Phillip “Section 706 is a road to nowhere” Dampier

After thousands of consumers joined more than 100 Internet companies and two of five commissioners at the Federal Communications Commission to complain about Chairman Tom Wheeler’s vision of Net Neutrality, the head of the FCC claims he has revised his proposal to better enforce Internet traffic equality.

Last week, huge online companies like Amazon, eBay, and Facebook jointly called Wheeler’s ideas of Net Neutrality “a grave threat to the Internet.”

In response over the weekend, an official close to the chairman leaked word to the Wall Street Journal that Wheeler was changing his proposal. Despite that, a closer examination of Wheeler’s ideas continues to show his unwavering faith in providers voluntarily behaving themselves. Wheeler’s evolving definition of Net Neutrality is fine… if you live in OppositeLand. His proposal would allow Internet Service Providers and content companies to negotiate paid traffic prioritization agreements — the exact opposite of Net Neutrality — allowing certain Internet traffic to race to the front of the traffic line.

Such an idea is a non-starter among Net Neutrality advocates, precisely because it undermines a core principle of the Open Internet — discriminating for or against certain web traffic because of a paid arrangement creates an unfair playing field likely to harm Internet start-ups and other independent entities that can’t afford the “pay to play” prices ISPs may seek.

Paid traffic prioritization agreements only make business sense when a provider creates the network conditions that require their consideration. If a provider operated a robust network with plenty of capacity, there would be no incentive for such agreements because Internet traffic would have no trouble reaching customers with or without the agreement.

But as Netflix customers saw earlier this year, Comcast and several other cable operators are now in the bandwidth shortage business — unwilling to keep up investments in network upgrades required to allow paying customers to access the Internet content they want.

While there is some argument that the peering agreement between Comcast and Netflix is not a classic case of smashing Net Neutrality, the effect on customers is the same. If a provider refuses to upgrade connections to the Internet without financial compensation from content companies, the Internet slow lane for that content emerges. Message: Sign a paid contract for a better connection and your clogged content will suddenly arrive with ease.

Wheeler has ineffectively argued that his proposal to allow these kinds of paid arrangements do not inherently commercially segregate the Internet into fast and slow lanes.

But in fact it will, not by artificially throttling the speeds of deprioritized, non-paying content companies, but by consigning them to increasingly congested broadband pipes that only work in top form for prioritized, first class traffic.

With Wheeler’s philosophy “unchanged” according to the Journal, his defense of his revised Net Neutrality proposal continues to rely on non germane arguments.

For example, Wheeler claims he will make sure the FCC “scrutinizes deals to make sure that the broadband providers don’t unfairly put nonpaying companies’ content at a disadvantage.” But in Wheeler’s World of Net Neutrality, providers would have to blatantly and intentionally throttle traffic to cross the line.

“I won’t allow some companies to force Internet users into a slow lane so that others with special privileges can have superior service,” Mr. Wheeler wrote (emphasis ours) to Google and other companies.

But if your access to YouTube is slow because Google won’t pay Comcast for a direct connection with the cable company, it is doubtful Wheeler’s proposal would ever consider that a clear-cut case of Comcast “forcing” customers into a “slow lane.” After all, Comcast itself isn’t interfering with Netflix traffic, it just isn’t provisioning enough room on its network to accommodate customer demand.

Another side issue nobody has mentioned is usage cap discrimination. Comcast exempts certain traffic from the usage cap it is gradually reintroducing around the country. Its preferred partners can avoid usage-deterring caps while those not aligned with Comcast are left on the meter.

Wheeler

Some equipment manufacturers are producing even more sophisticated traffic management technology that could make it very difficult to identify fast and slow lanes, yet still opens the door to further monetization of Internet usage and performance in favor of a provider’s partners or against their competitors.

With Internet speeds and capacity gradually rising, the need for paid priority traffic agreements should decline, unless providers choose to cut back on upgrades to push another agenda. Already massively profitable, there is no excuse for providers not to incrementally upgrade their networks to meet customer demand. Prices for service have risen, even as the costs of providing the service have dropped overall.

Wheeler seems content to bend over backwards trying to shove a round Net Neutrality framework into a square regulatory black hole. Former chairman Julius Genachowski did the same, pretending that the FCC has oversight authority under Section 706 of the Telecommunications Act. But in fact that section is dedicated to expanding broadband access with restricted regulatory powers:

The Commission and each State commission with regulatory jurisdiction over telecommunications services shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools and classrooms) by utilizing, in a manner consistent with the public interest, convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment.

The spirit of the 1996 Telecom Act was  deregulation — that language pertaining to “regulatory forbearance” encourages regulators to restrain themselves from reflexively solving every problem with a new regulation. The words about “removing barriers to infrastructure investment” might as well be industry code language for the inevitable talking point: “deregulation removes barriers to investment.”

With a shaky foundation like that, any effort by the FCC to depend on Section 706 as its enabling authority to oversee the introduction of any significant broadband regulation is a house of cards.

The D.C. Circuit Court of Appeals agreed. In the Verizon network management case, the court found that the FCC was not allowed to use Section 706 to issue broad regulations that contradicted another part of the Communications Act.

U.S.C. 153(51) was and remains the FCC’s Section 706-Achilles Heel and the judge kicked it. This section of the Act says “a telecommunications carrier shall be treated as a common carrier under this [Act] only to the extent that it is engaged in providing telecommunications services.”

The current president of the National Cable & Telecommunications Association (NCTA) Michael Powell — coincidentally also former chairman of the FCC under President George W. Bush — helped see to it that broadband was not defined as a “telecommunications service.” Instead, it is considered an “information service” for regulatory purposes. This decision shielded emerging Internet providers (especially big phone and cable companies) from the kinds of traditional telecom utility regulations landline telephone companies lived with for decades. Of course, millions were also spent to lobby the telecom deregulation-friendly Clinton and Bush administrations with the idea to adopt “light touch” broadband regulatory policy. A Republican-dominated FCC had no trouble voluntarily limiting its own authority to oversee broadband by declaring both wired and wireless broadband providers “information services.”

Tom Wheeler is the former president of the National Cable & Telecommunications Association

So it was the FCC itself that caused this regulatory mess. But the Supreme Court provided a way out, by declaring it was within the FCC’s own discretion to decide how to regulate broadband, either under Title I as an information service or Title II as a telecommunications service. If the FCC declares broadband as a telecommunications service, the regulatory headaches largely disappear. The FCC has well-tested authority to impose common carrier regulations on providers, including Net Neutrality protections, under Title II.

In fact, the very definition of “common carrier” is tailor-made for Net Neutrality because it generally requires that all customers be offered service on a standardized and non-discriminatory basis, and may include a requirement that those services be priced reasonably.

Inexplicably, Chairman Wheeler last week announced his intention to keep ignoring the straight-line GPS-like directions from the court that would snatch the FCC’s attorneys from the jaws of defeat to victory and has recalculated another proposed trip over Section 706’s mysterious bumpy side streets and dirt roads. Assuming the FCC ever arrives at its destination, it is a sure bet it will be met by attorneys from AT&T, Comcast, or Verizon with yet more lawsuits claiming the FCC has violated their rights by exceeding their authority.

Wheeler also doesn’t mollify anyone with his commitment to set up yet another layer of FCC bureaucracy to protect Internet start-ups:

Mr. Wheeler’s updated draft would also propose a new ombudsman position with ‘significant enforcement authority’ to advocate on behalf of startups, according to one of the officials. The goal would be to ensure all parties have access to the FCC’s process for resolving disputes.

Anyone who has taken a dispute to the FCC knows how fun and exciting a process that is. But even worse than the legal expense and long delays, Wheeler’s excessively ambiguous definitions of what constitutes fair paid prioritization and slow and fast lanes is money in the bank for regulatory litigators that will sue when a company doesn’t get the resolution it wants.

Wheeler promises the revised proceeding will invite more comments from the public regarding whether paid prioritization is a good idea and whether Title II reclassification is the better option. While we appreciate the fact Wheeler is asking the questions, we’ve been too often disappointed by FCC chairmen that apply prioritization of a different sort — to those that routinely have business before the FCC, including phone and cable company executives. Chairman Genachowski’s Net Neutrality policy was largely drafted behind closed doors by FCC lawyers and telecom industry lobbyists. Consumers were not invited and we’re not certain the FCC is actually listening to us.

The Wall Street Journal indicates the road remains bumpy and pitted with potholes:

Mr. Wheeler’s insistence that his strategy would preserve an open Internet, without previously offering much insight into how, has been a source of disquiet within his agency. Of the five-member commission, both Republicans are against any form of net neutrality rules, which they view as unnecessary. Commission observers will be watching the reaction of the two Democrats, Ms. Rosenworcel and Mignon Clyburn, to Mr. Wheeler’s new language.

“There is a wide feeling on the eighth floor that this is a debacle and I think people would like to see a change of course,” said another FCC official. “We may not agree on the course, but we agree the road we’re on is to disaster.”

There is still time to recalculate, but we wonder if Mr. Wheeler, a longtime former lobbyist for the wireless and cable industries, is capable of sufficiently bending towards the public interest.

Neil Smit, CEO, Comcast Cable (left), Ryan Lawler, TechCrunch (right)

Of all the tech companies to turn up at TechCrunch’s Disrupt New York 2014 event, Comcast Cable seemed the least likely to qualify as the kind of innovative start-up TechCrunch loves to cover.

But there sat Comcast Cable CEO Neil Smit with TechCrunch’s Ryan Lawler, discussing Comcast’s mega-merger with Time Warner Cable, its peering agreement with Netflix, broadcast TV streamer Aereo, and Comcast’s legendary dismal customer service.

Smit’s arrival on stage to a smattering of tentative applause was a clear sign there was no love for the cable giant in the audience, particularly from many New York area Time Warner Cable customers dreading a future with Comcast.

Smit was immediately confronted with the fact Comcast was recently voted the Worst Company in America by Consumerist readers, prompting yet another promise that improving customer service was Comcast’s “top priority,” the same promise Comcast gave in 2007, 2008, 2009, 2010, 2011, 2012, and 2013.

“I think if there’s one thing to disrupt in our business, it’s customer service,” Smit added.

Smit defended Comcast’s merger with Time Warner, relying heavily on video subscribers to downplay the concentrated market power Comcast would have after the merger. Smit pointed out Netflix has the largest subscriber count of any pay television channel or platform and denied Lawler’s contention that a merger would give Comcast more than 50% of the American broadband market.

“I think the number is a little less than that — it is closer to 40% but if you include wireless than it would be less than 20%,” Smit responded, referring to the LTE 4G wireless networks from wireless carriers that come with very low usage caps and very high prices.

Smit also promised major broadband speed upgrades and other improvements for Time Warner Cable customers, but nobody mentioned Comcast’s gradual reintroduction of usage caps on residential broadband accounts.

Comcast Cable’s CEO also addressed several other hot button issues:

Smit claimed Comcast has a good working relationship with the FCC and is providing advice on whatever changes to Net Neutrality FCC chairman Tom Wheeler will propose later this month.

Despite the fact Comcast could ultimately benefit if Aereo is found to be legal by the U.S. Supreme Court, Smit recognized Comcast also owns NBC and other broadcast programmers and was concerned about the economic impact if cable operators stopped paying for over-the-air programming.

“We pay $9 billion a year for content,” Smit said. “One of the things that I question in the Aereo solution is: are they paying for content? The spend for that content has to come from somewhere.”

Smit also noted Comcast is increasingly targeting younger audiences by signing deals with college campuses to bring Comcast service to students to hook them as future subscribers. Comcast is also creating new packages with fewer channels to appeal to millennials. Smit also acknowledged many younger family members are accessing cable programming using passwords associated with their parent’s cable account.

[flv]http://www.phillipdampier.com/video/TechCrunch Interview with Neil Smit 5-6-14.mp4[/flv]

Here is the complete interview TechCrunch conducted with Comcast Cable CEO Neil Smit. (22:20)

LUS Fiber is Lafayette, La., municipal broadband provider.

During remarks at the National Cable Show in Los Angeles, FCC chairman Thomas Wheeler promised he would stimulate more broadband competition by overriding state laws that presently restrict or ban municipal broadband networks.

“One place where it may be possible is municipally owned or authorized broadband systems. I understand that the experience with community broadband is mixed, that there have been both successes and failures. But if municipal governments—the same ones that granted cable franchises—want to pursue it, they shouldn’t be inhibited by state laws. I have said before, that I believe the FCC has the power – and I intend to exercise that power – to preempt state laws that ban competition from community broadband.”

After making the remarks, a debate has emerged over the exact definition of “preempt.” With at least 20 states limiting or banning community-owned broadband networks, the FCC would have to overturn or invalidate the state laws to render them moot.

At least one judge — Laurence Silberman — believes the FCC has the authority to take “measures that promote competition in the local telecommunications market or other regulating methods that remove barriers to infrastructure investment.” In a footnote, Silberman wrote that “[a]n example of a paradigmatic barrier to infrastructure investment would be state laws that prohibit municipalities from creating their own broadband infrastructure to compete against private companies.”

A FCC spokesperson, in response to inquiries about Wheeler’s remarks, was less conclusive.

“It’s too early to say how [Wheeler] will address existing state laws,” said the spokesperson.

That leaves open the question about whether the FCC intends to cancel existing state laws or simply prohibit new ones from being enacted. That distinction could make a tremendous difference in states like North Carolina, where a fierce battle over protecting municipal broadband was lost when Republicans took control of the state government. Telecom lobbyists, often working under the auspices of the American Legislative Exchange Council (ALEC) have either directly banned municipal broadband networks from getting off the ground or placed so many restrictions on service to make projects untenable.

The Consumerist points out in Pennsylvania, municipal broadband is only allowed in communities if a telephone company does not provide any type of broadband to anyone in their service area. In Nevada, only towns with fewer than 25,000 people or counties with 50,000 can host community-owned broadband networks — numbers likely too low to sustain such a venture financially.

Neville Chamberlain, British Prime Minister, 1937-1940

“If you don’t succeed, try, try, try again.” — Neville Chamberlain, 1938

Another day, another damage control effort from FCC chairman Thomas Wheeler, still reeling from days of criticism in response to his plan to revisit the issue of Net Neutrality next month.

In a lengthy blog post, Wheeler still believes it’s all a big misunderstanding:

“Some recent commentary has had a misinformed interpretation of the Open Internet Notice of Proposed Rulemaking (NPRM) currently before the Commission,” writes Wheeler. “There are two things that are important to understand.  First, this is not a final decision by the Commission but rather a formal request for input on a proposal as well as a set of related questions.  Second, as the Notice makes clear, all options for protecting and promoting an Open Internet are on the table.”

Except they are not.

Wheeler channels former British Prime Minister Neville Chamberlain by declaring a deep desire for “peace in our time” with half-measures instead of direct confrontation with Big Telecom interests.

“I believe this process will put us on track to have tough, enforceable Open Internet rules on the books in an expeditious manner, ending a decade of uncertainty and litigation,” Wheeler declares. “The idea of Net Neutrality (or the Open Internet) has been discussed for a decade with no lasting results. Today Internet Openness is being decided on an ad hoc basis by big companies. Further delay will only exacerbate this problem.”

The troubles with Net Neutrality are a problem of the agency’s own making and its leadership’s utter failure to show courage in the face of Verizon, Comcast, and AT&T’s power and influence. Former FCC chairman Michael Powell (now top cable industry lobbyist) created the problem when he invented a classification for broadband as an “information service” out of thin air without any clear authority. At the heart of Powell’s “policy statement” were four basic Internet principles:

1. Consumers are entitled to access the lawful Internet content of their choice.
2. Consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.
3. Consumers are entitled to connect their choice of legal devices that do not harm the network.
4. Consumers are entitled to competition among network providers, application and service providers, and content providers.

Powell’s principles stood as long as the FCC’s policies moved in lock-step with the telecommunications industry. When the FCC strayed from industry talking points and started showing some enforcement teeth, some of the same telecom companies that send the FCC cupcakes took them to court.

Former FCC chairman Julius Genachowski who insisted the FCC had authority over broadband because he said so believed the best way forward was to involve the industry in the development of Net Neutrality policies they could live with. After multiple private phone conversations and closed-door meetings, companies like Verizon helped write the guidelines for protecting the Open Internet and then, after they were implemented, sued the FCC in federal court.

“We are deeply concerned by the FCC’s assertion of broad authority for sweeping new regulation of broadband networks and the Internet itself,” said Michael E. Glover, Verizon’s senior vice president and deputy general counsel. “We believe this assertion of authority goes well beyond any authority provided by Congress, and creates uncertainty for the communications industry, innovators, investors and consumers.”

That’s gratitude for you, and it wasn’t the first time.

Phillip “Your Wallet = Czechoslovakia” Dampier

In 2010, an exasperated D.C. Circuit Court of Appeals didn’t exactly encounter Perry Mason when the FCC legal team showed up to defend its order demanding Comcast cease throttling broadband traffic. When the FCC threatened to fine Comcast, the cable company sued claiming the FCC had no authority over how they run their broadband business. Commission lawyer Austin C. Schlick delivered a less-than-robust defense of the FCC’s scheme.

“If I’m going to lose I would like to lose more narrowly,” Schlick confided. “But above all, we want guidance from this Court so that when we do this rule-making, if we decide rules are appropriate we’d like to know what we need to do to establish jurisdiction.”

Justice A. Raymond Randolph had none of it.

“We don’t give guidance,” Randolph grumbled, “we decide cases.” The FCC lost.

Legal experts already knew the FCC was on thin ice.  First, the Powell’s statement was never codified by the Commission’s own rulemaking procedure.  Second, the Commission framed the broadband policy as a set of “guidelines,” a term considered legally vague.  Third, the FCC relied on the concept of “ancillary” authority — borrowing regulatory authority from so-called “policy statements” coming from Congress, to claim jurisdiction.

DC Circuit Court

So it should come as no surprise that the same framework declared invalid when the FCC tried to spank Comcast was just as useless in shoring up the FCC’s authority to enforce Net Neutrality.

U.S. Circuit Judge David Tatel, writing for a three-judge panel, said that while the FCC has the power to regulate Verizon and other broadband companies, it chose the wrong legal framework for its open-Internet regulations.

“Given that the commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the commission from nonetheless regulating them as such,” Tatel wrote.

Judge Tatel could not have been more clear. In his second ruling, he noted the FCC’s ongoing resistance to reclassify broadband service under the well-grounded definition of a “telecommunications service” is at the heart of the problem.

But Wheeler, like his immediate predecessor Julias Genachowski, still stubbornly grips Powell’s flawed framework like a life-preserver off the Titanic:

The FCC promises Verizon they won’t have to sue again.

I am concerned that acting in a manner that ignores the Verizon court’s guidance, or opening an entirely new approach, invites delay that could tack on multiple more years before there are Open Internet rules in place.  We are asking for comment on a proposed a course of action that could result in an enforceable rule rather than continuing the debate over our legal authority that has so far produced nothing of permanence for the Internet.

I do not believe we should leave the market unprotected for multiple more years while lawyers for the biggest corporate players tie the FCC’s protections up in court.  Notwithstanding this, all regulatory options remain on the table. If the proposal before us now turns out to be insufficient or if we observe anyone taking advantage of the rule, I won’t hesitate to use Title II. However, unlike with Title II, we can use the court’s roadmap to implement Open Internet regulation now rather than endure additional years of litigation and delay.

Here is some news Wheeler can use: No matter what policies the FCC enacts or how, if they run contrary to the interests of Big Telecom companies, they will sue anyway. Net Neutrality appeasement by collaboration did not stop Verizon from promptly suing the FCC to overturn in court the rules the company helped write.

Wheeler needs to deal his reclassification card or get out of the game. It is increasingly clear it is the only legal basis under which the Court of Appeals will readily accept the FCC’s authority to oversee broadband.

Wheeler has his own set of Powell-like principles – the Four No-No’s of the Net:

Let me be clear, however, as to what I believe is not “commercially reasonable” on the Internet:

• Something that harms consumers is not commercially reasonable. For instance, degrading service in order to create a new “fast lane” would be shut down.

• Something that harms competition is not commercially reasonable. For instance, degrading overall service so as to force consumers and content companies to a higher priced tier would be shut down.

• Providing exclusive, prioritized service to an affiliate is not commercially reasonable. For instance, a broadband provider that also owns a sports network should not be able to give a commercial advantage to that network over another competitive sports network wishing to reach viewers over the Internet.

• Something that curbs the free exercise of speech and civic engagement is not commercially reasonable. For instance, if the creators of new Internet content or services had to seek permission from ISPs or pay special fees to be seen online such action should be shut down.

But there are plenty of loopholes in Wheeler’s proposals. First, “degrading service” goes undefined. As we’ve seen recently, there is a difference between purposely throttling a broadband connection and not maintaining and upgrading it to handle growing traffic. Second, Wheeler’s idea of what is “commercially reasonable” is not defined either. A provider could make all of its owned sports networks exempt from usage caps. That is neither “exclusive” or “prioritized.” It just doesn’t count against your usage allowance. Third, you might have open access to all of this content but won’t want it because your provider’s preferred partners get faster and more responsive service and less waiting for pages or videos to load.

Wheeler’s apparent naiveté about this industry and its behavior is beyond belief considering the decades he worked on behalf of the cable and wireless industry. Netflix foreshadows an Internet future without robust Net Neutrality. Verizon, Comcast and others ignore complaints about the degrading performance of Netflix, refusing to upgrade their connections of behalf of paying customers, until Netflix also agrees to pay them. When Netflix drops a check in the mail, the problem disappears. It doesn’t seem to matter that customers paying a very high price for Internet service cannot get the service they deserve unless someone else also pays.

If we can see this problem, it is extraordinarily curious why Wheeler cannot (or will not). Wheeler’s tough talk is cheap, but American broadband is not. Without direct action that reclassifies broadband as a telecommunications service, nothing Wheeler proposes or gets enacted is likely to survive the next inevitable court challenge.

Wheeler

Federal Communications Commission chairman Thomas Wheeler this morning defended his forthcoming Net Neutrality policies in front of an audience of cable executives attending the Cable Show in Los Angeles.

“If you read some of the press accounts about what we propose to do, those of you who oppose Net Neutrality might feel like a celebration was in order,” Wheeler told the cable industry audience. “Reports that we are gutting the Open Internet rules are incorrect. I am here to say wait a minute. Put away the party hats. The Open Internet rules will be tough, enforceable and, with the concurrence of my colleagues, in place with dispatch.”

“Let me be clear,” Wheeler continued. “If someone acts to divide the Internet between ‘haves’ and ‘have-nots,’ we will use every power at our disposal to stop it. I consider that to include Title II. Just because it is my strong belief that following the court’s roadmap will produce similar protections more quickly, does not mean I will hesitate to use Title II if warranted. And, in our Notice, we are asking for input as to whether this approach should be used.”

Wheeler also used the forum to acknowledge that cable companies are now the “principal provider of broadband” in the United States, a slap at telephone company DSL service that continues to lose market share.

Wheeler’s comments primarily addressed intentional interference with Internet traffic and remained silent about whether the FCC would allow providers to delay network upgrades that gradually allow service to degrade while selling improved “Quality of Service” contracts to content providers like Netflix.

“Prioritizing some traffic by forcing the rest of the traffic into a congested lane won’t be permitted under any proposed Open Internet rule,” Wheeler insisted. “We will not allow some companies to force Internet users into a slow lane so that others with special privileges can have superior service.”

[flv]http://www.phillipdampier.com/video/FCC Chairman Tom Wheeler’s Speech and Chat with Michael Powell 4-30-14.mp4[/flv]

FCC chairman Thomas Wheeler spoke before the 2014 NCTA Cable Show this morning to speak about Net Neutrality and chat with NCTA president Michael Powell. (39:15)

Wheeler’s remarks in full can be found below the jump:

… Continue Reading