The FCC originally planned to stop taking comments about their net neutrality proposal on Tuesday. But after demand overwhelmed and crashed their antique IT system, they extended the deadline to 11:59 p.m. (EDT) tonight. As of yesterday, well over one million comments had been entered, and that number’s still going up. Clearly, the public cares — but what is the public saying?
There’s a clear recurring trend in comments from individuals: paid fast lanes are not a valid option. Some advocate for Title II regulation, some stand against it, and some don’t mention it at all, but millions have laid out their personal cases for why internet access is important to them and why big companies should not be able to interfere in consumers’ access.
Still, not all comments are created equal. Advocacy groups, companies, and trade and lobbying groups have now all had their say too, with “comments” over a hundred pages long. Here’s what they’re saying.
The ACLU goes straight to calling for classification of broadband services as a Title II common carrier. They see “concentration in communications markets” as a danger that can prevent citizens from accessing their first amendment rights.
Ideally, they point out, the market would regulate such restrictive service providers, as consumers would switch to an ISP that didn’t discriminate among its network traffic. In the real world, though, that’s impossible due to the extreme lack of competition and monopoly conditions in most markets.
The ACLU’s key argument, though, is that this FCC rule isn’t about 2014 or 2015 — it’s about future-proofing, and that’s why they need to get it right: “Reclassification is especially important in the light of the potential First Amendment risks posed by [Section 706] case-by-case enforcement. … We fear an overly aggressive future administration could conceivably and abusively cite Section 706 in regulating edge providers, and could potentially extend Section 706 to content regulation. In our view, any such application would be a gross abuse of the plain terms of the statute, but there is no assurance such a future administration would occur.”
Like other broadband companies, AT&T is in favor of as little regulation as possible. They stand to make money if paid prioritization goes through, and so although they claim to be against fast lanes they propose a giant loophole that would allow them to charge anyway.
AT&T also argues that Section 706 regulation is the way to go, because Title II classification will ruin everything forever. Separately, they submitted a 19-page PowerPoint presentation all about peering agreements. Unsurprisingly, they also advocate against applying net neutrality non-discrimination standards to mobile broadband.
The company sums up their 99-page opinion — that there is no problem and we should all move along — succinctly early on, saying: “Calls to use this proceeding to impose a host of additional regulatory controls on broadband Internet access providers should be firmly rejected, particularly because the record is devoid of evidence of any actual threat to Internet openness that could possibly warrant heavy-handed regulation.”
Comcast favors tighter regulation about as much as you’d think, which is not at all. They more or less say the Wheeler proposal is fine, except for the bit where they want to add some cases where some traffic and “specialized services” are exempt so Comcast can charge for delivering them.
Comcast spends the majority of their 74 pages arguing heavily against Title II classification, saying it would be counterproductive, ineffective, and unlawful. Plus, Comcast says, it wouldn’t do what everyone wants anyway because common carriers have the right to some “permissible discrimination.” They also feel that public wifi and mobile broadband should be subject to the same standard, whatever the rule ends up being.
Their basic argument: allowing Comcast to make more money will be an economic benefit to America — and not doing so will stifle innovation, and cost everyone. “Relying on [section 706] authority,” Comcast says, “the Commission should reaffirm the importance of its transparency framework, reinstate a ‘no blocking’ rule with a revised legal rationale, and establish a ‘commercial reasonableness’ standard to govern direct commercial relationships between broadband providers and edge providers relating to the transmission of Internet traffic over broadband Internet access service. Following this path will enable the Commission to build confidence across the Internet ecosystem and strengthen the ‘virtuous circle’ that has produced
abundant benefits for consumers, businesses, and the economy as a whole.”
Common Cause is the advocacy group where former FCC commissioner Michael Copps now holds a role. They argue that an open internet is essential for a functional democracy, allowing citizens both to be an informed electorate and to interact with their government at every level.
To this end, they write, paid prioritization needs to be banned altogether, and broadband service needs to be reclassified under Title II. Extreme industry consolidation has left no other real choice: “Limited competition in last mile connectivity means end-users are largely captive to ISP gatekeeping behaviors,” the comment says.
In order to preserve the ability for citizens to participate in the political process, they conclude, the FCC needs to prevent ISPs from doing that and they should do that using Title II. “Communications policy should empower consumers, not gatekeepers,” the organization writes. “Any proposal to allow blocking, discrimination, or paid prioritization would strengthen incumbent ISPs that possess both the technical ability and financial incentives to act as toll collectors, judges and juries of internet content and access.”
Consumers Union echoes sentiments of other advocacy groups and calls directly for Title II reclassification of broadband services as the best way to protect consumers.
CU (the advocacy arm of our parent company, Consumer Reports) writes that going with Title II would make things clearest for everyone, saying: “Reclassification would put in place clear rules of the road to protect consumers and would ensure that consumers – and not a handful of ISPs – have control over access to content online.” They, too, say that whatever rule the FCC puts in place needs to apply equally to mobile broadband and to traditional wired broadband.
The organization also points to the looming Comcast/TWC and AT&T/DirecTV merger plans, pointing out that consolidation leaves companies with big incentives and consumers with no options. “The market for last-mile internet access is already controlled by a handful of powerful companies and the largest ISPs are becoming increasingly vertically integrated with programmers,” CU writes. “Paid priority arrangements would give ISPs even greater power to determine which services reach consumers, putting them in a position to determine which services will thrive. With control over both the pipes and content, these providers have the leverage and incentive to favor their own content over the programming of their competitors, and to make market entry difficult for new entrants.”
This industry group represents many major tech companies, including Apple, Ebay, Facebook, Google, Intel, Microsoft, Yahoo, and a whole bunch of others.
The ITI argues that whatever rule the FCC puts into place needs to protect not only consumers, but also businesses large and small. To that end, they advocate against Title II classification — calling it a “heavily regulatory” framework that would make the FCC too hands-on — but instead want to see something very like the now-vacated 2010 rule.
The ITI largely supports the proposed rule, agreeing that ISPs should not be able to block or degrade any lawful activity, but that “the rule should not bar the potential for commercial arrangements that could benefit consumers.” They also support the FCC’s plan to take a case-by-case look at commercial arrangements to determine whether they meet an agreed-upon minimum acceptable level of service.
The organization “recognizes that without proper protections, commercial arrangements between online service providers and broadband ISPs have the potential to adversely impact competition and choice in the online marketplace,” they write, but that doesn’t preclude certain arrangements that would benefit the biggest, richest companies who they represent. “Consistent with the no-blocking rule, the Commission should permit opportunities for companies to experiment with commercial agreements that could benefit customers”.
This trade group represents Air BnB, Amazon, Ebay, Etsy, Expedia, Facebook, Google, LinkedIn, Netflix, reddit, Twitter, Yahoo, Yelp, Uber, and a few dozen other internet companies you have almost certainly heard of. (And yes, Google, Yahoo, and others are members of both organizations.)
The open internet, they write, is essential to innovation and growth and the owners of the last mile should not be allowed to hamper it. The IA takes a slightly different tactic from the ITI, though, pointing out that ISPs do have both the means and the motivation to put policies in place that discriminate among internet traffic sources, and that they should not be allowed to do so. Instead, the FCC should require broadband providers to undertake “application agnostic” network management protocols. The organization also supports applying the same regulations to mobile broadband as to wirelines.
However, the IA stops short of addressing reclassification, instead simply hinting around the edges that they hope the FCC doesn’t go that far. Mainly, the IA focuses on what they want to see the FCC do, and disregards the how. “The current proposed rule proposes a difficult to enforce, multi-factor framework that is not focused on the goals of broadband deplotment and adoption … and that could lead to overreaching regulatory interventsion by the Commission,” the IA writes. “Consumers and the online ecosystem would be far better served by clearer and more straightforward prohibitions against blocking and paid prioritization.”
Netflix filed their own comment, separately from any of the trade groups that they’re a member of. They, more than any other content company, have been at the center of recent disputes over peering, prioritization, and bandwidth use and everyone bandies them around as a test case or case study.
Netflix, unlike many other tech companies but like most consumer advocate groups, comes down in favor of Title II reclassification. They also discuss at length the ways in which their streaming service degraded prior to their paid agreement with Comcast earlier this year, and explain that although peering and interconnection are being considered separately from the Open Internet rule, they are also a vital part of network neutrality.
This piecemeal approach under section 706 ultimately will not work, Netflix says. The clearest route to a policy that supports non-discrimination policies is reclassification. “Title II provides a solid basis to adopt prohibitions on blocking and unreasonable discrimination by ISPs. Opposition to Title II is largely political, not legal,” their comment says. They continue by pointing out that “the D.C. Circuit [court] in Verizon pointed to the Commission’s failure to reclassify broadband Internet access as a telecommunications service under Title II as the chief impediment to a solid jurisdictional basis for meaningful open Internet rules.” So reclassification, then, would prevent this all from ending up in court again in the near future.
The “front page of the internet” did what they do best: crowdsourced part of the comment to their community, and told personal stories.
A fast lane, they explain, would have throttled reddit before it even got off the ground. Although the site has a huge number of subscribers and moves a tremendous amount of traffic, it doesn’t generate the same level of revenue as Google or Facebook and would likely not be able to handle paying an ISP for priority access to reasonable connection speeds.
In order to create any kind of valid regulation, reddit argues, the FCC has no choice but to first reclassify ISPs as common carriers. “TFCC cannot do a bright line rule against discrimination without Title II,” reddit writes. “Nor can it ban access fees and paid prioritization, as the court already ruled that such a ban leaves “no room at all” (not substantial room) for discrimination. Thus, in order to enact the rules it must, the FCC needs to classify broadband providers (which, as the FCC recognized in 2010, have terminating access monopolies over their users) as ‘telecommunications services’ under Title II of the Communications Act and apply rulings with appropriate forbearance.”
Verizon has a lot to say, in their whopping 184-page comment — as one might expect, since it was their lawsuit that led to the 2010 net neutrality rule being vacated in the first place.
Verizon says that the best environment is one that has as little regulation as possible. They have no incentive to throttle any service, they say, because consumers will dump them and flock to competitors if they do. (Ignoring the fact that while FiOS customers might have one other local option, Verizon DSL consumers almost never do.)
Verizon calls out “superficial news reports, sensationalistic interest-group fund-raising appeals, and even late-night comedy routines” for exaggerating the threat that ISPs may pose, but also sings the praises of the proposed “flexibility to offer new products and services,” including those which would rely on paid prioritization agreements. The real threats to equality of internet access, they say, come from Amazon, Netflix, and Google.
And as for Title II reclassification? Well, Verizon argues, that would basically send the internet back to the Stone Age. “The arcane regulatory framework embodied in Title II was crafted for 19th century railroad monopolies and the early 20th century one-wire telephone world. The price and service regulation inherent in Title II have no place in today’s fast-paced and competitive Internet marketplace, and the threats posed by this approach would not likely be confined to broadband providers but would spread inevitably to other Internet sectors.”
Millions have had their say, but there’s always room for one more. If you still haven’t gotten your comment in, here’s everything you need to know about submitting your opinion to the FCC. You’ve got until midnight tonight.