The FCC’s Two Dissenting Voices Defend Net Neutrality To the End

Frank
November 2, 2018
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Today the Federal Communications Commission voted to overturn its rules banning internet service providers like Comcast and Verizon from blocking or discriminating against lawful content. In doing so, it effectively killed net neutrality. But not every FCC commissioner was on board.

The agencies’s two Democratic commissioners, Mignon Clyburn and Jessica Rosenworcel, lashed out against the order during the FCC’s open meeting today.

“I dissent because I am among the millions outraged,” said Clyburn, who served as the agency’s sole Democratic commissioner for much of the year. “Outraged because the FCC pulls its own teeth abdicating responsibility to protect the nation’s broadband consumers.”

Clyburn, first appointed to the commission in 2009, has been a vocal opponent of Republican FCC chair Ajit Pai’s agenda, including his moves to dismiss an investigation into whether AT&T and Verizon had engaged in anticompetitive behavior, loosen media ownership rules that limit the number of broadcasting stations a single company can own, and rollback a federal program that subsidizes phone and internet service for low income people.

Rosenworcel, who was first appointed to the FCC in 2012, but temporarily lost her seat early this year because Congress refused to vote on her renomination in 2016, was no less scathing. “I dissent from the corrupt process that has brought us to this point and I dissent from the contempt this agency has shown our citizens in pursuing this path today,” she said during the hearing.

Since returning to the commission in August, Rosenworcel has been an fierce critic of the new administration’s media and communications decisions. For example, she was quick to respond to President Donald Trump’s tweet asking if NBC’s broadcasting licenses could be pulled for running stories the president doesn’t like, even as Pai remained silent on the issue for days, and wrote an op-ed for WIRED calling for a delay in the FCC’s net neutrality vote until the agency, and New York attorney general Eric Schneiderman, investigated fraudulent comments submitted by bots.

You can read Clyburn and Rosenworcel’s full statements below. Together, they provide as stirring a defense of net neutrality as you’re likely to find.

I dissent. I dissent from this fiercely-spun, legally-lightweight,
consumer-harming, corporateenabling Destroying Internet Freedom Order.

I dissent, because I am among the millions who is outraged. Outraged,
because the FCC pulls its own teeth, abdicating responsibility to
protect the nation’s broadband consumers. Why are we witnessing such
an unprecedented groundswell of public support, for keeping the 2015
net neutrality protections in place? Because the public can plainly
see, that a soon-to-be-toothless FCC, is handing the keys to the
Internet – the Internet, one of the most remarkable, empowering,
enabling inventions of our lifetime – over to a handful of
multi-billion dollar corporations. And if past is prologue, those very
same broadband internet service providers, that the majority says you
should trust to do right by you, will put profits and shareholder
returns above, what is best for you.

Each of us raised our right hands when we were sworn in as FCC
Commissioners, took an oath and promised to uphold our duties and
responsibilities ‘to make available, so far as possible, to all the
people of the United States, without discrimination… a rapid,
efficient, Nation-wide, and world-wide wire and radio communication
service with adequate facilities at reasonable charges.’ Today the FCC
majority officially abandons that pledge and millions have taken note.

I do not believe that there are any FCC or Congressional offices
immune to the deluge of consumer outcry. We are even hearing about
state and local offices fielding calls and what is always newsworthy
is that at last count, five Republican Members of Congress went on the
record in calling for a halt of today’s vote. Why such a bipartisan
outcry? Because the large majority of Americans are in favor of
keeping strong net neutrality rules in place. The sad thing about this
commentary, it pains me to say, is what I can only describe as the new
norm at the FCC: A majority that is ignoring the will of the people. A
majority that will stand idly by while the people they serve lose.

We have heard story after story of what net neutrality means to
consumers and small businesses from places as diverse as Los Angeles’
Skid Row and Marietta, Ohio. I hold in my hand letters that plead with
the FCC to keep our net neutrality rules in place but what is striking
and in keeping with the new norm, despite the millions of comments,
letters, and calls received, this Order cites, not even one. That
speaks volumes about the direction the FCC is heading. That speaks
volumes about just who is being heard.

Sole proprietors, whose entire business model, depends on an open
internet, are worried that the absence of clear and enforceable net
neutrality protections will result in higher costs and fewer benefits
because you see: they are not able to pay tolls for premium access.
Even large online businesses have weighed in, expressing concern about
being subject to added charges as they simply try to reach their own
customers. Engineers have submitted comments including many of the
internet’s pioneers, sharing with the FCC majority, the fundamentals
of how the internet works because from where they sit, there is no way
that an item like this would ever see the light of day, if the
majority understood the platform some of them helped to create.

I have heard from innovators, worried that we are standing up a
mother-may-I regime, where the broadband provider becomes arbiter of
acceptable online business models. And yes, I have heard from
consumers, who are worried given that their broadband provider has
already shown that they will charge inscrutable below-the-line fees,
raise prices unexpectedly, and put consumers on hold for hours at a
time. Who will have their best interests at heart in a world without
clear and enforceable rules overseen by an agency with clear
enforcement authority? A toothless FCC?

There has been a darker side to all of this over the past few weeks.
Threats and intimidation. Personal attacks. Nazis cheering. Russian
influence. Fake comments. Those are unacceptable. Some are illegal.
They all are to be rejected. But what is also not acceptable, is the
FCC’s refusal to cooperate with state attorney general investigations,
or allow evidence in the record that would undercut a preordained
outcome.

Many have asked, what happens next? How will all of this – Net
Neutrality, my internet experience, look after today? My answer is
simple. When the current protections are abandoned, and the rules that
have been officially in place since 2015 are repealed, we will have a
Cheshire cat version of net neutrality. We will be in a world where
regulatory substance fades to black, and all that is left is a
broadband provider’s toothy grin and those oh so comforting words: we
have every incentive to do the right thing. What they will soon have,
is every incentive to do their own thing.

Now the results of throwing out your Net Neutrality protections, may
not be felt right away. Most of us will get up tomorrow morning and
over the next week, wade through hundreds of headlines, turn away from
those endless prognosticators, and submerge ourselves in a sea of
holiday bliss. But what we have wrought will one day be apparent and
by then, when you really see what has changed, I fear, it may not only
be too late to do anything about it, because there will be no agency
empowered to address your concerns. This item insidiously ensures the
FCC will never be able to fully grasp the harm it may have unleashed
on the internet ecosystem. And that inability might lead
decisionmakers to conclude, that the next internet startup that failed
to flourish and attempted to seek relief, simply had a bad business
plan, when in fact what was missing was a level playing field online.

Particularly damning is what today’s repeal will mean for marginalized
groups, like communities of color, that rely on platforms like the
internet to communicate, because traditional outlets do not consider
their issues or concerns, worthy of any coverage. It was through
social media that the world first heard about Ferguson, Missouri,
because legacy news outlets did not consider it important until the
hashtag started trending. It has been through online video services,
that targeted entertainment has thrived, where stories are finally
being told because those same programming were repeatedly rejected by
mainstream distribution and media outlets. And it has been through
secure messaging platforms, where activists have communicated and
organized for justice without gatekeepers with differing opinions
blocking them. Where will the next significant attack on internet
freedom come from? Maybe from a broadband provider allowing its
network to congest, making a high-traffic video provider ask what more
can it pay to make the pain stop. That will never happen you say? Well
it already has. The difference now, is the open question of what is
stopping them? The difference after today’s vote, is that no one will
be able to stop them.

Maybe several providers will quietly roll out paid prioritization
packages that enable deeppocketed players to cut the queue. Maybe a
vertically-integrated broadband provider decides that it will favor
its own apps and services. Or some high-value internet-of-things
traffic will be subject to an additional fee. Maybe some of these
actions will be cloaked under nondisclosure agreements and wrapped up
in mandatory arbitration clauses so that it will be a breach of
contract to disclose these publicly or take the provider to court over
any wrongdoing. Some may say ‘Of Course this will never happen?” After
today’s vote, what will be in place to stop them?

What we do know, is that broadband providers did not even wait for the
ink to dry on this Order before making their moves. One broadband
provider, who had in the past promised to not engage in paid
prioritization, has now quietly dropped that promise from its list of
commitments on its website. What’s next? Blocking or throttling? That
will never happen? After today’s vote, exactly who is the cop of the
beat that can or will stop them?

And just who will be impacted the most? Consumers and small
businesses, that’s who. The internet continues to evolve and has
become ever more critical for every participant in our 21st century
ecosystem: government services have migrated online, as have
educational opportunities and job notices and applications, but at the
same time, broadband providers have continued to consolidate, becoming
bigger. They own their own content, they own media companies, and they
own or have an interest in other types of services.

Why are millions so alarmed? Because they understand the risks this
all poses and even those who may not know what Title II authority is,
know that they will be at risk without it. I have been asking myself
repeatedly, why the majority is so singularly-focused on overturning
these wildly-popular rules? Is it simply because they felt that the
2015 Net Neutrality order, which threw out over 700 rules and
dispensed with more than 25 provisions, was too heavy-handed? Is this
a ploy to create a “need” for legislation where there was none before?
Or is it to establish uncertainty where little previously existed?

Is it a tactic to undermine the net neutrality protections adopted in
2015 that are currently parked at the Supreme Court? You know, the
same rules that were resoundingly upheld by the D.C. Circuit last
year? No doubt, we will see a rush to the courthouse, asking the
Supreme Court to vacate and remand the substantive rules we fought so
hard for over the past few years, because today, the FCC uses
legallysuspect means to clear the decks of substantive protections for
consumers and competition.

It is abundantly clear why we see so much bad process with this item:
because the fix was already in. There is no real mention of the
thousands of net neutrality complaints filed by consumers. Why? The
majority has refused to put them in the record while maintaining the
rhetoric that there have been no real violations. Record evidence of
the massive incentives and abilities of broadband providers to act in
anti-competitive ways are missing from the docket? Why? Because they
have refused to use the data and knowledge the agency does have, and
has relied upon in the past to inform our merger reviews. As the
majority has shown again and again, the views of individuals do not
matter, including the views of those who care deeply about the
substance, but are not Washington insiders.

There is a basic fallacy underlying the majority’s actions and
rhetoric today: the assumption of what is best for broadband
providers, is best for America. Breathless claims about unshackling
broadband services from unnecessary regulation, are only about
ensuring that broadband providers, have the keys to the internet.
Assertions that this is merely a return to some imaginary status quo
ante, cannot hide the fact, that this is the very first time, that the
FCC, has disavowed substantive protections for consumers online.

And when the current, 2015 Net Neutrality rules are laid to waste, we
may be left with no single authority with the power to protect
consumers. Now this Order loudly crows about handing over authority of
broadband to the FTC, but what is absent from the Order and glossed
over in that haphazardly issued afterthought of a Memorandum of
Understanding or MOU, is that the FTC is an agency, with no technical
expertise in telecommunications; the FTC is an agency that may not
even have authority over broadband providers in the first instance;
the FTC is an agency that if you can even reach that high bar of
proving unfair or deceptive practices and that there is substantial
consumer injury, it will take years upon years to remedy. But don’t
just take my word for it: even one of the FTC’s own Commissioners has
articulated these very concerns. And if you’re wondering why the FCC
is preempting state consumer protection laws in this item without
notice, let me help you with a simple jingle that you can easily
commit to memory: If it benefits industry, preemption is good; if it
benefits consumers, preemption is bad.

Reclassification of broadband will do more than wreak havoc on net
neutrality. It will also undermine our universal service construct for
years to come, something which the Order implicitly acknowledges. It
will undermine the Lifeline program. It will weaken our ability to
support robust broadband infrastructure deployment. And what we will
soon find out, is what a broadband market unencumbered by robust
consumer protections will look like. I suspect the result will not be
pretty. I know there are many questions on the mind of Americans right
now, including what the repeal of net neutrality will mean for them.
To help answer outstanding questions I will host a town hall through
Twitter next Tuesday at 2pm EST. What saddens me is that the agency
that is supposed to protect you is abandoning you, but what I am
pleased to be able to say is the fight to save net neutrality does not
end today. This agency does not have, the final word. Thank goodness.

As I close my eulogy of our 2015 net neutrality rules, carefully
crafted rules that struck an appropriate balance in providing consumer
protections and enabling opportunities and investment, I take ironic
comfort in the words of then Commissioner Pai from 2015, because I
believe this will ring true about this Destroying Internet Freedom
Order:

I am optimistic, that we will look back on today’s vote as an
aberration, a temporary deviation from the bipartisan path, that has
served us so well. I don’t know whether this plan will be vacated by a
court, reversed by Congress, or overturned by a future Commission. But
I do believe that its days are numbered.

Amen to that, Mr. Chairman. Amen to that.

Net neutrality is internet freedom. I support that freedom. I dissent
from this rash decision to roll back net neutrality rules. I dissent
from the corrupt process that has brought us to this point. And I
dissent from the contempt this agency has shown our citizens in
pursuing this path today. This decision puts the Federal
Communications Commission on the wrong side of history, the wrong side
of the law, and the wrong side of the American public.

The future of the internet is the future of everything. That is
because there is nothing in our commercial, social, and civic lives
that has been untouched by its influence or unmoved by its power. And
here in the United States our internet economy is the envy of the
world. This is because it rests on a foundation of openness.

That openness is revolutionary. It means you can go where you want and
do what you want online without your broadband provider getting in the
way or making choices for you. It means every one of us can create
without permission, build community beyond geography, organize without
physical constraints, consume content we want when and where we want
it, and share ideas not just around the corner but across the globe. I
believe it is essential that we sustain this foundation of
openness—and that is why I support net neutrality.

Net neutrality has deep origins in communications law and history. In
the era when communications meant telephony, every call went through,
and your phone company could not cut off your call or edit the content
of your conversations. This guiding principle of nondiscrimination
meant you were in control of the connections you made.

This principle continued as time advanced, technology changed, and
Internet access became the dial tone of the digital age. So it was
twelve years ago—when President George W. Bush was in the White
House—that this agency put its first net neutrality policies on paper.
In the decade that followed, the FCC revamped and revised its net
neutrality rules, seeking to keep them current and find them a stable
home in the law. In its 2015 order the FCC succeeded— because in the
following year, in a 184-page opinion the agency’s net neutrality
rules were fully and completely upheld.

So our existing net neutrality policies have passed court muster. They
are wildly popular. But today we wipe away this work, destroy this
progress, and burn down time-tested values that have made our Internet
economy the envy of the world.

As a result of today’s misguided action, our broadband providers will
get extraordinary new power from this agency. They will have the power
to block websites, throttle services, and censor online content. They
will have the right to discriminate and favor the internet traffic of
those companies with whom they have pay-for-play arrangements and the
right to consign all others to a slow and bumpy road.

Now our broadband providers will tell you they will never do these
things. They say just trust us. But know this: they have the technical
ability and business incentive to discriminate and manipulate your
internet traffic. And now this agency gives them the legal green light
to go ahead and do so.

This is not good. Not good for consumers. Not good for businesses. Not
good for anyone who connects and creates online. Not good for the
democratizing force that depends on openness to thrive. Moreover, it
is not good for American leadership on the global stage of our new and
complex digital world.

I’m not alone with these concerns. Everyone from the creator of the
world wide web to religious leaders to governors and mayors of big
cities and small towns to musicians to actors and actresses to
entrepreneurs and academics and activists has registered their upset
and anger. They are reeling at how this agency could make this kind of
mistake. They are wondering how it could be so tone deaf. And they are
justifiably concerned that just a few unelected officials could make
such vast and far-reaching decisions about the future of the internet.

So after erasing our net neutrality rules what is left? What recourse
do consumers have? We’re told don’t worry, competition will save us.
But the FCC’s own data show that our broadband markets are not
competitive. Half of the households in this country have no choice of
broadband provider. So if your broadband provider is blocking
websites, you have no recourse. You have nowhere to go.

We’re told don’t worry, the Federal Trade Commission will save us. But
the FTC is not the expert agency for communications. It has authority
over unfair and deceptive practices. But to evade FTC review, all any
broadband provider will need to do is add new provisions to the fine
print in its terms of service. In addition, it is both costly and
impractical to report difficulties to the FTC. By the time the FTC
gets around to addressing them in court proceedings or enforcement
actions, it’s fair to assume that the start-ups and small entities
wrestling with discriminatory treatment could be long gone. Moreover,
what little authority the FTC has is now under question in the courts.

We’re told don’t worry, the state authorities will save us. But at the
same time, the FCC all but clears the field with sweeping preemption
of anything that resembles state or local consumer protection.

If the substance that got us to this point is bad, the process is even
worse. Let’s talk about the public record.

The public has been making noise, speaking up, and raising a ruckus.
We see it in the protests across the country and outside here today.
We see it in how they lit up our phone lines, clogged our e-mail
in-boxes, and jammed our online comment system. It might be messy, but
whatever our disagreements are on this dais I hope we can agree this
is democracy in action— and something we can all support.

To date, nearly 24 million comments have been filed in this
proceeding. There is no record in the history of this agency that has
attracted so many filings. But there’s something foul in this record:

Two million comments feature stolen identities.

Half a million comments are from Russian addresses.

Fifty thousand consumer complaints are inexplicably missing from the
record. I think that’s a problem. I think our record has been
corrupted and our process for public participation lacks integrity.
Nineteen state attorneys general agree. They have written us demanding
we halt our vote until we investigate and get to the bottom of this
mess. Identity theft is a crime under state and federal law—and while
it is taking place this agency has turned a blind eye to its victims
and callously told our fellow law enforcement officials it will not
help. This is not acceptable. It is a stain on the FCC and this
proceeding. This issue is not going away. It needs to be addressed.

Finally, I worry that this decision and the process that brought us to
this point is ugly. It’s ugly in the cavalier disregard this agency
has demonstrated to the public, the contempt it has shown for citizens
who speak up, and the disdain it has for popular opinion. Unlike its
predecessors this FCC has not held a single public hearing on net
neutrality. There is no shortage of people who believe Washington is
not listening to their concerns, their fears, and their desires. Add
this agency to the list.

I, too, am frustrated. But here’s a twist: I hear you. I listen to
what callers are saying. I read the countless, individually written
e-mails in my in-box, the posts online, and the very short and
sometimes very long letters. And I’m not going to give up—and neither
should you. If the arc of history is long, we are going to bend this
toward a more just outcome. In the courts. In Congress. Wherever we
need to go to ensure that net neutrality stays the law of the land.
Because if you are conservative or progressive, you benefit from
internet openness. If you come from a small town or big city, you
benefit from internet openness. If you are a company or nonprofit, you
benefit from internet openness. If you are a start-up or an
established business, you benefit from internet openness. If you are a
consumer or a creator, you benefit from internet openness. If you
believe in democracy, you benefit from internet openness.

So let’s persist. Let’s fight. Let’s not stop here or now. It’s too
important. The future depends on it.

CNMN Collection

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Frank’s source: https://www.wired.com/story/read-fcc-net-neutrality-dissent/

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