IA Warns of Court Challenge to Revised Net Neutrality Rules as House Hearing Delayed

The House Commerce Committee is delaying a planned Sept. 7 hearing aimed at finding a consensus on net neutrality legislation amid continued difficulties in getting eight invited CEOs from top ISPs and edge providers to testify, three industry lobbyists told us Wednesday. A House Commerce spokesman confirmed the delay, saying the committee was seeking the postponement “to allow talks between stakeholders to continue.” House Commerce plans to focus in the next few weeks on a hearing on spectrum repacking issues and a planned markup of FCC reauthorization legislation, the spokesman said. The repacking hearing reportedly will happen Sept. 7.

Prospects for the House Commerce hearing to occur as planned already were unclear but many in the communications sector were much more doubtful by the start of this week, two telecom lobbyists said. House Commerce staff continued communicating with communications and tech sector officials in recent weeks about the path forward on net neutrality legislation, several lobbyists said. Those interactions yielded some progress but also underscored that longstanding roadblocks remain to agreement on a consensus bill (see 1708070068 and 1708110054), the lobbyists said. Incompas and IA issued a statement thanking House Commerce for working to find a net neutrality compromise, saying the issue “is complicated and the best thing for the economy and all stakeholders is to have lasting rules. We share the goal of enshrining net neutrality, and very much look forward to continuing our close work with all interested parties in accomplishing that objective.”

IA, a big supporter of keeping the rules, said the record doesn’t provide justification for changing course. “For the Commission to reverse course barely two years after the 2015 rules went into effect and without reliable evidence of erroneous predictions in the 2015 Order would represent exactly the sort of arbitrary and capricious agency decision-making prohibited by law,” the group commented. President Michael Beckerman said the move would be out of step with “Americans overwhelmingly support[ing] strong, enforceable net neutrality rules at the FCC.”

Incompas said ISPs haven’t proven the rules should be overhauled. Finding otherwise would “ignore the facts” and be “fatally invalid,” Incompas said, also hinting at a legal challenge. “Given this state of affairs, a decision that values regulatory humility might well conclude that the best approach would be to leave well enough alone -- and not to risk unforeseen harms in the future by destroying that which is working,” it said.

Research Released

The overwhelming majority of comments for and against repealing Communications Act Title II are form letters. They make up 20.33 million of the 21.77 million comments in the docket, said a researcher whose work was paid by Title II foes.

Emprata reported more than 7.75 million comments “appear to have been generated by self-described ‘temporary’ and ‘disposable’ email domains attributed to FakeMailGenerator.com.” Another 1.72 million came from international addresses, the firm said. The research was independent but supported by Broadband for America, said Emprata CEO Paul Salasznyk.

The firm said roughly 60 percent of the nearly 22 million comments are against Title II repeal, but that opinion for keeping or repealing Title II regulation swings back and forth depending on what comments are filtered out; when excluding duplicative comments or invalid email addresses, the majority of comments left are in favor of a Title II repeal, but that when filtering to any unique comments, the majority of those are in favor of maintaining of Title II regulation. It said 93 percent of the comments both for and against Title II repeal are form letters. Of the roughly 1.7 million comments attributable to international addresses, almost 95 percent oppose a Title II repeal, it said. It said nearly 8 million of the total comments -- about 36 percent of the docket -- appear to have been generated via disposable email domains attributed to FakeMailGenerator.com, and almost all oppose a repeal of Title II. Nearly 10 million comments were duplicative, listing the same email and physical address, and excluding the duplicates and taking only the first comment filed for a particular email/physical address combination, the remaining comments favor a Title II repeal 86 percent to 14 percent, it said.

Broadband for America said the results "further underscore the need for Congressional action to address outdated utility regulations and ensure advances in internet technologies are not hindered." It told us that while comments from foreign email domains and from clearly fake email domains were most likely to be frivolous or fake, duplicative and form letter comments could be from legitimate sources including concerned citizens and shouldn't be ruled out out of hand. Others have also done analyses questioning the veracity of net neutrality proceeding express comments (see 1708080058 and 1705310019).

The Internet Innovation Alliance released a survey Wednesday that honorary Chairman Rick Boucher said shows broadband is an information service. On a teleconference, Boucher urged Congress to declare that broadband is Title I classification and codify net neutrality protections in the 2010 open internet order. The IIA-commissioned CivicScience survey of 10,000 online American adults showed 72 percent of adults frequently consume content online, nearly half use social media, more than half make purchases online and 20 percent store information online. Those types of usage are consistent with the statutory definition of an information service, Boucher said.

Rep. Jared Polis, D-Colo., separately raised concerns in a filing in the proceeding about what he believes are “many gaps in the logic behind the arguments laid out” in the NPRM. The proposal “erroneously states” that a Title II rollback is necessary to reverse declines in infrastructure innovation and investment given that “over and over again, broadband providers have reported to their shareholders that Title II is having no impact on their investment strategies,” Polis wrote. “My office has been inundated with calls and emails from concerned constituents who wonder what the future of the Internet will be without these protections.”

ISPs

ISPs and their associations offered a different version of what facts show.

The public shouldn’t be misled by claims of looming danger if the FCC changes how broadband is classified, blogged Joan Marsh, AT&T senior executive vice president-regulatory and state external affairs. Some claim “nonsensically, that if the Commission reclassified internet services, ISPs will 'block websites and content,’ ‘shut down blogs,’ or take away access to ‘email, banking, social media, music, or anything that requires the internet,’” Marsh wrote. Those claims have gotten attention in the news media and resonate with part of the public, she said. “Broadband competition is more than adequate to protect consumers.”

Comcast said the record demonstrates Congress, not the FCC, should address rules and in the interim, the FCC can safely reclassify broadband internet access service as a Title I service. “In this latest phase of the years-long wrangling over the classification of BIAS, consumers and industry stakeholders can be forgiven for feeling a bit like Bill Murray in ‘Groundhog Day,’ with familiar characters weighing in yet again on the same legal and policy issues that the Commission has considered over and over,” Comcast commented. Its blog included a GIF from that movie.

NCTA said the FCC should ignore warnings of danger if the FCC reclassifies broadband. “Fearmongering about the supposed demise of Internet openness under Title I overlooks the reality that the Internet has always been open and free, and that the consensus principles of openness were developed and long thrived under Title I without common carrier regulation,” the cable association said. The Free State Foundation said its research shows Title II regulation led to a decrease of $5.6 billion in broadband capital investment in 2015 and 16.

The Telecommunications Industry Association filed a letter from a coalition of 15 high-tech manufacturers and distributors supporting Title I reclassification of broadband. “This proceeding is not a debate about whether to have an open internet; it is a question of what regulatory regime can achieve internet openness while also maintaining the incentives for investment,” the companies said.

Acting FTC Chair Maureen Ohlhausen said a 2007 trade commission report looked at exactly the issues now before the FCC. “Our report concluded that banning non-neutral behavior could harm consumers more than it helps them,” Ohlhausen blogged for The Hill. “Applying economic and antitrust analysis, the report explained that certain non-neutral practices could benefit consumers, while others might harm consumers.”