Net Neutrality

What’s a consumer to think about what the FCC’s responsibility is for their privacy protection?

Let me try to explain to a consumer what the Federal Communications Commission (FCC) arbitrarily has done, and apparently intends to do, for consumer internet privacy protection going forward.    

By way of background, for the first decade of the Internet when consumers used dial-up technology, the FCC was responsible for protecting consumers’ private network information from commercial use without their permission.

For the second decade of the Internet when consumers came to use broadband technology, the FCC ceded its dial-up-Internet privacy protection authority to the Federal Trade Commission (FTC) which became responsible for consumer privacy protection from unfair and deceptive practices consistently across the entire American Internet ecosystem, regardless of who interacted with consumers’ private information.

Last spring, in order to assert legal authority to enforce net neutrality to protect edge providers from potential traffic discrimination in the FCC’s Open Internet Order, the FCC incidentally clawed back some privacy authority over Internet communications -- over the FTC’s strong objections.

Does the impartial administration of justice, the integrity of the U.S. Government, and the oath of all federal employees to support and defend the Constitution of the United States, require that private interests not be allowed to supplant the public interest?

Net neutrality absolutists are overreaching yet again in their push for a practical FCC ban of ISP zero rating offers under the FCC’s case-by-case “General Conduct Standard” review, by claiming violations of the “bright-line rules” in the FCC’s 2015 Open Internet Order against blocking, throttling and paid prioritization.

The problem here is that net neutrality absolutists, in exploiting the political pejorative power of the word ‘discrimination,’ have politically oversold their Title II net neutrality policy as “bright-line” ‘non-discrimination’ bans, implying no discrimination allowed, when Title II actually only bans “unjust and unreasonable discrimination.”

This is a distinction here with a huge difference; and it apparently is giving the net neutrality absolutists fits. They want to imagine that Title II prohibits their absolutist ‘no discrimination’ frame when it clearly does not.

They want to find a technical “gotcha” in every zero-rating or sponsored data offering, no matter how unreasonable their conclusion, so they can politically ask it be banned by the FCC under their concept of what a ‘no discrimination’ principle should be.

Square peg meet round hole.

The FCC is poised to try and force-fit inherently-irreconcilable, telephone closed-ecosystem privacy rules into a broadband open-system Internet. Good luck with that.

Expect the FCC to have fits trying to successfully craft workable, non-arbitrary, and legally-sustainable Title II broadband privacy rules in the year ahead.

It is a problem of the FCC’s own making.

In arbitrarily applying Title II telecommunications rules to only the ISP half of Internet communications, while politically exempting the entire edge half of Internet communications in its Open Internet order, the FCC has ensured that information that was proprietary and controllable in the closed telephone world becomes public and uncontrollable in the open Internet world.

Horses meet open barn door.

Net neutrality activists wrongly imagined that Title II was all-purpose-regulatory-authority to impose “the strongest possible” Open Internet rules they wanted, like bans on paid prioritization, zero rating or usage based pricing, despite decades of Title II and court precedents that determine many types of economic price discrimination and pricing flexibility to be just and reasonable.

Always be careful what you ask for, because you might get it.

Net neutrality absolutists demanded Title II regulation of the Internet in hopes of getting the “strongest possible” net neutrality rules.

They imagined Title II to be their ultimate tool and power to enforce whatever they want to redefine net neutrality to be, whenever they want to redefine it: e.g. no paid-prioritization, no zero rating offerings, no usage-based pricing, etc.

Never mind the nettlesome fact, that net neutrality, as a term, principle or concept, can’t be found in U.S. law.

And never mind the nettlesome Title II reality, that decades of FCC/court precedents have established that economic price discrimination can be, and often is, legally just and reasonable.  

Net neutrality absolutists had to learn in Comcast v. FCC that the FCC could not enforce net neutrality without prior net neutrality rules.  

They learned the FCC did not have the legal authority to ban commercially reasonable market behaviors in Verizon v. FCC.

Historically accurate or not, the “Spanish Inquisition” is a well-known metaphor in literature for a group of intolerant elites that demanded orthodoxy from people, under threat of extreme consequences for heresy.

The twenty first century’s new technocratic elites, who politically made up net neutrality policy over the last fifteen years, are now sadly trying to dictate net neutrality orthodoxy on all the people of the world, whether or not they use the Internet.

These net neutrality absolutists are now accusing innovators of Internet “zero rating” plans, i.e. toll-free data plans, of net neutrality heresy, which must be punished severely with PR torture and banishment, in order to set an example for the masses of what happens to those who dare to challenge the church of net neutrality absolutism.

Recently in India, today’s modern day leaders of the Zero Rating Inquisition, Access Now activists, have demonized Facebook for the net neutrality heresy of offering a free stripped-down version of Internet access called “Free Basics” to the roughly billion Indians who can’t afford Internet access.

A rational person would say Facebook’s Free Basics offering is great and a very helpful innovation, because it’s so similar to the good of a library, school, or hospital that offers free services to the poor.

However, the net neutrality absolutists, who claim to be champions of free speech, are incensed that Facebook would empower a type of Internet free speech that is not pre-approved by them.

The world is watching and taking note of the FCC’s blatant competition double standard that totally favors America’s dominant edge platforms above most everyone and everything else.  

Consider an apt and illuminating comparison between the competition U.S. wireless broadband providers face versus the competition Silicon Valley’s edge platforms face.

The FCC’s Non-Neutral Internet Competition Policy

The FCC’s 2015 Open Internet Order has an implicit blind-eye competition premise in that it reclassified the broadband provider half of Internet access, and not the “edge” platform provider half, as subject to FCC Title II common carriage regulation.

That is because the FCC focused only on broadband and concluded its level of competition required the strongest possible net neutrality regulation, while it turned a blind-eye toward “edge” platforms in uncritically assuming that “edge” platform networks were competitive and thus did not have to be neutral, open, or transparent.

Does the FCC’s concept of a “virtuous circle of innovation” mean fostering a full and true “circle of innovation,” of not only edge provider innovation, but also ISP innovations of zero-rating pricing plans that lower users’ bandwidth costs and better fund more broadband deployment?

Please consider how the FCC’s eventual treatment of the many ISP plans for zero-rating pricing innovations could impact ultimate appellate review of the FCC’s Open Internet Order.   

The D.C. Circuit Court of Appeals in Verizon v. FCC said that the FCC’s 2010 justification -- for imposing net neutrality rules via its Section 706 authority, for the purpose of promoting broadband deployment and the “virtuous circle of innovation” that fuels Internet growth -- was reasonable and justified by the evidence.  

Are several arms of the U.S. Government giving Google special treatment to enable it to secretly conduct a nationwide, two-year, test of Project Loon -- Google’s ambitious scheme to be the first company to commercialize the stratosphere -- in a manner that risks public safety, and environmental, and other harms?

Given that the USTelecom v. FCC appellate challenge of the FCC’s Open Internet Order is so important to net neutrality, the FCC’s authority over the Internet, and broadband providers’ future, and given that Judge Tatel’s thinking is so important to the outcome of this case, wouldn’t it be important to better understand Judge Tatel’s personal reasoned public explanation of how courts adjudicate cases just like USTelecom v. FCC?