Ex-Obama FTC Boss Now Lobbying For Comcast, Trying To Prevent States From Protecting Consumers

Broadband

from the revolving-door-regulation dept

While the Trump FCC has certainly taken protectionism, corruption and cronyism to an entirely new level, it’s important not to forget that Trump and Ajit Pai are just products of the country’s long established bipartisan dysfunction when it comes to revolving door regulators, and it’s going to take more than just ejecting Trump and Pai to repair the underlying rot that has allowed them to blossom.

Case in point: former Obama FTC boss Jon Leibowitz, who has long professed himself to be a “privacy advocate,” has spent much of the last few years lobbying for Comcast while at Davis Polk. That has included making a myriad of false claims about ongoing, EFF-backed efforts to protect broadband consumer privacy in California.

In an endless wave of op-eds (where his financial conflicts of interest are almost never disclosed to the reader), Leibowitz has been busy insisting that rampant ISP privacy abuses are a “nonexistent problem,” and that strong state and FCC oversight of ISPs are unnecessary because the FTC will somehow rush in to save the day in the wake of efforts to neuter the FCC, kill net neutrality, and embolden massive anti-competitive telecom duopolies.

We’ve already outlined in detail why that’s a horrible take here. More specifically, the FTC lacks rule-making authority, and can only act against ISPs if behavior is clearly proven to be “unfair and deceptive,” something ISPs can usually wiggle out of on the net neutrality front (we weren’t throttling a competitor, we were protecting the safety and integrity of the network!). The FTC’s also understaffed, under-funded, and over-extended. And oh, did we mention that AT&T has been busy in court trying to obliterate whatever authority over ISPs the FTC does have?

Leibowitz (like most ISP lobbyists pretending to be objective analysts) “forgets” to mention that.

With more than half the states in the nation now considering some flavor of net neutrality and privacy rules in the wake of federal apathy, Leibowitz is also busy trying to help Comcast scuttle privacy and net neutrality in other states like Massachusetts. Massachusetts, with the backing of dozens of lawmakers, is contemplating new net neutrality rules that would effectively mirror the ones Comcast lobbied the FCC To dismantle last December.

Leibowitz’s oppositional testimony this week in front of state leaders included claims that net neutrality somehow hampered broadband industry investment, an ISP-lobbying claim routinely debunked by just looking at ISP earnings reports, SEC filings, and countless CEO statements:

“According to his prepared testimony for a hearing before the Joint Committee on Telecommunications, Utilities, Leibowitz said he recognized “the sky did not fall” when the FCC, during the Obama Administration, reclassified ISPs as Title II common carriers. But he said that reclassification did have costs to consumers, including diminished deployment of broadband, according to the FCC, as well as removing broadband consumer protection from the FTC’s jurisdiction.”

Again that diminished deployment never happened. ISP CEOs admit as much. Meanwhile, the “sky did not fall” because the FCC’s 2015 net neutrality rules haven’t even technically been repealed yet (that’s expected to occur sometime in April). Even then, ISPs aren’t expected to truly even start testing their newfound anti-competitive freedoms until they’re sure the FCC (with ISP help) wins their looming legal battle. Even then ISPs may not truly be comfortable behaving badly until they’re sure tougher state and federal rules are pre-empted (that’s why they’re pushing for a fake, loophole-filled net neutrality law.)

Knowing that states might fill the consumer protection vacuum, both Verizon and Comcast lobbied the Trump FCC to include language in their net neutrality repeal trying to ban states from protecting consumers (from net neutrality or privacy violations). And while Leibowitz tried to warn Massachusetts leaders that they might run afoul of the Trump FCC if they try to protect consumers (oh no!), that ignores the fact that legal experts say the FCC abdicated its authority on this front when they decided to back away from classifying ISPs as common carriers.

Again, dozens of individual state privacy and net neutrality protections aren’t ideal, but that’s something Leibowitz’s client Comcast should have thought about before lobbying to demolish popular and modest federal level privacy and net neutrality protections. The fact that ISP lobbyists still cling to false claims that net neutrality “demolished sector investment” speaks volumes as to the integrity of their arguments. Meanwhile, at some point media outlets in the States need to wake the hell up to the harm caused by publishing lobbyist op-eds without disclosing authors’ financial ties to industries they represent.

Filed Under: broadband, california, competition, ftc, jon leibowitz, lobbying, massachusetts, net neutrality, privacy
Companies: comcast

Comcast's Top Lobbyist Is Pushing A Net Neutrality 'Compromise' That Isn't

Broadband

from the zero-credibility dept

With net neutrality rules currently on the chopping block, Comcast’s top lobbyist is once again trying to sell people on letting giant ISPs pick winners and losers on the internet. The FCC’s 2015 net neutrality rules explicitly banned “paid prioritization,” or letting one company (say, Disney) buy itself a network advantage over more cash-strapped competitors. While the FCC’s 2015 rules carved out vast exceptions for legitimate prioritization (VoIP, medical services), they made it clear that anti-competitive paid prioritization deals of this kind distorted the traditionally level playing field, letting the wealthiest companies buy an unfair edge over competitors.

And while Comcast used to promise that it would never consider such deals, those promises have slowly but surely evaporated the closer we get to the net neutrality repeal the company has spent millions on. As we get closer to a country without real net neutrality protections, Comcast’s promises to avoid such pay-to-play schemes have been not-coincidentally mysteriously disappearing from the company’s website.

Now Comcast’s top lobbyist David Cohen (who calls himself the company’s “Chief Diversity Officer” to tap dance around lobbying disclosure rules) has been making the rounds trying to suggest that paid prioritization isn’t all that bad. Speaking at a recent telecom industry-funded think tank event, Cohen tried to argue that “politics” has gotten in the way of a real conversation about such proposals, and that hard rules banning all prioritization would hamstring innovation:

“He said there has been a recognition that “something might come along that is not anticompetitive, that is pro-consumer, and that is a specialized service not available to every user of the internet that would be in the public interest.”

He said the paid prioritization/specialized service example, which he raised at last week?s American Cable Association conference in Washington, was about what could happen if people sat down to talk about the issue rather than playing politics with it. His point was that there was a conversation to be had about pro-consumer, non-anticompetitive services if folks would get past the politics.”

But that’s bullshit. There was a way to allow sensible, innovative prioritization deals while still outlawing anti-competitive paid prioritization: the 2015 FCC rules that Cohen and his buddies lobbied the Trump FCC to repeal. Again, we had this problem pretty much resolved already with rules that allowed for the prioritization of essential and specialized services, but prohibited deals that put smaller players at an anti-competitive disadvantage. Rules that took years of debate to craft, only to be discarded because the Trump FCC decided to ignore the public, ignore the experts, and kiss Comcast’s giant, monopolistic ass.

This idea that net neutrality will hamper innovation is a canard the industry has been circulating for years. Both Comcast and Verizon have also repeatedly tried to falsely claim that net neutrality rules harm the sick and disabled, despite the fact that’s never been remotely true. But said canards have been dusted off and repurposed as Cohen renews a push for “rational” net neutrality legislation with weaker limits on prioritization deals:

“If rational people will sit down and talk about this, they can even resolve what has become a third rail around bipartisan network neutrality legislation,” he said.”

What’s Cohen’s really up to here? Again, the broadband industry is (quite justly) worried that the Trump FCC’s net neutrality repeal won’t hold up in court, in large part thanks to all the shady behavior the FCC either directly engaged in or turned a blind eye toward during the repeal. Large ISPs like Comcast, AT&T and Verizon are also increasingly worried about the fact that more than half the states in the country are now pursuing their own net neutrality rules in the wake of federal apathy on the subject.

As such, the industry is pushing hard for a fake net neutrality law it knows its lawyers will get to write. A law so filled with loopholes it would be effectively useless in policing net neutrality. But it would serve one primary purpose: it would both pre-empt tougher state efforts, and prevent the FCC’s 2015 rules from being restored in the wake of an FCC and industry court loss. As large ISPs get more and more nervous about their chances in court, you’re going to see the sale pitch for this bogus “compromise” legislative solution only grow.

Again, if you support net neutrality, the best path forward rests with the courts, not garbage “compromise” legislation being pushed by a company with zero credibility on this subject. If the courts don’t stop the FCC’s repeal, the next best option is voting out the lawmakers that sold out the public at Comcast’s behest, then trying again down the road with an FCC and Congress that isn’t quite so cash-compromised.

Filed Under: broadband, compromise, david cohen, net neutrality, paid prioritization
Companies: comcast

Terrified Of Losing In Court, ISPs (With Senator John Kennedy's Help) Push Hard For A Fake Net Neutrality Law

Broadband

from the pretending-to-help dept

ISPs are worried that the FCC’s assault on net neutrality won’t hold up in the face of court challenge. And they should be.

By law, the FCC has to prove that the broadband market changed substantially enough in just a few years to warrant such a severe reversal of popular policy. And the numerous lawsuits headed the FCC’s direction (including one by nearly half the states in the union) will also take aim at all of the shady and bizarre behaviors by the FCC during its ham-fisted repeal, from making up a DDOS attack to try and downplay the John Oliver effect, to blocking a law enforcement investigation into the rampant fraud and identity theft that occurred during the public comment period.

With the FCC repeal on unsteady legal ground, ISPs have a back up plan for in case the FCC and its mega-ISP BFFs lose in court: bogus net neutrality legislation.

Last fall, AT&T-favorite Masha Blackburn introduced one such bill in the House dubbed the “Open Internet Preservation Act.” While the bill’s stated purpose was to reach “compromise” and “put the net neutrality debate to bed,” the bill’s real intent is notably more nefarious. While the bill would ban behaviors ISPs had no real interest in (like the outright blocking of websites), it contained numerous loopholes that allowed anti-competitive behavior across a wide variety of fronts, from zero rating tactics that exempt an ISPs own content from usage caps, to interconnection shenanigans or anti-competitive paid prioritization.

Basically, it’s a net neutrality law in name only, ghost written by the broadband industry. And its real purpose is three fold. One, it would pre-empt the 25 (and counting) state efforts to impose real net neutrality rules in the wake of federal apathy. It would also prevent any future FCC or Congress from passing real, tough federal rules should the FCC repeal succeed in court. And finally it would even pre-empt the FCC’s 2015 net neutrality rules from being restored should ISPs and the FCC lose in the major court battle to come.

This week the broadband industry pushed its plan a little harder, prompting Louisiana Senator John Kennedy to unveil a companion version of the bill in the Senate. The bill is a mirror copy of Blackburn’s HR 4682 in the House, and again, suffers from massive loopholes that allow all manner of anti-competitive behavior. That includes letting companies engage in paid prioritization deals, allowing companies like ESPN to buy a distinct competitive advantage over smaller content creators, startups and non-profits (most Techdirt readers should understand how that’s a really, really bad idea).

Having covered this sector for the better part of my adult life, I can assure you the bill Blackburn and Kennedy are pushing was ghost written by AT&T, Verizon, and Comcast lawyers and lobbyists. So it’s amusing to see Kennedy try to pretend in his press release for the bill that he’s somehow courageously standing up to telecom monopolies:

“Some cable companies and content providers aren?t going to be happy with this bill because it prohibits them from blocking and throttling web content. They won?t be able to micromanage your web surfing or punish you for downloading 50 movies each month. This bill strikes a compromise that benefits the consumer,? said Sen. Kennedy.”

Except it does nothing of the sort. The bill still allows ISPs to abuse a lack of competition by imposing arbitrary and unnecessary usage caps and overage fees. A system that not only makes broadband (and streaming video) more expensive, but allows ISPs to give their own content a leg up via zero rating. Calling a ghost-written industry bill a “compromise” is like calling a punch to the nose “healthy negotiations.”

As has traditionally been the case with ISP allies pushing garbage legislation, Kennedy then tries to insist that anybody that refuses to support his industry-favored bill isn’t “serious” about protecting net neutrality:

“If the Democrats are serious about this issue and finding a permanent solution, then they should come to the table and work with me and Rep. Blackburn on these bills. Does this bill resolve every issue in the net neutrality debate? No, it doesn?t. It’s not a silver bullet. But it’s a good start.”

But it’s not a good start, either. It’s always worth repeating that net neutrality isn’t a “partisan” problem, it’s just framed that way by ISP lobbyists to sow division and stall progress on meaningful rules. It’s disingenuous to pretend this is an above-board effort to compromise when the bill’s real purpose is to prevent real rules from taking root. This is an AT&T and Comcast-backed policy play, and neither they nor their Congressional marionettes will allow changes to this legislation that could possibly prevent these companies from abusing the lack of broadband competition for further anti-competitive financial gain (the only thing this has ever been about).

Fortunately most net neutrality advocates in Congress seem to see these bills for what they are, and have steered clear. But as the telecom industry’s worries over losing in court grow, you’re going to see a growing drumbeat of farmed support for a “legislative compromise” that will be anything but. The best chance for restoring net neutrality rests with the courts. Failing that, it rests with voting out ISP lackeys in the midterms and thereafter, replacing them with lawmakers that actually respect the will of the public and the bipartisan quest for a healthy, competitive internet.

Filed Under: congress, fake laws, fcc, john kennedy, net neutrality

Middle Schoolers Cheer As Oregon Passes A Net Neutrality Law

Legal Issues

from the the-people-are-kind-of-pissed dept

More than half of all states are now pushing their own net neutrality rules in the wake of the federal repeal. Some states are pushing for new net neutrality laws that closely mirror the discarded FCC rules, while others are signing executive orders that prohibit states from doing business with ISPs that behave anti-competitively. And while these discordant laws may make doing business from state to state harder on incumbent ISPs, that’s probably something they should have thought about before dismantling arguably modest (and hugely popular) federal protections.

This week Oregon became the latest state to sign net neutrality protections into law with what was largely bipartisan support. House Bill 4155 largely mirrors the FCC ban on things like paid-prioritization and anti-competitive blocking and throttling, though (also like the discarded FCC rules) it wouldn’t address usage caps and overage fees or zero rating, one of the key areas where anti-competitive behavior often takes root. The bill also carves out numerous exemptions for legitimate instances of prioritization (medical care, prioritized VoIP services).

The bill also mandates that state and local governments contract only with companies that abide by the principles of net neutrality. Again highlighting the popularity of these efforts, three middle school kids testified before the State Senate in support of the new law:

“Leading up to the bill’s passage, three students from Mt. Tabor Middle School testified in support of net neutrality in Salem. “It isn’t common that kids get very involved in this, and it shows just how important this issue is to us,” Luca Larsen-Utsumi, who spoke in front of the House Committee on Rules said.”

While these state laws are an organic reaction to the federal government selling out consumers and the health of the internet, they’ll only be as good as the people willing to actually enforce them. Many of the laws carve out exceptions for “reasonable network management,” language ISP lobbyists have routinely and successfully abused to effectively allow pretty much anything — at least in states where lawmakers and regulator ethics are malleable via campaign contribution (read: most of them). In other words, passing these rules is only part of the equation.

Granted this is the same state that just got done giving Comcast an inadvertent $15 million annual tax break for doing absolutely nothing, so you have to hope they crossed their t’s and dotted their i’s on this particular legislation, and remain alert to post-passage lobbying efforts to subvert it.

States like Oregon also have to contend with likely legal challenges by incumbent ISPs and their BFFs at the FCC.

After it was lobbied to do so by Verizon and Comcast, the FCC included language in its net neutrality repeal that attempts to “pre-empt” (read: ban) states from protecting consumers on issues of privacy and net neutrality. But this authority is untested, which could result in some significant and interesting legal battles in the months to come. Again though: this expensive, confusing battle could all have been avoided if the FCC had actually bothered to listen to data, the experts, and the will of the public and kept the FCC rules intact.

Filed Under: ajit pai, fcc, net neutrality, oregon, state's rights

Washington State Laughs In The Face Of FCC Attempts To Ban States From Protecting Net Neutrality

Broadband

from the unicorns-at-the-fcc dept

In the wake of the FCC’s net neutrality repeal, nearly half the states in the union are now in the process of passing new net neutrality rules. Some states are pushing for legislation that mirrors the discarded FCC rules, while others (including Montana) have signed executive orders banning states from doing business with ISPs that engage in anti-competitive net neutrality violations.

Of course incumbent ISPs saw this coming, which is why both Verizon and Comcast successfully lobbied the FCC to include language in its repeal that tries to “preempt” state authority over ISPs entirely. But this effort to ban states from protecting consumers (not just from net neutrality violations) rests on untested legal ground, which is why some ISPs are also pushing for fake net neutrality laws they hope will preempt these state efforts.

So far, states aren’t taking the FCC’s threats very seriously.

Washington State for example became the first state in the union this week to pass net neutrality legislation (though Oregon is neck and neck). Washington’s new law largely mirrors the discarded FCC rules by prohibiting the anti-competitive throttling and blocking of competitors, as well as “paid prioritization” deals that prevent ISPs from letting deep-pocketed content companies buy an unfair advantage over smaller companies and startups. Also like the FCC’s rules, it carves out notable exemptions for “reasonable network management” — as well as for the prioritization of legitimate services that may need it (medical, VoIP services).

Amusingly, the bill’s sponsor doesn’t appear particularly flummoxed by FCC restrictions on what states can and can’t do:

“Just because the FCC claims it has the power to preempt state laws doesn?t mean that it actually does,? says (Drew) Hansen. ?I can claim that I have the power to manifest unicorns on the Washington State Capitol lawn. But if you look outside right now, there are no unicorns.”

ISPs have already started complaining that complying with an ocean of discordant state-level rules is hard on them, though that’s something they might have wanted to give a little more thought to before lobbying to dismantle what were arguably (by international standards) pretty modest federal-level rules.

Note that’s not to say state-level protections will be perfect. Many politicians are just trying to score political brownie points, and in many instances the rules will only be as good as those willing to actually enforce them. Several of them also are a little shaky on how they define “reasonable” network management, a term ISP lobbyists have a long, proud history of trying to redefine to include pretty much anything. Still, these are all problems that could easily been avoided by actually listening to the public, the experts, and the data and leaving the federal rules alone.

Filed Under: fcc, net neutrality, state's rights, unicorns, washington

The Death Of Net Neutrality Will Be Official In April (Cue The Lawsuits)

Broadband

from the only-just-begun dept

While the FCC formally voted to kill net neutrality late last year, the actual repeal of the rules doesn’t occur until the repeal itself is published in the Federal Register. Sources tell Reuters that with Ajit Pai’s agency having completed the finishing touches on its repeal, the publication should finally happen this week. Once that happens, there’s a 60 day window before the actual repeal takes effect, meaning the rules will formally end in April:

“The U.S. Federal Communications Commission is expected to publish on Thursday its December order overturning the landmark Obama-era net neutrality rules, two sources briefed on the matter said Tuesday.”

Of course that’s really just the beginning of an entirely new chapter in the fight to prevent broadband monopolies from abusing a lack of competition in the broadband space (remember: net neutrality violations are just a symptom of a lack of competition, a problem nobody wants to seriously address for fear of upsetting campaign contributors).

The publication in the Federal Register opens the door to the myriad lawsuits that will be filed against the agency. Those lawsuits range from suits by Mozilla and consumer groups, to the 22 state attorneys general who say they’re also suing the agency for ignoring the public interest. These lawsuits must be filed within the next 60 days. Expect the court battle to quickly begin heating up in March.

The publication also starts the 60 day shot clock on net neutrality activists’ attempts to use the Congressional Review Act to reverse the FCC’s repeal. As we’ve noted that effort needs just one more vote in the Senate, but faces a steep uphill climb in getting approval in the House, where ISP-loyal lawmakers are even more common. It would then require the signature of President Trump, something unlikely to happen. The gambit does have one primary benefit: it will force lawmakers to put their disdain for net neutrality and the will of the public down on paper ahead of the looming midterms.

That said, the lawsuits have a fairly solid shot at reversing the FCC’s attack on the rules thanks to numerous missteps by the agency. As we’ve well documented, the FCC turned a blind eye to identity theft and comment fraud during the repeal by “someone” clearly trying to downplay massive public opposition to the FCC’s plan. The FCC also made up a DDOS attack for the same purpose, and used debunked lobbyist data as the cornerstone of the repeal. Expect a lot more data on this behavior to surface during the court challenge.

As we’ve noted previously, you can expect ISPs to remain on their best behavior for the foreseeable future. Comcast, AT&T and Verizon policy marionettes will be eager to try and suggest that concerns about the repeal were hyperbole. ISP lawyers also won’t be keen on providing any ammunition to help opponents in court. And since the next FCC or a future congress could just pass net neutrality rules again — ISP lobbyists and compromised politicians are busy pushing fake net neutrality legislation with only one real purpose: prevent real, tough rules from being passed later.

It’s worth reiterating that ISPs aren’t just killing net neutrality here. They’re actively eroding most meaningful state and federal (FTC and FCC) oversight over a broken, uncompetitive market. And should ISPs successfully navigate all court challenges and pass their desired legislation codifying federal apathy into law, the result won’t be subtle. Anybody that thinks otherwise hasn’t watched Comcast do business the last few decades.

Filed Under: ajit pai, fcc, federal register, net neutrality

More Than Half Of U.S. States Now Pushing Their Own Net Neutrality Rules

Broadband

from the things-gonna-get-ugly dept

Large ISP lobbyists, the FCC and agency head Ajit Pai are going to be rather busy for the foreseeable future. In the wake of the agency’s extremely unpopular net neutrality repeal, consumer groups note that 26 states (27 including a new effort in Kansas) have now taken action to protect net neutrality themselves — with more efforts on the way. The efforts range from attempts to pass state-level net neutrality rules banning anti-competitive behavior, to executive orders modifying state procurement rules to prohibit ISPs that violate net neutrality from getting state money or securing state contracts.

Last week, Vermont became the fifth state to embrace the executive order route, approving new rules (pdf) that prohibit ISPs from securing state contracts if they engage in anti-competitive throttling, website blocking, or paid prioritization. In all instances, both the proposed state laws and executive orders provide ample leeway for the prioritization of essential services (like medical equipment) while allowing ISPs to engage in “reasonable network management.”

That said, ISP lobbyists tend to be pretty good at convincing lawmakers to water down what “reasonable” means before or after the fact, something we saw with both the 2010 and the 2015 FCC rules. Net neutrality rules are also only as good as the willingness to actually enforce them, which historically hasn’t been great. In other words, while these are well-intentioned efforts by many state leaders, it’s going to be important to hold state leaders’ feet to the fire on this issue, especially given the often comical influence ISPs have on state regulators and politicians.

Forseeing this state-level action, ISPs like Verizon and Comcast successfully lobbied the FCC to include language in its repeal banning states from enforcing net neutrality or protecting broadband subscriber privacy (in the wake of their other success killing privacy rules last year).

But the FCC’s authority on this front remains uncertain. Many of the state leaders, like Montana Governor Steve Bullock, believe the executive orders fall outside of FCC jurisdiction anyway:

“Through the order, the State of Montana acts as a consumer?not a regulator. Because there’s no mandate, and no new regulations, there’s certainly no federal preemption. Companies that don’t like Montana’s proposed contract terms don’t have to do business with the State.”

We’ve noted a few times the irony involved in Ajit Pai’s position on this subject. Pai is one of several ISP allies who have whined incessantly about the need to protect “state rights” when states are passing ISP-written protection laws intended to hamstring competition among telecom operators. Here you’ve got states actually trying to do right by consumers and you’ll notice this interest in states rights magically disappears like morning dew in the mid-day heat.

Keep in mind, in addition to doing battle with 27 states, FCC boss Ajit Pai is also facing two different GAO inquiries into his odd behavior during the repeal, as well as a new FCC Inspector General investigation into whether Pai’s too cozy with the companies he’s supposed to be regulating. He’s also facing a lawsuit by 22 State Attorneys General accusing him of ignoring the public interest in the repeal. That’s in addition to the numerous lawsuits being filed by consumer advocates, activists, and the competing companies who’ll be harmed by this blatant handout to Comcast and Verizon.

And while the rotating crop of dollar-per-holler “consultants,” think tankers, lobbyists and PR folks are already deriding the “chaos” and “uncertainty” created by states crafting their own rules, that’s again something these ISPs should have thought more deeply about before attacking consistent and arguably modest (by international standards) federal protections. They built this chaos, and shouldn’t be allowed to tap dance around that fact.

Filed Under: ajit pai, fcc, net neutrality, state's rights, states

Congress Pressures FCC Boss Over His Total Failure To Police Net Neutrality Comment Fraud

(Mis)Uses of Technology

from the complete-non-transparency dept

By now it’s pretty apparent that the FCC doesn’t much want to talk about who was behind the numerous bogus comments that flooded the agency’s net neutrality repeal proceeding. When I asked the FCC for help after someone lifted my identity to support repealing the rules, the FCC responded with the policy equivalent of a ?_(?)_/?. Similarly, when New York Attorney General Eric Shneiderman approached the FCC looking for help identifying the culprit (9 requests over 5 months, he said in an open letter), the FCC blocked the investigation.

Most analysts believe the effort was a ham-fisted attempt to erode trust in the public comment proceeding in order to downplay massive public opposition to the FCC’s plan (a tactic that has mysteriously plagued other government proceedings over the last year). The FCC could pretty quickly clear this all up by providing access to server logs and API key usage details to law enforcement. Its consistent refusal to do so quickly dismantles agency boss Ajit Pai’s continued, breathless claims that he’s a massive fan of transparency and would run a more transparent operation than his predecessor.

This week, members of the House Committee on Energy and Commerce sent a letter to Pai again asking him to explain (pdf) why the FCC ignored the public and sat on its hands as millions of bogus comments (some of them from dead people) piled up. Included in the questions were inquiries regarding how the FCC (which says it ignored comments “devoid of substance”) determined what public comments were worth paying attention to, if any:

“How were comments determined to be ?devoid of substance?? How were others determined to ?bear substantively? on the issue? What were the training methods and guidelines for staff making these determinations? How many staff hours were dedicated to this?”

Pai was also asked why he doesn’t think helping law enforcement get to the bottom of the scandal is a good idea:

“Why has the FCC failed to cooperate with the NY attorney general?s investigation into potential identity theft?”

And why didn’t the agency implement any kind of screening process to help ferret out bulk, bogus comments (many of which were submitted by a bot in purely alphabetical order):

“Why did the FCC choose to not implement any kind of identity verification in its comment platform? The FCC says it excluded comments that used fake names, but how was it determined which these were? And if it is known which comments used fake names, why were these comments not removed from the docket?

Of course like previous inquiries, Pai isn’t likely to respond — at least not with any answers that provide real meaning. Since ISPs have been obnoxiously successful falsely framing net neutrality as a partisan issue, and the letter sent to Pai consists largely of Democrats, it will be relatively easy to dismiss the inquiry as little more than partisan gamesmanship. You’d just have to ignore the fact that an open, healthy internet free of domination by telecom monopolies benefits everyone, or the fact that polls routinely show net neutrality has broad, bipartisan support.

It’s not hard for the FCC to identify who was behind the effort, and given the attack only benefits either the telecom industry or the folks in the Trump administration pushing the repeal, the short list of culprits is arguably tiny. But while Pai apparently has zero interest in helping find out who was behind the disinformation campaign, it’s likely additional details will emerge courtesy of the countless lawsuits currently heading the FCC’s general direction.

Filed Under: ajit pai, congress, eric schneiderman, fake comments, fcc, house energy and commerce committee, transparency

Verizon-Owned Tumblr Joins The Latest Effort To Restore Net Neutrality

Surprises

from the fight-the-good-fight dept

Given Verizon’s long-standing animosity to net neutrality (and openness and healthy competition in general), the company’s acquisition of Tumblr created some understandable tension. Tumblr has been on the front lines of net neutrality support since around 2014 or so, with CEO David Karp stating in 2015 that the service wouldn’t exist without net neutrality:

“(Undermining net neutrality) would congeal the Internet into something stagnant, something where new players wouldn?t be able to join the game without having the funds to do so. I?m proud to have been able to turn a little side project into an engine of creativity for so many people. I don?t want to be among the last people able to do that.”

Karp resigned from the company last year, and numerous reports have indicated that while net neutrality advocacy remains strong among employees, the company itself has unsurprisingly lowered the volume of its support for net neutrality under new ownership by Verizon. That has resulted in a slow but steady departure of employees not thrilled to be under the “leadership” of one of the most anti-competitive (and occasionally comically delusional) companies on the tech policy front (former in-house counsel Ari Shahdadi being of particular note).

Despite Verizon’s ownership the company’s net neutrality advocacy doesn’t appear to be dead just yet. This week, the company joined net neutrality advocates’ “Operation: OneMoreVote” campaign. As we’ve noted, activists are trying to use the Congressional Review Act to reverse the FCC net neutrality repeal. Under the CRA, Congress can reverse a regulatory decision within 60 days of it hitting the Federal Register with a majority vote. The GOP and Trump administration used this exact trick to kill consumer broadband privacy protections early last year.

According to net neutrality advocacy group Fight for the Future, Tumblr will join Etsy, Reddit, Vimeo, Medium and other smaller companies in a February 27 effort to pressure lawmakers to support the effort in the Senate:

“50 Senators have already come out in support of the CRA, which would completely overturn the FCC?s December 14 decision and restore net neutrality protections. Several Senators have indicated that they are considering becoming the 51st vote we need to win, but they?re under huge pressure from telecom lobbyists. Only a massive burst of energy from the Internet will get them to move.”

As noted previously, even if this effort passes the Senate it has an uphill climb in the House, where AT&T, Verizon and Comcast loyal politicians are in even greater supply. And even if the plan nabs the 218 House votes needed, it would still need to be signed by President Trump. And while activists believe Trump might bow to public pressure as part of his purported dedication to his special brand of “populism,” that remains a bit of a pipe dream. That’s not to suggest the effort is useless; it could go a long way toward forcing politicians to clearly document their disdain for the will of the public ahead of the looming midterms.

All of that said, it’s good to see the remaining folks at Tumblr still fighting the good fight, despite the fact that they’re now owned by a company with a historically-miserable track record on consumer privacy, state rights, competition, honesty, transparency and the quest for a relatively healthy and open internet.

Filed Under: congress, cra, net neutrality
Companies: tumblr, verizon

FCC Report Falsely Claims Killing Net Neutrality Already Helping Broadband Competition

Overhype

from the rose-colored-glasses dept

For years the FCC has been caught in a vicious cycle. Under the Communications Act, the FCC is required to issue annual reports on the state of U.S. broadband and competition, taking action if services aren’t being deployed in a “reasonable and timely” basis. When under the grip of regulatory capture and revolving door regulators, these reports tends to be artificially rosy, downplaying or ignoring the lack of competition that should be obvious to anybody familiar with Comcast. These folks’ denial of the sector’s competition shortcomings often teeters toward the comical and is usually hard to miss.

When the agency has more independently-minded leadership (which admittedly doesn’t happen often), the report tends to accurately show how the majority of consumers lack real options and quality broadband. That was the case under former FCC boss Tom Wheeler, whose agency not only raised the definition of broadband to 25 Mbps (which greatly angered the industry), but actually went out of its way to highlight the fact that two-thirds of American homes lack access to FCC-defined speeds of 25 Mbps from more than one ISP (aka a monopoly).

Unsurprisingly, the Trump FCC is now taking things back in the rose-colored glasses direction. The agency’s latest Broadband Deployment Report (pdf) proudly declares that United States broadband is now, quite magically, being deployed in a “reasonable and timely basis.” An accompanying press release (pdf) similarly tries to claim that things are only getting better, thanks in large part to Ajit Pai’s historically-unpopular attack on net neutrality:

“The progress of broadband deployment slowed dramatically in the wake of the Federal Communications Commission?s 2015 Title II Order that regulated broadband Internet access service as a utility, according to the agency?s 2018 Broadband Deployment Report. However, steps taken last year have restored progress by removing barriers to infrastructure investment, promoting competition, and restoring the longstanding bipartisan light-touch regulatory framework for broadband that had been reversed by the Title II Order, the report says.”

You may be surprised to learn that nothing in the Trump FCC’s statement here is actually true. SEC filings, earnings reports, and numerous CEO statements easily disprove the claim that the FCC’s 2015 rules hurt sector investment. Ajit Pai’s FCC has repeatedly and comically claimed the contrary in the apparent belief that repetition forges reality (or at the very least fools the gullible). The only “evidence” the FCC provides to support its claim that killing net neutrality spurred investment is contained in these two sentences:

“For instance, several companies, including AT&T, Verizon, Frontier, and Alaska Communications either commenced or announced new deployments in 2017,” the report concludes. “These new deployments are initial indicators that deployment is likely to accelerate again in part due to our recent efforts.”

But industry watchers were quick to note that none of these deployments were actually new. In fact, all of them actually began under the leadership of former FCC boss Tom Wheeler, with several of them simply attached to merger conditions or requirements placed on subsidies. Like AT&T’s spike in deployment, which was exclusively thanks to merger conditions affixed to its DirecTV acquisition:

“In August 2015, the Wheeler-led FCC awarded AT&T with $428 million in annual funding to bring 10Mbps Internet service to parts of rural America. AT&T was required to deploy broadband to 1.1 million rural homes and businesses over six years to meet its Connect America Fund commitment, and it had to complete the first 40 percent of those deployments by the end of 2017. Thus, the AT&T announcement in January 2018 was simply the fulfillment of a broadband deployment program set in course by the Wheeler FCC.”

What’s more, the data collected by the FCC is only accurate up until December 2016, when Ajit Pai didn’t even take office until the following year. Needless to say, Pai’s fellow Commissioners weren’t particularly impressed by his rose-colored glasses in their statements of dissent (pdf):

“Critical progress reports should not rely on the ‘hypothetical’ when it comes to reaching a conclusion,” Clyburn said. “Indeed, the deployments the majority loudly touts pale greatly in comparison to the deployments that occurred in the year after the adoption of the 2015 Open Internet Order. But if you are desperate to justify flawed policy, I think the straw-grasping conclusions contained in this report is for you.”

Again, none of this is new, and we allow this dysfunction to perpetuate. For decades large ISPs have employed economists to massage data until it helps revolving door regulators deny the obvious: that limited competition results in high prices, slow speeds, and some of the worst customer service in any industry in America. Those revolving door regulators also cherry pick and manipulate data to this same effect, and routinely try and weaken the definition of broadband (by including abysmal satellite service or more expensive and capped wireless) to help deny the obvious.

After all, were FCC data to clearly illustrate how badly American broadband consumers are being screwed by regional monopolies, pay-to-play legislators, and revolving door regulators, somebody might just be forced into actually doing something about it.

Filed Under: ajit pai, exaggeration, fcc, investment, net neutrality