Access Now and EU orgs tell FCC: strengthen, don’t kill, Net Neutrality regs

Internet users in the U.S. are at risk of losing hard-won protections for online privacy and free expression. The Trump administration and a Republican-lead congress are threatening to reverse the U.S. Federal Communications Commission’s Open Internet Rules, which would not only damage human rights in the U.S., but also have negative repercussions for the free and open internet worldwide.

In 2015, the FCC passed regulatory policies reclassifying broadband internet service as a Title II telecommunications utility, ensuring Net Neutrality protections in the United States. However, FCC Chairman Ajit Pai has proposed reclassifying these services under Title I. This reclassification would allow internet service providers to restrict people’s access to the open internet arbitrarily, imposing what we call “network discrimination.” Companies would be able to move forward with tactics like throttling and creating a two-tiered internet with no legal recourse for those impacted.

Last night the initial period closed for accepting public comments on the FCC’s Notice of Proposed Rulemaking (NPRM) In the Matter of Restoring Internet Freedom. Access Now has submitted our comment in the proceeding with multiple European organizations joining us in support: (Austria), La Quadrature du Net (France), Electronic Frontier Norway, IT-POL Denmark, Digitalcourage (Germany), and European Digital Rights (EDRi). Each of these groups is standing strong for Net Neutrality for everyone, everywhere.

Below is a brief overview of key points in our submission to the FCC, focusing on aspects that build on our previous comments to the agency on Net Neutrality . You can read the full submission here.

What is Net Neutrality?

Recognizing the benefits of the open internet to free expression and innovation, legislators and regulators across the world are enshrining Net Neutrality in the law. It comprises three principles: end-to-end connectivity, best efforts in traffic delivery, and permission-free innovation.  It is fundamental to ensuring open, secure, and affordable access to the internet, which has shown to foster an innovative marketplace of ideas, commerce, culture, and expression worldwide.

First, the end-to-end principle ensures that all points in the network should be able to connect to all other points in the network. Second, the best efforts principle guarantees that all providers of the internet should make their best effort to deliver traffic from point to point as expeditiously as possible. Finally, the innovation without permission principle states that everyone should be able to innovate without permission from anyone or any entity.

Net Neutrality allows people in the U.S. and across the globe to exercise their human rights online, and everyone deserves the same strong protections and access to the open internet. There is no regulatory agency in the U.S. as well equipped as the FCC to safeguard these principles.

Why the FCC must maintain the Title II classification

The FCC’s own findings in the 2015 Title II Order show that, “broadband providers have the incentive and ability to discriminate in their handling of network traffic in ways that can harm the virtuous cycle of innovation, increased end-user demand for broadband access, and increased investment in broadband network infrastructure technologies.”

This week, a group of 20 investors representing $190 billion in assets told the FCC they oppose changes to the net neutrality rules, finding “no evidence that the Commission’s 2015 Open Internet order has caused publicly-held ISPs to reduce their investment in broadband networks.” Evidence from public statements by ISP corporate executives, as well as data the companies supplied in their filings to the Securities and Exchange Commission, show that investment continues amidst net neutrality rules. Organized by OpenMic, the financial advisors and asset managers  submitted that strong net neutrality promotes fundamental rights and innovation, “as well as robust broadband adoption and participation in the internet community by people of color and other socially and economically disadvantaged groups.”

We agree. Reclassifying broadband internet access service under Title I would put U.S. broadband users at risk of long-term harm while ISPs seek short-term gains. Without the Title II Order in place, and lacking any real authority under Section 706 of the Telecommunications Act of 1996 to enforce meaningful anti-discrimination rules, we cannot protect U.S. users from network discrimination in its many forms, like throttling or paid-priority “fast lanes” that favor some traffic over others.

How the FCC can further strengthen Net Neutrality protections

Under Title II, the FCC can prohibit practices that the agency determines unreasonably interfere with or disadvantage consumer access to the internet content, services, and applications of their choosing — or that interfere with the capacity for content creators, service providers, or applications to reach an audience of consumers.

We told the FCC that this “Conduct Standard” should be strengthened and enforced to more clearly eliminate the opportunity for price discrimination and business models that privilege ISPs to promote or demote certain types and sources of content.

One of the newest threats to freedom of expression are “zero rating” business models. Zero rating programs take different forms, the most frequent being “sub-internet” offers, where only a part of the internet is offered for “free,” and what we’re calling the “telco” model, where a telco prioritizes either its own content or that of third parties. All forms of zero rating amount to price discrimination, and have in common their negative impact on users’ rights.

This threat isn’t hypothetical. In 2014, T-Mobile allowed customers to access specific streaming services without impacting their data caps. Similarly, in 2016, AT&T announced that its video streaming system would not count against data caps, while Netflix would. Any new or developing service will remain at a disadvantage due to these programs; generally only large, well-established companies or telcos can afford this preferential treatment.

The FCC should heed advice from its own 2016 report indicating that zero rating practices require effective regulation. “Given the powerful economic incentives of network operators to employ these practices to advantage themselves and their affiliates in various edge service markets,” FCC staff wrote, “we are equally concerned that – absent effective oversight – these practices will become more widespread in the future.”

Another area where the FCC can better protect users from discrimination is 5G. Named for the 5th generation of mobile networks, 5G would bring much-needed increases in internet speed and coverage for people across the global wireless system. The standard is suitable for the “Internet of Things” and an ever-increasing number of internet-connected products and services, such as connected cars and e-health. However, telcos are using the new standard as another way to combat regulation that protects users.

The principles that comprise Net Neutrality are essential for emerging products and services like 5G and IoT. Net Neutrality rules would ensure that the number of innovative, internet-based services and applications will continue to increase. With global demand for faster and better access to the internet on the rise, internet access providers abiding by Net Neutrality regulations would continue to have a strong incentive to develop and invest in enhanced network capacity for all people – and things.  

The current FCC rules are important not just for Net Neutrality but also for privacy. Broadband service providers have uniquely powerful, privileged access to our personal information. This access will only grow as we begin to use devices that are internet-enabled. The data generated in an IoT world will be even more intimate. With its broadband privacy rules, the FCC sent an important message about the fundamental importance of protecting our privacy and security. Moreover, U.S. recognition of data privacy has also helped reinforce recognition worldwide of the value of frameworks that protect internet users. We want to see this progress on privacy maintained, not stripped away.

What happens next? We keep fighting.

The FCC will review the unprecedented number of comments the agency has received, and the next step is a “reply round” of comments, where we’ll have a chance to respond to arguments advanced by industry lobbyists.

We hope you join us as we continue to fight for Net Neutrality, both in the U.S. and around the world. If you want to do more in this proceeding, keep up the pressure on social media, write letters to newspapers, and call your representatives. The internet belongs to all of us, and has become an essential platform for the enjoyment of human rights like the freedom of expression. Let’s keep fighting to ensure that it works for everyone, not just the few who can pay more for a fast lane.