“Anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that 'my ignorance is just as good as your knowledge.'” — Isaac Asimov
Move could fundamentally reshape internet economy and consumers’ online experience
FCC Chairman Ajit Pai has said hard-and-fast rules can stifle investment and innovation in a fast-moving industry. Photo: Zach Gibson/Bloomberg News
John D. McKinnon
WASHINGTON—Federal regulators this week are expected to unveil their plans for reversing Obama-era rules that require internet service providers to treat all web traffic equally, a move that could fundamentally reshape the internet economy and consumers’ online experience.
The changes, expected to be adopted at the Federal Communications Commission meeting in mid-December, would open the door to a wide range of new opportunities for internet providers, such as forming alliances with content firms to serve up their webpages or video at higher speeds and quality than those without such deals.
The new rules, according to industry officials, are expected to thoroughly dismantle the “open internet” plan adopted by the Obama administration’s FCC. Advocates of the current approach, including consumer groups and big internet companies, argued that such regulation is needed to curb the power of the broadband providers to affect the online environment through their control over the pipes.
Proponents of reversing them, including current FCC Chairman Ajit Pai, say hard-and-fast rules can stifle investment and innovation in a fast-moving industry. Internet service providers worried the Obama administration rules could open the door to eventual rate regulation and other heavy-handed oversight. They also viewed the rules as a solution in search of a problem, given the internet’s relative openness historically.
Mr. Pai began the process of reversing the 2015 rules earlier this year.
If the rollback survives likely legal challenges, it has the potential to reorder the online business environment. It could give internet providers such as AT&T Inc., Comcast Corp., Charter Communications Inc. and Verizon Communications Inc. more flexibility to use bundles of services and creative pricing to make their favored content more attractive to consumers.
This is the May, 17, 2017, FULL EPISODE of VICE News Tonight on HBO. Fighting and chaos in Libya could pave the way for an ISIS comeback in the country. President Donald Trump’s scandal is taking its toll on the GOP –and fueling talk of impeachment. Plus, a look at the move to overturn Obama-era net neutrality rules. And, at Frieze Art Fair, 20-year old art collector Michael Xufu Huang talks to VICE News about opening his own contemporary art museum at age 20, and his plans for his upcoming college graduation.
The Federal Communications Commission says it wants to hear from you about the future of net neutrality. But in opening its virtual doors to the public, it’s also opened them to spammers and trolls, some of whom might have even managed to knock the FCC’s site offline this past week.
On the one hand, these problems are mere hassles: The FCC’s site was only down for a few hours, and the flood of spam was easy to identify. On the other hand, they show just how hard it is to turn the web into a platform for democratic participation. Just look at any comments section on the internet.
If government agencies can’t find a way to stop spammers and trolls, their digital platforms could become useless.
The promise of digital democracy goes something like this: In the early days of the United States, few people could travel to the capital to voice their opinions on the issues of the day. Mail took weeks to deliver. That necessitated representatives who could come together and work full-time in a single location. But in the digital age, communications travel nearly instantly, removing or at least dramatically lowering the barriers to participation. Representative democracy still has many qualities to recommend it as a form of government, but logistical necessity is not one of them. Want to debate just about anyone, on any issue, from just about anywhere? Welcome to Twitter.
Or, if you’re especially interested in sounding off on net neutrality, welcome to the FCC’s website. The agency’s call for input on this seemingly wonkish policy topic has already attracted hundreds of thousands of public comments. The question now is how the government should handle all this democracy.
In 2014, comedian and Last Week Tonight host John Oliver did the seemingly unthinkable: He helped turn net neutrality into a rousing mainstream issue. This past Sunday, he called on viewers to ask the FCC to keep the net neutrality rules it passed in early 2015 instead of throwing them out. To make weighing in easier, Oliver pointed to a cheeky web address that would redirect people to a form they needed to fill out in order to leave a comment on the FCC site.
Hours later, the FCC site went offline. Initial reports suggested it was due to a surge of commenters spurred by Oliver, but on Monday the FCC issued a statement claiming it had been the victim of a distributed denial of service (DDoS) attack.
More recently, observers noticed that more than 128,000 of the 735,000 comments received so far were filed with identical text complaining that the FCC’s net neutrality rules are “smothering innovation, damaging the American economy and obstructing job creation.”
The Verge discovered that the names and addresses used for this flood of cloned comments appear to have come from a leaked spam database known as Special K. The text was taken from a conservative group called the Center for Individual Freedom, which encouraged its members to send a form letter to the FCC but denies spamming the site.
A similar form-letter campaign from the group American Commitment (first spotted by Motherboard) has resulted in more than 2,000 comments so far.
There are also more than 2,000 pro-Title II comments filed under the name “John Oliver,” as well as a few that hurl racial slurs at FCC chair Ajit Pai or threaten him with death. In other words, the FCC’s net neutrality comments are not that different from Twitter—death threats, racism, and maybe even spam bots promoting political causes.
Other government bodies, notably Congress, are also currently dealing with a deluge of public comments. As a result, activists often tell people to call their representatives on the phone instead of using apps or email—or, better yet, visit them in person at a town hall meeting. So much for digital democracy.
Online voting—not just for candidates but for actual laws—is perhaps the most utopian vision of democracy via the internet. Instead of voting for representatives, you could propose and vote on bills yourself. Or delegate your vote to other people, a more ad hoc network of representatives distributed across the internet. Such visions might sound plausible in theory, but organizations like Black Box Voting have long argued that there’s no way to keep people’s digital votes secret while also making it possible to audit the vote. In other words, pure online democracy would be much harder to trust or verify.
Instead, most of today’s digital democracy advocates favor using software like Democracy OS, Liquid Feedback, or Madison to let people discuss policy ideas, both with each other and their elected representatives. These tools have been used by governments big and small to post the text of bills or regulations as well as let the public suggest changes, comment on certain passages, or vote on specific ideas. You can think of these platforms as high-tech alternatives—or complements—to traditional town hall meetings. Unlike simply writing a letter to your representative, these tools could, in theory, enable citizens to come together to reach compromises or understandings. And unlike town hall meetings, anyone can participate from the comfort of their own homes, at whatever time is convenient—a potential boon for, say, single parents or people who work odd hours. By reducing the barriers to entry, digital platforms could help the government capture a more representative sample of citizen voices, instead of only hearing from the people who have both the time and passion to show up in person. The catch is that these types of platforms are just as vulnerable to harassment and spam as social media or the comments sections of news sites.
For Congress, part of the problem is personnel: If representatives could hire more staffers, they could get more out of their digital mailbags. Better tech would help as well. But what’s been happening at the FCC this week underscores the potential for digital democracy to be undermined by fraud, incivility, and security holes. While commercial social networks can moderate content and ban problem users, governments will have to tread lightly to avoid the accusations of censorship that would likely arise if they were to start jettisoning spam, trolling, and offensive comments the way commercial sites do.
At the same time, if government agencies can’t find a way to stop their sites from being flooded by spammers and trolls, their digital platforms could become useless. Then it’s right back to the old town hall. Democracy is hard, and the digital version doubly so. That’s the price, it seems, of participation.
The vote reclassified wireless and fixed-line broadband service providers as Title II “common carriers”, a public utility-type designation that gives the FCC the ability to set rates, open up access to competitors and more closely regulate the industry.
“The internet is the most powerful and pervasive platform on the planet,” said FCC chairman Tom Wheeler. “It’s simply too important to be left without rules and without a referee on the field.”
Two years on and Trump’s new FCC chairman Ajit Pai, a former Verizon lawyer, has announced plans to overturn the 2015 order, in turn gutting net neutrality. A vote on this proposal is due to take place on 18 May. Here’s why it matters.
What is net neutrality?
Net neutrality is the idea that internet service providers (ISPs) treat everyone’s data equally, whether that’s an email from your mom, a bank transfer, or a streamed episode of The Handmaid’s Tale. It means that ISPs don’t get to choose which data is sent more quickly and which sites get blocked or throttled (for example slowing the delivery of a TV show because it’s streamed by a video company that competes with a subsidiary of the ISP) and who has to pay extra. For this reason some have described net neutrality as the “first amendment of the internet”.
It’s official: the country’s top regulator of the internet wants to end net neutrality. Specifically, Federal Communications Commission chair Ajit Pai plans to repeal changes that gave the agency the authority to enforce net neutrality protections—that is, rules requiring internet service providers to treat all internet traffic equally. But he won’t likely be able to do so without a big legal fight.
During a speech today in Washington, Pai announced his intention to undo one of the Obama-era FCC’s signature achievements. Although he was light on specifics (he plans to release the full text of his proposal tomorrow), Pai made clear that he would seek to reverse an FCC decision to classify broadband internet access providers as “Title II” common carriers, putting them in the same category as traditional telephone companies. The re-classification gave the FCC authority to impose net neutrality requirements on both wireless and home broadband providers, preventing them from, for example, charging specific sites or companies fees for sending traffic over their networks or slowing down competitors’ streaming video offerings.
“Going forward, we cannot stick with regulations from the Great Depression meant to micromanage Ma Bell,” Pai said.
The FCC will vote on—and given its Republican majority, likely pass—the proposal during an open meeting May 18. But that will only start what promises to be a lengthy battle for the future of net neutrality. To truly torpedo the requirements, Pai will have to make the case that he’s doing so for good reason.
A 1946 law called the Administrative Procedures Act bans federal agencies making “capricious” decisions. The law is meant, in part, to keep regulations from yo-yoing back and forth every time a new party gained control of the White House. The FCC successfully argued in favor of Title II reclassification in federal court just last summer. That effort means Pai might have to make the case that things had changed enough since then to justify a complete reversal in policy.
“That’s a pretty dramatic reversal,” says Marc Martin, chair of communications law at Perkins Coie. “Presuming there’s an appeal, a court may find that arbitrary.”
You could be forgiven for thinking that the Federal Communications Commission was a rubber stamp machine for the telecommunications industry. Until this year that is.
Despite the Obama administration’s promise to crack down on monopolies and mega-mergers, the FCC approved Comcast’s purchase of NBCUniversal in 2011. Four months later Meredith Attwell Baker, the FCC commissioner who handled the case for the US government, landed a job at Comcast as the senior vice president of government affairs. That same year former FCC chairman Michael Powell became a cable industry lobbyist.
The FCC’s revolving door policy made it hard to take seriously. Then a curious thing happened. The FCC grew a spine.
Then, in 2013, President Obama appointed Tom Wheeler, a former cable industry lobbyist himself, to the position of FCC chairman. This revolving door policy made it hard to take the FCC seriously. So when Wheeler and company proposed new rules that would have allowed Internet service providers like Comcast and Verizon to give preferential treatment to certain traffic as long as it was “commercially reasonable,” few people were surprised and most of us expected network neutrality to be toast. Then a curious thing happened. The FCC grew a spine.
Net Neutrality for Real
The FCC took its first stab at enforcing network neutrality in 2010, back before Wheeler took the chair. But an appeals court struck the rules down in January 2014, arguing that because Internet service providers were legally classified as “information services” instead of so-called Title II common carriers, like traditional voice telephone services, the FCC didn’t have the authority to enforce those rules.
That led to a spineless proposal in March of 2014 that would have allowed “commercial reasonable” prioritization. Wheeler insisted that the rules meant commercially reasonable for consumers, not for Internet providers. But to outsiders it looked as if Wheeler, the former lobbyist, was content to let network neutrality die now that he was in charge. There was an explosion of opposition to the proposal, including protests outside the FCC’s office, massive Internet petitions and, perhaps most importantly, a 14-minute rant by Last Week Tonight host John Oliver.
Suddenly, what was once an arcane telecommunications police debate was international news.
Net neutrality has been the law of the land for only 10 days, but already a web-cam company is knocking on the FCC’s door to complain that Time Warner Cable is breaking the rules. The case could, in theory, lead the agency to flex new powers over an internet provider – but the smart money will bet that the FCC throws the web-cam firm out on its ear.
The complaint, which came to light on Monday, comes via Commercial Network Services (CNS), a San Diego company that live-streams views of southern California. It asks the FCC to do something about the fact that Time Warner Cable TWX -0.37% wants to charge it for delivering its web traffic. Because CNS won’t pay, its live stream is choppy and slow.
“Aha!” some might say, “Isn’t this what net neutrality is supposed to prevent?”
Not quite. The dispute here doesn’t involve the so-called “last mile” where ISP’s like Time Warner Cable bring broadband to consumers – and where the FCC has made it clear that all web traffic must be treated the same. Instead, the CNS case involves “peering” or “interconnection,” which refers to a type of connection that occur at a deeper layer of the internet, and takes place between content providers (like Netflix or CNS) and the ISPs.
In these cases, the FCC only requires for arrangements between ISP’s and the websites providing content to be reasonable. So is Time Warner Cable being unreasonable? Well, that’s for the FCC to decide but, according to a gaggle of people who live and breathe this stuff, the ISP is not obliged to serve CNS for free, and its complaint will fail.
FCC Chairman Tom Wheeler has made some last-minute revisions to his net neutrality plan after Google and public interest groups pressed for the changes, according to sources at the commission.
Google, Free Press and New America’s Open Technology Institute last week asked the commission to revise language they said could unintentionally allow Internet service providers to charge websites for sending content to consumers. Such a scenario could open the door to an avalanche of new fees for Web companies and threaten their business models.
Google executives on Feb. 19 called aides to Wheeler and staffers for the FCC’s two other Democratic commissioners — Mignon Clyburn and Jessica Rosenworcel — to make their case, according to a company disclosure. Clyburn has been the most vocal proponent of the revisions inside the commission, the sources said.
The exact scope of the language changes — which came to light a day before the FCC is scheduled to vote on the rules — wasn’t immediately clear. They do not appear to alter the main thrust of Wheeler’s proposed order, which would regulate broadband like a public utility to ensure Internet providers treat all Web traffic equally. The commission’s Democratic majority is expected to approve the order over objections of Republicans who say the rules are heavy handed and will harm investment.
Most network neutrality supporters regard the new regulations that Federal Communications Commission Chairman Tom Wheeler proposed this weekas a victory for the open internet. But it was also a personal victory for Tim Wu, the Columbia Law School professor who coined the term network neutrality more than a decade ago and has been one of its leading champions ever since. (See our previous interview with Wu here.)
The debate over internet regulation has been focused on two provisions of telecommunications law, known unimaginatively as Title I and Title II. For the last decade, the FCC has regulated internet access under Title I, a low-regulation framework designed for online services. However, last year the courts ruled that Title I didn’t give the FCC enough authority to establish strong network neutrality rules.
Wheeler’s proposal would, for the first time in more than a decade, apply Title II to internet access. Title II is the part of the law designed for public utilities like telephone service. Wu believes that Title II will give the FCC a much firmer foundation for its new regulations.
Wu also has a surprisingly positive view of a Republican alternative to Wheeler’s proposal. In recent weeks, a lot of network neutrality supporters have blasted the Republican legislation as a cynical ploy to undermine support for Wheeler’s rules. While Wu says he prefers Wheeler’s proposal, he also says the Republican bill is “a decent network neutrality bill” and “not a joke.” He argues that shifting public opinion may push Republicans in a more pro-net neutrality direction.
I spoke to Wu by telephone on Thursday. The conversation has been edited for length and clarity.
Timothy B. Lee: What do you think about the new network neutrality rules Chairman Wheeler proposed this week?
Tim Wu: It’s a new day and I think it’s frankly a new era in all of telecom regulation. I think it may be that 2015 ends up being the marker of a whole new approach.
“Network neutrality started out very remote and obscure and has kind of become front and center.”
The banner of telecom regulation from 1934 until 1984 was regulated monopoly. Obviously that ended when AT&T was broken up. Then there’s an era, I guess roughly between 1984 and 2015, which is marked by an increasingly deregulatory approach. Every time a law is passed it deregulated. Now the centerpiece of telecommunications policy is a net neutrality rule, which started out very remote and obscure and has kind of become front and center.
Federal Communication Commission(FCC) Chairman Tom Wheeler waits for a hearing at the FCC December 11, 2014 in Washington, DC. Brendan Smialowski/AFP/Getty Images
After more than a decade of debate and a record-setting proceeding that attracted nearly 4 million public comments, the time to settle the Net Neutrality question has arrived. This week, I will circulate to the members of the Federal Communications Commission (FCC) proposed new rules to preserve the internet as an open platform for innovation and free expression. This proposal is rooted in long-standing regulatory principles, marketplace experience, and public input received over the last several months.
Broadband network operators have an understandable motivation to manage their network to maximize their business interests. But their actions may not always be optimal for network users. The Congress gave the FCC broad authority to update its rules to reflect changes in technology and marketplace behavior in a way that protects consumers. Over the years, the Commission has used this authority to the public’s great benefit.
The internet wouldn’t have emerged as it did, for instance, if the FCC hadn’t mandated open access for network equipment in the late 1960s. Before then, AT&T prohibited anyone from attaching non-AT&T equipment to the network. The modems that enabled the internet were usable only because the FCC required the network to be open.
Companies such as AOL were able to grow in the early days of home computing because these modems gave them access to the open telephone network.
I personally learned the importance of open networks the hard way. In the mid-1980s I was president of a startup, NABU: The Home Computer Network. My company was using new technology to deliver high-speed data to home computers over cable television lines. Across town Steve Case was starting what became AOL. NABU was delivering service at the then-blazing speed of 1.5 megabits per second—hundreds of times faster than Case’s company. “We used to worry about you a lot,” Case told me years later.