A group largely funded by the telecommunications industry is among the latest to call on Congress to pass net neutrality legislation, just as long as the cable and phone companies that have fiercely opposed net neutrality as we know it get the chance to effectively write the law defining their vision of a free and open internet.

Broadband for America (BfA) has long pretended to represent the interests of consumers. It has tried to steer clear of partisan politics by representing itself as a bipartisan organization, claiming that since its formation in 2009, the Broadband for America coalition “has included members ranging from consumer groups, to content and application providers, to the companies that build and maintain the internet. Together these organizations represent the hundreds of millions of Americans who are literally connected through broadband.”

In this spirit, BfA has given top priority to adopting a new, bipartisan, federal net neutrality law that would eliminate the regulatory uncertainty changing administrations have introduced through agencies like the FCC.

The telecom industry shuddered under the Obama Administration’s FCC with Thomas Wheeler as chairman. Wheeler pushed for bright line net neutrality rules that cut off the industry’s ability to toy with paid fast lanes on the internet, potentially costing telecom companies billions in future revenue opportunities. Wheeler backed his regulatory authority by using Title II regulations that have withstood corporate court challenges since the 1930s, and made clear that authority also extended to blocking or banning future creative monetization schemes that unfairly favored some internet traffic at the expense of other traffic.

The incoming Trump Administration discarded almost every regulatory policy introduced by Wheeler through its appointed FCC chairman, Ajit Pai. With Republicans in firm control at the FCC, in the White House, and in Congress, the broadband industry and its political allies feel safe to draft and pass a new federal law that will give companies regulatory certainty. One proposal could potentially permanently remove the FCC’s future ability to flexibly manage changing broadband industry practices.

BfA’s “pro net neutrality” campaign directly targets consumers through its website while also pretending to represent their interests. It is a classic D.C. astroturfing operation — fooling unwitting consumers into pushing for policies against their best interests. BfA claims it supports “policies that align with the core principles of an open internet: no blocking, no throttling, no discrimination and most importantly, ensuring all consumers have access to internet. Further, despite state efforts, only Congress maintains the power to regulate the internet.”

Broadband for America’s campaign to block this legislative maneuver actually helps net neutrality opponents.

Since no phone or cable company in the country is seeking to block, throttle, or discriminate against certain websites, passing a law that prohibits this is not controversial. But BfA does not mention other, more threatening practices ISPs have toyed with in recent years that would be banned by robust net neutrality rules. At the top of the list is “paid fast lanes,” allowing preferred content partners to get preferential treatment on sometimes clogged internet pipes. As past controversies between Netflix and Google over interconnection agreements illustrate, if an internet provider refuses to continually upgrade traffic pipelines, all traffic can suffer. With paid prioritization, some traffic will suffer even more because of preferential treatment given to sponsored traffic. The industry does not call this throttling, and some ISPs have blamed content providers for the problem, suggesting Netflix and YouTube traffic unfairly takes a toll on their networks.

BfA also objects to state efforts to bring back net neutrality, claiming such regulatory powers only belong in the hands of the federal government (especially the current one). It is no coincidence BfA’s beliefs and policies mirror their benefactors. While claiming to represent the interests of consumers, BfA is almost entirely funded by: AT&T, CenturyLink, Charter, CTIA – The Wireless Association, Comcast, Cox, NCTA – The Internet & Television Association, Telecommunications Industry Association (TIA), and USTelecom-The Broadband Association. The only major American telecom company not on this list is Verizon, but their interests are represented by USTelecom, an industry-funded lobbying group that backs America’s top telephone companies.

Broadband for America shares a list of some of its members — all a part of the cable, wireless, and telephone industry.

Under the guise of the midterm elections, BfA issued a new call for federal legislation enforcing the telecom industry’s definition of net neutrality, and not just on telecom companies. BfA also wants regulation of “edge providers,” a wonky term that means any website, web service, web application, online content hosting or online content delivery service that customers access over the internet. In reality, the only edge providers the industry is concerned with are Apple, Amazon, Google, Microsoft, and Facebook — companies that often directly compete against telecom company-backed content ventures and lucrative online advertising. Ironically, many Republicans that have strongly argued for deregulation have supported imposing new laws and regulatory oversight on some of these companies — notably Google and Facebook. Amazon joined the list as a result of President Trump’s ongoing feud with Jeff Bezos, Amazon’s CEO and owner of the Washington Post.

Backing the BfA’s lobbying push for a new net neutrality law are results from a suspect BfA-commissioned (and paid for) study by a polling firm that claims “87 percent of voters ‘react positively to arguments for a new legislative approach that sets one clear set of rules to protect consumer privacy that applies to all internet companies, websites, devices and applications.’” A full copy of the study, the exact questions asked during polling, and more information about the sampling process was not available to review. Instead, the conclusions were posted as an opinion piece by Inside Sources, a website that provides D.C. strategy, public relations, and lobbying firms with a free home to publish OpEds on behalf of their clients. Newspapers are allowed to reprint Inside Sources wire service content for free, sometimes without full disclosure of the financial arrangements behind the studies or author(s) involved.

The BfA campaign for a federal net neutrality law is not in isolation. The telecom industry has been on an all-out push for a new net neutrality law since Ajit Pai led the campaign to repeal the FCC rules. The industry’s campaign for pseudo-net neutrality has even won over some in the media like the editorial board of the Washington Post, that published its own OpEd in early October calling Wheeler’s use of Title II authority a regulatory overreach. The Post also has no patience for lawsuits being filed by telecom companies and the Justice Department against the state of California after passing its own statewide net neutrality law. The industry pushback in court is part of the Post’s argument for a new national law to ‘end confusion’:

The fight over net neutrality today can be reduced to a single sentence: Everyone is suing everyone else. Congress should step in.

The Justice Department said Sunday it will take California to court over its law requiring Internet service providers to treat all traffic equally. Those ISPs were already primed to sue states on their own. And California is one of more than 20 states suing the Federal Communications Commission over its repeal of the Obama administration’s rules. “We’re not out to protect the robber barons. We want to protect the people,” California Attorney General Xavier Becerra (D) told us.

The FCC abdicated its responsibility on net neutrality when it repealed the old rules with no adequate replacement. Now, without setting forth its own rules, the federal government is seeking to block states from creating their own. That may be frustrating to Americans who want an Internet where providers do not dictate what information reaches them and how fast. But a nationwide framework governing net neutrality would be preferable to a patchwork of state regulations establishing local regimes for systems that transcend borders. And creating that framework is up to Congress.

But not all are confused. California resident Bob Jacobson defended his state’s interests in a rebuttal to the Post’s editorial:

Absurd reasoning emanating from the nation’s capital of corruption, Washington, DC. California has always led the nation — including the Federal government — in the sensible, productive regulation and consequent growth of its telecom and information economy, now the world’s largest. The Moore Universal Telecom Services Act, passed in reaction to the breakup of the old AT&T, is still the nation’s only comprehensive, progressive telecom policy, its success reflected in California’s robust technological and social infrastructure. Rather than supersede California’s policies, our national and other state legislature’s and regulatory agencies should learn from and adapt them to better serve equally all the American people. (And get rid of that mockery known as the Trump FCC.)

Thune

Sen. John Thune (R-S.D.) slammed the Federal Communications Commission for its “unacceptable failure” to expand rural broadband service and close America’s rural-urban digital divide.

Thune’s comments were directed to FCC Chairman Ajit Pai, appearing Thursday before the Senate Commerce Committee the South Dakota Republican chairs. Thune complained rural broadband expansion has slowed in his rural state, something he blamed on the FCC’s “inaction.” Thune criticized the FCC’s cuts to the Universal Service Fund, implemented as part of an effort to reduce the FCC’s budget.

“The FCC’s failure to ensure sufficient and predictable funding jeopardizes the vitality of America’s rural communities, and makes it much, much harder for our witnesses and others like them to deploy broadband,” Thune said in his opening remarks. “This is simply unacceptable.”

Thune claims the FCC’s cuts have increased by almost 25%, and there has been no study undertaken to determine the impact those cuts have on rural broadband expansion.

“Rural Americans should never be left behind their urban counterparts,” Thune added.

Pai defended the FCC’s actions under the Trump Administration, claiming the Commission is allocating nearly $6 billion for Connect America Fund subsidies and additional money for rural wireless projects. Pai claimed the FCC is providing $340 million to bring 4G LTE service to tribal lands, with additional funds available when those rural broadband subsidies are exhausted. Most of the money is being paid to subsidize for-profit companies.

Pai also claimed his broadband policy reforms, such as repealing net neutrality and other deregulation will stimulate new private investment independent of the Commission. To help that expansion, Pai suggested the recently proposed rules to streamline new cell tower approvals and ease up on historic preservation and environmental reviews will speed rural rollouts.

But both Sen. Thune and Chairman Pai have steadfastly opposed municipal and public broadband expansion projects designed to close the rural broadband gap in areas where for-profit ISPs have refused to serve without subsidies.

FEMA, in coordination with the Federal Communications Commission, will conduct a nationwide test of the Emergency Alert System (EAS) and Wireless Emergency Alerts (WEA) on Wednesday, Oct. 3, creating a cacophony of alarms and warning tones on cell phones, radios, and televisions from coast to coast.

The WEA test is most likely to be heard… in every school, office, and store as nearly all wireless phones sound off starting at 2:18pm EDT. Two minutes later, radio and television stations, NOAA weather radios, and cable, satellite, and telco TV systems, will deliver EAS alerts to their respective audiences.

This will be the first time FEMA and the FCC will deliver a nationwide WEA test, which will measure the effectiveness of using cell phones to mass deliver emergency alerts and action messages on a nationwide scale. Previous uses included urgent Amber Alerts and weather-related messages, but only to specific localities or regions. The government agencies want to know if America’s cell phone carriers can deliver messages to all of their customers accurately and on a timely basis.

The emergency alert messages have no political connection to the Trump Administration or the White House, and were first envisioned during the Bush Administration. Despite that, some planned to mute their phones or switch them off as a protest against the president, falsely fearing he might use the system to deliver political messages.

Tomorrow’s alerts will consist of the following messages, sent using a unique tone and vibration that is not designed to be muted or silenced:

• WEA: Presidential Alert: “THIS IS A TEST of the National Wireless Emergency Alert System. No action is needed.”
• EAS: (in English and/or Spanish) “THIS IS A TEST of the National Emergency Alert System. This system was developed by broadcast and cable operators in voluntary cooperation with the Federal Emergency Management Agency, the Federal Communications Commission, and local authorities to keep you informed in the event of an emergency. If this had been an actual emergency an official message would have followed the tone alert you heard at the start of this message. A similar wireless emergency alert test message has been sent to all cell phones nationwide. Some cell phones will receive the message; others will not. No action is required.”

FEMA’s public service announcement about Wednesday’s test. (0:48)

Gov. Brown

Within hours of California’s Gov. Jerry Brown signing the state’s sweeping new net neutrality protection law, Attorney General Jeff Sessions filed a federal lawsuit to block the law, calling it an illegal attempt to bypass the Federal Communications Commission and its chairman Ajit Pai, which the Trump Administration argues has the sole authority over the nation’s internet service providers.

“States do not regulate interstate commerce — the federal government does,” Sessions said in a statement. “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.”

The Department of Justice claimed in its lawsuit that California’s open internet protection legislation was blatantly against the public interest because it imposes a host of rules on the conduct of companies like AT&T, Verizon, Comcast, and Charter that are contrary to the administration’s deregulation principles.

“[This new law] unlawfully imposes burdens on the federal government’s deregulatory approach to the internet,” the lawsuit stated. “The United States concluded that California, through Senate Bill 822, is attempting to subvert the federal government’s deregulatory approach by imposing burdensome state regulations on the free internet, which is unlawful and anti-consumer.”

FCC Chairman Ajit Pai wholeheartedly supports the lawsuit, releasing his written comments praising it as part of the Justice Department’s media release.

“I’m pleased the Department of Justice has filed this suit,” Pai wrote. “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.”

“Not only is California’s internet regulation law illegal, it also hurts consumers,” added Pai. “The law prohibits many free-data plans, which allow consumers to stream video, music, and the like exempt from any data limits. They have proven enormously popular in the marketplace, especially among lower-income Americans. But notwithstanding the consumer benefits, this state law bans them.”

The Trump Administration fears the new California law will set a de facto standard of net neutrality protection across all 50 states, because California’s market size makes it difficult for telecommunications companies to apply one standard in California, while maintaining different standards everywhere else.

Sessions

The California net neutrality law restores most of the rules ISPs followed during the Obama Administration, including bans on blocking or throttling internet content and outlawing paid prioritization schemes, which would allow ISPs to charge content providers extra to guarantee their internet traffic was prioritized over other traffic. The new law also covers interconnection agreements between ISPs, which are cited as largely responsible for traffic slowdowns on websites like Netflix and YouTube. Some ISPs have used these traffic exchanging agreements as leverage to seek compensation from internet content companies in return for higher capacity, less congested connections between a content provider and the ISP’s customers. The FCC did not address this issue in its own, now repealed, net neutrality rules.

California’s attorney general promised to defend the new law in court and oppose the Justice Department lawsuit.

“We will not allow a handful of power brokers to dictate sources for information or the speed at which websites load,” said Xavier Becerra. “We remain deeply committed to protecting freedom of expression, innovation and fairness.”

The Federal Communications Commission moved Tuesday to formally strip local franchise authorities from regulating cable companies’ non-video services, prevent town and city governments from enforcing their own net neutrality policies, and limit the amount of obligations cable companies owe communities in return for winning and keeping a cable television franchise agreement.

The Commission announced a notice of proposed rulemaking that most observers claim is a mere formality before the Republican majority formally adopts the proposal in what is being seen as a clear and sweeping victory for the cable television industry.

Under the FCC proposal, local franchising authorities that issue franchise agreements allowing cable television companies to provide service in a community will see their powers of oversight and regulation significantly cut, threatening existing agreements that require cable operators to wire public schools, libraries, and local government offices and offer certain other services, excluding Public, Educational, and Government access channels.

Some franchise agreements require cable operators to maintain a certain number of local cable customer service offices, support local infrastructure projects by placing fiber or service cables in shared conduits, offer services or scholarships to communities in need, and provide near-universal service availability in neighborhoods without regard to income. While communities would be allowed to continue requiring these extra benefits, the cost could be deducted from franchise fee payments made by cable operators to local governments. Currently, franchise fees are capped at a maximum of 5% of gross revenue, although cable companies and corporate-funded interest groups like FreedomWorks and Free State Foundation argue “in kind” required contributions found in some franchise agreements allow cities and towns to exceed that amount.

Cooper

The FCC also reiterated its intention to limit local franchising authorities to only regulating cable television services, disallowing them from writing rules, regulations, or requirements that govern a cable system’s non-television services, most notably telephone and broadband service. While some at the FCC suggest this ruling allows broadband and voice services to remain unregulated as intended, analysts suggest the real impact of this declaration is to lay a legal foundation to prohibit communities from imposing local net neutrality requirements on cable broadband services designed to replace the federal net neutrality rules that were vacated by the Republican majority on the Commission earlier this year.

“Congress has designated information services such as broadband for non-regulated or light-touch treatment,” said Seth Cooper, senior fellow from the conservative group Free State Foundation. “The Commission’s proposed rulemaking clarifies that local governments cannot leverage their cable franchising authority to regulate broadband services. This will help shore up important limits on local government regulation set out in the Communications Act.”

After passage, cable operators could complain to the FCC about requirements imposed by local governments or regulatory bodies requiring them to honor basic net neutrality principles. FCC Chairman Ajit Pai has repeatedly voiced his view that only the federal government should be allowed to regulate the internet, and he is prepared to challenge state and local laws that attempt to create an end run around the decision to eliminate federal net neutrality protections.

“What we’re going to do is take a look on a case-by-case basis at each state law and determine the right course, but at a broad level, the internet is inherently an interstate service,” Pai told CNBC in June. “We don’t [want] every one of the 50 states and however many local jurisdictions to have a bite of the regulatory apple.”

The FCC has also asked for input on extending its authority to overrule similar franchising requirements on the state level as well, a significant expansion of the FCC’s authority that Mr. Pai himself has questioned when his predecessor, Chairman Thomas Wheeler, attempted to override state laws deterring or forbidding public/municipal broadband networks.

“In taking this step, the FCC usurps fundamental aspects of state sovereignty. And it disrupts the balance of power between the federal government and state governments that lies at the core of our constitutional system of government,” Pai complained in 2015. “What is clear, however, is that the FCC does not have the legal authority to override the decisions made by Tennessee and North Carolina. Under the law, it is up to the people of those two states and their elected representatives—not the Commission—to decide whether and to what extent to allow municipalities to operate broadband projects.”

But in Pai’s view, it is not up to those and other states to decide for themselves what type of level playing field will be provided to internet users if a sovereign state wishes to define those terms in the public interest.

FCC’s Ajit Pai talks net neutrality on CNBC in June 2018 and is skeptical of state efforts to preserve net neutrality rules, saying the internet “has to be regulated by the federal government.” (10:48)