Internet Groups Urge Appeals Court To Reinstate Net Neutrality

by Samuel Abasi Posted on August 28th, 2018

Washington, D.C., USA : The Internet Association along with a number of other trade groups, filed a brief in the US Court of Appeals for the District of Columbia Circuit on Monday urging the court to reinstate net neutrality rules.

The brief was filed in support of the petitioners, one of which is Mozilla Corporation, who filed suit against the Federal Communications Commission (FCC) and the US government. The petitioners are seeking “review of an Order of the Federal Communications Commission (FCC) that eliminates judicially-approved rules the FCC adopted in 2015 to protect and promote net neutrality and an open internet.”

The brief argues in support of net neutrality, saying that the FCC “unreasonably asserts that no neutrality rules … are needed to protect the open internet.” It also states that the FCC’s claim that “the costs of the net neutrality conduct rules outweigh their benefits” is a flawed analysis and that it is counter to the FCC’s own factual findings. It concludes by saying that “[b]ecause the Commission does not offer a reasoned basis for its decision to eliminate the conduct rules, the Order is arbitrary and capricious.”

EARLIER : California Net Neutrality Bill Forebodes Showdown With FCC

Sacramento, California, USA : Two bills facing final approval in the California Assembly and Senate this week have become a proxy battle in the larger national fight against the Federal Communications Commission (FCC) Net Neutrality rollback.

When the FCC voted late last year to roll back net neutrality protections, California Democratic leaders pledged to wage a fight with the Trump administration to preserve fair and open access to the internet in California.

Now two bills facing final approval in the Assembly and Senate this week have become a proxy battle in the larger national fight to reshape the internet.

The ambitious proposals would establish the strongest net neutrality rules in the nation, safeguards that advocates say would be stronger than those rejected by the White House. One would prevent internet service providers from blocking or slowing down websites and video streams, or charging websites fees for faster speeds. The other would deny public contracts to companies that fail to follow the new state regulations.

Calls in support of the legislation intensified last week after news broke that Santa Clara County firefighters were hindered by inadequate internet service as they helped battle the massive Mendocino Complex fire in July.

But pushing the bills through to passage hasn’t been as easy as proponents had hoped in a state controlled by Democrats with a distaste for Trump administration policies. Over the past year, a powerful tech industry has sunk millions into killing the state’s net neutrality efforts, while supporters have responded in kind with aggressive public advocacy campaigns.

“Everyone is waiting to see what happens with this bill,” Evan Greer with the tech advocacy nonprofit Fight for the Future said of the proposal to bar ISPs from slowing access or charging fees for faster speeds. “If California can’t pass net neutrality protections, opponents will use it as fodder to kill any net neutrality efforts at the federal level moving forward .… if the bill passes, it would create the gold standard for other states to follow suit.”

Net neutrality has been the most closely watched telecom issue taken up by the Federal Communications Commission over the past decade. The most recent rules were implemented in a Februrary 2015 order under the Obama administration. They barred broadband and wireless companies such as AT&T Inc. and Verizon Communications from selling faster delivery of some data, slowing speeds for certain content or favoring selected websites over others.

But the federal agency voted to reverse the regulations last year, with President Trump-appointed FCC Chairman Ajit Pai and Republicans calling for an end to the utility-like oversight of internet service providers. The vote and the official repeal of the rules in June sparked protests across the state and nationwide.

Net neutrality has since become a rallying issue for Democrats to stir young voters in House races across the country, though opposition to the rollback of the rules has remained overwhelmingly bipartisan. A March survey of 997 registered voters by the School of Public Policy at the University of Maryland found 82% of Republicans and 90% of Democrats were against the move.

With that national conversation as a backdrop, California is one of 29 states that have since considered net neutrality protections in the last year. Governors in six states — including Hawaii, New York and Montana — have signed executive orders to reinstate some form of net neutrality. Three states — Oregon, Vermont and Washington — passed legislation to ensure such protections for government agencies and consumers.

State Senators Scott Wiener (D-San Francisco) and Kevin de León (D-Los Angeles) are working together to establish rules that go beyond those adopted under the Obama administration. Wiener’s Senate Bill 822 would, in effect, re-establish the Obama-era rules. Senate Bill 460 by De León bars companies that violate them from receiving public dollars.

But SB 822 also places new limits on zero-rated data plans, or package deals that allow companies such as Verizon or Comcast to exempt some calls, texts or other content from counting against a customer’s data plan. Unlimited phone plans that give customers “free nights and weekends” would be permitted. Data plans that exempt the same type of content from some companies over others — video streamed on YouTube but not Hulu, for example — would not.

The bill also prohibits broadband companies from evading net neutrality rules not only as data travels through their networks, but as it enters them. That would prevent internet service providers from slowing down content from websites that refuse to pay for delivering the data to their customers.

Neither issue was fully addressed in the 2015 federal net neutrality order, which allowed the FCC to further study zero-rated data plans and internet traffic exchange practices “without adopting prescriptive rules.”

But proponents — including former FCC Chairman Tom Wheeler, who was appointed by President Obama, and smaller to mid-level broadband companies — argue the state legislation mostly mirrors the 2015 order in language and approach, tasking the state attorney general with evaluating potential violations on a case-by-case basis. Former FCC officials say the new limits on zero-rated data plans are based on policy analysis that the federal agency undertook in 2016.

Meanwhile, state lawmakers paint a grim picture of the internet without net neutrality rules. They say providers would be able to sell bundled packages with only select sports, entertainment and shopping sites for consumers, or slow readers’ access to news sites that refuse to pay more for faster service. Start-ups would suffer.

SB 822 would ensure “that we all get to decide for ourselves where we go on the internet, as opposed to having internet service providers tell us where we are allowed to go,” Wiener said.

High-profile court cases have underscored their concerns. From 2013 until the 2015 order, six major ISPs were accused of slowing down content from companies that refused to pay for access to their customers. Troubles with Netflix made the most headlines as customers experienced delays watching movies and TV shows.

Many more companies felt the the impact, said Stanford Law School professor Barbara van Schewick, who has studied the issue for more than a decade.

“Employees couldn’t connect to their company’s network,” she said. “Schools couldn’t upload their payload data. Skype calls dropped.”

But major telecom companies and broadband service providers contend the state legislation reaches far beyond the scope of the rolled back federal regulations. Tech industry lobbyists say the rules could lead to costly litigation against the state, and would create a patchwork of state and federal laws governing the internet.

“There are a bunch of folks that didn’t get what they wanted in the 2015 order and are trying to get it here in California,” Steve Carlson, general counsel for the Computing Technology Industry Assn., said at a recent committee hearing.

Bill Devine, a Sacramento-based lobbyist for AT&T, has suggested Wiener’s bill would hurt tech innovation and last week called it “a radical departure from historical internet policy.”

“We believe this bill is anti-competitive and anti-consumer, and is surely going to be challenged,” he said.

The debate in California has drawn national attention. When the Assembly Communications and Conveyance Committee tried to scale back SB 822 in June, it retreated amid backlash from net neutrality proponents. The committee’s chairman, Assemblyman Miguel Santiago (D-Los Angeles), faced a barrage of tweets condemning the move, and his committee’s vote was captured in a video that went viral. Some took family photos from Santiago’s social media profiles and used them to create critical memes.

The fight isn’t over yet. We can still pass a strong net neutrality law in California, but we need everyone to speak up for the open internet. Sign the petition to stand up for real net neutrality and Senate Bill 822: — CREDO Mobile (@CREDOMobile).

Fight for the Future raised more than $15,000 through a crowdfunding site and Reddit campaigns to put a billboard in Santiago’s district urging him to restore the bill. On Friday, Santiago said the committee had always intended to keep working on the legislation, and called claims that members tried to rewrite it at the behest of the tech industry false.

“At the end of the day, the proof is in the pudding,” said Santiago, who has signed on as a co-author to both bills. “We put together the strongest net neutrality bill in the country. The tech industry opposed it then, it opposes it now — and they will continue to oppose it. But I feel good about our chances.”

The bills passed out of his committee last week, hours after Verizon was reported to have slowed the speed of the Santa Clara Fire Department’s wireless data transmission. The revelation was detailed in an addendum to a federal lawsuit filed by states including California to challenge the repeal of net neutrality rules.

Verizon general counsel Heidi Barsuglia called it a customer service mistake and said the company was investigating the incident.

“This particular situation has nothing to do with net neutrality,” she told lawmakers. “Net neutrality addresses content discrimination. This was content neutral.”

But Assemblyman Freddie Rodriguez (D-Pomona) wondered what could happen to consumers without protections if even firefighters could face difficulty accessing the internet while “protecting our people and saving lives.”

Wiener said that at the very least it was evidence of “how critical internet access is to everything.”

EARLIER : 22 States, D.C. File Court Brief To Reverse FCC Net Neutrality Rollback

Washington, DC, USA: Twenty-two state attorneys general and the District of Columbia have asked a U.S. appeals court to reinstate net neutrality rules that barred internet providers from throttling traffic or offering paid fast lanes.

The group, led by New York Attorney General Barbara Underwood, originally filed suit in January after the FCC voted in December to roll back the Obama-era policy. They state in a new brief filed Tuesday that a “free and open internet is critical to our democracy.”

“By repealing net neutrality, the FCC is allowing internet service providers to put their profits before consumers while controlling what we see, do, and say online,” Underwood wrote.

The brief argues that the “FCC’s order is arbitrary and capricious because it puts consumers at risk of abusive practices by broadband providers, jeopardizes public safety” and that it “unlawfully purports to preempt state and local regulation of broadband service.”

“For more than fifteen years, the Federal Communications Commission has agreed that an open Internet free from blocking, throttling, or other interference by service providers is critical to ensure that all Americans have access to the advanced telecommunications services that have become essential for daily life. The recent Order represents a dramatic and unjustified departure from this long-standing commitment,” the brief states.

The FCC was too credulous in accepting industry promises “to refrain from harmful practices,” the officials said, “notwithstanding substantial record evidence showing that [internet service] providers have abused and will abuse their gatekeeper roles in ways that harm consumers and threaten public safety.”

The coalition of 23 Attorneys General collectively represents over 165 million people and includes the Attorneys General of New York, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Mississippi, New Mexico, New Jersey, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.

In June, the Federal Communications Commission (FCC) put into effect a new rule, “Restoring Internet Freedom,” to replace regulation that ensured internet providers treated all websites and content equally.

FCC chairman Ajit Pai defended his agency’s policy shift in June, saying that the new rules will provide a “light touch approach” that produces “tremendously positive” benefits for consumers.

The legal briefs reflect a widening front in the multi-pronged campaign by consumer groups and tech companies to rescue regulations that originally barred providers from blocking websites or slowing them down. With the FCC’s changes, internet service providers may legally manipulate internet traffic as it travels over their infrastructure, so long as they disclose their practices to consumers.

Another group representing Mozilla — the maker of the Firefox web browser — as well as Etsy, Vimeo and a number of consumer organizations said the FCC’s core rule changes made no logical sense and improperly conflate high-speed internet service with online applications.

In justifying the deregulation, the FCC had said broadband is more like an information service than a telecommunications service. The distinction is important because the legal classification determines the extent to which the FCC may regulate the service providers. For example, the “telecommunications” classification allowed the FCC, in 2015, to apply stricter rules to internet service providers that not only banned the blocking of websites but also imposed new obligations on carriers meant to safeguard customer privacy.

The FCC said in its rule change last year that although many people no longer rely on their internet service provider for crucial applications such as email or search, many providers still maintain these applications.

What’s more, the agency said, all internet service providers perform tasks that fall under the definition of an information service, such as interpreting what a user means when they type “fcc.gov” into their browsers and translating it into an IP address that servers can understand. This system, known as the Domain Name System, is what enables people who are connected to the internet to get from one site to another.

“While many popular uses of the internet have shifted over time,” the FCC’s order said, “the record reveals that broadband internet access service continues to offer information service capabilities that typical users both expect and rely upon.”

But tech companies and consumer groups told the court Monday that third-party services routinely carry out those same functions, and that ISPs cannot lay claim to lighter regulation just because a portion of their business is involved in performing them.

“The FCC could not have reasonably concluded that a drop of DNS and caching in a sea of transmission transformed the service into something that could properly be called an information service,” the brief said.

The overall impression, the group said, is that of trying to deregulate all roads that lead to hotels by simply reclassifying the roads themselves as hotels.

“Never mind, continues the builder, that the road itself does not provide guests with any lodging, business conferencing, or beach recreation services,” the brief said. “That is the essence of what the FCC argues.”

The FCC has a court deadline in October to file its response.

EARLIER : FCC Net Neutrality Rollback Goes Into Effect

The Federal Communications Commission, FCC’s repeal of net neutrality rules, which required internet service providers to offer equal access to all web content, took effect on Monday.The Obama-era net neutrality/open internet rules prohibited internet providers from charging more for certain content or from giving preferential treatment to certain websites.

After the FCC voted 3-2 along party lines to repeal the rules in December, it faced a public outcry, legal challenges from state attorneys general and public interest groups, and a push by Democratic lawmakers to overturn the decision.

The opponents argued that the repeal would open the door for service providers to censor content online or charge additional fees for better service — something that could hurt small companies — and several states have taken steps to impose the rules on a local level.

“Now, on June 11, these unnecessary and harmful internet regulations will be repealed and the bipartisan, light-touch approach that served the online world well for nearly 20 years will be restored,” FCC chairman, Ajit Pai, earlier said.

“The agency failed to listen to the American public and gave short shrift to their deeply held belief that internet openness should remain the law of the land,” FCC commissioner Jessica Rosenworcel told reporters. “The FCC is on the wrong side of history, the wrong side of the law, and the wrong side of the American people.”

Trump’s pick to run the Federal Communications Commission, Ajit Pai, called the net neutrality rules “heavy-handed” and vowed to end them. His order, touted as promoting investment and broadband deployment, loosens the FCC’s regulation of ISPs, and instead gives the Federal Trade Commission jurisdiction to enforce violations. Pai says this system lets the FTC focus on “the bad apples” and allows other players “thrive in a free market.”

The new Trump FCC order permits ISPs to throttle, block, or be paid to prioritize certain sites or content, as long as they disclose that they are doing so.

Ajit Pai’s announcement  came right after a bipartisan group of Senators introduced a discharge petition, officially challenging the FCC’s rollback of the Obama-era net neutrality rules. The petition will require a majority vote in the Senate and House of Representatives, along with the signature of President Donald Trump, so it has a long way to go, but the vote could take place as early as next week.

The FCC’s decision was published in the Federal Register on February 22nd and as per the Congressional Review Act, the Senate had 60 days from that date to take action.

The Senate version of the bill to Ooverturning FCC’s Net Neutrality rollback passed 52-47. Three Republican Senators joined their Democratic colleagues in supporting the bill – Lisa Murkowski (Alaska) and John Kennedy (Louisiana) and Susan Collins (Maine).

Congressional Review Act (CRA) bills allow Congress to overturn agency decisions with majority votes in each chamber, and a signature from the president.

The legislative victory in the Senate  is fleeting because the House does not intend to take similar action, but Democrats are planning to carry the political fight over internet access into the 2018 midterms. Even if it passes the House, Trump is not expected to sign.

Regardless, House democrats led by Michael F. Doyle, Democrat, U.S. Representative for Pennsylvania’s 14th congressional district, said that he intends to launch a discharge petition in an order to force a House vote on reinstating the Federal Communication Commission’s (FCC) net neutrality rules – after the Senate passed a bill to overturn the repeal.

At the same press conference, House Minority Leader Nancy Pelosi (D-California) and Senate Minority Leader Charles Schumer (D-New York) called on Speaker Paul Ryan (R-Wisconsin) to bring the CRA to the House floor, urging Republicans to back it.

Most Republican lawmakers argue that the Obama net neutrality rules is a case of over regulation.

Across the country, state officials have moved to keep net neutrality rules in place on their turf. According to the National Council of State Legislatures, governors in six states — New Jersey, New York, Montana, Rhode Island, Vermont and Hawaii — have signed executive orders upholding net neutrality, and three – Washington, Vermont and Oregon — have enacted legislation that does so.

In January, attorneys general in 22 states and the District of Columbia filed a protective petition for review of the order.

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Samuel Abasi

Samuel Abasi

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