Battle for the Net: part 3

My Comment to the FCC

Posted by David Zaslavsky on
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It’s finally time. After reading through something like a thousand pages of FCC filings, laws, court judgments, and other assorted documents, writing a thousand lines in the first and second parts of this series, and missing about a thousand hours of sleep over the past week, I am, at last, at the end of my quest to compose a comment on the FCC’s proposal to gut net neutrality. (The comment itself is at the bottom. I wouldn’t make it that easy on you!)

Filing a comment

I’ll be using https://www.battleforthenet.com to file my comment, because the form there also forwards what I write to my Congressional representatives and Senators. They’ve written a default comment for people who don’t want to craft their own, and it reads as follows:

The FCC’s Open Internet Rules (net neutrality rules) are extremely important to me. I urge you to protect them.

I don’t want ISPs to have the power to block websites, slow them down, give some sites an advantage over others, or split the Internet into “fast lanes” for companies that pay and “slow lanes” for the rest.

Now is not the time to let giant ISPs censor what we see and do online.

Censorship by ISPs is a serious problem. Comcast has throttled Netflix, AT&T blocked FaceTime, Time Warner Cable throttled the popular game League of Legends, and Verizon admitted it will introduce fast lanes for sites that pay-and slow lanes for everyone else-if the FCC lifts the rules. This hurts consumers and businesses large and small.

Courts have made clear that if the FCC ends Title II classification, the FCC must let ISPs offer “fast lanes” to websites for a fee.

Chairman Pai has made clear that he intends to do exactly this.

But if some companies can pay our ISPs to have their content load faster, startups and small businesses that can’t pay those fees won’t be able to compete. You will kill the open marketplace that has enabled millions of small businesses and created the 5 most valuable companies in America-just to further enrich a few much less valuable cable giants famous for sky-high prices and abysmal customer service.

Internet providers will be able to impose a private tax on every sector of the American economy.

Moreover, under Chairman Pai’s plan, ISPs will be able to make it more difficult to access political speech that they don’t like. They’ll be able to charge fees for website delivery that would make it harder for blogs, nonprofits, artists, and others who can’t pay up to have their voices heard.

I’m sending this to the FCC’s open proceeding, but I worry that Chairman Pai, a former Verizon lawyer, has made his plans and will ignore me and millions of other Americans.

So I’m also sending this to my members of Congress. Please publicly support the FCC’s existing net neutrality rules based on Title II, and denounce Chairman Pai’s plans. Do whatever you can to dissuade him.

Thank you!

What’s good about this sample is it explicitly calls out the harm to “startups and small businesses”. One of the FCC’s major reasons for proposing the change is the effect it will have on small businesses — actually, small ISPs — but there are a lot more small businesses that use internet access than that offer it. It would be silly to forget about them.

What I don’t like about this letter is that it completely fails to reference the proposal. I think point-by-point rebuttals, like I made in my previous post, are going to be a lot more effective.

It’s also kind of nasty. I reserve the right to think that’s entirely justified, but when it comes to actually submitting a comment, I’d rather be more constructive.

Let’s see how we can construct a better letter.

Effective commenting

Last month, Gigi Sohn, a close associate of Tom Wheeler during his tenure as FCC chair, wrote a fantastic post describing how to write an impactful FCC comment. This is what she says, in brief:

  • Write about yourself and how the net neutrality rules affect you
  • Write about what you understand you are buying when you purchase broadband internet access
  • Write about the choices you have (or don’t) for broadband internet access
  • Write about what role you think the FCC should have in overseeing the market for broadband internet access

There’s also an article from Techcrunch giving similar advice with a couple of examples. It’s definitely preferable to consider these factors to make your comment have an impact; Ajit Pai has said he won’t be considering the number of comments submitted, but rather will be weighing the arguments they make. Taken at face value, I think that’s a good thing. Twenty well-reasoned comments should always outweigh a million copies of “DOWN WITH COMCAST BOO0O!!!!1!!” (Of course, there’s a very real chance he’s only saying that because he’s grasping at straws trying to find any way he can to justify ignoring the pro-net neutrality case, but what can you do…)

My comment

Taking all that into account, here’s what I’ve come up with:

I’d like to offer my feedback about the FCC’s “Restoring Internet Freedom” proposal (NPRM 17-60).

To set the context, I am a software developer and scientist. I routinely communicate with colleagues and the public about my work and interests, as well as communicating with friends and family for whom distance makes in-person meetings impossible and phone calls prohibitively expensive, all using the Internet. I rely on unfettered Internet access many times every day to search for information, read articles, send and receive emails, publish blog posts, stay up to date on news, participate in online video conversations, and many other tasks. All this is to say, I have a vested interest, like many other Americans, in maintaining unrestricted access to the Internet. I have spent some time living in China, where Internet access is heavily restricted, so I’m well acquainted with the difficulties that arise when Internet access is blocked or heavily slowed. This kind of service degradation goes beyond mere inconveniences; for someone like me whose daily activities are so reliant on online communication, it can damage my livelihood. Even though Internet access in the United States is much less limited than in China, I do believe a title II classification of internet service is necessary to safeguard the level of access I and others like me rely on every day.

From reading the NPRM, I have several concerns with the Commission’s analysis. For example, in paragraphs 26-36, it seems that the Commission understands broadband internet access as a package of related services, including not only a connection to other computers, but also other services such as email, web hosting, social media, and others. However, this is inconsistent with how I and many other Americans use the service. When I pay for a broadband internet connection from e.g. a cable company, the service I want is a conduit through which I can transmit and receive signals between other computers and my own. I do not expect, nor desire, that this service comes bundled with supplemental higher-level functionality such as email, web hosting, social media, and even DNS and content filtering. I may have the option to receive these supplemental services from the company that also provides my basic Internet service, and I recognize that there are many people who take advantage of that option, but it is still an option, not an integrated component of the Internet service.

I strongly urge the Commission to recognize that basic Internet access, a pure conduit for carrying data, is effectively decoupled from additional, optional services that may be offered by the same company.

This decoupling affects the legal classification of broadband Internet access. Paragraph 27 of the proposal claims “that Internet service providers offer the capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications” and thus should be classified as information services. But as I’ve previously mentioned, and as the Commission noted in paragraph 28, the listed services are frequently provided by third parties, e.g. Gmail and Outlook for email, Wordpress for web hosting, OpenDNS and Google public DNS, and so on. What I get from my Internet service provider is merely a conduit through which I can communicate with those third parties. I do not believe it makes sense to claim that the Internet service provider is “offering” these supplemental services simply by providing the conduit, and the supplemental services should not disqualify the basic Internet connection itself from being a telecommunications service.

Furthermore, paragraph 29 claims that Internet service providers do not offer “telecommunications” as defined in the relevant law because “users do not specify the ‘points’ between and among which information is sent online.” As much as I don’t want to be dismissive, this assertion is, frankly, ridiculous. There is no requirement that “points” be specified by their known physical locations. As a user of broadband Internet, I specify points by e.g. typing server names and URLs into my web browsers, email clients, and other applications. The fact that I don’t know the physical location of the remote computer that handles my request for information, nor the path my request takes to get there, does not disqualify the carrier handling that request from being considered a telecommunications carrier, just as a traditional telephone service provider is not disqualified from being a telecommunications carrier because it allows me to call phone numbers whose physical locations I do not know.

Then in paragraph 30, the NPRM states that “[ISPs] routinely change the form or content of the information sent over their networks”, which would also seem to disqualify them from being telecommunications services, but I believe the Commission glosses over the important fact that the vast majority of information sent over the internet is received exactly as it is transmitted. There are standard, widely-used protocols such as TCP, HTTPS, and VPN designed in large part to ensure that information arrives unmodified. With these standard practices, I and other broadband Internet users have come to expect that the information we cause to be transferred between computers will proceed from the origin to the destination without any user-visible modification or other interference. Although some modification of form or content may be necessary to support a carrier’s network implementation, I expect any such modification to be reversed or corrected for before the signal is transmitted to the destination, and thus from the consumer’s perspective, this modification may as well not exist.

Essentially, I believe the proper interpretation of “change in the form or content” in the law is a difference between what is sent by the source and what is received by the destination, not invisible transient changes that take place along the way. I and many other broadband users do not expect or desire ISPs to introduce these differences. This reinforces the point that broadband Internet service, as I perceive it, qualifies as a telecommunications service.

So far I’ve described why I think the Commission’s legal arguments for classifying ISPs as “information services” under the Communications Act are inconsistent with how these services are purchased and used by many Americans, including myself. But even beyond that, I do actively believe that it is in consumers’ best interest — not only individuals, but businesses both small and large which rely on Internet access — to have broadband Internet services regulated more strictly than an “information service” classification allows.

My primary reason is the severe lack of competition for broadband Internet access that many Americans face. The Commission’s 2016 Internet Access Services Report shows that only 22% of the country (by census blocks) has a choice of two or more providers for 25/3 Mbps broadband Internet access. The true figure may be even less, since even when multiple ISPs operate within a single census block, there may still be people in the block who only have access to one of them. I have experienced this myself, due to living in an apartment complex that has an exclusive arrangement with one ISP, although houses and businesses just down the road are served by another.

This patchwork of local monopolies comes on the heels of more than 20 years of ISPs operating under a title I classification. Although paragraph 49 of the NPRM puts forth the claim (among others) that dropping title II regulation will increase competition and lower prices for consumers, the level of competition has been fairly stagnant for quite some time. And there is already real evidence to suggest that some ISPs are taking advantage of local monopolies to increase prices and degrade service compared to what available technology allows. When Google Fiber expanded or proposed expanding its service to cities like Nashville and Atlanta, the dominant broadband ISP in the area quickly and drastically lowered their price and increased connection speed to become compete with Google’s service plan. The fact that they were able to do this on short notice suggests that they possess the technological capability; they merely chose not to use it for as long as they were able to operate in those cities without competition.

In light of these observations, I believe the Commission overestimates the degree to which classifying ISPs as information services will improve competition, pricing, and service options for many Americans.

A more pressing concern in the future is the potential for Internet service providers to abuse their local monopolies to engage in anticompetitive practices, if not prohibited by FCC regulation. I’m specifically focusing on blocking, throttling, and paid prioritization, which the 2010 Open Internet Order adopted bright-line rules to prohibit. Far from being a “supplemental revenue stream” as described in paragraph 86, these practices break users’ expectations of receiving an open conduit to whatever online services they choose to use, unduly influence customers’ choices of third-party online services, and will likely be used to drive customers of a given ISP toward that provider’s own offerings of the online service, or its partners’ offerings, and away from competitors. There are already several instances of major ISPs blocking or throttling traffic associated with their competitors’ supplemental services, and during Verizon v. FCC in 2013, Verizon’s lawyer stated that the company would be looking into continuing similar practices if not prohibited from doing so by the title II regulations.

For this reason, I feel it is essential that the Commission continue to prohibit ISPs from blocking, throttling, or prioritizing content. I believe that if these regulations are dropped or reduced in scope, my ability to use the Internet to access the information and services I want will be unduly compromised. Title II classification is the way to prevent that from happening, and as I’ve argued earlier in this comment, I believe there is a sound legal basis for this classification.

I’m submitting this comment to the Commission’s open proceeding, and also to my representatives in Congress. I ask you all to maintain net neutrality rules based on Title II for the benefit of American consumers and businesses.

Thank you!

This falls far short of addressing everything in the FCC’s proposal that I’d like to, but it at least makes a point and backs it up pretty well, so hopefully it will count for something. (Maybe I should just link them to these blog posts…)

Time to head over to https://www.battleforthenet.com to send this off! Please consider adding your comment as well if you haven’t already done so! You certainly don’t have to write something as detailed as I did; there are standard form letters you can use or modify. The comment deadline is today, so don’t delay!

The outcome

Let’s be honest, I don’t think all these comments are going to do anything. Chairman Pai seems to have his mind made up, and with the FCC being under Republican control, I think they’re going to make whatever policies they want without regard for what the public is saying. Still, with all these comments, they’re not going to look great doing it. And I’m sure this issue will come up again in the future, so if nothing else it’s good practice for next time!

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