Monday, 29 May 2017

Here we go again: opening salvos fired in new U.S. net neutrality battle

By Nick Wood, Total Telecom
Friday 28 April 17

FCC chairman Ajit Pai's proposal to roll back Title II prompts swift response from supporters and opponents alike.

Anyone feeling nostalgia for 2014's fierce and seemingly never-ending debate about how the U.S. should protect net neutrality was overtaken by a warm, fuzzy feeling inside this week. Come on, you know who you are. As for the rest of us, there was a sense of old playbooks being dusted off, and the sound of a thousand acerbic statements being typed by spokespeople on both sides of the argument. U.S. Federal Communications Commission (FCC) chairman Ajit Pai no doubt felt a great sense of anticipation ahead of the speech he delivered late on Wednesday at the Newseum in Washington, in which he set out his plan to do away with regulating net neutrality under Title II of the Communications Act. Sadly, in this age of fake news and alternative facts, both sides, rather than enter into a civilised discussion about the merits of their respective cases, have already resorted instead to accusing one another of peddling untruths…

Anyone feeling nostalgia for 2014's fierce and seemingly never-ending debate about how the U.S. should protect net neutrality was overtaken by a warm, fuzzy feeling inside this week.

Come on, you know who you are. As for the rest of us, there was a sense of old playbooks being dusted off, and the sound of a thousand acerbic statements being typed by spokespeople on both sides of the argument.

U.S. Federal Communications Commission (FCC) chairman Ajit Pai no doubt felt a great sense of anticipation ahead of the speech he delivered late on Wednesday at the Newseum in Washington, in which he set out his plan to do away with regulating net neutrality under Title II of the Communications Act.

Sadly, in this age of fake news and alternative facts, both sides, rather than enter into a civilised discussion about the merits of their respective cases, have already resorted instead to accusing one another of peddling untruths.

"You will hear from the other side that Title II regulation is the only way to preserve a free and open Internet. This is a lie," Pai said.

"For decades before 2015, we had a free and
open Internet," he said, referring to the year when the FCC's net neutrality rules, called the Open Internet Order, came into force.

Pai said the law was nothing more than a power grab aimed at putting the government at the centre of the Internet.

"We were not living in some digital dystopia before the partisan imposition of a massive plan hatched in
Washington saved all of us," he said.

What's more, Pai claimed the Open Internet Order led to lower investment by network operators, particularly small players serving rural communities.

"Pai is lying about investment and wooing the right-wing fringe to continue his long-standing war on Internet freedom," countered Craig Aaron, CEO of pro-net neutrality group Free Press.

"His willingness to trot out alternative facts and recycle long-debunked industry talking points should worry anyone who cares about the free and open Internet," he warned.

Under Pai's plan, ISPs would once again be categorised as information services, rather than telecommunication services which are subject to Title II regulation.

This would "return to the light-touch regulatory framework that served our nation so well during the Clinton Administration, the Bush Administration, and the first six years of the Obama Administration," Pai said.

Pai also wants to scrap the FCC's Internet conduct standard, which he said gave the regulator the power to investigate AT&T and Verizon's zero-rated services.

"Under these programmes, wireless companies offer their customers the ability to stream music, video, and the like free from from any data limits. They are very popular among consumers, particularly lower-income Americans," Pai said.

Furthermore, Pai also wants to review the Bright Line Rules, which state explicitly what ISPs can and cannot do under the Open Internet Order. These cover practices like blocking and throttling access to lawful content, and paid prioritisation.

He claimed that his proposals will stimulate network investment, leading to job creation, and will help smaller ISPs compete. He also claimed that they will protect privacy by returning jurisdiction to the Federal Trade Commission, instead of the FCC.

The FCC plans to vote on a Notice of Proposed Rulemaking at its meeting on 18 May, after which Pai's plans will be put out for a public consultation.

The response to Pai's proposals was immediate.

Telco lobby group USTelecom said the announcement was an important step towards levelling the playing field.

"Removing restrictive Title II regulations from broadband providers puts consumers, innovators, engineers and entrepreneurs – not the government – back in the broadband driver's seat," said Jonathan Spalter, CEO of USTelecom.

Fellow FCC commissioner Michael O'Rielly also backed Pai's plan.

"Based on hyperbole, rent seeking, imaginary problems and liberal ideology, the previous FCC took Internet policy down into a dark and horrible abyss," he said in a speech on Wednesday.

"Well, we are here to declare that those days are over; we are bringing sanity and evidence-based decision-making back to the Commission's rules," he said.

Meanwhile, AT&T insisted that scrapping the Open Internet Order does not mean an end to the open Internet.

"The question is how, as a country, we will regulate the Internet ecosystem – including not only ISPs and the broadband infrastructure they deploy, but the tech companies that now dominate the Internet experience," said Joan Marsh, SVP of Federal Regulatory at AT&T.

Unsurprisingly, consumer advocates and OTT lobby groups were not quite as enthusiastic.

"This proposal is Washington policy-making at its worst – an alignment of government regulators with dominant industry interests," said Ryan Clough, general counsel at consumer group Public Knowledge.

"It's particularly unfortunate to hear the chairman of the FCC deploy fact-free rhetoric about supposed 'government control over the Internet' – a baseless distortion of the actual issues at stake in this debate," he said.

"The existing 2015 Open Internet Order protects consumers from ISPs looking to play gatekeeper or prioritise their own content at the expense of competition online. Rolling back these rules or reducing the legal sustainability of the Order will result in a worse Internet for consumers and less innovation online," warned Michael Beckerman, CEO of the Internet Association (IA), which represents the likes of Amazon, Facebook, Google, Microsoft, Netflix, and Paypal, among others.

As well as powerful industry associations, Pai's proposals have also put him on a collision course with another FCC commissioner, and an FTC commissioner.

Pai's plan, "if implemented, will hand over control of the open Internet to the powerful gatekeepers of our connections to the modern world," claimed FCC commissioner Mignon Clyburn and FTC commissioner Terrell McSweeny, in a joint statement.

"Broadband providers could shape the future of Internet content, mine and sell sensitive personal information, and limit consumer access to the Internet in whatever manner they think will bring them the most profit," they warned.

So, the battle lines have been well-and-truly freshened up.

With powerful players on each side of the argument, it is tough to call which way this one will go.

However, despite Pai's hopes for a bipartisan effort to rewrite the country's net neutrality rules, political division in Washington, coupled with a Republican majority in the House, Senate, and FCC, means that the smart money is on Pai getting his own way, regardless of how the debate takes shape over the coming months.

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