Martha Buyer
Martha Buyer is an attorney whose practice is limited to the practice of telecommunications law. In this capacity, she has...
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Martha Buyer | January 25, 2018 |


Net Neutrality: Taking the Battle to Consumers

Net Neutrality: Taking the Battle to Consumers Proponents red and blue, at state and federal levels, are gunning for the FCC on behalf of their constituents.

Proponents red and blue, at state and federal levels, are gunning for the FCC on behalf of their constituents.

Sometimes what seems like a good idea philosophically doesn't work well practically. Think of 1985's "New Coke." Or 2017's decision by the Federal Communications Commission to abandon the 2015 Net neutrality rules.

A great many Americans from across the red/purple/blue spectrum believe the FCC's December action to neuter the 2015 Net neutrality rules with the inaccurately named Restore Internet Freedom Act were in no one's best interest except possibly the large Internet service provider (ISP) community (read: Verizon, AT&T, Comcast, and a few others). As I mentioned in a previous No Jitter post, a University of Maryland survey shows that Americans across various sectors -- including three out of four Republicans -- largely oppose the FCC's actions. This is striking because the survey results reflect an electorate that remains in clear conflict with the GOP-led FCC. In fact, trying to find people who think the largest ISPs will do the right thing by consumers unless legally forced to do so may be a bit like trying to locate a Buffalo Bills fan who loves the New England Patriots. Under any circumstances. Not likely.

As a quick summary, the FCC's December action contains the following summarized elements:

  1. Broadband is categorized as an information service rather than a telecommunications service, thus subject to a lower level of regulation and largely operating outside the FCC's legal authority.
  2. Providers are longer prevented from blocking, throttling, and discriminating against [legal] content and creating paid priority lanes. In addition, the "general conduct rule" that prevented ISPs from taking "unreasonable actions" against consumers and required broadband ISPs to connect with other (read: smaller) ISPs under reasonable terms and conditions is now gone. And consumers must now address actions they consider anti-competitive or unfair with the Federal Trade Commission rather than the FCC.
  3. While ISPs are still required to disclose information about the services they offer (data performance, services terms and conditions, and network management practices -- including the blocking and throttling they're now allowed), finding where they post this information is likely to be as easy as spotting Waldo in a complex map.
  4. A new provision absolutely prevents -- in the name of preemption -- the federal government from adopting rules or regulations that are more stringent than those just abandoned.

Many individuals, consumer advocacy groups, businesses, and governmental units think the FCC's move is a bad one. As such, and in an effort to prevent the FCC from succeeding in dismantling what could become effective this spring, (and yes, "could" is an operative word), action has been taken, not only on both sides of the aisle, but at the state and federal levels, as well. As of this writing, here's a look at what some federal and state officials have been doing.

On Jan. 16, 22 state attorneys general filed a protective petition for review with the D.C. Circuit against both the FCC and the U.S. to block the FCC's declaratory ruling, report, and order released in December. The petition alleges violations of the Administrative Procedures Act (APA; Pub.L. 79–404, 60 Stat. 237), a federal law from 1946 that broadly governs the way in which administrative agencies of the federal government, like the FCC, propose and establish regulations. Specifically, according to the press release issued by New York's AG Eric Schneiderman, who is leading the charge, the FCC has violated two elements of the APA -- first, the notice and comment rulemaking requirements as a result of the huge number of fake comments generated on the matter, and secondly, by taking actions that were "arbitrary, capricious and an abuse of discretion." Specifically, the release states: "The FCC's new rule fails to justify the Commission's departure from its long-standing policy and practice of defending net neutrality, while misinterpreting and disregarding critical record evidence on industry practices and harm to consumers and businesses."

In addition to this action, the state of Montana took its own dramatic step earlier this week, on Jan. 23, when Governor Steve Bullock (D) signed an order barring telecommunications companies from receiving state contracts if they interfere with Internet traffic or allow for paid traffic priority. As reported by the Chicago Tribune, existing telecommunications contracts with the state are valued at approximately $50 million. While these contracts would not necessarily be modified, services contracted for after July 1 would be subject to the new rules. While Montana is the first to have taken such action, other states are likely to follow suit.

On the federal level, Senate democrats have introduced a resolution of disapproval under the Congressional Review Act with the goal of reversing the FCC's vote. Working this resolution's way through the Congress may take a while, but the action shows that legislators are paying attention. In addition, Marsha Blackburn, a Republication representative, introduced legislation in December that, although not invalidating all of the elements of the FCC's rule "relaxation," does recognize that blocking and throttling are unpopular with voters of all stripes.

Finally, in the last two days, AT&T took out full-page ads in several major metropolitan newspapers supporting its position, although simultaneously claiming that content-only providers, like Google, should be subject to similar regulation. But perhaps most impressively of all is the recent Burger King Net neutrality piece that does a great job (albeit a simple one) of explaining how the FCC's actions will affect consumers:

The future of Net neutrality is a topic that's of interest to American consumers across the political spectrum -- and many headlines are yet to come. But perhaps what's most impressive is the widespread nonpartisan recognition, and resulting action, that the issues affect most consumers.

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