FCC official says Google, Facebook had little say on net neutrality

The FCC’s landmark decision on net neutrality has produced all sorts of speculation about the degree to which well-known tech giants shaped the outcome.

Gawker, for instance, claimed that Americans can thank a benevolent Facebook-Google cabal for the open internet rules that were passed last Thursday. The Wall Street Journal, on the other hand, has suggested instead that Google has been conspiring behind the scenes to weaken the rules. So what’s the real story?

“The fact of the matter is that Google and Facebook sat this one out … I don’t what this person is smoking” said FCC lawyer Gigi Sohn in reference to the Gawker story.

Sohn was speaking Tuesday at a Freedom to Connect event in New York City, where journalist Sam Gustin of Vice asked her about the ruling and what comes next. The 3-2 ruling, which reclassified ISP’s as common carriers, came as a surprise to many given that FCC Chairman Tom Wheeler was once skeptical to the measure and because of fierce opposition from the telecom industry.

According to Sohn, Wheeler’s ultimate decision did not come about as a result of pressure from corporations or the White House. Instead, she said Wheeler (who is not a lawyer) came to reassess the situation after learning about various legal nuances, and in response to a series of external developments, including a time last spring when his Netflix service started sputtering.

Sohn did, however, credit the White House and members of Capitol Hill for providing “covering fire” as it became clear that Wheeler’s office intended to go forward with reclassification. She added that the FCC’s final decision did not come about as a result of any single factor (including comedian John Oliver), but rather from broad public support.

As for corporate influence, Sohn appeared on Tuesday to chastise the tech industry for not lending more public support to net neutrality, though she did credit Google for providing a small boost late in the process.

“Google to its credit said Title II [the reclassification law] wouldn’t hurt its investment in Fiber… Facebook has said nothing,” Sohn said.

Ultimately, the guessing game over the tech industry’s role in the net neutrality debate may remain just that — a guess. While it seems probable that an 11th hour call by Google persuaded Wheeler to back away from a two-step reclassification for interconnection (the so-called “middle-mile” where ISP’s and websites connect), for now there’s little to support any grander theories.

In the meantime, there will be plenty more for internet policy types to chew on while they wait for the official copy of the final decision to emerge in the next week or two.

Sohn predicted that “people will try to grind the FCC to a standstill” through budget threats and partisan hearings in the coming months. She added, though, that the issue may become less partisan since many groups who ordinarily support Republicans, who are the main antagonists of the new rules, are in favor of net neutrality.

Finally, as Sohn spoke, her boss Chairman Wheeler was wrapping up an appearance at the World Mobile Conference in Barcelona, where he told the audience that phone carriers’ massive recent spectrum purchases belied the idea that the new rules would dissuade companies from investing in the internet.

Net Neutrality day is here: a guide to today’s vote

What is the right way to run the internet? After months of pitched debate over so-called net neutrality, the FCC will finally vote on a proposal that will prevent broadband providers from slowing down or speeding up certain websites.

While there’s little doubt about the outcome of the vote, Thursday’s FCC hearing could still bring some surprises. Here’s an overview of how the process will unfold, key issues to watch, and what will happen next.

When is the vote taking place?

The hearing begins at 10:30am ET at the FCC in Washington, where the five Commissioners will vote on two items. The net neutrality proposal is the second item (the first is about municipal broadband – update: which has passed 3-2), and a vote is expected to occur in the early afternoon.

What are they voting on?

The crux of the proposal is new regulations that will replace the net neutrality rules that a court struck down in early 2014. The new rules themselves (contrary to recent rhetoric) are rumored to be 8 pages long and, under FCC convention, are an appendix to a larger document that contains the Commissioners’ positions.

The FCC staff will summarize the key parts of the new rules, but the document itself is not likely to be available to the public for several weeks. This is due to agency protocol, which gives the Commissioners time to add final comments (though the substance of the rules will not change between now and when they appear).

How exactly does the vote take place, and what will be the outcome?

After the staff summaries, each of the five Commissioner will offer their comments in order of seniority. Republican Commissioner Ajit Pai, who has been an outspoken critic, is expected to speak for an hour so this could take some time. They will then take a vote, and hold a press conference.

The outcome will be a 3-2 vote on partisan lines, with the two Democratic Commissioners siding with Chairman Tom Wheeler. (Update: that’s exactly what happened)

What are the key things to watch?

While the outcome of the vote is a sure thing, some key details of the proposal are still unknown. The most high profile of these concerns what the FCC will do about so-called interconnection, and what the rules will do to prevent ISPs from forcing sites like Netflix to pay a toll in return for not having their streams degraded.

There is also the issue of “zero rating,” which is when phone and companies exclude certain apps or services (such as music) from a customer’s monthly data cap. While this violates the general principle of net neutrality, Chairman Wheeler has yet to explain how strictly the new rules will prevent this. (Read my colleague Stacey Higginbottam’s excellent overview of potential loopholes here).

Finally, since much of the recent net neutrality debate has been about theater, it will be worth watching to see how far Commissioner Pai (who has been waging a nasty political and social media campaign against Wheeler) will go to stir the pot during the hearing.

So will the new net neutrality rules go into effect right away?

No. According to Harold Feld of Public Knowledge, the rules only go into effect 30 days after they appear in the Federal Register, which could take a few weeks.

Will there be lawsuits?

Yes, buckets of them. Expect big telecom companies like Verizon or AT&T to sue in the coming weeks. Meanwhile, it’s possible that activist groups on both the right and the left may bring suits of their own.

What will be the effect of the lawsuits?

Feld says, in the event of multiple lawsuits, the first order of business will be for various appeals courts to decide which of them will take the case. After that, the telecom companies are likely to receive a brief stay of the rules until they can file their first round of arguments. At that point, the stay will likely be lifted while the court hears the case.

The court cases are likely to kick off in March or April, and a ruling on whether the new FCC plan is legal will probably come in late 2015 or early 2016. In the meantime, the net neutrality rules will be in effect.

I just can’t get enough of this stuff! Where can I learn more?

Gigaom will have updates on the days proceedings through Thursday. The FCC will have a live stream here (if the internet holds up!).

I’ll be tweeting about it here. Other Twitter accounts to watch are those of Gigi Sohn (FCC lawyer), Commissioner Pai, Public Knowledge’s Feld and Professor Tim Wu (who coined “net neutrality” in the first place).

For political flavor: The New York Times has opined on the FCC’s “wise new rules” here while the Wall Street Journal, on the other hand, hates everything about the FCC (paywall).

This story was corrected at 10:05am to note the court decision was in 2014, not 2013.

Twitter is latest to boost FCC’s net neutrality plan

Twitter came out on Monday in support of FCC chairman Tom Wheeler’s plan to impose net neutrality, which is slated for a critical vote on Thursday, praising it as a way to ensure free communications and an open internet.

“Safeguarding the historic open architecture of the internet and the ability for all users to ‘innovate without permission’ is critical to American economic aspirations and our nation’s global competitiveness. These rules also have important implications for freedom of expression,” said the company in a blog post.

[company]Twitter[/company]’s endorsement of the plan, which would prevent ISPs from speeding up some websites at the expense of others, is significant given the company’s role as a major media company, and its historical advocacy of free speech.

In its blog post, Twitter pointed out a familiar refrain of net neutrality advocates: that emerging companies depend on access to the internet platforms that will carry their products and ideas.

“This openness promotes free and fair competition and fosters ongoing investment and innovation … Without such net neutrality principles in place, some of today’s most successful and widely-known Internet companies might never have come into existence.”

Twitter also endorses Wheeler’s plan to use so-called Title II rules, and treat ISPs as common carriers, in order to enforce net neutrality. Those rules have touched off a massive lobbying campaign by Republicans backed by the cable industry, which is seeking to characterize the measure as executive overreach. Twitter, however, pointed out that the agency is applying the rules in a “light touch” fashion, and avoiding the more burdensome parts of the regulation.

Twitter’s decision to publicly endorse Title II comes after a variety of other companies, including [company]Netflix[/company] and Etsy, have argued the rules are necessary to ensure ISP’s don’t use their control over internet pipes to stifle potential competition.

Love or hate net neutrality, GOP probe is pointlesss

Let the dog and pony show begin! Republicans in Congress and their cable company allies are smarting over news that the FCC will reclassify internet providers, and have responded with not one, but two investigations that seek to uncover illegal meddling by the White House.

The twin probes, which are being led by Sen. Ron Johnson (R.-Wis) and Rep. Jason Chaffetz (R-Utah), call on FCC Chairman Tom Wheeler to explain how he came to favor net neutrality — a policy that prevents ISPs from giving special treatment to some websites over others when they deliver broadband.

Net neutrality is indeed an important issue, and Republicans are within their rights to implement investigations of it. The problem, however, is that their premise for probing Wheeler appears to be completely baseless.

According to Senator Johnson, the purpose of the investigation is to determine if Wheeler’s decision resulted from “undue outside pressures, particularly from the White House.” The message is that President Obama has someone flouted the rule of law, and run roughshod over an independent agency.

But there’s little evidence to justify such a charge. While Johnson cites public remarks by the President and a report in the Wall Street Journal about the White House’s interest in the net neutrality file, that’s hardly a smoking gun.

More importantly, the Republicans have yet to explain how exactly they think the White House behaved illegally. Johnson’s public letter says the executive branch’s behavior has been “inappropriate from a constitutional standpoint” and “improper from an Administrative Procedures Act perspective,” but fails to point to specific laws or regulations.

Unfortunately for net neutrality critics, “inappropriate” and “improper” seem pretty thin gruel, even as a political charge. And they almost certainly fall far short of material for a lawsuit.

While Presidents typically steer clear of saying what independent agencies should or should not do, President Obama is hardly the first to speak up on an FCC issue. Indeed, every chief executive in the last 30 years has stuck their oar in the water at one time or another, according to Harold Feld, a senior lawyer with the advocacy group Public Knowledge.

“By strong convention, the President is supposed to respect the independence of the agency, and Presidents generally save their ammo on this for things they really care about. There are good reasons for this general rule,” wrote Feld by email. “But there are also good reasons for the President to speak up from time to time — particularly on matters of national importance such as the fate of broadband (Obama), reducing the influence of money on politics (Clinton) and the fate of media ownership rules (Reagan, Bush I, and Bush II).”

Feld, who has created a graphic of Presidential pronouncements about FCC issues, added that there is no law that prevents the President from sharing his views about the agency or from talking to its Chairman. Meanwhile, none of the previous Presidents’ remarks on FCC issues have resulted in a court action — meaning it’s near certain that Obama’s won’t either.

So what’s going on? In the view of Berin Szoka of TechFreedom, a group critical of Wheeler’s proposal, the legal case is “subtle” but turns on two issues: whether the White House “threatened” Wheeler as the head of an independent agency, and whether the executive violated an anti-lobbying law by having FCC staff lobby Congress. Or something.

The better explanation is that the twin Congressional investigations are no more than a political stunt to muddy the waters in the net neutrality debate. That’s a shame. No matter what you think of the substance of Wheeler’s proposal — you can read about a Republican FCC Commissioners’ latest objections here and here — the American public deserves better on this matter than Congress’s “investigations.”

Does the FCC want to oversee peering deals like Netflix vs. Comcast?

The FCC will soon pass new rules for how ISP’s must handle broadband traffic and, while it’s expected to impose a policy of net neutrality when it comes to consumers, it’s been less clear how the agency will resolve another thorny internet issue: whether network providers can charge content companies to accept their traffic — and throttle their streams if they don’t pay. On Wednesday, a report surfaced that suggested how the issue will play out.

The issue, known in the industry as peering or interconnectedness, became a hot topic last year as Netflix feeds failed across the country, leaving consumers to shout at their screens and wonder who to blame. Big broadband providers like Comcast and Verizon sought to fault Netflix and the content companies, claiming they should have to pay a toll to offset the large volumes of internet traffic they create.

Netflix and traffic management services like Level 3, however, claimed that the ISPs has deliberately degraded their traffic by refusing to carry out low-cost upgrades to key internet ports. Calling the tactic a form of extortion, the content companies have also accused the ISPs of double-dipping — saying the ISP’s already charge consumers to receive the internet, and those charges should include all infrastructure fees on the backend.

Now, a long report from Bloomberg cited a source that claims to know how FCC Chairman Tom Wheeler plans to resolve this grand conflict.

According to the source, Wheeler is prepared to bless those paid peering deals as part of a larger framework of internet rules. But he will reportedly also do so in a way that permits the likes of YouTube or Vimeo to complain if the ISP’s are not being “fair or reasonable” with their agreements. As the report said:

FCC Chairman Tom Wheeler has decided the rules, scheduled for a vote next month, will permit the agreements but include a procedure for companies to ask for agency review, said the person, who asked to remain anonymous because the plan hasn’t been made public.

This pronouncement, however, may be premature.

Blanket ban or case-by-case?

No one will be surprised if the issue of interconnectedness appears in the first draft of the new FCC rules which, under law, must be circulated by Chairman Tom Wheeler to the other FCC Commissioners at least three weeks before a vote. These are expected to go out (and get leaked to the press) on February 5.

Indeed, Wheeler demanded data from the companies last summer, as part of an investigation into the public outrage that occurred over the stuttering Netflix streams.

The big question now is not just whether Wheeler will include peering agreements in a larger framework of rules, but the way in which such arrangements will be overseen.

According to a source familiar with the debate, ISPs are likely reconciled to the fact that their current paid arrangements with Netflix, which are currently unregulated, will come under the nose of the FCC in the future.

As such, they are now pushing to ensure that any enforcement occurs on a case-by-case basis over whether a given deal is “fair and reasonable,” rather than in response to a bright line rule that outlaws the sort of pay-for-service deals the ISP’s forced on Netflix last year.

The Bloomberg report, which does not cite any documents and on which the FCC declined to comment, suggests that Wheeler has decided to go with the case-by-case approach. While this would nominally ensure fair oversight, it would also allow the ISPs, as they have done in the past, to deploy their formidable legal teams to ensure any complaints would take years to resolve. In other words, this could be a case where ISPs are trying to make the best of a bad outcome.

As such, it’s unclear if the report is a bona fide insight into Wheeler’s thinking, or is instead just an opening salvo in what is sure to be a ferocious spin cycle as the day of the FCC vote gets closer.