real political power,” said Evan Greer, deputy director of Fight for the Future, a digital rights-focused non-profit organization. “As we head into 2019, net neutrality supporters in the House of Representatives will be in a much stronger position to engage in FCC oversight.” The FCC did not respond to a request for comment. Net neutrality refers to the concept that internet networks (and the companies that run them) should not block or manipulate web traffic. While most internet providers have agreed to abide by rules against blocking legitimate websites, net neutrality advocates have argued that major internet providers could prioritize internet traffic for profit, effectively scuttling the open nature of the internet and turning it into a system closer to cable TV. Net neutrality rules have been the subject of a decade-long push and pull that began in 2008, when the FCC punished Comcast for interfering with uploads to file-sharing service BitTorrent. Since then, the FCC’s rules and role in enforcing net neutrality have been the subject of a series of commission votes and court rulings. Comcast is the owner of NBCUniversal, the parent company of NBC News. Net neutrality as a political flashpoint, however, is a relatively new phenomenon. The topic became entered the national consciousness in large part due to John Oliver, who tackled the topic on his HBO show with a humorous segment on the topic and then-FCC Chairman Tom Wheeler, who helped push for the net neutrality rules and later received an apology from Oliver. Despite Oliver’s segment, it was something of a surprise when Obama endorsed strong net neutrality rules in 2014. Now, most Democrats have now come out strongly in favor of the rules. “Americans have greatly benefitted from an accessible and unrestrained internet,” said Sen. Corey Booker, D-N.J. “It’s why I’ve been fighting to preserve net neutrality protections since the Trump administration entered office and began their efforts to repeal them.” Democrats will officially take control of the House on Jan. 3, and speculation about who the party will run against Trump in 2020 has already begun in full. Gigi Sohn, a former lawyer at the FCC who is now a fellow at the Georgetown Law Institute for Technology, Law and Policy, said she expects Democrats to use their new power to push for the restoration of strong net neutrality rules — and for the topic to be on the lips of presidential hopefuls. “I have no doubt that bills to restore the 2015 rules will be introduced in both the Senate and the House relatively early on,” Sohn said. “Every Democratic candidate for president, this is going to be one of their top issues.” Jessica Rosenworcel, an FCC commissioner who has been a vocal supporter of net neutrality, noted that it has become a national issue — and one that has broad approval from Americans. She pointed to a University of Maryland study that found 83 percent of people surveyed were against the FCC’s move to undo the rules around net neutrality. “The only place that this has become partisan is in Washington, D.C.,” Rosenworcel said. “We awoke a sleeping giant.” On the state level, governors are already taking executive actions to protect net neutrality, and through bipartisan efforts, lawmakers in 30 states have introduced legislation to put in place net neutrality protections and standards. Ernesto Falcon, legislative counsel at the Electronic Frontier Foundation, helped organize a grassroots campaign around the passing of California’s S.B. 822, one of the earliest laws to establish rules around net neutrality on the state level. Falcon said he is “extraordinarily confident” that proponents of net neutrality will win. “It really just boils down to how one side of the polling is in this space,” Falcon said. Though California’s bill, deemed a “gold standard,” will remain stagnant until pending litigation around last year’s FCC rollback of the federal rules is resolved, it represents opportunities advocates are pursuing to preserve net neutrality across all branches of government. The consolidated appeals against the FCC’s deregulation of Internet providers will be decided in D.C.’s Circuit Court. Oral arguments are set to begin on Feb. 1, 2019. Source
  2. Monday October 1, 2018 5:20 AM PDT by Mitchel Broussard On Sunday, California Governor Jerry Brown signed a bill into law that will bring back strict net neutrality protections to users in the state, four months after net neutrality officially expired in the United States thanks to the FCC's vote to repeal the regulations last December (via USA Today). Now that California has renewed net neutrality in the state, the United States Justice Department has filed a lawsuit in attempt to strike down the bill. In a statement, the Justice Department says that California's Senate Bill 822 "unlawfully imposes burdens on the Federal Government’s deregulatory approach to the Internet." Attorney General Jeff Sessions and FCC Chairman Ajit Pai also commented on the lawsuit: Sessions: “Under the Constitution, states do not regulate interstate commerce—the federal government does. Once again the California legislature has enacted an extreme and illegal state law attempting to frustrate federal policy. The Justice Department should not have to spend valuable time and resources to file this suit today, but we have a duty to defend the prerogatives of the federal government and protect our Constitutional order. We will do so with vigor. We are confident that we will prevail in this case—because the facts are on our side.” Pai: “I’m pleased the Department of Justice has filed this suit. The Internet is inherently an interstate information service. As such, only the federal government can set policy in this area. And the U.S. Court of Appeals for the Eighth Circuit recently reaffirmed that state regulation of information services is preempted by federal law. California is not the first state to pass its own net neutrality bill, but none have yet been as strict. Under the law, California broadband providers will not be able to slow down or block any websites, charge higher fees to customers to receive faster internet speeds, and the law also limits some zero-rated data plans. Without net neutrality regulations, internet service providers like Comcast, Verizon, and AT&T have the legal ability to throttle any traffic on their networks, and block access to sites and services completely, as long as they inform their customers of their actions. In essence, many have theorized that this could lead to ISPs bundling "packages" of internet sites and selling them like cable companies, as well as putting high-paying customers in "fast lanes" and everyone else in "slow lanes." Net neutrality opponents, like Pai, say this will lead to "better, faster, cheaper internet access for consumers, and more competition." They also cite the return to an "open" and less regulated internet, seen prior to the 2015 induction of net neutrality. Numerous technology companies have voiced support of net neutrality over the past year, including Apple, Google, Amazon, Netflix, and more. Apple last year stated that the net neutrality repeal could "fundamentally alter the internet as we know it," and if it passed it would be put in place to the detriment of consumers, competition, and innovation. For California, a legal battle will now happen between the state and the Justice Department, with a few other individuals opposing California's law. This includes U.S. Telecom Association CEO Jonathan Spalter, who 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." Source
  3. Consumer advocacy groups face off against the FCC in their attempt to vacate the 2017 ruling Why it matters: Net neutrality is once again on the forefront as the fight for an open internet rages on. After over a year of appeals, a consumer advocacy group led by Mozilla will begin making oral arguments to the D.C. Circuit Court of Appeals requesting that the FCC's 2017 decision to repeal net neutrality laws be vacated. Millions of Americans will be affected by the decision to either uphold or vacate the FCC's decision, as the power given to internet service providers hangs in the balance. Supporters of net neutrality will get their chance to square off against the Federal Communications Commission (FCC) beginning tomorrow, February 1st. The FCC decided in December 2017 to roll back Obama-era internet rules, opening the door for potential website and content favoritism by internet service providers. Net neutrality is the principle that all data should be treated equally by internet service providers. Without net neutrality laws in place, it's theoretically possible for broadband companies to discriminate against individual users and content. A high-profile example of this occurred in July 2017, when Verizon Wireless was accused of throttling users' speed when using Netflix and YouTube. Shortly after the FCC's decision, a coalition of state agencies, attorneys general, consumer advocacy groups, and internet businesses sued the agency and requested that the D.C. Circuit Court of Appeals vacate the repeal of neutrality rules. After over a year of debate, the coalition, led by Mozilla, will make their initial oral arguments at 9:30am on Friday. At the core of the petitioners' argument is the question of whether or not broadband is defined as a telecommunications service. If so, then broadband is defined under US law as being "the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received." In layman's terms, this definition of broadband would mean that all transmissions are protected speech, and neither the content or the delivery can be manipulated or modified in any way by a controlling party. Tone-deaf FCC Chairman Ajit Pai has attempted to make the case that broadband is an "information service" and therefore does not fall under the telecommunications service laws. US law defines an information service as "the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications," and the classification as such would allow broadband companies to provide access as they see fit. Massachusetts Senator Ed Markey, a co-author of the Telecommunications Act of 1996, addressed the court battle and believes the broadband is clearly defined as a telecom service. "Both the plain language [of the law] and congressional intent make clear that broadband is a telecommunications service," Markey said. "As the House author of the bill I know firsthand what we intended in 1996. Yet, Chairman Pai ignored the statute and our intent when the FCC reclassified broadband to an information service and eliminated net neutrality rules." A recent example of the risks presented by the mitigation of net neutrality came in August 2018, when a fire department in Santa Clara, CA had its data service throttled by Verizon Wireless while fighting the historic Mendocino Complex Fire. The department had paid for unlimited data, but suffered throttling and were forced to pay an additional fee to restore their full bandwidth. Aside from the Santa Clara Fire Department debacle, there have been no major examples of ISPs taking advantage of relaxed net neutrality rules. But there is speculation that ISPs are simply waiting for the appeals process to play out before they start acting in ways benefiting their economic interests. If you're interested in following the case live, the D.C. Circuit Court provides live streams of oral arguments. If you'd like to dig even deeper, the petitioners' joint brief and the DoJ's defense are also publicly available. Original Article
  4. This week the possibility emerged that the ongoing government shutdown could delay net neutrality’s day in court — but the court was not sympathetic to the FCC’s request that the lawsuit be put off. Oral arguments for this major challenge to the agency’s rollback of 2015’s internet regulations will go ahead as planned on February 1. During a shutdown, federal employees — including government lawyers — must have specific authorization to continue working, since it’s illegal for them to do so without pay. In this case a judge on the case must effectively make that authorization. The FCC is among the many agencies and organizations affected by the shutdown, and many employees are stuck at home. As such it requested a postponement of an upcoming court date at which it and several companies and advocacy groups are scheduled to argue over its rollback of net neutrality. A counter-argument filed immediately by industry group INCOMPAS pointed out that during previous shutdowns, the court had not granted such requests and should stick to that precedent. The judges of the D.C. Circuit Appeals Court appear to agree with the latter argument; the FCC’s motion was denied and arguments will go forward as planned on February 1. This is definitely not good news for the FCC. While it no doubt has its ducks in a row as far as defending its net neutrality rollback and new rules in court (it has done so before and will again), it’s far from ideal that the case will take place after a prolonged absence of all the pertinent experts from their posts. Briefing the lawyers, updating arguments, responding to industry concerns — it’s not easy to do when all your staff is sitting at home watching “Bandersnatch” over and over. The lawsuit against the FCC has lots of good points to make about the rules it has established and the process by which it approved those rules, so this is no mere formality or frivolous suit. And net neutrality champions are likely happy to hear that they may very well catch the agency flat-footed. Source
  5. The biggest study yet finds Ajit Pai’s repeated claims that net neutrality hurt broadband investment have never been true. A new study has found the FCC’s primary justification for repealing net neutrality was indisputably false. For years, big ISPs and Trump FCC boss Ajit Pai have told anyone who’d listen that the FCC’s net neutrality rules, passed in 2015 and repealed last year in a flurry of controversy and alleged fraud, dramatically stifled broadband investment across the United States. Repeal the rules, Pai declared, and US broadband investment would explode. “Under the heavy-handed regulations adopted by the prior Commission in 2015, network investment declined for two straight years, the first time that had happened outside of a recession in the broadband era,” Pai told Congress last year at an oversight hearing. “We now have a regulatory framework in place that is encouraging the private sector to make the investments necessary to bring better, faster, and cheaper broadband to more Americans,” Pai proclaimed. But a new study from George Washington University indicates that Pai’s claims were patently false. The study took a closer look at the earnings reports and SEC filings of 8,577 unique telecom companies from Q1 2009 through Q3 2018 to conclude that the passage and repeal of the rules had no meaningful impact on broadband investment. “The results of the paper are clear and should be both unsurprising and uncontroversial,” The researchers said. “The key finding is there were no impacts on telecommunication industry investment from the net neutrality policy changes. Neither the 2010 or 2015 US net neutrality rule changes had any causal impact on telecommunications investment.” While the study is the biggest yet to do so, it’s not the first to reach this conclusion. Last year a deep analysis of industry financial data from consumer group Free Press found some ISPs actually invested more heavily in their broadband networks while net neutrality rules were active. Journalists had similarly found no meaningful impact on network investment from net neutrality, something confirmed by the public statements of numerous ISP CEOs. While this latest study took a more detailed look at ISP capital expenditures than previous efforts, all have been quick to note there’s a universe of factors that can impact broadband investment that have nothing to do with net neutrality, from natural disasters to a lack of competition in broadband markets. Many phone companies, for example, have refused to upgrade or even repair their aging DSL lines because they’re now focused on more profitable ventures like wireless advertising. Given huge swaths of America only have the choice of one ISP to choose from, there’s often little organic pressure for ISPs to put soaring profits back into the network or customer service. Despite clear evidence disproving the “net neutrality killed broadband investment” theory, both Pai and the telecom industry have repeatedly made the claim the cornerstone of public relations efforts for years, apparently hoping that repetition would forge reality. Last year, telecom lobbying group US Telecom released a study it claimed showed that broadband investment had spiked dramatically in 2017 thanks to “positive consumer and innovation policies” and a “pro-growth regulatory approach” at the FCC. The problem? The FCC’s net neutrality rules weren’t formally repealed until June of 2018. Gigi Sohn, a former FCC lawyer who helped craft the FCC’s 2015 rules, told Motherboard she hoped the comprehensive study would finally put an end to the debate. "This paper once again validates what the FCC found in 2015 and what net neutrality advocates have said for years—that neither the net neutrality rules nor Title II classification had any impact on ISP investment,” Sohn said. “Not surprisingly, the ISPs and their friends at the FCC and the Hill keep saying the opposite, despite overwhelming evidence to the contrary,” she added. “Hopefully this comprehensive study, which studies ISP investment over nearly a decade, will put this matter to rest.” Derek Turner, research director for consumer group Free Press, told Motherboard he doubted that would actually happen. “We don’t expect this study to kill the ISPs' zombie lies about net neutrality and investment,” he said. “The telecom companies and their defenders in Congress have long operated unmoored from reality, and no smoking gun is going to change that, certainly not one they’ll never bother to read and consider fairly.” The problem for the Pai FCC is that while industry may be ok with the agency playing fast and loose with the facts to the benefit of telecom giants, the courts have not been. The FCC has had three different major policy efforts reversed by the courts in as many months for being factually unsound, something that looms large over the net neutrality debate. 23 state attorneys general sued the FCC last year, claiming the agency ignored the public and hard data during its repeal of net neutrality. If the courts find the FCC justified its decision using falsified data (a violation of the Administrative Procedure Act) the repeal could be reversed and net neutrality restored. A ruling in that case is expected any day now. Source
  6. US regulator tries to hide embarrassment behind series of sudden announcements Comment The Federal Communications Commission (FCC) is asking the American public to tell it if its decision in 2017 to scrap net neutrality regulations was dumb or not. In a striking piece of irony – and one that the FCC is distinctly unhappy about – the watchdog is legally obliged to seek public comment on three issues: how its decision has threatened public safety, damaged broadband infrastructure rollout, and prevented poor people from getting access to fast internet access. That obligation is the result of a legal challenge to the FCC's decision to tear up net neutrality rules covering internet access in America. That attempt last year failed in court, largely because federal regulators are given significant leeway to decide their own rules, even when it comprises overturning their own rules made just two years earlier, in 2015. However, the court noted some serious concerns about the FCC scrapping its own rules, and so told the regulator it needs to gather public feedback on those issues and to consider what it needs to do to alleviate concerns. Normally this wouldn’t be a problem. It is simply a case of the judicial process carrying out its proper function: identifying issues, and seeking to get them rectified. But the net neutrality issue has become so ideological and partisan – thanks largely to the behavior of the FCC commissioners who pushed through a pre-decided outcome and actively ignored public opposition to their plans – that being forced to ask the public where it screwed up is in itself embarrassing. It is a virtual certainty that net neutrality advocates will gleefully take the opportunity to rail against the FCC, in just one more battle of words over the safeguards. Petty In a reminder of just how petty federal telecoms regulation has become, the FCC can’t even take this implicit rebuke professionally. And so it attempted to hide the reality of the situation by flooding its announcements website on Wednesday with suddenly important news and describing the public comment period in the most obscure terms possible. That’s why, this week, we were treated to a string of PR spin and quotes about how the FCC is doing a great job by opening up spectrum. “What They're Saying About Chairman Pai's C-Band Plan,” reads one announcement that features nothing but quotes from people like Vice-President Mike Pence and “Former Chairman of the House Permanent Select Committee on Intelligence Mike Rogers.” The next announcement covers the extremely important news that the FCC is closing an application to renew several radio stations. What else does the FCC have for us? Well, the vital fact it has decided on the membership of the Advisory Committee on Diversity and Digital Empowerment. That also gets its own press release and official announcement. Anything else? Yep. Here’s an entire release talking about how one FCC commissioner “applauds 5G workforce development grant.” We’re serious. Here we have Brendan Carr waxing lyrical about how he’s “thrilled that [Dept of Labor] has recognized the critical role of tower techs, linemen, and other 5G workers in building our country’s information infrastructure.” And in today's actual news... As for the only piece of real news this week – the public comment period on public safety sparked by the net neutrality decision – you could be forgiven for missing it altogether. While all the other headlines are extremely clear, this one is confusingly titled: “WCB Seeks Comment on Discrete Issues Arising from Mozilla Decision.” Not even a mention of net neutrality. The explanatory document is not much better. It is titled: “Wireline Competition Bureau Seeks to Refresh Record in Restoring Internet Freedom and Lifeline proceedings in light of the DC Circuit’s Mozilla decision.” (This is a reference to Firefox maker Mozilla's legal campaign against the FCC.) It’s hard to imagine a more obtuse explanation. Anyway, dig hard enough and the details are all in there: is there a risk to public safety communications due to packet prioritization? Would harmful conduct have been prohibited under the rules that were in place but were scrapped? Are there other ways to deal with potential public safety concerns? The FCC has clumped more convoluted versions of these questions together in long paragraphs, rather than break them out into clear and numbered questions as it frequently does when it is doing its job properly. There are other questions about pole attachments – which sounds dull but is critically important as one case currently in front of the Ninth Circuit makes clear. And on the Lifeline program that subsidizes broadband to low-income families. Rosenworcel to the rescue Now we’d love to tell you, Reg readers that we spotted this important public comment period despite the FCC’s best efforts to hide it because we are so attuned to telecoms policy and the FCC that it immediately threw up red flags. But the truth is that we only noticed thanks to FCC Commissioner Jessica Rosenworcel who remains the voice of sanity at the federal regulator. She saw what her colleagues were trying to do, and so put out her own release, which all commissioners are entitled to do. That release was titled “Rosenworcel On FCC Seeking Public Comment On Net Neutrality Remand.” Which was pretty clear. In her release, Rosenworcel speaks plainly. “The FCC got it wrong when it repealed net neutrality. The decision put the agency on the wrong side of history, the American public, and the law. And the courts agreed. That’s why they sent back to this agency key pieces regarding how the rollback of net neutrality protections impacted public safety, low income Americans, and broadband infrastructure,” she neatly summarizes. She goes on: “Today, the FCC is seeking comment on how best to move forward. My advice? The American public should raise their voices and let Washington know how important an open internet is for every piece of our civic and commercial lives. The agency wrongfully gave broadband providers the power to block websites, throttle services, and censor online content. The fight for an open internet is not over. It’s time to make noise.” To file a public comment, see the obfuscated info here [PDF] and submit your thoughts here, quoting proceedings 17-108 for net neutrality aka restoring internet freedom, by the end of March. Source
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