Tag Archives: fcc

Frontier’s two buck suck tests FCC’s consumer protection claims

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Frontier Communication’s broadband customers might want to take up the offer of fierce consumer fraud protection that the Federal Communication Commission made as it issued its network belligerence decision this week. They thought they were getting broadband service at a stated price, but Frontier surprised them by adding a $2 “Internet infrastructure surcharge” to their bills. Because it could.

The charge is an attempt by Frontier to advertise a low price for broadband service, while charging a higher one. According to a story by Karl Bode in DSL Reports, a Frontier representative told a customer that “this fee is to defray some of the costs of maintenance of the local network”. You know, the costs you thought you were paying for when you signed up for service. Silly you.

But fear not. The FCC has kicked the consumer protection can over to the Federal Trade Commission. As chairman Ajit Pai put it

We empower the Federal Trade Commission to ensure that consumers and competition are protected. Two years ago, the [net neutrality order] stripped the FTC of its jurisdiction over broadband providers. But today, we are putting our nation’s premier consumer protection cop back on the beat. The FTC will once again have the authority to take action against Internet service providers that engage in anticompetitive, unfair, or deceptive acts.

Well, it will if a federal appeals court reverses an earlier decision and allows the FTC to go after telcos and other companies that operate as common carriers under FCC authority.

Assuming it can, though, the FTC will have no shortage of deceptive Internet service advertising claims to investigate. Comcast is already embroiled in a San Francisco court case over similar practices. Anyone who has tried to figure out how much AT&T or Charter Communications or any of the other big ISPs charge per month for broadband service knows that pain. We’ll find out soon enough whether the FTC intends to do anything about it.

The Internet goes from ping to Pong as big cable, telcos take control

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Pay to play.

A brief pause for a bomb threat aside, yesterday’s Federal Communications Commission vote to end broadband’s common carrier status as a telecommunications service, and net neutrality rules with it, went as expected. The three republican commissioners voted in favor of the change, the two democrats voted against and all five made speeches explaining why they were voting the way they always said they would vote (links below). There was no indication that the final order approved yesterday differed significantly – or at all – from the draft published three weeks ago.

Commissioner Jessica Rosenworcel, a democrat, warned of the consequences she believes will come

As a result of today’s misguided action, our broadband providers will get extraordinary new power from this agency. They will have the power to block websites, throttle services, and censor online content. They will have the right to discriminate and favor the internet traffic of those companies with whom they have pay-for-play arrangements and the right to consign all others to a slow and bumpy road.

Now our broadband providers will tell you they will never do these things. They say just trust us. But know this: they have the technical ability and business incentive to discriminate and manipulate your internet traffic. And now this agency gives them the legal green light to go ahead and do so.

There’s already a red flag warning that Comcast, the biggest Internet service provider in the U.S. is preparing to move out of its self declared net neutral zone, something democratic commissioner Mignon Clyburn called out in her speech. In a blog post Wednesday, Comcast’s chief corporate lobbyist fell all over himself promising “all of the benefits of an open Internet today, tomorrow, and in the future”, but then offered a weasel-worded explanation of what that means. What it doesn’t mean is making a categorical promise to not sell fast lanes to content providers willing to pay, and consigning the rest to the slow lane. If you don’t read his words carefully, you might think he did. But he didn’t.

If that happens, there’s not much anyone can do about it. ISPs will have to abide by the same general consumer protection and anti-trust rules as any other kind of company, but broadband-specific standards of behavior are gone and the FCC is handing off its specialist enforcement responsibilities to the ordinary cops on the beat. Which will be sufficient, according to republican commissioner Brendan Carr

Before the FCC stripped it of jurisdiction, the FTC—the nation’s most experienced privacy enforcement agency—brought over 500 privacy enforcement actions, including against ISPs. By reversing Title II, consumers get those privacy protections back…

Federal antitrust law will protect against discriminatory conduct by ISPs. As a former Obama Administration FTC Chairman recently said, this is a “formidable hammer against anyone who would harmfully block, throttle or prioritize traffic"…

State consumer protection laws will apply and state attorneys general can bring actions against ISPs. These authorities will provide another strong set of legal protections against unfair business practices by ISPs.

There will be a delay, likely a couple of months, before the order officially takes effect. Court challenges will come, but are by no means certain to succeed.

Downloads

Draft: In the Matter of Restoring Internet Freedom, Declaratory Ruling, Report and Order, and Order, 22 November 2017
Press release: FCC acts to restore Internet freedom, 14 December 2017
Oral statement of chairman Ajit Pai, 14 December 2017
Dissenting statement of commissioner Jessica Rosenworcel, 14 December 2017
Statement of commissioner Brendan Carr, 14 December 2017
Oral dissenting statement of commissioner Mignon Clyburn, 14 December 2017
Oral statement of commissioner Michael O’Rielly as prepared for delivery, 14 December 2017

“The fix was already in”: net neutrality ends on party line FCC vote

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By a vote of three republicans to two democrats, the Federal Communications Commission declared that broadband is not a telecommunications service this morning. Broadband’s common carrier status is gone and network neutrality rules have been scrapped. If the FCC follows recent practice, the full text of the decision will be released in the next few days, but the draft was published three weeks ago and there’s no indication at this point that any significant changes were made. It was a meeting filled with emotional rhetoric on both sides, with democratic commissioner Mignon Clyburn declaring “it is abundantly clear why we see so much bad process with this item because the fix was already in”. It was interrupted by a security alert while chairman Ajit Pai was making his remarks, but commissioners returned, Pai finished and the vote was taken.

No last minute reprieve, no surprises as FCC heads for net neutrality vote

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There seems no stopping the Federal Communications Commission’s republican majority plan to end broadband’s status as a common carrier service and, as a result, kill network neutrality obligations for service providers. The decision is scheduled for tomorrow morning, and FCC chair Ajit Pai has either ignored or explicitly rejected the three main arguments for delaying a vote.

One of those arguments should be ignored. Much has been made about the spam submitted along with substantive comments on the issue. It appears that people on both sides of the issue have hacked (in the honorable sense of the word) the FCC’s online comment system. That’s no big deal. There are enough substantive comments, on both sides, to inform commissioner’s deliberations, even if they were actually deliberating rather than digging in to well established, partisan positions. On both sides.

Among the substantive comments is a definitive rebuttal signed by people who really know what they’re talking about. They include Vint Cerf, Tim Berners-Lee, Steve Wozniak and a bunch of others you probably haven’t heard of but likewise invented the stuff that the Internet depends upon and that FCC chair Ajit Pai pretends not to understand. They should be taken seriously but won’t. At least not unless the federal courts decide to sort out the political arguments. Then, what they say will matter hugely.

The third argument involves the ninth circuit federal appeals court, based in San Francisco. It’s deciding whether companies that are reckoned to be common carriers, like, say, AT&T, should be subject to any consumer protection rules at all, regardless of whether the particular service involved – broadband, for example – is specifically classified that way. If the ninth circuit agrees with a previous ruling and exempts telecoms companies from consumer protection oversight, then tomorrow’s inevitable decision will free big telecoms companies from any rules at all.

The draft decision dismisses that possibility, and the FCC released a draft memorandum of understanding with the Federal Trade Commission on Monday that assumes the problem away. The draft MOU states the obvious – that the FTC would police general violations of consumer protection law – and talks about information sharing between the two agencies, in a hand waving, we’re all on the same team sort of way.

There’s no knowing which way the appeals courts or, eventually, the federal supreme court will rule. Delaying the decision until the court system resolves basic, underlying questions would be prudent, but that’s not in the cards either: tomorrow, the FCC will end net neutrality and other broadband common carrier obligations on a party line three-to-one vote.

End of net neutrality means more corporate control of Central Coast media and speech

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I was asked to write a piece on net neutrality from a Central Coast perspective, for Santa Cruz TechBeat, and thought it might be worth reposting here, with some minor updating…

The Federal Communications Commission is on a fast and narrow track to repeal network neutrality rules and declare broadband industry regulation off limits. The three republican commissioners say they’ll vote on Thursday to scrap the broadband regulatory regime enacted during the Obama administration, also on a 3 to 2 party line vote.

It’s a particularly important decision for people on the Central Coast, where the broadband market is dominated by the three biggest providers – Comcast, Charter and AT&T – with the greatest incentive to use their control of the Internet’s plumbing to send more of their, um, stuff your way.

Comcast, which owns NBC/Universal, has already backed away from the net neutrality pledge it made while ever so humbly (and unsuccessfully) sought permission to add Time Warner and Charter cable systems to its domain in 2014. AT&T has a similar non-promise on the table, and can be expected to stick to it while it tries to buy Time Warner media and content companies. After that, all bets are off. Same with Charter, which is controlled by Liberty Media and likewise tied to content ownership.

The top level issue is whether broadband is a telecommunications service or an information service. It’s a telecommunications service and subject to common carrier style regulation if it involves “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received”, as federal law puts it. Otherwise, broadband is an information service and federal, state and local agencies, and particularly the FCC and California Public Utilities Commission, have very limited authority over it.

Twenty years ago, when Internet access was inextricably tied to the email, chat room, portal and home page features offered by the likes of AOL and CompuServe, the FCC decided it was an information service and left it alone. Looking back, it was both the correct decision and a good one.

Times have changed. Simple Internet access is now a discrete service, typically offered on a standalone basis with informational services strictly optional. The market, at best, is a duopoly collapsing into a monopoly – Comcast and Charter Communications account for 48% of U.S. wireline (and fixed wireless) broadband subscribers, and their share is growing. The next three biggest ISPs – AT&T, Verizon and CenturyLink – muster only a 28% market share, but that’s enough to put more than three-quarters of U.S. broadband subscribers in the hands of just five companies.

Fear of that kind of control led to the first attempt at network neutrality rules in 2010. Then, as now, those rules said that ISPs had to treat every bit sent or received by a subscriber equally. Comcast couldn’t, say, choke off another video distributor, like Netflix or a competing network, like CBS.

It didn’t last. A federal appeals court told the FCC that if it wanted to regulate broadband, it had to do so using common carrier rules – under Title II of federal communications law, as the jargon goes. Which meant reclassifying Internet access as a telecommunications service.

After intensive industry lobbying and partisan bickering, fulsome public comment and a viral John Oliver rant, a democrat-majority FCC obliged in 2015, and net neutrality rules were back. Then Donald Trump was elected, and a republican majority took over at the FCC, promising to take “a weed whacker” to Washington’s thick regulatory underbrush.

So what can we do?

There was a protest planned at the Verizon store on 41st Avenue in Capitola last week. (FCC chair Ajit Pai used to work for Verizon, so they’re the punching bag of choice). The Central Coast’s congressional delegation is solidly democratic, and most – senators Diane Feinstein and Kamala Harris, and representative Anna Eshoo – have spoken out against the FCC’s plan to end net neutrality. Republicans aren’t paying much attention, but even so, expressing thanks (or objections, if you don’t agree) is a way of adding your voice to the debate.

And go online. Social media, virtual protests and more are tools we have to made ourselves heard, without fear of corporate interference.

For now.

Comcast, AT&T have the traffic cones ready for Internet slow lanes

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AT&T and Comcast are offering two good reasons for keeping broadband under the common carrier regulatory umbrella, and not scraping network neutrality rules. Not that they meant to do that. It’s just their nature.

Comcast is backing away from an unconditional promise to abide by net neutrality principles, regardless of whether or not federal rules require it to do so. That pledge was made in 2014, while Comcast was in the middle of an unsuccessful attempt to add cable systems owned by Time Warner and Charter Communications to its portfolio. According to an article in Ars Technica by John Brodkin, Comcast has opened the door to paid prioritisation – selling content companies fast lanes to broadband subscribers, while keeping everyone else in the slow lane…

While the company still says it won’t block or throttle Internet content, it has dropped its promise about not instituting paid prioritization.

Instead, Comcast now vaguely says that it won’t “discriminate against lawful content” or impose “anti-competitive paid prioritization.” The change in wording suggests that Comcast may offer paid fast lanes to websites or other online services, such as video streaming providers, after [the Federal Communications Commission] eliminates the net neutrality rules.

AT&T, on the other hand, announced good news: its online video service, DirecTv Now, just passed the 1 million subscriber mark. It’s good for AT&T, which is fighting to hold on to video customers, and it’s generally good for the industry and consumers. It’s more confirmation that there is a competitive market for over-the-top television, which should result in greater consumer choice.

Should.

If you’re getting broadband service from AT&T, you can freely choose between OTT platforms. But only so long as AT&T follows net neutrality rules. Once those are gone, it will have strong incentives – a million and counting – to shape its network traffic to favor DirecTv Now, while sending everyone else into the slow lane.

The FCC is still on track to vote on Thursday to scrap common carrier status for broadband service and with it, net neutrality rules.

FCC safe harbor gift to telcos is a pirate’s dream

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The Federal Communications Commission’s sure-to-be-approved draft decision stripping broadband service of common carrier classification could create an island of legal immunity for Internet service providers. At least some of them.

It’s kind of like Pirates of the Caribbean. Not the Disney movie, the real pirates. The ones who looted and murdered their way to riches, and returned to safe havens far beyond the reach of law or civilisation.

The draft removes the FCC from any meaningful broadband oversight role, and preempts states from trying to pick up any of the slack, real or imagined. The job of policing Internet service provider conduct is the left to the Federal Trade Commission, which, according to the draft, is the “the nation’s premier consumer protection agency”.

Except the FTC, like the FCC, is limited to what the law allows it to do. And the law – the FTC Act – says it can penalise most business that engage in “unfair or deceptive acts or practices”, but not all. Specific types of companies that are regulated elsewhere in the federal bureaucracy, such as common carriers, are exempt from FTC authority.

Incumbent telcos, including AT&T and Frontier Communications can claim that exemption because plain old telephone service falls under common carrier rules, even if broadband doesn’t (although their complicated corporate structure of interlocking companies, created in part to dodge common carrier obligations, could complicate things). The same is true for mobile phone companies. Cable companies, though, are a different kind of legal beast and might not have that perk.

According to a 2016 federal appeals court ruling, the FTC can’t touch telecoms companies that are reckoned to be common carriers, even when their sins involve a non-common carrier service, like broadband was and will be again. As the unanimous decision by the three-judge panel put it, the common carrier exemption is “status-based” and not “activity-based”. If telcos can’t be held accountable for anything by the FTC and the FCC won’t police otherwise illegal behavior when it involves broadband service, then they can do as they please without worrying about consequences.

The decision by the three judges was appealed and is on hold for now. If it is eventually upheld then the FCC’s deference to the FTC is, in reality, abdication of responsibility.

When geeks go bad: FCC majority turns twisted tech into politicised policy

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The rationale for declaring broadband to no longer be a common carrier service is a dog’s breakfast of contrived logic and ignored facts. The draft decision was posted Wednesday by Federal Communications Commission chair Ajit Pai, after being enthusiastically pimped by his fellow republicans and fearfully slagged by their democratic counterparts. It’s on a fast track to be approved on a party line vote in mid-December.

This reversal rests on the FCC majority’s argument that broadband is not a simple telecommunications service, which federal law defines as “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received”.

Their basis for that conclusion is nonsense.

The draft argues that using the domain name system (DNS) and data caching capabilities during the course of transmission somehow changes the form and/or content of Internet communications. DNS is the means by which plain language website names – tellusventure.com, say – are associated with complicated, numerical Internet protocol addresses. Functionally, it’s no different than matching a telephone number with a particular phone. Both involve entering easily remembered numbers and names, and relying on the network to look up and make the necessary connections.

Conceptually, caching is even more old school. Internet data is broken up into packets, which are then moved as quickly as possible to their destination. As quickly as possible sometimes means either enduring a brief delay or protectively preloading data – caching – when too many packets hit a particular point in the network all at once. The FCC majority’s claim that caching is an information service is as disingenuous as saying that Caltrans operates a parking service when freeways are jammed.

Twenty years ago, when we relied on highly competitive, semi-walled garden information services, such as CompuServe or the old AOL, there was good reason to take a completely hands off approach. However, today’s combination of a matured Internet ecosystem with an increasingly monopolised telecommunications market is a completely different environment.

Broadband is not just any telecommunications service. It is, by far, the dominant telecommunications service in today’s world. That’s a simple fact that the FCC majority is deliberately ignoring.

The dingo is in the details as FCC reverses common carrier decision, preempts state broadband laws

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The Federal Communications Commission’s draft common carrier order is an unconditional surrender to the demands and desires of big cable and telephone companies. It reverses the 2015 decision to treat broadband as a common carrier service and impose network neutrality rules. As tabled by chairman Ajit Pai and enthusiastically endorsed by his colleagues in the republican FCC majority, the draft combines a lawyerly micro-focus on cherry picked data points with arguments formed not by reason but by a pre-determined result.

At the top of the list is a far reaching preemption of state and local laws. Not just laws that try to explicitly reinstate scrapped rules, such as privacy protection or net neutrality, but also any measure that encroaches on territory that the FCC has “decided to refrain” from entering. In other words, anything even tangentially related to broadband…

We therefore preempt any state or local measures that would effectively impose rules or requirements that we have repealed or decided to refrain from imposing in this order or that would impose more stringent requirements for any aspect of broadband service that we address in this order. Among other things, we thereby preempt any so-called “economic” or “public utility-type” regulations, including common-carriage requirements akin to those found in Title II of the Act and its implementing rules, as well as other rules or requirements that we repeal or refrain from imposing today because they could pose an obstacle to or place an undue burden on the provision of broadband Internet access service and conflict with the deregulatory approach we adopt today.

Although we preempt state and local laws that interfere with the federal deregulatory policy restored in this order, we do not disturb or displace the states’ traditional role in generally policing such matters as fraud, taxation, and general commercial dealings, so long as the administration of such general state laws does not interfere with federal regulatory objectives.

The draft also changes the definition of mobile broadband from a commercial service, to a private one.

Internet service providers would have to disclose certain policies to consumers, but would otherwise be able to restrict access to information offered by competitors or bestow special privileges on content that they own. Enforcing the meager rules that still exist would be up to the Federal Trade Commission.

Download:
In the Matter of Restoring Internet Freedom, Declaratory Ruling, Report and Order, and Order, 22 November 2017.