More Than 1,000 Net Neutrality Comments Crash FCC Electronic System; Some Delivered By Hand

Through Tuesday, the FCC has received 779,383 comments, up from the 677,000 comments already in Monday, a spokesman said. The FCC acknowledged problems in a tweet at 9:59 a.m., citing the heavy load. The FCC last saw similar issues in early June after comedian John Oliver encouraged viewers to file comments slamming the agency’s proposed rules (CD June 3 p5).

On Monday, the FCC released a record of the number of comments (http://bit.ly/1kZQXaf) it has received on an hour-by-hour basis since May 14, the day before the proposed rules were approved at an FCC meeting. The number of net neutrality filings peaked June 2, at 850 during the 10 p.m. EDT hour. Over the past few weeks, the numbers have been relatively low, sometimes in single digits as the furor appeared to die down.

FCC as DMV

"Looks like the FCC’s turned into the DMV,” said MediaFreedom.org (http://bit.ly/1kteMY3), which calls itself a nonprofit watchdog of groups like Free Press. “The agency wants to run the Internet with its expansive Net Neutrality rule and yet they can’t even get file transfers right (when it knows a ton are coming).” FCC officials told us the problems experienced by ECFS Tuesday once again show that FCC information technology systems are badly in need of modernization. The FCC has asked Congress to approve funding for a system upgrade, one official said.

Despite the technical difficulties, the debate continued to rage. “Net neutrality is a solution in search of a problem,” said Harold Furchtgott-Roth, a former FCC commissioner and now a senior fellow at the Hudson Institute, at a webinar on net neutrality sponsored by the Digital Policy Institute at Ball State University. “The parade of horribles you hear is about hypotheticals.” Other agencies can handle remedies for any attempt to block or give preference, he said. To address the issue through common-carrier regulations, the FCC would have to “conjure up” common-carrier rules “the courts have said doesn’t exist,” said Furchtgott-Roth.

Briefs appealing any decision have probably already been written, and would be filed after the approval of any regulation “in a New York minute,” said Babette Boliek, an associate law professor at Pepperdine University and visiting fellow at the American Enterprise Institute Center for Internet, Communications and Technology Policy. She spoke at the Digital Policy Institute panel dominated by those opposed to net neutrality regulations. Many of the potential problems brought up by proponents of regulations could be handled through antitrust laws, she said. A “light-handed approach” similar to that being advocated by FCC Chairman Tom Wheeler would allow IP providers and edge companies to negotiate agreements and any problems that should arise would be dealt with later, said Hal Singer, principal at Economists Inc. and senior fellow at the Progressive Policy Institute.

'Fired Up’

"That the FCC had to extend the deadline for comments shows how this issue has people fired up and demanding better rules,” said Delara Derakhshani, policy counsel for Consumers Union, in a news release. “The future of the Internet is at stake. Paid prioritization deals should be banned outright."

"In close to a decade of fighting for the open Internet, I've never seen more awareness and enthusiasm about this issue,” said Free Press President Craig Aaron in a written statement. “Millions of Internet users have flooded the agency with support for real Net Neutrality. And almost no one outside FCC Chairman Tom Wheeler’s office is advocating for his pay-to-play proposal."

The FCC should reject proposals to impose Title II regulation on broadband services, USTelecom said in its comment to the agency, according to post on the organization’s blog (http://bit.ly/1zGsMrp). “A shift to last century Title II regulation, even if it could overcome substantial legal hurdles, could jeopardize investments and innovation by broadband and edge providers in a sector that is a major driver of the United States economy.”

There’s no legal basis for the commission to prohibit ISPs from signing paid prioritization agreements with edge providers, said the Independent Telephone & Telecommunications Alliance, which represents mid-sized telcos, in comments filed Tuesday, according to a news release. Section 706 “provides no authority for such action because it would constitute impermissible common carrier regulation of information services,” the filing said. It said the commission also lacks authority to prohibit paid prioritization under Title II, because “a long line of legal precedent has established that this provision allows carriers to charge different prices for different services.” The commission should also refrain from adopting enhanced transparency rules, because there is “no evidence of market failure that would justify the burdens associated with such requirements,” ITTA said. The Free State Foundation said that instead of a “heavy-handed regulatory approach ... the best approach almost certainly is a free market-oriented approach,” in comments submitted Tuesday, according to a news release.

If the commission adopts rules, “the worst approach” would be to classify broadband providers as common carriers under Title II, FSF said. Title II is designed to regulate service providers operating in a monopolistic marketplace environment, and it “may have been appropriate at a time when Ma Bell possessed monopolistic power but this regulatory paradigm is particularly ill-suited to almost all of today’s dynamic, competitive communications marketplace,” the filing said.

Berin Szoka, president of TechFreedom, said the net neutrality comments are important, though not for the reasons many might cite. “The way the NPRM was worded and most of the intel I've heard suggests that Democrat commissioners sought comment about Title II not because they seriously plan to use it, but because they faced enormous political pressure to consider the option -- and that they're looking to the comments to explain why Title II isn’t workable,” he said. Rejecting Title II regulation will make the FCC “more likely to look for other concessions to make to those pushing hardest for more stringent [rules]. So, the comments may play a key role in determining how the FCC tweaks its proposals on the margins.”