Critics Hopeful Backlash or Litigation Can Stop FCC Title II Net Neutrality Repeal
Net neutrality advocates hope they can thwart an FCC plan to undo Title II net neutrality regulation under the Communications Act, despite Republican commissioner support for a draft order. Sen. Ed Markey, D-Mass., and others at a Public Knowledge event Wednesday sought to galvanize opposition to the draft Chairman Ajit Pai circulated for a Dec. 14 vote. "We're going to need all of your help," Markey said. "I would urge everyone to consider ways in which we can get the item removed from the December agenda," said Sarah Morris, New America's Open Technology Institute open internet policy director. "The public outcry has been incredibly strong."
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Some spoke of legal challenges. "We are cautiously optimistic about our chances of getting this order overturned," said Incompas General Counsel Angie Kronenberg. “We feel pretty confident about some of the arguments that we have that this order is arbitrary and capricious, and we believe a court would look at this very seriously. ... There’s certainly a lot of evidence that’s not really dealt with in this particular order about the market power that the ISPs have. We don’t think that the chairman has done a very good job of explaining away things that the commission has taken note of about that power over the last two decades."
"We're optimistic," said PK Senior Policy Counsel Phillip Berenbroick. “The FCC when it changes course like this, it has discretion to do so, but it has to provide a basis. ... The draft order, while lengthy, is a little bit scanty on actual data analysis. We don’t think they’ve done a satisfactory job of showing why their decision isn’t arbitrary."
Commissioner Mignon Clyburn separately urged the agency to hold forums to hear consumer and small business concerns about the draft. If the FCC won't, Pai should withdraw his draft, Clyburn blogged. She said "the public outcry has been loud and fierce" since Pai first proposed to roll back Title II net neutrality in April. "My colleagues would benefit from hearing concerns about broadband providers’ poor service, surprise price hikes, and inadequate customer support, so, why won’t they?" she wrote. Fellow Democrat Jessica Rosenworcel also has sought agency hearings on Pai's proposals. An FCC spokesman declined comment, but Pai and fellow Republicans appear determined to vote on the draft Dec. 14 (see 1711280024). Pai backers believe his plan likely will win in court (see 1711270042).
"They’re coming like the grim reaper for all of these rules and regulations," Markey said. "It’s an absolutely 21st century set of rights that competitors and individuals should have."
Morris called it "a full-out repeal of the net neutrality protections of 2015 but also of the net neutrality ecosystem that existed for over a decade." Berenbroick called it "unprecedented" for the FCC to relinquish net neutrality authority and rely on transparency rules, other agencies and competition to discipline the market: "The idea that duopoly competition is sufficient to protect consumers, innovations ... it's surprising to see in print and taken seriously."
The draft failed to note consumers increasingly are opting for very-high-speed broadband that typically is offered by local "monopolies," Kronenberg said. She also said the draft would "skew" the internet transit market. The idea that internet startups can negotiate paid prioritization deals with large ISPs "is laughable" said Rachel Wolbers, Engine policy director. Most can't afford a lawyer until they have at least 10 employees, and won't be able to engage in protracted talks or litigation, she said.
Congressional offices are receiving "many, many phone calls," Berenbroick said: "The public is upset ... and understands what it means for their access to content" online. "The American people are with us on this," agreed Kronenberg, who said people should urge lawmakers to pressure the FCC to stop a vote.
Kronenberg said the agency brushed aside Incompas' request that evidence of broadband market power, in recent agency reviews of major transactions, be included in the docket. "The FCC is putting their fingers in their ears and saying, 'We don't want to hear it,'" Berenbroick said. Kronenberg said the agency also is ignoring DOJ concerns about potential AT&T video market power if the telco is allowed to buy Time Warner (see 1711290035).
Clyburn said net neutrality has been "a bipartisan bedrock principle for more than a decade." It was upheld in court and "has existed all while investment by broadband providers continues to grow," she wrote. "Broadband providers tell us to trust them -- that they have no interest in engaging in anti-consumer or anti-competitive practices. But the record contains many real-world examples when broadband providers blocked lawful applications, such as when several wireless providers blocked Google Wallet in favor of these providers’ own affiliated app."
Net Neutrality Notebook
Many comments in the FCC proceeding "include false or misleading personal information," said the Pew Research Center Wednesday, which analyzed comments. "Some 57% of the comments utilized either duplicate email addresses or temporary email addresses created with the intention of being used for a short period of time and then discarded. In addition, many individual names appeared thousands of times in the submissions," said Pew, citing difficulty in determining if any given comment came from a particular citizen or from somebody submitting multiple comments. "There is clear evidence of organized campaigns to flood the comments with repeated messages," since only 6 percent of comments "were unique," it said. "Often, thousands of comments were submitted at precisely the same moment."