Analysis The FCC has released a revised version of its plans to tear up net neutrality – and unwittingly revealed the extraordinary influence that the cable industry has over the process.
The new "notice of proposed rulemaking," which was approved in a 2‑1 vote last week, completely ignores hundreds of thousands of critical comments and includes only details that support its chair's case for dismantling the Open Internet Order.
Almost all the changes in the revised document have come directly from the cable companies that will benefit most from the approach that the FCC is proposing. In some cases, it is embarrassingly transparent.
The company that has done more to undermine net neutrality rules than any other – Verizon – gets a veritable wishlist of changes made to a document that was already highly favorable to it.
It is likely mere coincidence that FCC chair Ajit Pai was once Verizon's associate general counsel.
One key change comes in paragraph 61, when the FCC announces that "we also believe that mobile broadband Internet access service is not the 'functional equivalent' of commercial mobile service."
In the previous version [PDF], the FCC had only "tentatively concluded" that was case. And that is a critical distinction, since if a mobile internet access service is not taken to be a commercial service, it won't be designated a Title II utility and so subject to various rules and regulations designed to protect consumers.
Also included in the revised version is the fact that the FCC will decide for itself whether it is "free to depart from" the standard that decides what functional equivalency is. It seeks comments on the issue.
In fact there are a number of new "questions" that the FCC is proposing to ask itself that weren't there in the original notice – and almost all of them directly benefit Verizon and its bottom line.
A new question even asks companies to submit suggestions for "any potential method of reducing compliance burdens and restoring Internet freedom that has not been proposed in this Notice." The message is clear: it is open season for cable lobbyists.
The reason this is particularly problematic is that the rest of the document clearly shows that the FCC is willing to ignore comments that it disagrees with and promote those that it does.
The revised document demonstrates that not only is the FCC policy process going to be a sham, but it is being done with the active steering of special interest groups. Big Cable sends suggestions for changes to the FCC, FCC chair Ajit Pai makes those changes or adds in questions and asks for public comments, and then the FCC only considers the responses that support the cable industry's desired answer to the question asked in the first place. It's so blatant it's extraordinary.
All of the new references to letters in the revised version come from corporations supportive of chairman Pai's plans.
There is one from Oracle that was so bizarre that we even wrote a story about its "love letter" to Pai. Pai clearly loved it back because it appears in a footnote used to justify the argument that Title II classification is an "unnecessary burden" and actually damages competition.
Likewise letters from:
- The general manager of BELD Broadband about the "straight-jacket of utility regulation."
- The Wireless Internet Service Providers Association's counsel arguing that Title II has "created vast uncertainty and significant negative economic impact."
- The CEO of Bluegrass Cellular complaining about "uncertainty" around Title II.
- Even the Free State Foundation – renowned for its tenuous grasp of reality – gets in there thanks to wildly misleading claims in a blog post that broadband investment has slowed by $5.6bn as a result of the Open Internet Order.
As for all the hundreds of other letters, thousands of blog posts and articles and millions of comments that took issue with the FCC's plan, including its underlying assumptions and logic – well, they might as well have never existed, having disappeared down an FCC black hole, or perhaps more accurately its "pai-hole."
It is worth noting that under reforms introduced by Pai, only commissioners were allowed to propose changes to the notice before it was approved in a 2-1 vote, so every change came directly from either Pai or his fellow commissioner Michael O'Rielly.
And such is the degree of bias and willingness to slant reality to fit with a pre-ordained outcome that any changes immediately become suspicious.
What are we to make of the fact that the revised notice no longer includes a key paragraph about seeking comment on the 1996 Telecommunications Act?
Originally the notice read: "First, the Notice proposes to return broadband Internet access service to its classification as an information service. The Notice seeks comment on the text of the 1996 Act and whether the language of the Act indicates that broadband Internet access is service [sic] is properly classified as an information service."
That has now vanished.
Likewise "whether, and to what extent, Commission precedent classifying broadband Internet access service as an information service should continue to govern broadband Internet access service in the future."
The FCC doesn't want to hear from people about the very law that it will have to fall back on if it is successful in getting rid of the Open Internet Order. Why? It almost certainly has something to do with the fact that Commissioner O'Rielly recently decided that the Telecommunications Act of 1996 didn't give the FCC the authority to regulate internet providers either.
This is despite the fact that Section 706 of that act has been used by the FCC for over 20 years to do its job, and despite the fact that the Washington, DC, court recently repeated its position that the FCC has legal authority over broadband providers without the need for Congressional approval.
And in relation to that court decision, the notice has the audacity to quote repeatedly from the minority dissenting judges to argue its case for why the net neutrality rules need to be overturned, while doing its absolute best to ignore the actual decision.
What's perhaps even more insidious is that there are clear signs that the commissioners are actively planning a strategy for how to ignore the millions of comments that will oppose their plans when they are put out for public comment again.
"We note that since this docket was opened on April 27, 2017, this matter has generated significant public interest. The public will continue to have opportunities to participate in this important proceeding following adoption and release of the text of this Notice through a robust comment and reply comment period," it notes.
It also adds in the revised notice that "comments may be filed electronically using the Internet ... Parties who seek to file a large number of comments or 'group' comments may do so through the public API or the Commission's electronic inbox established for this proceeding ... To ensure that bulk comments are properly recorded in ECFS, commenters must use the .CSV template provided."
It is notable that 500,000+ identical comments were sent through a bulk API, all of which used real people's names and email addresses and all of which gave unqualified support for Pai's position.
The only problem is that not one of those people actually agreed to having their name used to make the statement, and many that have been contacted have said they believe the opposite.
Despite this, the FCC recently refused to remove those comments from the record and said it will continue to allow comments to be sent via a .csv template through an automated API system. Despite that precise system having been abused. Why?
It is almost certainly because the one group that has access to millions of people's names and email addresses is internet service providers.
Can we expect to see companies like Comcast use their vast customer lists to skew the public comment process in their favor?
Earlier this week, Comcast's lawyers sent cease-and-desist letters to the owners of a website that let people search for their own name to see if it had been falsely used to argue against net neutrality.
The name of the site – comcastroturf.com – clearly places suspicion for the half-million fake comments on the ISP and provides a simple button to contact the Attorney General and ask for a fraud investigation into the fake comments.
The cable industry lost badly when it was out-lobbied and out-maneuvered in the lead-up to the Open Internet Order's approval in 2015. This time around, they are determined to win the game by any means necessary.
In the coming months, it looks increasingly like part of that approach will be to flood public comment boards with their message, sent using their customers' details.
We saw the other side of the coin earlier this week when it was revealed that the official document sent to Congressional Republicans from Republican party headquarters supporting the FCC's move had in fact been written by the cable company's trade association.
Chairman Pai has promised repeatedly to bring in a new era of transparency at the FCC, and so he shall. It's just that no one expected to be able to watch in high definition as the cable companies undermine rules designed to protect millions of internet users by feeding the head of the federal regulator and politicians the "right" talking points and the "right" questions in order to get those rules overturned.
As for the millions of ordinary internet users who will be affected – they may yet find their cable companies casting their vote for them. ®