The FCC has released the FCC Proposed Net Neutrality Changes to step back the 2015 Open Internet Rules. They are seeking comments on several aspects of their plan and their understandings or beliefs. It is recommended that we all offer our thoughts on the matter so that they will hopefully make the decision that benefits all consumers as opposed to the Internet Service Providers (ISPs). My comments on the matter reference the newly proposed in the order in which they are addressed.

Fundamental Flaws

In the introduction of FCC 17-60 Notice of Proposed Rulemaking, the writers of the document draw on the history of how the internet has been handled to date. In paragraph two they specifically address the fact that under a light touch regulatory practice, “[B]usinesses developed in ways that the policy makers could not have fathomed even a decade ago.” This is a fundamental flaw with the logic the FCC is attempting to use with this document. At the invention of the Internet the government didn’t know what it was or what it could become. That lack of understanding led them to believe that the best thing they could do was as little as possible. However, as the internet developed and the way consumers and businesses put the internet to use for them it has expanded to do far more than the original rules could have anticipated.

The argument that is being made is that the ISPs should be de-regulated in order to encourage this continued expansion. The issue with that argument is that the ISPs, when these original rules were created, did not serve the same role that they serve today. The ISPs were not both the owners of the content and the pathway that consumers used to access content from other edge service providers. That fact is reason enough to determine that the way ISPs should be regulated should not return to its original rules – they no longer apply to the conditions of the networks and content providers today.

Misleading Investment

When the 2015 rules were passed by the FCC, the ISPs and their representative groups filed nine lawsuits in an attempt to invalidate the rules and force the FCC back to the drawing board. The ISPs lost all nine lawsuits. As those lawsuits made their way through the Court there was a great deal of uncertainty regarding the final decision. As such, the ISPs openly stated that they would reduce investment in their expansion until it was clearer how the networks would be regulated. The current FCC is now trying to use that reduced investment in infrastructure expansion, specifically using data that incorporates time before the 2015 rules went into effect, as the fact that regulating the networks would cause permanent retardation in the expansion of networks and the corresponding technology.

This argument is inherently false and has been contradicted by the ISPs themselves in recent times. No matter how heavily regulated the IPSs are, the larger ISP options, whose data is specifically referenced in the document based on Hal Singer’s blog post, get no benefit from reducing network infrastructure expansion. The purpose of an ISP is to give access to the internet for all users. If they stop expanding then their business will dissolve and be consumed by a competitor.

The ISPs now see how the rules with affect their businesses and can plan and budget accordingly. Stating that they will continue to restrict investment assumes that they are not interested in profits, getting ahead of their competition, and increasing their potential reach to consumers.

Privacy Falsehoods

When the FCC reclassified the ISPs as Title II services in the 2015 rules they opened up a loophole in the regulation of how ISPs had to handle privacy rights. As a Title II service, how the ISPs managed privacy rights of consumers would have been required to be regulated by the FCC as opposed to the FTC which had been managing this oversight until the rules passed. In response, the FCC wrote and passed a set of privacy rules. However, in early 2017, the current FCC voted not to enforce these privacy rules. After that, Congress, using the Congressional Review Act, examined those privacy rules at overturned them pulling the ability for the FCC to oversee ISP privacy regulation. Congress also declared that this could not be revisited, putting privacy regulation in the hands of the FTC.

The problem with this was that the Courts had already ruled in favor the ISPs when they sued the FTC regarding their ability to create rules and enact oversight. The reason the ISPs won the case was because the FTC doesn’t have the ability to oversee the ISPs since they have been reclassified as a Title II service.

The previous FCC had taken the right steps to move the right to oversee privacy in the right direction, it was the current FCC and Congress that weakened that weakened Americans’ online privacy rights.

Four Unrelated Principles

The FCC retraction of the rules continues to attempt to justify the action by referencing old rules. Specifically, the four principles for internet freedom (the freedom to access lawful content, the freedom to use applications, the freedom, to attach personal devices to the network and the freedom to obtain service plan information), but none of these freedoms address the ISPs relationship to the consumers or how the consumers should be protected.

The closest that these freedoms come to addressing this is stating that the users have the freedom to access lawful content. There is nothing in that freedom, though, that dictates the ISPs must treat all of that content, whether provided by themselves or their online content competitors, equally. This, therefore, provides no protection to the consumers in the end.

The FCC Doesn’t Understand How Networks Work

The most glaringly incorrect comments from the FCC regarding their justification for returning ISPs to a Title I service is addressed in paragraph 27.
“We believe that Internet service providers offer the “capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications. Whether posting on social media or drafting a blog, a broadband Internet user is able to generate and make available information online. Whether reading a newspaper’s website or browsing the results from a search engine, a broadband Internet user is able to acquire and retrieve information online. Whether it’s an address book or a grocery list, a broadband Internet user is able to store and utilize information online. Whether uploading filtered photographs or translating text into a foreign language, a broadband Internet user is able to transform and process information online. In short, broadband Internet access service appears to offer its users the “capability” to perform each and every one of the functions listed in the definition – and accordingly appears to be an information service by definition.”

The misconception that stands out in all of this text is that they are willfully addressing all the things that people use the internet to do, acknowledging how users are reliant on a broadband service provider in order to do them, but then saying that the providers of access to this capability should be allowed to be determined by the ISP, not the users. This was the fundamental intent of the Open Internet rules that the FCC attempted to pass in 2010 and in 2015 and the current FCC is neglecting the intention entirely.

Furthermore, in paragraph 29 the writers try and define that IPSs do not offer “telecommunications” or “’the transmission, between or among point specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received,’ to their users.” The FCC is stating that it’s their belief that a user opening a web browser and typing in a website name is not a user choosing where they wish to go on the network. Their argument is that the ISP chooses which way to route the signal (ideally to optimize the pathway) and that is somehow different than what telephone switch services historically did or currently do.

Their willful ignorance of how a network currently operates as opposed to how historical switched phone networks operated is nothing but pure negligence to push forth an agenda and is an egregious misrepresentation of how technology both currently works and is utilized.


The Itemized List

What follows below are my personal comments in reference to claims or requests the document asks for by paragraph.

Paragraph 30: The definition used of changing the form or content of the information is taking the most extreme available. Declaring that the interweaving of IPv4 and IPv6 networks is changing the content is incorrect. The content is not being altered but rather passing through the switch fabric to allow it to reach the requesting destination. The user has requested the content from a source and not altering content is descriptive of the ISP not changing the information contained in that content, not the way it is converted to traverse the pathway to reach the destination.

Paragraph 32: There is a reference to Section 231 and the definition of an “Internet access service” and how it does not include telecommunications services. However, this again takes regulations that were written and passed before the current common usage and understanding of how the networks by consumers. These rules do not account for video conferencing, audio calls, Voice over IP or VoIP, and only mentions communication by email. It is therefore antiquated and should be discarded as reasoning in this case.

Paragraph 34: The Telecommunications Act does not account for how the networks and their usages have changed since its inception in 1996. The regulations should be reflective of how the systems are used today to protect consumers.

Paragraph 37: The description of how DNS and caching are used in broadband Internet access services is exactly how the internet works. These are services that ensure that users have expedited access to regularly viewed content. Including them in the protections for consumers would be beneficial to the consumers.

Paragraph 39: The historical regulations that are referenced by the FCC do no account for how networks are utilized today, nor the expansion of the ISPs to offering content and therefore making themselves a competitor to other edge service providers. To ignore this fact opens up the opportunity for the ISPs to create an imbalanced competition model wherein the ISPs can enhance access to their content offerings while restricting access to other edge service providers’ content by restricting bandwidth or blocking it entirely.

Paragraph 44: The writers of the document state that reclassification has led to significant regulatory burdens but fails to name any such burdens. The Commission should identify what these burdens are so that they could be considered individually.

Paragraph 45: The writers of the document state that, “Other interested parties have come to different conclusions,” regarding what the affect the 2015 rules have had on broadband investment. Due to this uncertainty, using this as the primary reasoning for why returning to a Title I classification should be thrown out. There is no clear understanding that classifying ISPs as Title II has resulted in any long term change in investment.

Paragraph 47: The comparison of smaller ISPs as the burden they will endure based on the reclassification versus that of the larger ISPs is a red herring. The regulations should not be based on how the serviced used by the drastic minority should not dictate how the larger ISPs are managed. If the FCC wishes to create exceptions for the smaller ISPs, that is acceptable, but these should not be the rule.

Paragraph 50: Requesting how harm was done to consumers is an attempt to apply reactive regulation. This would be the equivalent to law enforcement saying, “We’ve never had a murder before so we don’t need to create rules for society that restrict murder.” Regulations should be proactive and protective of the people they are designed to serve, not reactive.

Paragraph 53: The current FCC’s belief that the “predictions and expectations regarding broadband investment and the nature and effects of reclassification on the operation of the marketplace were mistakes,” is insignificant statement and impossible to gauge whether the regulations were erroneous based on the data available in the time frame in which all of this regulation and change has taken place.

Paragraph 55: Accessing the internet from your phone as opposed to your computer on a Wi-Fi network has no significant difference in terms of the user experience and access to the content that is being requested by the user. Therefore, it should be regulated in a similar fashion.

Paragraph 56: The FCC is choosing to believe their own definition of what a switched network is applies only to phones ignores the content of Court’s rulings after the lawsuits regarding the 2015 Open Internet rules. Additionally, to try and narrow the definition of a public switched network to only phones is willful harm to the public good as when that definition was written the broadband internet access service networks did not exist.

Paragraph 60: By attempting to divide mobile voice and data regulation, the FCC is creating a greater regulatory burden to oversee services that are essentially serving the same purpose in their end result.

Paragraph 61: The writers declare that they believe, “mobile broadband Internet access service is not the ‘functional equivalent’ of commercial mobile service.” This is wholly incorrect. If a person requests website access from a browser on their phone and accesses the same information that’s accessible from a network by making the same request from their PC, how is this not a functional equivalent?

Paragraph 67: The desire to keep privacy regulation under the FTC’s jurisdiction is prevented by the Court’s ruling of the AT&T vs. the FTC case if Title II is maintained.

Paragraph 74: A query panel was set up by the previous FCC for the ISPs to be able to ask whether their practices they wished to put in place would violate the 2015 Open Internet Rules. This thereby mitigated the issue being raised here. This panel existed specifically so that there was an authority available to deal with issues not specifically addressed in the rules based on the speedy evolution of technology and the slow to follow policy changes.

Paragraph 77: Yes, there is reason to create pre-emptive, comprehensive regulation under the current network conditions. The ISPs are now content providers which means that in addition to providing access to all edge service providers, they are also competing with those same network providers. This creates unfair business practices as edge service providers’ competition is also the controller of how content is accessed from all edge service providers.

Paragraph 78: Yes, the regulations are required in addition to antitrust regulations.

Paragraph 79: Yes, forcing the ISPs to disclose if they are not offering full access to all edge service providers is the definition of a free market economy. If the ISPs wish to not provide access, then they need to declare what users will have the ability to access so that the expectation of the user experience is defined. If the user is ok with that then they may continue, if not then they can be informed and choose a different service.

Paragraph 80: If the FCC believes that including a no-blocking provision is required to ensure consumer protection, why would this be eliminated? Keep this provision.

Paragraph 84: The no-throttling rule is not duplicative of antitrust laws. It is more expansive as it can apply to more than just traffic o the network but also through the gateways of the network. It may not involve collusion or be part of anti-trust practices and should therefore be spelled out specifically.

Paragraph 85: The no paid prioritization rule is there for consumer protection. Allowing the ISPs to operate under the guise of, “we promise not to” does not give the consumers legitimate protection. It is only opening up the opportunity for ISPs to create fast lanes of their own regard without any consumer say – particularly in environments where consumers have no other or limited options for ISPs.

Paragraph 86: Allowing the ISPs to create fast lanes would stifle innovation. This would allow the ISPs to hold smaller or new companies hostage unless they were willing to pay to ensure their data was getting to the requesting users. This would particularly apply to any ISP offering similar content or services as this newer service. The ISP will not restrict the speed of their own content, but then has the ability to restrict that of newer competitors.

Paragraph 93: If the requirement for transparency is lifted then the qualifier of “reasonable network management” should remain. There has to be a clear definition of what the service requirements of the network are for both the ISPs and the consumers.

Paragraph 94: Yes, the FCC should follow the case-by-case basis for evaluating reasonable network management. You have been deemed the authority for wired and wireless communications by the United States government that oversee and protect the consumers. This is your job.

Paragraph 95: The adoption of mobile browsing will only increase. Applying the rules across the board in how network are regulated is necessary as the end result is the same. There is no need to draw and arbitrary line between BIAS and mobile networks.

Paragraph 110: The cited figures from Hal Singer do not necessarily correlate to ISP investment changes due to Title II. They are all encompassing values for investment from the ISPs. The reasoning given for the decrease or increase in investment is not given. This data, therefore, is not explicit enough to be utilized for the argument being made.


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