FCC Chairman Ajit Pai announces his opposition to Net Neutrality at a FreedomWorks-sponsored event at the Newseum in Washington, D.C.

WASHINGTON (Reuters) – The head of the U.S. Federal Communications Commission on Wednesday proposed overturning the landmark 2015 Obama-era Net Neutrality rules that prohibit broadband providers from giving or selling access to certain internet services over others.

FCC Chairman Ajit Pai, named by President Donald Trump in January, said at a speech in Washington he wants to reverse rules that boosted government regulatory powers over internet service providers. Proponents who fought to get the rules passed said his proposal would set off a fierce political battle over the future of the internet regulation.

The rules, which the FCC put in place in 2015 under former President Barack Obama, prohibit broadband providers from giving or selling access to speedy internet, essentially a “fast lane,” to certain internet services over others.

The rules reclassified internet service providers much like utilities. They were favored by websites who said they would guarantee equal access to the internet to all but opposed by internet service providers, who said they could eventually result in rate regulation, inhibit innovation and make it harder to manage traffic. Pai said he believed the rules depressed investment by internet providers and cost jobs.

“Do we want the government to control the internet? Or do we want to embrace the light-touch approach” in place since 1996 until revised in 2015, he asked.

A federal appeals court upheld the rules last year. The Internet Association, a group representing Facebook Inc, Alphabet Inc, and others, said the rules were working and that reversing them “will result in a worse internet for consumers and less innovation online.”

Pai said his proposal will face an initial vote on May 18 but he would not seek to finalize a reversal of the Obama rules until the FCC takes public comment, which could take several months.

Republican FCC Commissioner Mike O’Rielly said the rules “took internet policy down into a dark and horrible abyss” and said the FCC will “expunge Net Neutrality regulations from the internet.”

Internet providers such as AT&T, Verizon Communications, and Comcast Corp have argued that the Net Neutrality rules have made investment in additional capacity less likely. Comcast chairman and chief executive Brian Roberts said Pai’s proposal “creates an environment where we can have a fresh constructive dialogue.”

Democratic Senator Edward Markey predicted Pai’s plan to overturn the rules would face a “tsunami of resistance.”

Democrats and advocates of the rules called for a massive public outcry to preserve them. In 2014, comedian John Oliver in his HBO show owned by Time Warner Inc., helped galvanize support for Net Neutrality.

“I am confident that the millions of Americans who weighed in with the FCC in support of the open internet order will once again make their voices heard to demonstrate how wrongheaded this approach is,” said Senate Democrat Leader Charles Schumer.

Republicans said Democrats should work with them to pass a legislative fix to set internet rules. Senate Republican Leader Mitch McConnell praised Pai for working to reverse “the Obama Administration’s eight-year regulatory assault on all aspects of our economy.”

(Reporting by David Shepardson; Editing by Tom Brown, Diane Craft and David Gregorio)

Making America Great for Robber Barons Again

The president-elect’s choice for chairing the Federal Communications Commission may conclude there is little reason to even have a regulatory agency for telecommunications.

Donald Trump has gone farther to the right than any president-elect in modern history, at least in how he has chosen to staff his transition team. Having a place on that team is traditionally seen as a fast track to getting a plum cabinet position or leadership role in Washington’s bureaucracy, and Mr. Trump’s choices for overseeing tech and telecom policy have more in common with Ayn Rand than Ralph Nader.

Two of the top picks for his FCC transition team are true believers in the “laissez-faire/the free market always knows best” camp, but both have also been on the payroll of Big Telecom companies that believe special favors are perfectly acceptable.

The notorious D.C. revolving doorman Jeffrey Eisenach, now a leading contender for the next chairman of the FCC, is a man with so many hats that the New York Times published an exposé on him, noting it has become hard to tell whether Eisenach’s views are his own, those of his friends at the corporate-friendly American Enterprise Institute (AEI), or those of various telecom companies like Verizon that have had him on the payroll.

Eisenach has been heavily criticized for his especially close ties to telecom companies, fronting their positions at various Washington events often under the cover of his role as a “think tank scholar” at AEI. Eisenach despises Net Neutrality with a passion, and has used every opportunity to attack the open internet protection policies as overregulation. At the same time, Eisenach’s consulting firm was also doing work on behalf of the cellular telephone industry, including Verizon and other cell companies.

Eisenach is exceptionally casual about disclosing any paid financial ties, and has received criticism for it. His prominence as a member of the Trump transition team is therefore curious, considering incoming vice president Mike Pence has tried to clean the transition team of lobbyists.

Eisenach

Trump’s other leading contender is Mark Jamison, a former lobbyist for Sprint who now works for AEI. Jamison has received less attention and scrutiny from the telecommunications press, but in some cases his views, well-represented on his blog, are even more extreme than those of Mr. Eisenach.

In a 2013 report to the Florida Public Service Commission, Jamison looked down on consumer involvement in creating and enforcing telecom regulations:

Does customer involvement in regulation improve outcomes? Not always, according to PURC Director Mark Jamison. Speaking at the Australian Competition and Consumer Commission annual conference in Brisbane, Australia, Dr. Jamison explained that the key question is, “Who do we expect to change when regulators and customers engage?” Most discussion on customer engagement is about customers informing regulators about customer preferences and utility practices. Learning by regulators is important, but so are the building legitimacy, ensuring regulator integrity, and engaging in adaptive learning that are largely about changing customers. An over emphasis on changing regulators can result in pandering to current norms, which hinders institutional strengthening and adaptive work.

In that same report, Jamison echoed some of the same sentiments he has made on his blog, questioning the wisdom of regulating telecommunications policies, providing subsidies to ensure affordable telephone service (Lifeline), subsidizing rural broadband expansion, and maintaining the core concept of universal service, which means assuring every American that wants utility service can affordably get it.

Jamison even questioned the need for the FCC in its current form, particularly overseeing rate regulation, fair competition, and enforcing rules that overturn the telecom industry’s cartel-like agreement on mandated set-top boxes (and rental fees), Net Neutrality and interconnection agreements and fees, and consumer protection:

Most of the original motivations for having an FCC have gone away. Telecommunications network providers and ISPs are rarely, if ever, monopolies. If there are instances where there are monopolies, it would seem overkill to have an entire federal agency dedicated to ex ante regulation of their services. A well-functioning Federal Trade Commission (FTC), in conjunction with state authorities, can handle consumer protection and anticompetitive conduct issues.

Content on the web competes well with content provided by broadcasters, seeming to eliminate any need for FCC oversight of broadcasters. Perhaps there is need for rules for use of the airwaves during times of emergency, but that can be handled without regulating the content providers themselves.

The only FCC activity that would seem to warrant having an independent agency is the licensing of radio spectrum. Political interference in spectrum licenses would at least dampen investment and could lead to rampant corruption in the form of valuable spectrum space being effectively handed out to political cronies.

Jamison

Jamison’s theories are interesting, but in the real world they are impractical and frankly untrue. Readers of Stop the Cap! have long witnessed the impact of the insufficiently competitive telecom marketplace — higher broadband fees, data caps, and relentlessly terrible customer service. The costs to provide service have declined, but prices continue to rise. For many consumers, there is barely a duopoly for telecom services with cable companies taking runaway victory laps for providing 21st century broadband speeds while an area’s phone company continues to try to compete with underinvested DSL. The FTC has been a no-show on every important telecom issues of our time, in part because the industry got itself deregulated, leaving oversight options very limited.

It wasn’t the FTC that halted AT&T’s attempted buyout of T-Mobile and Comcast didn’t lose its struggle to acquire Time Warner Cable because of the FTC either. Pushback from the FCC and Department of Justice proved to be the only brakes on an otherwise consolidation-crazed telecom sector.

Oversight of broadcasting remains important because unlike private networks, the airwaves are a publicly owned resource used for the good of the American people. Jamison would abandon what little is left of regulations that required broadcasters to serve the public interest, not just private profit motives. Programming content is not the only matter of importance. Who gets a license to run a television or radio station matters, and so does the careful coordination of spectrum. It is ironic Jamison theorizes that a lack of regulation (of spectrum) would lead to political interference, rampant corruption, and cronyism. Anyone who has followed our experiences dealing with many state regulatory bodies and elected officials over telecom mergers and data caps can already use those words to describe what has happened since near-total deregulation policies have been enacted.

Public and private broadband competitors like local communities and Google have been harassed, stymied, and delayed by organized interference coordinated by incumbent telecom companies. Allowing them off the leash, as Jamison advocates, would only further entrench these companies. We have a long history in the United States dealing with unfettered monopoly powers and trusts. Vital infrastructure and manufacturing sectors were once held captive by a handful of industrialists and robber barons, and consumers paid dearly while those at the top got fabulously rich. Their wealth and power grew so vast and enduring, we are still familiar with their names even today — Rockefeller, Vanderbilt, Morgan, Schwab, Mellon, Duke, and Carnegie, just to name a few.

Jamison wrote a blog entry mapping out how to ultimately destroy the effectiveness of the FCC:

• Take direction from politicians,
• Promote partisan divides,
• Change the language in orders after the FCC votes,
• Ignore the facts, or at least manipulate them.

Jamison intended to argue that represented the current state of the Obama Administration’s FCC, but it is just as easy to ponder what comes after the Trump-lit bonfire of burned regulations and oversight, leaving only Big Telecom companies and their paid mouthpieces to manipulate the facts.

Jamison also undercuts his own argument in two other ways: first by declaring Michael Powell one of the great FCC chairmen of the modern era (after leaving the FCC he became president of the country’s biggest cable industry lobbying group) and second by relying extensively on quoting people with direct and undisclosed financial ties to the telecom companies that will directly benefit from implementing Jamison’s world views.

New York Times: In a 2014 email, Mr. Eisenach encouraged Michael O’Rielly, a Republican FCC commissioner, to use an American Enterprise Institute event to “lay out the case against” internet regulations.

Who doesn’t ultimately matter much in this debate, according to Jamison, are customers and consumers, whose input in these discussions is dismissed as either trendy or misinformed. No similar conclusions are forthcoming from Mr. Jamison about the influence and misinformation emanating from huge telecommunications companies that keep more than a few of his self-interested sources in comfortable suburban Virginia homes, driving their nice cars to and from the offices of shadowy think tanks that receive direct corporate funding or go out of their way to hide their benefactors.

Appointing either Mr. Eisenach or Mr. Jamison to the Federal Communications Commission would be the ultimate rubber stamping of business as usual in Washington, exactly what Donald Trump ran against. That may make Verizon or Comcast “great again,” but it certainly won’t help the rest of the country.

Charter Communications could not have closer friends than the commissioners on the California Public Utilities Commission who unanimously voted in favor of the merger of Charter Communications and Time Warner Cable while some almost apologized for bothering the cable company with pesky deal conditions.

CPUC president Michael Picker quickly dispensed with the glaring omission of a sunset provision on Charter’s three-year voluntary commitment to abide by the FCC’s Open Internet Order by inviting his fellow commissioners to add it back for Charter’s benefit. How nice of him. The cable company lobbyists in attendance at today’s hearing did not even need to ask.

Picker’s review of the merger benefits effectively recited a Charter press release and he seemed genuinely pleased with himself for making it all possible. For example, the CPUC considered the addition of a provision allowing consumers to buy their own cable modems and set-top boxes without a penalty from their provider “unprecedented,” while never mentioning they failed to adopt recommendations that customers be given a discount for providing their own equipment. Score Charter, which can continue to collect modem fees built into the price of its broadband service even when you provide your own.

Dampier

New Charter’s “exciting” commitment to upgrade to 300Mbps by 2019 sounds good, until one realizes Time Warner Cable was committed to finishing their own 300Mbps upgrade at least one year earlier, and at a lower cost to customers. In fact, while California celebrates 300Mbps by 2019, thanks to the efforts of Stop the Cap! and the New York Public Service Commission, Charter is required to be ready to offer gigabit service across the state that same year. See what is possible when you actually try, CPUC?

The commissioners repeatedly thanked Charter Communications and Time Warner Cable while ignoring the consumer groups that contributed opposing comments and tangible suggestions to improve benefits for consumers — almost entirely ignored by the CPUC. That will cost Californians dearly and borders on regulatory malpractice. If the CPUC required California to at least enjoy the same benefits other state utility regulators won for their constituents, Californians would get a substantially better deal. Instead, the CPUC insisted on giving California and even worse deal than the FCC, by granting Charter’s right to gouge customers with usage caps and usage billing in three years, even after the FCC agreed to seven years of cap-free Internet. Mr. Picker and the other commissioners owe California an explanation for letting them down, and the scandal-plagued CPUC needs to demonstrate it is reforming after the shameful performance of its former chairman Michael Peevey.

“Today was a travesty for Californian consumers, and frankly we were shocked to watch ostensibly independent commissioners carry water for Charter Communications,” said Stop the Cap! president Phillip Dampier. “We saw clear evidence of a commission more concerned about Charter Communications and Time Warner Cable than for the average citizens of California that will face higher cable bills, time limits on unlimited Internet access, and a longer wait for upgrades as a direct result of today’s decision. Consumer groups like Stop the Cap! brought clear and convincing evidence to the commission that the benefits of this merger have time limits and plenty of fine print. We offered concrete suggestions on how to improve the deal for consumers — ideas accepted in other states, but the CPUC clearly wasn’t interested in anything that might make Charter uncomfortable.”

All signs are pointing to a relative cake walk for Charter Communications’ executives this afternoon as they seek final approval from the California Public Utilities Commission to acquire Time Warner Cable systems in the state, with the help of an Administrative Law Judge that is recommending approval with a minimum of conditions.

In fact, the strongest condition Charter may have to accept in California came by accident. As part of Charter’s lobbying effort, it proposed a set of voluntary conditions it was prepared to accept, claiming to regulators these conditions would represent benefits of approving the transaction. One of those was a temporary three-year commitment to abide by the FCC’s Open Internet Order, which among other things bans paid prioritization (Internet fast lanes), intentionally blocking lawful Internet content, and speed throttling your Internet connection.

Somewhere along the way, someone forgot to include the language that sunsets (or ends) Charter’s voluntary commitment after three years.

Without it, Charter will have to abide by the terms of the FCC’s Open Internet Order forever.

Soon after recognizing the change in language, Charter’s lawyers appealed to the CPUC to correct what it called a “drafting error.”

“[New Charter does] not seek modification of the second sentence, which matches their voluntary commitments, but believe[s] that the three-year limitation in the second sentence was intended to— and should—apply to the first sentence as well,” Charter’s lawyers argued two weeks ago.

In other words, the Administrative Law Judge’s apparent attempt to ‘cut and paste’ Charter’s own press release-like voluntary deal commitments into his personal recommendation went horribly wrong. Charter’s lawyers prefer to call it an “intent to track” the company’s voluntary commitments. Either way, Charter’s lawyers all call the new language unfair.

“Holding New Charter indefinitely to FCC rules even after the FCC’s rules are invalidated or modified, and irrespective of future market conditions or the practices or rules governing New Charter’s competitors, would be a highly unconventional requirement,” the lawyers complained.

That provides valuable insight into how “New Charter” is likely to feel about Net Neutrality three years from now. Charter’s lawyers argue it would be unfair to hold them to “invalidated” rules — the same ones the company itself has voluntarily embraced as a condition of approval, but only for now.

Remarkably, in the final revision of the Administrative Law Judge’s recommendations to the CPUC recommending approval, the language that is keeping Charter’s lawyers up at night is still there:

New Charter shall fully comply with all the terms and conditions of the Federal Communications Commission’s Open Internet Order, regardless of the outcome of any legal challenge to the Open Internet Order. In addition, for a period of not less than three years from the closing of the Transaction, New Charter (a) will not adopt fees for users to use specific third-party Internet applications; (b) will not engage in zero-rating; (c) will not engage in usage-based billing; (d) will not impose data caps; and (e) will submit any Internet interconnection disputes not resolvable by good faith negotiations on a case-by-case basis.

Charter’s new service area, including Time Warner Cable and Bright House customers.

If it remains intact through the vote expected this afternoon, New Charter will have to permanently abide by the FCC’s Open Internet Order, with no end date. That condition will apply in California, and because of most-favored state status, also in New York.

Stop the Cap!’s recommendations to the CPUC are also in the same document, although our views were not shared by the judge:

Stop the Cap! objects to [New Charter’s] 3-year moratorium on data caps and usage based pricing for broadband services. It argues that such bans should be made permanent or, if not permanent, should last at least 7 years in parallel with the lifespan of the conditions imposed in the FCC’s approval of the parent company merger. In addition, Stop the Cap! objects to what it asserts will be a major price increase for existing Time Warner customers when Charter’s pricing plans replace Time Warner’s pricing plans.

More broadly, Stop the Cap! president Phillip Dampier called the revised recommendations to approve the deal underwhelming and disappointing.

“By window-dressing what is essentially Charter’s own voluntary offer to the CPUC, the commission is continuing to miss a golden opportunity to win deal conditions that will meaningfully benefit Californian consumers that will otherwise get little more than higher cable and broadband bills,” Dampier told Communications Daily. “Virtually everything Charter is promising customers is already available or soon will be from Time Warner Cable, often for less money. Time Warner Cable committed to offering its customers 300Mbps speeds, no usage caps or usage billing, and all-digital service through its Maxx upgrade program, expected to be complete by the end of 2017 or 2018. The CPUC is proposing to allow New Charter to wait until 2019 to provide 300Mbps service and potentially cap Internet service three years after that, four years less than what the FCC is demanding.”

Among the conditions Charter will be expected to fulfill in return for approval of its merger in California:

• Within a year of the closing of the merger deal, New Charter must boost broadband download speeds for customers on their all-digital platform to at least 60Mbps, an upgrade that is largely already complete.
• Within 30 months, New Charter must upgrade all households in its California service territory to an all-digital platform with download speeds of not less than 60Mbps, an upgrade that has already been underway for a few years.
• By Dec. 31, 2019, New Charter shall offer broadband Internet service with speeds of at least 300Mbps download to all households with current broadband availability from New Charter in its California network. Time Warner Cable essentially promised to do the same by early 2018, with many of its customers already getting up to 300Mbps in Southern California.
• While Charter talks about a bright future for the Time Warner customers joining its family, the company has not done a great job maintaining and upgrading its own cable systems in parts of California. Many smaller communities still only receive analog cable TV from Charter, with no broadband option at all. Therefore, the CPUC is giving New Charter three years to deploy 70,000 new broadband “passings” to current analog-only cable service areas in Kern, Kings, Modoc, Monterey, San Bernardino and Tulare counties. But the CPUC is giving New Charter a break, only requiring them to offer up to 100Mbps service in these communities.
• Time Warner Cable and Bright House customers in California will be able to keep their current broadband service plans for up to three years. Customers will also be allowed to buy their own cable modems and set-top boxes, but there is no requirement New Charter compensate customers who do with a service discount.
• Within six months of the deal closing, New Charter must offer Lifeline phone discounts within its service territory in California.
• New Charter must print and distribute brochures explaining the need for backup power to keep phone service working if electricity is interrupted. Those brochures must be available in multiple languages including, but not limited to, English, Spanish, Chinese and Vietnamese, as well as in accessible formats for visually impaired customers.

The CPUC is also expected to adopt Charter’s own voluntary commitments not to impose usage caps, usage billing, modem fees, and other customer-unfriendly practices for three years, a point that drew strong criticism from Stop the Cap! and the California Office of Ratepayer Advocates for being inadequate.

Both groups proposed that bans on data caps and usage billing should stay in place “until there is effective competition in Southern California, or no shorter than seven years after the decision is issued, whichever is later.”

ORA’s program supervisor Ana Maria Johnson believes the proposed changes don’t go far enough to “mitigate the harms that the merger will likely cause, especially in Southern California.”

Dampier was surprised how little the CPUC seemed to be asking of New Charter, especially in comparison to regulators in New York.

“The New York Public Service Commission did a more thorough job protecting consumers by insisting on faster and better upgrades, including readiness for gigabit service, and the same level of broadband service for all of New Charter’s customers in New York,” Dampier argued. “It also demanded and won meaningful expansion in rural broadband, low-cost Internet access, protection of New York jobs, and improved customer service. It is remarkable to us the CPUC did not insist on at least as much for California.”

The CPUC is expected to take a final vote on the merger deal this afternoon, starting at 12:30pm ET/9:30am PT and will be webcast. It is the 20th item on the agenda.

Phillip Dampier: Putting Comcast’s David Cohen on a panel to protect the free and open Internet is like appointing Bernie Madoff to run the SEC.

I got whiplash this afternoon doing a double-take on the improbable announcement that Commerce Secretary Penny Pritzker has seen fit to appoint David Cohen, senior vice president and chief lobbyist at Comcast, to the first-ever Digital Economy Board of Advisors, which counts among its goals protecting a free and open Internet. He will be joined by AT&T’s chief lobbyist, the omnipresent Mr. James Cicconi.

Neither has much patience for Net Neutrality. Cicconi and Cohen have both lobbied Congress and regulators to keep Comcast and AT&T free from regulation and oversight, even as Comcast imposes usage-billing and data caps on a growing number of its customers, while exempting its own streaming video content from those caps. For its part, AT&T is exploring “zero rating” preferred content partners to escape the wrath of its own wireless data limits and advocates against community broadband competition.

The board will be co-chaired by Markle Foundation president Zoe Baird and Mitchell Baker, executive chairwoman of Mozilla.

“As we develop an agenda to help the digital economy grow and thrive, it is critical that we engage with those on the front lines of the digital revolution,” said Pritzker.

It apparently doesn’t matter that the front lines being explored are those of the allies and enemies of Net Neutrality. Putting David Cohen on the case to protect a free and open Internet is like appointing Bernie Madoff to head the Securities & Exchange Commission.

Consumers are, as usual, woefully under-represented on the panel. Only Marta Tellado, president and CEO of Consumer Reports, is likely to solely advocate for ordinary Internet users. The rest of the panel is made up of bankers, businesspeople (including the CEO of a home shopping channel), academia, think tanks and dot.com interests:

David “I’m crushing your unlimited Internet access” Cohen

• Karen Bartleson, president-elect of the Institute of Electrical and Electronics Engineers
• Greg Becker, president and CEO of Silicon Valley Bank and SVB Financial Group
• Austan Goolsbee, Robert P. Gwinn Professor of Economics at the University of Chicago, Booth School of Business
• Mindy Grossman, CEO and director of HSN
• Oisin Hanrahan, co-founder and CEO of Handy
• Sonia Katyal, Chancellor’s Professor of Law at the University of California at Berkeley School of Law
• James Manyika, director of the McKinsey Global Institute
• William Ruh, CEO of GE Digital and Chief Digital Officer for GE
• Brad Smith, president and chief legal officer at Microsoft
• Corey Thomas, president and CEO of Rapid7
• Susan Wojcicki, CEO of YouTube
• John Zimmer, co-founder and president of Lyft