An Urgent Call for Action to Save Net Neutrality

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On Wednesday, November 22, 2017, Federal Communications Commission Chairman Ajit Pai released his draft order to eliminate net neutrality. In short, this order will eradicate net neutrality rules and abandon the court-approved Title II legal framework serving the basis for the successful 2015 Open Internet Order. These regulations prevented internet service providers (ISPs) from blocking or slowing down access to websites or services as well as bans them from offering so-called fast lanes to companies willing to pay extra to reach consumers more quickly than competitors. The proposal’s most significant change is to strip the FCC’s authority to regulate broadband as a utility and shift that responsibility to the Federal Trade Commission, which can’t create the hard and fast rules ISPs must follow. But the FCC will simply require ISPs to be transparent about any blocking, throttling, or pay prioritization which they would evaluate based on whether or not the activity is anti-competitive. However, the proposal will also ban state and local governments from imposing their own net neutrality rules to replace federal regulations or lack thereof. A vote on this measure is scheduled on December 14 and it’s expected to be passed and implemented on a party line 3-2 vote. Ironically called, “The Restoring Internet Freedom Act,” is basically everything that ISPs could want. But it is a policy that will take away every safeguard we need to protect the open internet we’ve always had. Since it will give ISPs the power to kill off their competition, choke innovation, charge more for various content, suppress political dissent, and marginalize voices of racial justice advocates and others organizing for change. Essentially, Pai’s proposal is thin on substance and reasoning, cruel, willfully naïve, as well as not grounded in reality. Yet, should the FCC has its way, Pai’s plan will change how Americans experience the internet and for the worse.

Under the existing regulations the FCC passed in 2015, there are clear hardline rules forbidding telecom companies from unethical business practices. These rules are reinforced with strong but flexible safeguards that the 2015 order built in for other schemes ISPs might use now or invent in the near future to interfere with internet traffic. With the exception of scant transparency rules, Pai plans to “eliminate the conduct rules adopted in the Title II Order — including the general conduct rule and the prohibitions on paid prioritization, blocking and throttling.” This leaves internet users entirely without protections and relying on ISPs to behave and avoid exploiting their internet gatekeeper status. It’s clear in the “The Restoring Internet Freedom Act” that Pai and his fellow Republican colleagues at the FCC want to allow telecom companies to legally block and discriminate internet content. In other words, “restoring internet freedom” means restoring the ISPs’ own freedom to offer “curated services” rather than their broadband customers’ rights. Thus, Donald Trump’s FCC wants to let the most-hated and worst-rated companies in America block and edit online speech.

It shouldn’t surprise anyone that Pai wants to end net neutrality to enrich his buddies at Verizon where he worked as an attorney. But he’s often used flimsy arguments that even without oversight and prohibitions against blocking and discrimination by claiming, “transparency substantially reduces the possibility that ISPs will engage in harmful practices, and it incentivizes quick corrective measures by providers if problematic conduct is identified.” After all, he states that these large telecom companies have, “publicly committed not to block or throttle the content that consumers choose.” Except that public commitments don’t mean a damn thing to them. Besides we all know these telecom companies want to end net neutrality so they control whatever their customers say or do online. Discriminating against the content consumers to is the whole damn point. Telecom companies have the technology to scrutinize over every piece of information we send or receive online like websites, email, videos, internet phone calls, or data from games or social networks. They can program computers routing information to interfere with the data flow by slowing down or blocking traffic and communication they don’t like while speeding up traffic they do that pays them extra for the privilege. And as far as Tim Wu is concerned, “transparency” is basically a euphemism for “doing nothing.” But the FCC factsheet states that “Internet service providers didn’t block websites before the Obama Administration’s heavy-handed 2015 internet regulations and won’t after they are repealed.” However, before the 2015 order put firm rules on solid legal footing in place, ISPs blocked content, throttled websites, and used their power to rig the market in their favor. These cable and phone companies have taken every chance they could get around net neutrality laws and have already shown us exactly what they’ll do if we let them. Numerous incidents of abuse include:

  • AT&T pressuring Apple into blocking the Skype app on all iPhones, complaining that Skype was being unfair by “not operating on a level playing field,” or in other words, having a better product that AT&T couldn’t compete with. So they just blocked people from using it. And they weren’t the only ones to do so either since ISPs from around the world followed suit and most didn’t just stop at Skype either. In fact, they blocked every program you could use to make online phone calls altogether.
  • Madison River Communications blocking voice-over-internet protocol (VOIP) Vonage which filed a complaint to the FCC after hearing a slew of customer grievances. The FCC stepped in to sanction Madison River and prevent further blocking. But it lacks the authority to stop this kind of abuse today.
  • Comcast, Verizon, and Metro PCS slowing down Netflix. In 2011, Metro PCS sent out an ad boasting that anyone who signed up for their cheapest plan would receive “YouTube access.” Though it might seem good on paper, it actually meant that if you weren’t willing to pay for the expensive plan, the company will block every other video streaming site on the internet. Because they advertised users could “preview trial video content” but not actually watch it for $10 more. And if users paid $20 more, they could access 18 different video streaming websites. Verizon has also been caught slowing down Netflix users. Sure they didn’t make it impossible to watch a movie, but they made it slow enough so no one could waste bandwidth by watching a video in HD. Comcast has done it, too, which is particularly troubling since they own TV networks and have some clear reasons wanting to keep Netflix from succeeding. And they refused to slow down until Netflix paid money. So basically Comcast just blackmailed their competition by sabotaging them and refusing to stop until they paid them. And by the way, this was before net neutrality and thus perfectly legal.
  • Canadian ISP Telus blocking its customers from seeing their workers’ union website called “Voices for Change” which listed their complaints and demands during a 2005 strike. Oh, and they blocked 766 other websites hosted on the same server. In other words, Telus censored an entire section of the Internet because they didn’t like what people were saying. And since there was no net neutrality at the time, the Canadian company suffered zero consequences other than a media tongue lashing.
  • British ISP Plusnet telling charging their customers extra for playing online games. The company set up a tier of different data plans asking their customers to decide if they wanted to be able to surf the internet, stream videos, play video games, or do all 3. And if they weren’t willing to pay for the premium package, they’d be charged extra. And Plusnet didn’t just block video games in the cheaper plans either. They also blocked VPNs, forcing employees who remotely connect to their offices to pay more. And unless you were willing to pay for the most expensive plan, they slowed down peer-to-peer programs like Bit Torrent so badly they hardly worked at all.
  • AT&T censoring words from Pearl Jam’s Eddie Vedder when he sang “George Bush, leave this world alone” and “George Bush find yourself another home,” on account of preventing youth visiting the website from being exposed to “excessive profanity.” Though the song contained none. Of course, they later blamed it on an external website contractor hired to screen the performance.
  • Verizon cutting off the pro-choice group NARAL text-messaging program since they didn’t want to service programs from any group “that seeks to promote an agenda or distribute content that, in its discretion, may be seen as controversial or unsavory to any of our users.”
  • Comcast and Cox Communications blocking VPN. In 2001, these companies updated their terms of services declaring from now on that their customers had to agree not to use a VPN unless they were willing to pay for it. Since VPN lets you connect to another network, which for a lot of people means it’s a way to connect to their office from home, this resulted in a lot of people working from home being suddenly blocked off from how they made their livelihood. And when people called and complained, they didn’t receive much sympathy. Comcast basically said that anyone working from home was going to have to upgrade to their “@Home Pro Package” which started at $95 a month. Essentially, if you worked from home, you had 2 options: either start paying for the most expensive plan Comcast had or get a new job.
  • Verizon blocking Google Wallet. In 2011, Verizon developed its own digital wallet which was going to change the way people made purchases by letting people make purchases with a simple wave of their phone. And they were pretty sure they’d make a fortune, too. Except for two things. First, their product’s name was “Isis” which was about to become less marketable for reasons I need not discuss. Second, Google had already released an identical product called Google Wallet which basically doomed Verizon’s Isis from the start. So when Verizon realized they couldn’t beat Google fairly, they blocked Google Wallet on all Verizon phones, essentially making it impossible for their customers to pick their competition over them. Unsurprisingly, Verizon was accused of breaking net neutrality laws. But since they technically blocked Google’s hardware instead of its software, they got away with it. So there’s every reason to believe if Verizon could block an app that’s competing with one of their own, they’d take it.
  • Comcast deliberately blocking BitTorrent. In 2007, Comcast was caught blocking peer-to-peer programs like BitTorrent, eDonkey, and Gnutella through deep packet inspection to block file transfers from customers using these networks. As a result, any Comcast customer trying to share files from one computer to another would find that their internet connection inexplicably kept dropping. At first, Comcast denied it. However, national tests conducted by the Associated Press confirmed the company’s actions as unrelated to network congestion since blocking took place at times when there wasn’t any. Not to mention, enough people had spread proof online, Comcast couldn’t keep up the lie. Though the company wasn’t apologetic either since they claimed that blocking these peer-to-peer programs like BitTorrent was “necessary.” In their defense, Comcast blocked applications often used to trade videos like pirated content, despite that most of what they blocked on these networks was legitimate. And Comcast has strongly hinted that they’ll do it again. After all, they have promised to that they “will not block, throttle, or discriminate against lawful content” once net neutrality is repealed. But as far as they’re concerned, peer-to-peer programs like BitTorrent fall under “unlawful content.” So once net neutrality is out of the way, Comcast is shutting these programs down.
  • Verizon shutting down Wi-Fi hot spots. When the technology to turn your phone into a Wi-Fi hot spot came out, Verizon Wireless started offering it as an add-on. For an extra $20 a month, their customers could use their phone’s data plan through another device like computer. Only problem was that there wasn’t any reason to give Verizon that $20. There were already all kinds of apps available letting people turn their phones into Wi-Fi hot spots for free. So since Verizon couldn’t really compete with these apps, they just shut them down. And they put pressure on Google to remove every Wi-Fi hot spot app from the marketplace. Thus, in other words, Verizon literally shut down 11 smaller businesses because they couldn’t compete with them.
  • Windstream and Paxfire redirecting Google Searches. In 2005, Windstream Communications tried to get their own search engine on the market and compete against Google and Yahoo. However, their search engine was so awful that there was absolutely no reason anyone would really want to use it. So they set up a redirect. That way, any Windstream customer who typed something into Google would just be forcibly redirected to the Windstream search engine instead of getting Google results. And Windstream wasn’t the only company to do this. Paxfire started accepting bribes from companies to redirect Google searches. So for instance, if any Paxfire customer googled “apple,” they’d be just forcibly sent to apple.com. Didn’t matter if they were looking for information growing apples or apple pie recipes. Their users would be looking at iPhones and they couldn’t do anything about it.
  • AT&T, Verizon, T-Mobile, and others running zero-rating schemes that advantage their own content. These are sponsored data programs to third party content providers to pay ISPs to exempt their data from customers’ data caps and at less favorable terms than they offer their affiliates.
  • Verizon admitting plans on censoring the internet. While most companies trying to end net neutrality try to hide what they’re up to, Verizon has directly and unambiguously said that they want to end net neutrality so they can censor free speech. In fact, a Verizon attorney told the FCC that they believe as broadband providers, they “transmit the speech of others” and deserve the right to what they call “editorial discretion.” Because the attorney claimed, “Just as a newspaper is entitled to decide which content to publish and where, broadband providers may feature some content over others.” In other words, Verizon doesn’t give a shit that everyone has a right to express themselves on the internet. In fact, they want to decide what goes online and what gets censored. Even when the FCC pushed them and asked if they planned on blocking websites, the Verizon attorney still didn’t deny that his company planned on censoring the internet, claiming, “But for these rules, we would be exploring those types of arrangements.” And that’s what will happen if net neutrality goes away. This isn’t a paranoid fear or a worst-case scenario, it’s straight out of their mouths.

If Pai’s FCC really wanted to guarantee that ISPs can’t charge tolls to access content, prioritize certain websites and services, create fast and slow lanes, and censor political speech, then it wouldn’t repeal net neutrality. In fact, Pai’s plan to end net neutrality doesn’t even conceal this. When it comes to letting ISPs dividing the internet into fast lanes for the few who can pay an extra toll and slow lanes for everyone else, his order actually celebrates the idea. As Pai writes, “We anticipate that lifting the ban on paid prioritization will increase network innovation [because] the ban on paid prioritization agreements has had … a chilling effect on network innovation.” Only the FCC and the ISP boardrooms would call slowing down websites and apps “innovation.” As far as they’re concerned, “restoring internet freedom,” will lead to “better, faster, and cheaper broadband for consumers and give startups that need priority access (such as telehealth applications) the chance to offer new services to consumers.” Except that creating fast and slow lanes will do absolutely no such thing. Yet, this is exactly the “trust the cable company” future Pai envisions for the internet which puts a ridiculous amount of faith in ISP promises.

Since the internet was available to the American people, there have always been a need for laws protecting people’s rights on the internet. Laws protecting these rights are in what’s called Title II of the Communications Act. These were updated on an overwhelming bipartisan basis in both houses of Congress in 1996 to establish the legal definition and duties that still do and still must apply to broadband service. Broadband internet access is what the law refers as a “common-carrier transmission service.” This lets internet users transmit what information they choose to and from the points of their selection and that the ISP must transmit the content without unreasonable discrimination. This is how broadband customers see the service ISPs offer and sell them. That’s the service we all need to have any chance of connecting and communicating with each other and accessing all the internet has to offer. The Obama FCC followed the law and fulfilled its congressionally mandated duties by returning to Title II and to the proper understanding of broadband internet access as a telecom service. A Federal appeals court reviewing the agency’s reason upheld that decision twice. Pai’s draft order fails to assess the proper history as well as the FCC’s steps and missteps past which explain Congress’s true intent and meaning of the law. But the best Pai can think of are ahistorical references to Clinton-era interpretations of an internet ecosystem long since gone, along with a smattering of ISP talking points and legal arguments courts just shot down last year. Talking about how the FCC treated AOL’s dial-up internet service in 1998 and pretending that this reasoning should apply to ISPs like Comcast and AT&T that control the physical networks we use to get online today just doesn’t cut it. Nor does the ridiculous claim that just because ISPs transmit internet speech and information, the broadband access line itself must be an information service, too. Pai’s justifications are simply attempts to ignore the reality of modern broadband internet services that people depend on today. And we still need rules guarding against the ISPs’ incentive and ability to discriminate. By abandoning the Communications Act and possibly punting federal oversight of net neutrality to the FTC, Pai turns back on the FCC’s sound legal framework for preventing discrimination online as well as abdicates its responsibilities and using the worst legal arguments it can find to justify his actions.

Another major argument the Pai order offers for all this upheaval is the supposed harm that a Title II framework has hurt broadband investment, thus slowing the expansion of nationwide internet access. It’s likely that Pai just made it up that’s only backed by a handful of lobbyists and corporate shills willing to lie or concoct supposed evidence for this alleged economic downturn. However, broadband investment doesn’t run on regulation alone. It doesn’t decline because the FCC restores the same kinds of protections against discrimination that have been kept in in place continuously for a wide range of Title II voice and broadband services for the past several decades. If you take the broader view, broadband investment has already been declining before net neutrality was in place. Besides, the stories ISPs tell their investors are very different from what they tell the FCC. In fact, Securities and Exchange Commission filings reveal an increase in internet investment since 2015 according to Free Press. Even so, whether industry investment should be the dominant measure of success in internet policy is kind of irrelevant considering the larger issues at hand.

Fortunately, there has been strong opposition to Pai’s terrible plan. During the FCC comment period, 98.5% of individual comments support keeping net neutrality rules. #Net Neutrality has trended globally on Twitter and was the top trending hashtag in the United States. Redditors representing a dizzying range of political philosophies and subcultures spoke out. In fact, the most popular post in the Reddit NASCAR group’s entire history is about the need to save net neutrality. Since last Tuesday, Americans have made over 500,000 calls to Congress urging their lawmakers to condemn Pai’s plan. Now Capitol staffers feel so besieged that a few reached out and asked pro-neutrality groups to make the calls stop. And on Saturday after Thanksgiving, Maine’s Senator Susan Collins became the first GOP senator to publicly oppose Pai’s proposal, joining scores of Democratic leaders who’ve spoken up in the last few months. As of today, there are 600 protests in the works in all 50 states in cities including Atlanta, Boston, Denver, Des Moines, Miami, New York City, Salt Lake City, San Francisco, and Wichita. And since Pai once worked for Verizon (officially), people are organizing outside corporate-owned Verizon stores all across the country. On Cyber Monday, hundreds of businesses and organizations sent a letter calling on the FCC chairman to reverse course and scrap his plans to repeal net neutrality rules. They wrote, “Without these rules, internet service providers will be able to favor certain websites and e-businesses, or the platforms they use to garner new customers, over others by putting the ones that can pay in fast lanes and slowing down or even blocking others. Businesses may have to pay a toll just to reach customers. This would put small and medium-sized businesses at a disadvantage and prevent innovative new ones from even getting off the ground. An internet without net neutrality protections would be the opposite of the open market, with a few powerful cable and phone companies picking winners and losers instead of consumers. The current rules provide the protections necessary to protect net neutrality and ensure the internet remains a free and open marketplace that encourages innovation and supports robust competition.”

Yet, even if the FCC votes to kill net neutrality, a federal court challenge is inevitable given overwhelming support for a free and open internet. Even if that suit remains in the US Court of Appeals, the outcome could very well drag on for another year and a half or more. And there will certainly be numerous lawsuits filed in reaction to the “Restoring Internet Freedom” Order. While the telecom industry will undoubtedly have an army of lawyers, they don’t have a strong case. For one, allowing ISPs to practice internet censorship akin to the Chinese state by blocking its critics and promoting its own agenda is anathema to the internet’s and America’s founding spirit. In fact, you can argue such censorship is unconstitutional under the First Amendment since it violates freedom of speech. Second, the Pai’s proposal is such a drastic reversal of net neutrality policy and is based on weak evidence to support the change. Government agencies aren’t free to abruptly reverse longstanding rules which many have relied on without good reason like a change in factual circumstances. A mere shift in FCC ideology isn’t enough. Because according to the Supreme Court, a federal agency must, “examine the relevant data and articulate a satisfactory explanation for its action.” Since the 2015 net neutrality rules are a huge success by most measures, the case for killing them would need to be very strong. Except that it isn’t. It’s very clear that Pai’s rationale for eliminating the net neutrality rules is that telecom companies need to earn even more money than they do despite enjoying generous profits for years. Third, because Pai’s FCC is killing net neutrality outright, the chairman will have to explain to a court not just the shift from 2005, but also his reasoning for destroying basic bans for blocking and throttling which have been in effect since 2005 which the entire internet ecosystem has relied on. This will be a very difficult task since there is a long history of (often concealed) anticompetitive throttling and blocking that the FCC has had to stop to preserve the internet economy’s health. Pai needs to explain why we no longer have to worry about this threat and he can’t just say, “you can trust your cable company” either. Fourth, the FCC is acting contrary to public sentiment which may embolden the judiciary to oppose Pai’s plan. While telecommunications policy doesn’t always attract public attention, net neutrality does. And since 76% of Americans support it, the FCC is on the wrong side of the democratic majority. In our times, the judiciary has increasingly become a majoritarian force which can prevent narrow, self-interested factions from getting the government to serve shameful ends.

Nevertheless, net neutrality assures Americans a free and open internet which has become crucial in our everyday lives. It has overwhelming support among the American public. For the FCC to repeal net neutrality rules goes against the will of the people. Pai wants to eliminate the Title II classification of ISPs as common carriers and leave these telecom companies to run the internet as they please. Repealing net neutrality will only give ISPs power to control what users experience online such as deciding who gets heard, which sites we can visit, what connections we can make, and what communities we can create. And they can throttle access, stall opportunity, and censor content that they don’t like. Most Americans believe you should go where you want on the internet without interference from your ISP, which net neutrality guarantees. Repealing net neutrality will only benefit a few giant corporate executives and lobbyists standing to profit from it. And such action will only stand to harm internet users, consumers, and businesses who depend on internet service for their day-to-day lives. No giant telecom corporation should have the power to control what you access online. American voters deserve a free, open, and neutral internet supporting democracy and economic growth. If you depend the internet for your livelihood, you need net neutrality. If you enjoy streaming video, social media, or playing online games, thank net neutrality. If you enjoy shopping on Amazon and want businesses to have a level playing field, net neutrality is for you. If you want to freely surf the web with the same rights and privileges as everyone else, then the assault on net neutrality must be stopped once and for all. The internet is for everyone and is the most important resource in the world with our exchange of information exalted over any physical and social barrier. We must stand together and fight for it.

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