Credo Action delivers flowers to the FCC

Over the last two days, the SavetheInternet.com Coalition, their allies and other broadband activists have delivered more than two million signatures from Americans demanding the Federal Communications Commission adopt real Net Neutrality reforms.

FCC Chairman Julius Genachowski is pushing a set of weak regulations that give just about everything to giant phone and cable companies, and leave Internet users with almost nothing.

We still have time to fix this toothless rule before it goes to a vote Dec. 21. Hence, the petitions.

The petition marathon comes as the FCC closes the public comment period on proposed Net Neutrality reforms.  Public interest groups ranging from Free Press, Common Cause, Credo Action, ColorofChange.org, and Public Knowledge, among others were involved in the petition relay.

Credo Action even sent flowers, protesting Genachowski’s apparent retraction on strong Net Neutrality.  Two massive funeral arrangements, one labeled “R.I.P. Net Neutrality” were delivered to the agency on Monday.

“The public will accept nothing less than real Net Neutrality,” said Misty Perez Truedson of Free Press. “No almost Net Neutrality, no half Net Neutrality and no fake Net Neutrality. And we hope that while he is considering his proposed rules, FCC Chairman Julius Genachowski remembers that millions of people are expecting him to keep his promise to protect the open Internet.”

[flv width=”640″ height=”500″]http://www.phillipdampier.com/video/2 Million.flv[/flv]

Watch this compilation of videos from those delivering the petitions to the FCC and learn more about why Net Neutrality is important.  (22 minutes)

The Cowardly Lion is back.

Federal Communications Commission chairman Julius Genachowski believes he has a sound legal basis to implement Net Neutrality policies to protect Internet traffic from provider interference, but has stopped considerably short of implementing his own proposed enforcement mechanisms.

Genachowski outlined his ideas to implement Net Neutrality reform in brief remarks before the Commission this morning.

“Broadband providers have natural business incentives to leverage their position as gatekeepers to the Internet,” the text of the speech says. “The record in the proceeding we’ve run over the past year, as well as history, shows that there are real risks to the Internet’s continued freedom and openness.”

Genachowski praised the progress the Internet has managed to achieve over the past decade, and said his efforts would ensure that progress could continue with a minimum of regulation.  In that spirit, Genachowski announced he would not move that the Commission re-assert its legal authority to oversee broadband by a process to reclassify the service under Title II, which governs telecommunications services.

Comcast successfully sued for repeal of the Commission’s original authority, implemented by Bush FCC chairman Michael Powell, which classified broadband as “an information service.”  A DC Circuit Court discarded the legal basis for Powell’s regulatory authority in a sweeping victory for the cable giant, which was sued for throttling down speeds for broadband customers using peer to peer applications.

Genachowski argued he has “a sound legal basis” to pursue his latest vision of Net Neutrality rules in spite of the earlier court case.  But critics doubt that and charge that the FCC chairman has capitulated to America’s largest broadband providers, including Comcast, AT&T, and Verizon.

Genachowski's view of the Internet does not meet the realities consumers face without Net Neutrality protection assuring a free and open Internet.

“By not restoring the FCC’s authority, Chairman Genachowski is unnecessarily placing his Net Neutrality agenda, and indeed his entire broadband agenda, at risk,” said Free Press executive director Josh Silver.

Boiled down, Genachowski now seeks just two major principles governing provider behavior:

1. No censorship of content.
2. Full disclosure of network management techniques so consumers know what providers are doing to their broadband connections.

Consumer groups are furious that the chairman has apparently discarded many of Net Neutrality’s most important consumer protections, and accused him of caving in to lobbyist demands and abdicating his responsibility to oversee critical broadband infrastructure.

Marvin Ammori, a cyber-activist and public interest law professor said the proposal also fell well short of meeting President Barack Obama’s repeated promises to enact strong Net Neutrality policies.

“It’s make-believe Net Neutrality,” said Ammori, who called Genachowski’s proposals “garbage” and “meaningless gestures.”

Now off the table:

A ban on Internet Overcharging schemes that allow providers to limit, throttle, or overcharge consumers who use more than an arbitrary amount of Internet usage per month. This exposes home broadband users to the same kinds of bill shock that wireless customers already experience.

A ban on using “network management” to artificially slow or block traffic the provider — at its sole discretion — determines is “harmful” or “congests” their network. Under Genachowski’s new proposal, the definition of “harmful” could be made by an engineering department on technical grounds or in an executive suite as companies ponder their financial returns. So long as they manage traffic without “unreasonable discrimination,” it’s okay with the Commission.

Built-in loopholes guarantee providers need only set rates high enough to assure only “preferred partners” can afford the asking price, and that only their competitors meet the definition of “harmful” traffic worthy of speed throttling.  The proposal also reportedly only covers video and voice traffic on wireless networks.  It’s open season on everything else if you access the web from a smartphone or wireless broadband service.

Actual legal authority to implement any broadband reform policies. It was Julius Genachowski and the FCC’s General Counsel Austin C. Schlick that argued without asserting legal authority under Title II, nothing the Commission did could be assured of withstanding a court challenge.  Yet today the chairman now claims his legal team has found some legal precedents that somehow will keep his policies in force after inevitable lawsuits are filed.  Former FCC chairman Powell thought much the same thing about his own idea of reclassifying broadband as “an information service.”  The DC Court of Appeals thought otherwise, something Schlick knows personally, having fought the Comcast case before that court.  In the end, Schlick correctly guessed his case was a train wreck, and was reduced to asking the court for legal pointers about how to draft regulations that could survive a court challenge.

[flv width=”640″ height=”380″]http://www.phillipdampier.com/video/The Third Way The Future of Internet Policy in America 5-2010.flv[/flv]

This “other” Julius Genachowski from May of this year delivered remarks that carried a very different tone about the importance of restoring legal authority to oversee broadband.  But that was before AT&T put him on their speed dial, successfully reaching him personally more than a half dozen times in the last few weeks to argue their point of view.  Consumers don’t have Julius Genachowski’s phone number.  (4 minutes)

In short, Genachowski’s proposals represent near-total victory for providers, and any cable or phone company annoyed with the few scraps still on the agenda need only file suit arguing the Commission lacks the authority to stick its nose into their business affairs.  Without Title II authority in place, that lawsuit is probably going to result in a favorable ruling putting us back where we are today — with no Net Neutrality protections.  But by then, the Internet will be a very different place, loaded with toll booths from content providers and your ISP, who may ask for extra money if you want to watch Netflix or download files.  Your speeds may be reduced at any time, to any level, if a provider deems you’ve over-consumed your traffic allowance for that day, week, or month.

Worse, some providers will dispatch bills with overlimit fees that could run into the hundreds of dollars (or more) for those with a family member who left a high bandwidth application running while running out the door to catch the school bus.

Providers and their well-paid lobbyists celebrate their victory over consumers' wallets

So long as providers agree to abuse everyone more or less equally (excepting their own “preferred partners” of course), Julius Genachowski believes the next ten years of America’s online experience can be as great as the last.

In his dreams.  As Public Justice attorney Paul Bland said about dealing with ruthless companies like AT&T, assuming providers will behave favorably towards consumers puts you on the candy bridge into Rainbow Land.

Even with Genachowski’s proposed reforms, diluted to be point of being homeopathic, Republicans were moving in for the kill this morning.

Rep. Marsha Blackburn (R-Tenn.) a member of the House Energy and Commerce Committee, said she would work to topple any FCC-led Net Neutrality order.

“This is a hysterical reaction by the FCC to a hypothetical problem,” she said, adding that Genachowski “has little if any congressional support” for the action.

To overturn any order, Blackburn vowed to reintroduce her bill to prevent the FCC’s policy making process.

Robert McDowell, one of two Republican FCC commissioners, called the move to enact reforms a defiance against Congressional will.

“Minutes before midnight last night, Chairman Genachowski announced his intent to adopt sweeping regulations of Internet network management at the FCC’s open meeting on December 21. I strongly oppose this ill-advised maneuver. Such rules would upend three decades of bipartisan and international consensus that the Internet is best able to thrive in the absence of regulation,” McDowell said in a prepared statement.

All this is taking place at the same time Comcast has foreshadowed America’s future broadband experience: charging backbone provider Level 3 extra for sending Comcast customers online movies and TV shows, censored a blog run by one of its customers trying to get around Comcast’s unresponsive customer service agents, stifled innovation by independent cable modem manufacturer Zoom Modems, has achieved a fever pitch in lobbying Washington to hurry up and approve its colossal merger deal with NBC-Universal, and has a lobbying team convinced it can achieve victory on all fronts from a favorable incoming Congress.

If they and other broadband providers succeed, it’s time to get out your wallet and count your money before handing it over.  A consumer revolt is all that stands between your Internet experience today and an endless series of pay-walls and stifled speeds tomorrow.

Three years ago, Bush Administration FCC Chairman Kevin Martin championed an initiative to offer free national Internet access across the United States via wireless access.  Martin’s idea was to take a portion of unused spectrum and auction it to a company that agreed to set aside 25 percent of the 2 GHz “AWS-3” band for a free, slow speed Internet service.  The winning bidder could underwrite the free service with online advertising and sell access to the remaining 75 percent of the spectrum, presumably for faster access.  Think NetZero for the 21st century.

That proposal just happened to coincide with a nearly identical plan offered by M2Z Networks Inc., a politically-connected start-up backed by Kleiner Perkins Caufield & Byers partner John Doerr and loaded with former FCC people.

M2Z had everything the FCC wanted from an applicant:

• a minority owned business that would raise the percentage of minority-owned telecommunications businesses;
• a willingness to agree to Martin’s demands that the free Internet service be censored to remove adult content;
• sufficient financial backing to win the spectrum auction;
• political connections that could help drive the plan through a political minefield and objections from incumbent commercial providers.

John Muleta, co-founder and CEO of M2Z Networks, also headed the FCC's Wireless Telecom Bureau between 2003 and 2005.

M2Z planned to offer free Internet access below the definition of broadband speeds defined in America’s National Broadband Plan — 768kbps, and would also include web advertising injected by M2Z.  Premium, paying customers could access faster speeds and avoid the extra advertising.

Unfortunately for the project’s boosters, Martin’s maverick proposal met a roadblock of opposition, including from his boss, President George W. Bush.  Commercial providers, especially AT&T, Verizon, and T-Mobile immediately attacked the plan.  AT&T and Verizon did not want a competitor giving away free wireless access when they were charging top dollar for it.  T-Mobile objected, fearing interference to spectrum it owned nearby (fears that proved not credible).  Civil rights and consumer groups objected to Martin’s insistence that adult content be blocked using imperfect filtering software.  Still others thought M2Z would never be able to cover 95 percent of America within a decade, as required by Martin’s proposal.  Some speculated M2z would launch service, deploy it to major cities, and then petition the FCC to forget about the 95 percent requirement.

Philosophically, many industry groups also objected to the Commission sticking its nose in private company business plans, dictating the services offered by the winning bidder.

Despite some willingness by M2Z to compromise on issues like the “smut filter,” with the remaining parade of opposition it came as no surprise the FCC left M2Z’s proposal on the back burner for the remainder of the Bush Administration.

With the arrival of the Obama Administration, Kevin Martin was out at the FCC.  In came Julius Genachowski and a National Broadband Plan.

The concept on offer from M2Z just didn’t fit the vision of America’s broadband transformation.  Although wireless 3G and 4G networks remained hot topics, other wireless projects have simply not gotten as much attention outside of rural areas.  As many community-owned Wi-Fi services shut down, the concept of free, slow-speed broadband just wasn’t a hot topic any longer.  Even worse, approving a plan offering speeds well below the FCC’s proposed definition of broadband threatened to muddy the message America needs faster access.  Last week, the FCC quietly sent word to M2Z that they had rejected their proposal, effectively killing the venture.

How broadband advocates frame broadband expansion can be critical to the plan’s success.  Critics already opposed to broadband stimulus programs could argue M2Z offered a free market, privately-funded solution to Internet adoption without spending billions of taxpayer dollars.  Although 768kbps would offer little to solve the digital divide, totally free access isn’t something easily ignored, even if M2Z was never capable of extending service to 95 percent of the country.

But in the end, vociferous objections from AT&T, Verizon, and T-Mobile were probably the primary reason for the plan’s ultimate demise.

After all, if you could get free wireless access at speeds comparable to what several carriers realistically deliver to their 3G customers today for upwards of $60 a month, would you remain a paying customer?

[flv]http://www.phillipdampier.com/video/C-SPAN M2Z Networks The Communicators 10-11-07.flv[/flv]

In October 2007, C-SPAN’s “The Communicators” spent 30 minutes discussing the state of competitiveness in American broadband and how M2Z planned to shake up the duopoly.  Three years later, the duopoly remains and M2Z’s plan is dead.  (29 minutes)

Dick Cheney's ghost is haunting the halls at the FCC these days as the agency conducts secret, closed-door meetings with just four companies to achieve "common ground" on broadband regulation. Consumers are not invited to attend.

In 2001, Vice President Dick Cheney convened the first meeting of the always-off-the-record National Energy Policy Development Group.  Secretly inviting executives of the nation’s largest oil companies and lobbyists for natural gas and mining, Cheney hoped to find “common ground” on energy issues that he could translate into legislation on Capitol Hill.  The final report kept the names of the self-interested corporate executives off the member roster, and predictably called for legislative actions that would directly benefit those in attendance.

In June 2010, a series of meetings with FCC Chairman Julius Genachowski’s chief of staff and executives from AT&T, Verizon, Google and Skype got underway to find “common ground” on the issues of broadband regulation and Net Neutrality.  With irony, the same FCC that promised it would be “the most open and transparent ever” has barred the press and the public from participation.  No consumers were invited.  No minutes from the meetings will be disclosed.  In short, these are “closed-door” meetings.

Even more surprising, apparently the FCC forgot to invite Comcast, the cable conglomerate most directly responsible for the agency having its authority cut from beneath it in the first place.

When the Washington Post asked Eddie Lazarus, Genachowski’s chief of staff, what was on the agenda, only vague notions about “seizing the opportunity” to find common agreement on issues like Net Neutrality were disclosed.  Lazarus added the big four were also there to give input on Congress’ interest in revising the Communications Act.

That’s great news for thousands of Washington’s lobbyists who helped fashion the disastrous 1996 Communications Act that represented Christmas morning for corporate interests — more deregulation in the broadcast business which lead to massive consolidation, giveaways to the cable and telephone industry, and more handouts to wireless companies.

What was supposed to be a law to govern the public interest of the airwaves and telecommunications turned into a lobbyist feeding frenzy.  Consumers couldn’t afford the price of admission. Reopening the Communications Act means telecom companies from coast to coast can get busy working on their Christmas wish lists for the 500+ Secret Santas that live and work in the legislative branch of government these days, especially on the Republican side of the aisle.

Of course, the real outrage here is the FCC’s hope that the four companies can reach some agreement on contentious broadband issues and then the agency can do away with the entire matter of broadband regulatory reform.  Why fight the battle if you can compromise the issue away?  No matter what the four agree on, there are still many outstanding issues relating to consumer protection which cannot be negotiated by four corporate entities.

Those on both sides of the broadband regulatory issue are appalled at the secrecy.  Brett Glass, who opposes Net Neutrality and runs a WISP in Wyoming asked, “What happened to Chairman Genachowski’s promises of “the most open and transparent FCC ever?”

Indeed.

Lazarus tried his best to paper over the serious implications of holding secretive meetings in a blog post:

Senior Commission staff are making themselves available to meet with all interested parties on these issues. To the extent stakeholders discuss proposals with Commission staff regarding other approaches outside of the open proceedings at the Commission, the agency’s ex parte disclosure requirements are not applicable. But to promote transparency and keep the public informed, we will post notices of these meetings here at blog.broadband.gov. As always, our door is open to all ideas and all stakeholders.

In part, here was our response to Mr. Lazarus:

There is no transparency or openness in closed-door meetings that bar the public from participation. It’s just more of the same inside-the-beltway deal-making that will undercut consumers. Believe it or not, there is more at stake here than whatever issues Verizon, AT&T, Google, and eBay have to discuss.

And what if the four agreed on anything (improbable)? Does that mean the rest of us are expected to go along to get along?

The FCC’s door is -not- open to all ideas and stakeholders when the chairman’s chief of staff only invites four voices to his table.

There is nothing open and transparent about secret meetings peppered with excuses about why disclosure rules do not apply.

[Update 10:30am ET Wednesday — The DailyFinance quotes a government source: “We fu*ked up,” a government source familiar with the meetings told DailyFinance. “We deserve the bad press. It was a process foul at a minimum.”]

Pelosi

House Speaker Nancy Pelosi (D-California) is not impressed with the telecom industry effort to oppose Net Neutrality and broadband policy reform.  Pelosi was referring to two talking-point-infested letters sent to FCC Chairman Julius Genachowski opposing Commission efforts to restore regulatory oversight of the broadband industry lost in a recent court decision.

Speaking for the Democratic majority, Pelosi told bloggers the effort was destined to fail unless Democrats suddenly develop a bipartisan streak, long absent in the House, to sign on Rep. Cliff Stearns’ (R-Florida) anti-oversight bill, something she considers unlikely.

“I don’t know how many options they have unless they choose to work with Republicans, but it’s not going to be a Democratic initiative,” she told bloggers on the conference call.  She added:

“Part of the innovation agenda I advocated for when I became Leader was universal broadband. We had hoped to get it done within five years. We just got the bill passed three years ago under President Bush, but we had no funding. Now we want to have the resources to take us to that place so we don’t have a disparity between urban and rural populations. Reclassification, net neutrality, universal access for every American, these are priorities for us. And we see it not in isolation but as part of a new prosperity, as a job creator, to make America healthier, smarter and an international leader.”

Firedoglake reports pro-consumer Net Neutrality advocates have a letter of their own thanks to Rep. Jay Inslee (D-Washington):

The PCCC has a petition to sign in support of Inslee’s letter, as well as a tool to contact your Representative in the House to tell them to get on board. Today, Speaker Pelosi spoke about the need to educate Representatives on why this is so important, so get to it! Pick up the phone and call, and tell your elected official that you want the Internet protected from greedy corporations.