TR Daily RIF Order Takes Effect; Dems Still Hoping for House CRA Action
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Monday, June 11, 2018

RIF Order Takes Effect; Dems Still Hoping for House CRA Action

The restoring Internet freedom (RIF) order adopted by the FCC last December under Chairman Ajit Pai’s leadership took effect today, effectively nullifying the net neutrality rules adopted in the 2015 open Internet order under former Chairman Tom Wheeler.

Supporters of the action on Capitol Hill, at the FCC, in industry, and at think tanks and policy advocacy groups issued statements discounting predictions by critics that the order will lead to slower Internet access, website censoring by Internet service providers (ISPs), and higher prices.

However, opponents of the action, including congressional Democrats, continued to urge support from House members to reach the 218 signatures they need on a discharge petition to force a House floor vote on a Congressional Review Act resolution to overturn the RIF order. The Senate passed a CRA resolution last month (TR Daily, May 16).

Many supporters of the RIF order also called for legislation to codify net neutrality protections, but in the past such legislative proposals have foundered on disagreements over regulatory classification of broadband Internet access service (BIAS) and the scope of the FCC’s authority to interpret and enforce the proposed statute and to adopt new regulations regarding net neutrality.

The RIF order adopted in December overturned the 2015 open Internet order’s classification of broadband Internet access service and mobile broadband service as common carrier services, as well as the 2015 order’s bright-line rules against blocking, throttling, and paid prioritization and its general conduct standard. The 2017 order adopted enhanced transparency requirements (TR, Dec. 14, 2017).

Rep. Mike Doyle (D., Pa.), the ranking minority member of the House communications and technology subcommittee and the sponsor of a House CRA resolution to overturn the RIF order, said in a statement today, “People won’t see any major changes today, but unless Net Neutrality is restored, consumers, innovators, and small businesses will see their service deteriorate, their choices decrease, and their costs go up over time as Internet Service Providers start throttling internet speeds, blocking content, and prioritizing service to hurt their competitors.”

Rep. Doyle added, “An overwhelming majority of Americans support Net Neutrality, but the FCC has nevertheless refused to be guided by the will of the people. It’s still possible to save Net Neutrality, however. The Senate has voted to overturn the FCC order that killed off Net Neutrality. Now the House must do the same. Since the Speaker opposes Net Neutrality, the only way to get a vote on it is with a ‘discharge petition’ that would force a vote in the House on the bill to save Net Neutrality. 170 Representatives have signed the discharge petition so far. We just need 50 more to get a vote.”

Sen. Ed Markey (D., Mass.), who sponsored the Senate CRA resolution on the RIF order, said, “There will be no eulogy today for net neutrality. The FCC will not have the last word when it comes to net neutrality, the American people will. The fight to restore net neutrality rules has new urgency today and moving forward as we continue to work in the House of Representatives to repeal the FCC’s terrible decision. The American people know they cannot trust their internet service providers to do the right thing and protect a free and open internet unless there are strict rules in place. I urge [House] Speaker [Paul] Ryan [R., Wis.] to take an immediate vote on my CRA resolution to restore net neutrality. Until that happens, we will continue to demonstrate in the streets, write letters, make calls, sign petitions, and harness the power of social media. The fight for net neutrality is far from over.”

In a floor statement, Senate Minority Leader Chuck Schumer (D., N.Y.) said, “Democrats tried to forestall this day by writing and then passing a Congressional Review Act through the Senate [on a] bipartisan [basis]. Some Republicans helped us, [we] couldn’t have passed it without them. And then, as a unified Senate caucus, Democrats sent a letter last week urging Speaker Ryan to schedule a vote, which I believe would’ve passed had it been put on the floor of the House of Representatives. But, Ryan refused to bring up the companion legislation to restore net neutrality. Once again — as our Republican friends in the Senate and House, and the administration have done over, and over again — siding with the big, powerful special interests — in this case internet service providers — over the average person, who is sort of powerless. How many of us rail against our cable bills? How many of us feels helpless when it comes to getting that cable bill? Well, this increases the power of the same people. Do our Republican friends really want to do that? I guess so.

“Let me put it this way: by refusing to bring up the Senate-passed resolution to restore net neutrality, House Republican leaders gave a green light to the big ISPs to charge middle-class Americans, small business owners, schools, rural Americans, poorer people, and communities of color more to use the internet,” Sen. Schumer added.

House Minority Leader Nancy Pelosi (D., Calif.) said, “Americans across the country are raising their voices against the Trump assault on the free Internet, yet House Republicans inexplicably refuse to listen to the will of the people and save net neutrality. Democrats are fighting in the courts and in the Congress to protect Americans’ interests and restore these vital protections, and we will continue to demand a vote on Congressman Mike Doyle’s resolution to force a vote to restore net neutrality.”

Sen. Joe Manchin (D., W.Va.) said, “I am disappointed that net neutrality protections for all Americans will end today. Like West Virginians, the internet has always been and should always be free. It’s why they’ve told me that they want an internet that is free of content-based discrimination and support increased reliable, affordable internet access throughout our state. It’s also why I strongly opposed the FCC’s decision to repeal basic net neutrality protections and cosponsored the bill to keep them in place that passed that Senate with bipartisan support last month. Today, I am calling on my colleagues on both sides of the aisle to put partisan politics aside and come together to negotiate a responsible, balanced bipartisan solution that codifies strong net neutrality protections and finally resolves this debate.”

In a joint statement, Democratic National Committee Chair Tom Perez and DNC Chief Technology Officer Raffi Krikorian said, “A free and open internet is critical to our democracy. By undoing these rules, Donald Trump’s FCC is threatening online equality in a way that could hurt our economy and hamper our nation’s potential for innovation. As of today, wealthy internet service providers will be able to play favorites, leaving millions of Americans with slower and more expensive internet.

“But while Republicans punish the American people so they can fill the pockets of big telecom corporations, Democrats believe the internet must remain a level playing field. That's why House Democrats are demanding a vote to restore net neutrality. And that's why Democrats will keep fighting to make sure everyone can benefit from the power and potential of our nation’s technology,” Messrs. Perez and Krikorian said.

California Attorney General Xavier Becerra (D.) said in a statement, “The U.S. House of Representatives had the opportunity to ensure that Americans continued to have unfettered access to the internet by voting down the Federal Communications Commission’s (FCC) repeal of net neutrality rules. But it went AWOL.”

AG Becerra added, “As a result of this inaction, starting today internet service providers have the power to force websites to pay fees for faster internet speeds and limit consumers’ ability to access the internet content of their choice. In this 21st century global economy, access to a free and open internet is imperative. It has become a hallmark of our American society.”

Mr. Becerra was part of a coalition of state attorneys general that filed a petition challenging the RIF order earlier this year (TR Daily, Feb. 22). “We will continue to see that case through in the court of law, and we will continue to support efforts in California that would allow us to defend our vibrant internet economy and consumer choice,” Mr. Becerra said today.

In a joint statement, House Energy and Commerce Committee Chairman Greg Walden (R., Ore.) and communications subcommittee Chairman Marsha Blackburn (R., Tenn.) said, “The rhetoric around this issue often gets heated, but consumers need to know that today is not the end of the internet as we know it. In fact, the FCC’s order returns the internet we’ve always known, simply restoring the same set of light-touch regulations that allowed it to grow since its inception until 2014. By taking the internet out of the hands of government bureaucrats and rolling back burdensome 1930s-era rules, it will continue to flourish.”

They added, “After repeated attempts to start good faith negotiations, it appears our Democratic colleagues are more interested in coming up with political slogans than legislative solutions. Congress should not politicize the future of the internet, and we will continue to work towards a bipartisan legislative fix to permanently protect consumers, innovation, and the open internet.”

In an op-ed for CNET yesterday, Chairman Pai defended the action taken under his leadership, saying that it includes “strong consumer protections” by restoring the Federal Trade Commission’s authority over BIAS.

By classifying BIAS as common carrier services under Title II of the Communications Act, the 2015 order had triggered the common carrier exemption in the FTC Act, preventing the FTC from overseeing the actions of BIAS providers. The RIF reverted the classification of BIAS to a Title I information service.

“Starting Monday, the FTC will once again be able to protect Americans consistently across the internet economy, and the FCC will work hand-in-hand with our partners at the FTC to do just that,” Chairman Pai said.

He said he was confident that the approach adopted in the RIF order would work because “it was a tremendous bipartisan success for two decades. At the dawn of the commercial internet, President Clinton and a Republican Congress agreed on a light-touch framework to regulating the internet. Under that approach, the internet was open and free. Network investment topped $1.5 trillion. Netflix, Facebook, Amazon, and Google went from small startups to global tech giants. America's internet economy became the envy in the world.”

Commissioner Brendan Carr, who voted for the RIF order, tweeted, “Americans are passionate about the free & open Internet. We don’t want to be blocked or throttled or have our online experience subject to the whims of an Internet provider.” He added, “Contrary to many misleading claims, federal law continues to ensure consumers have a free & open Internet.”

In a statement, FCC Commissioner Jessica Rosenworcel, who dissented from the RIF order, said that the RIF order’s taking effect “is bad news for all of us who rely on an open internet for so many facets of civic and commercial life. Internet service providers now 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. Plain and simple, thanks to the FCC’s roll back of net neutrality, internet providers have the legal green light, the technical ability, and business incentive to discriminate and manipulate what we see, read, and learn online.”

Commissioner Rosenworcel added, “If the arc of history is long, we are going to bend this toward a more just outcome. The momentum around the country — from small towns to big cities, from state houses to court houses, from governors’ executive actions to action in Congress — is proof the American people are not done fighting for an open internet. I’m proud to stand with them in that fight. We won’t stop today. It’s too important and our future depends on it.”

Joan Marsh, AT&T, Inc., executive vice president–regulatory and state external affairs, said, “As the FCC’s open internet order takes effect today, two things will remain unchanged. First, the internet will continue to function just as it did yesterday, empowering this generation and those that follow with robust access to information, entertainment and, most importantly, to each other. Second, our commitment to an open internet will not waiver, just as our customers expect and deserve. In January, our Chairman published an open letter reiterating that commitment to support internet freedom on our network and calling for an Internet Bill of Rights that guarantees consumer protections applicable to all internet companies. If that sounds as good to you as it does to us, we hope you’ll join us in working towards permanent and bipartisan legislation that will ensure consistent rules of the road for all companies and across all websites.”

Jonathan Spalter, president and chief executive officer of the U.S. Telecom Association, said, “It’s business as usual on the internet today — movies are streaming, e-commerce is thriving, and advocates are using the internet to make their voices heard. These positive and profound benefits of a free and open internet — among many others — are here to stay.”

Mr. Spalter added, “America’s broadband providers remain committed to the principles under which internet innovation has thrived, and now, with full confidence, can continue investing in strengthening our nation’s networks and closing the digital divide.”

In a blog post, Charter Communications, Inc., said, “Without the regulatory overhang of [the 2015] rules, … businesses like ours will have the certainty they need to make infrastructure investments over the long-term, helping more people get online and enabling even faster broadband. This includes bringing high speed broadband to more hard to serve areas, including rural communities.”

Charter added, “We urge Congress to pass new legislation that preserves an open internet and ensures a regulatory framework made for the 21st century, so we can continue to improve and invest in our networks and provide more people access to a fast, reliable, and open internet.”

In a blog post, NCTA said, “What consumers will notice today, tomorrow, next month, next year or pick your date, is quite literally — nothing. Nothing, that is, other than the same high-speed internet access service that lets consumers decide what they read, what they say, what they create, what they watch, and what they listen to over the internet. This is because whether governed by one set of rules or another, an open Internet with the core principals of net neutrality at its foundation is baked into the internet experience. Consumers expect it and deserve it.”

NCTA added that “consumers are well protected if net neutrality violations occur before a law is written. The FTC, now empowered thanks to the end of Title II, is committed to protecting consumers from unfair predatory business practices like unfair blocking and throttling by ISPs. And the FCC is retaining strong transparency rules that require ISPs to disclose their commitments to fair and open practices for all to see and confirm. If a law has yet to be put in the books and ISPs suddenly decided to manipulate, disrupt, or unfairly impose internet tolls, the FTC can, and will, step in.

“So let’s tune out the Chicken Little claims, and recognize today returns the internet to its rightful place as a lightly regulated open platform where innovation, disruption, and big ideas are free to rule the day,” it said.

Incompas CEO Chip Pickering said, “Net neutrality is the main street business issue of the year. After a historic bipartisan vote in the Senate to reverse the FCC, the House must now listen to the 80 percent of Americans who are demanding net neutrality stay on the books. Conservative millennials starting small businesses in rural America are scratching their head at policymakers in Washington. Getting rid of net neutrality only helps Comcast and AT&T and hurts everyone else. They want Congress to act now, and make today’s move by the FCC nothing more than a forgotten footnote in history.”

Computer & Communications Industry Association President and CEO Ed Black said, “Today is important for consumers and businesses to recognize that the federal government has left largely them on their own. Their ISP can speed up some internet traffic for a fee, leaving others in relatively slow lanes. We fully expect that in the short term the big ISPs will hold off on implementing major discriminatory changes in hopes of convincing Congress and others that rules are not necessary. However, the fact remains that now almost nothing stands in the way of the big ISPs trying to warp the open Internet into a more expensive, pay for service cable-like model.”

Mr. Black added, “For the sake of so many smaller businesses and future startups, we hope the court will decide that the agency Congress created to protect consumers’ access to communications can’t just abdicate its responsibility for ensuring fair and open internet access.”

Free Press Action Fund Director–policy Matt Wood said, “Ajit Pai and the ISPs that give him his marching orders will undoubtedly be pleased today as this decision to rob internet users’ of their rights takes effect. We are confident that their happiness will be short-lived, as Congress wakes up to the overwhelming public support for the Net Neutrality rules we’ve lost, and as the courts move closer to reviewing Pai’s unlawful decision.”

Mr. Wood added, “Despite what Ajit Pai’s cynical lies suggest, this day does not mark the restoration of internet freedom — unless he means freeing up companies like AT&T and Comcast to block, manipulate and discriminate. For the first time ever, we have neither nondiscrimination rules in place for network users, nor an ongoing FCC proceeding to restore rules struck down in earlier court cases. We’ve always had common carriage laws or open internet principles before, even though for the ten years prior to 2015 those rules were grounded on the wrong legal authority.”

In an open letter to her daughters on net neutrality, Benton Foundation Executive Director Adrianne Furniss said, “I hope you and your peers will take a stand. In your own artistic self-interest, you need to think about how you will connect with and grow your audience in the digital age. (You have bills to pay, after all!) But in the greater public interest, we need you to act as stewards to ensure a handful of big companies don’t impede innovation, block information, or stifle culture and free speech. Be energized and help us right the ship. Consider how your Senators and Representatives have voted on net neutrality … when you vote in November. Democracy, in all its messy glory, will only thrive in the digital age with an unfettered, open internet.”

Jonathan Schwantes, senior policy counsel for Consumers Union, said, “With today’s net neutrality repeal in full effect, the FCC has essentially handed the keys to the internet to service providers -- many of them who face little or no competition — with a vested interest in making the internet as profitable for them as possible. Internet providers are now free to move forward on the anti-competitive practices they were flirting with before these rules were passed, including throttling content and paid prioritization schemes that place smaller businesses at a disadvantage and ultimately cost consumers more. Without action from House lawmakers, it’s not a matter of if these anti-consumer practices are implemented, but when.”

Information Technology & Innovation Director–broadband and spectrum policy Doug Brake said, “Chairman Pai’s efforts return broadband to a regulatory environment better suited to encouraging an innovative, evolving communications platform. The Chicken Littles claiming ‘the end of the Internet’ will now be proved wrong. However, there is still much to be done to achieve a stable, lasting legal framework that gives everyone in the Internet ecosystem confidence to invest in and use this crucial technology. Now is the time for policymakers to work toward bipartisan compromise legislation that will stand the test of time.”

Daniel Lyons, visiting fellow at the American Enterprise Institute, said that “like the 2015 Open Internet Order that it repealed, today’s order is likely to be a non-issue for consumers.” He argued that the RIF order will make it “easier for companies to invest in improving and expanding their broadband networks” and will promote innovation and competition by “allowing broadband providers to experiment with different business models.”

Mr. Lyons dismissed fears that ISPs will now be free to engage practices that harm consumers, such as paid prioritization or “balkanizing” the Internet into difference service tiers, arguing that there isn’t a business case for such actions. He added that consumer fears stem from a lack of competitive alternatives, especially for fixed broadband, but he said that “antitrust law protects consumers against this harm, just as it does consumers elsewhere in the American economy. And in the long run, the solution is greater investment in networks to bring more competition, which is precisely what the FCC hopes to accomplish by reducing the regulatory burden on such networks.” —Lynn Stanton, [email protected]

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