The theme of this past week’s news was largely “brace yourself for raining shoes” — and several boots and a sandal have yet to drop as I write this. This week, keep your eyes peeled for Mueller mayhem, final votes on tax reform, and personnel changes on Capitol Hill. But in the meantime, here’s some info on what has happened already.
Standard standing reminders apply: I am no journalist, though I play one in your inbox or browser, so I’m only summarizing the news within my area of expertise. This week’s news contains some detailed analysis that’s outside my expertise — I’m a lawyer, not an FBI agent! — but all offroad adventures are marked with an asterisk. Okay, I think that’s about it for the disclaimers. Onward to the news!
This week was pretty quiet on the Russia Collusion Investigation front, in part because rumors started circulating that Mueller was about to be fired — but here’s what has happened:
Mueller Email Adventures. Over the weekend, the Trump administration accused Mueller of unlawfully obtaining tens of thousands of emails from them because he went through the third-party General Services Administration. But as several legal experts note, public email accounts have no expectation of privacy, and it would be prosecutorial misconduct not to request the records. These claims fuel concern that the President is looking for an excuse to fire Mueller, despite his lack of authority to do so (and his claims to the contrary).
Text Message Kerfuffle. Some unflattering texts between two FBI agents have Republicans clamoring to have a second special investigator investigate Mueller. This appears to be a whole lot of nothing — a subordinate calling Trump an ‘idiot’ and expressing a preference for Hillary Clinton during the 2016 election hardly implicates Mueller in 2017, particularly when Mueller removed the FBI agent as soon as he learned of the texts. But the story does appear to be another indication that the administration is gaining steam in a push to discredit or oust the special prosecutor.
The Latest in Harassment Personnel Changes. With last week’s sweeping resignations come new seat-holders, and boy howdy is some of the process looking weird! I think I touched upon this last week, but the governor of Michigan has announced they won’t hold a special election at all, opting to leave John Conyer’s former seat open for an entire year and simply having ordinary elections in 2018. Meanwhile, Minnesota’s governor has appointed Lt Governor Tina Smith to take Al Franken’s seat, but it’s unclear when Franken plans to leave (and her appointment has created chaos in the state’s politics). And it’s completely unclear who is favored to replace Trent Franks, despite a primary election happening in only two months. So it’s been a bit of a wild ride all around.
Trump Harassment Shuffle. There was lots of surreal and decisive movement on the Trump is a Serial Harasser front this week, though I’m still not sure what if anything will come of it. Among the highlights: Fifty-six female Democrats asking the House Oversight Committee to investigate allegations of Trump’s sexual abuse; Trump making surreal and sexualized statements about a sitting Senator; Nikki Haley saying that the people accusing Trump of sexual misconduct ‘should be heard’; and Kamela Harris joining the group of Senators saying Trump should resign.
Jones Upset Aftermath. Democratic candidate Doug Jones won the Alabama Senate seat this week in an incredibly close election, making him the first Democrat to hold a senate seat there in literally decades. It’s incredibly exciting, and some much-needed good news, and it highlights some major personnel changes happening in the Senate’s near future. But despite Democrats urging otherwise, Jones probably won’t join the Senate until 2018 — the votes need to be certified, and Roy Moore also isn’t conceding despite the RNC’s signal that it won’t pay for a recount. And on top of all of that, the Alabama Supreme Court held that the state doesn’t have to preserve voting data, which might make a recount take forever if it does happen. Since Republicans are unlikely to delay the tax vote (despite Dems delaying in 2010 in a similar situation), this means he won’t be able to help with next week’s travesty.
Tax Reform Remix. The tax reform roller coaster appears to be nearing a stop this week, but that’s not a good thing, as it’s currently slowing down right near a gilded circle of hell. Mnuchin released a one-page report this week, which Forbes (rightfully) says he should be ashamed of releasing; among other things, the report confirms that the tax cuts are so expensive that they cannot pay for themselves, and “welfare reform” (i.e. Medicaid and Medicare cuts) will be necessary to pay for it all. That, unfortunately, did not stop Bob Corker and Mark Rubio from eventually hopping aboard for the final version of the bill, leaving the GOP so confident they had the votes that they let McCain take the week off. Though the final version of the tax reform bill does soften a lot of the House version’s harshest edges, it still includes a repeal of the health insurance mandate, and it’s very likely to widen wealth inequality in the country. The Washington Post put out a good comprehensive summary of the final version, which is definitely worth a read (or at least a skim) if you get a chance. But the short version is: If you aren’t rich, it isn’t gonna be great.
Net Neutrality Neutered. The FCC vote on net neutrality this week went ahead as expected on Thursday, despite requests from 18 attorneys general to postpone in light of a fraudulent comment investigation. The vote resulted in a repeal of net neutrality regulations by 3–2. This is bad news for activists, for reasons I’ve noted before (as well as for people who simply want to watch their Netflix in peace), but it isn’t the end of the line — there are several different efforts already in play to undo the repeal, which I’ll write more about that below.
CDC Seven Forbidden Words. News broke this weekend that the CDC was given a list of ‘forbidden’ words by the Trump administration which cannot appear in official reports; more to the point, that list included words like “evidence-based,” “fetus,” and “transgender.” This is not the first instance we’ve seen of bizarre agency censorship — the EPA in particular has been noted for this all over the place, and the USDA has done it too — but there’s something uniquely alarming about the idea that our Center for Disease Control can’t note what works when combating epidemics. DHHS has denied the story, which I wish still meant something in 2017; since it doesn’t, we’re left wondering whether this was an actual policy, an attempt at a policy that backfired, or just a rumor that snuck past the Washington Post goalie.
Federal Judge Withdrawals. Several deeply embarrassing federal judge nominations went the way of the dinosaurs this week! The first to go were Brett “Does it count if my wife practiced law?” Talley and Jeff “I Literally Told You I Illegally Discriminate” Mateer, who were both unceremoniously screened out by the Senate Judiciary Committee on Wednesday. But after another nominee, Matthew Spenser Peterson, couldn’t answer extremely basic questions about legal procedure — like “I don’t know what a motion in limine is” level of basic — he withdrew his nomination today. Hallelujah, it’s raining turkeys!
Net Neutrality Preservation Plans. Immediately after the FCC vote on Thursday, both politicians and attorneys general were springing into action. Senator Markey announced that he is filing a Congressional Review Act resolution to undo the FCC vote (which already has fifteen sponsors). On the legal end of things, several attorneys general are suing the FCC in connection with the fraudulent comment investigation, with New York Attorney General Eric Schneiderman leading the charge and potentially as many as eighteen other states supporting the suit. Following Markey’s lead, the governor of Washington announced a cooperative plan to preserve net neutrality, to the extent that the FCC doesn’t preempt state action; Washington state Attorney General Bob Ferguson also joined Schneiderman’s suit.
And that’s basically the news that was fit to email this week — some good, some bad, most unfinished. It’s like the Big Dig of news weeks! And speaking of unfinished, the next few weeks are going to be a bit wonky here at Roundup Center, because both Christmas and New Year’s Day fall on a Monday. The tentative plan is to issue the Christmas roundup on December 26, and I’ll check in from there on how to handle New Year’s. Until we meet again, happy holidays!
A new letter released today and signed by 37 Members of Congress expresses opposition to the proposed T-Mobile/Sprint merger, calling it “a bad deal for the American people.” The letter, spearheaded by Rep. Rashida Tlaib (D-Mich.), includes signatures from House Democratic colleagues representing a range of districts, with members of the Congressional Progressive Caucus, the New Democrat Coalition and the Blue Dog Coalition among those joining the call to reject the merger.
The House letter, sent to Federal Communications Commission (FCC) Chairman Ajit Pai and Department of Justice (DoJ) Assistant Attorney General, Antitrust Division Makan Delrahim, comes as a growing number of federal and state policymakers are expressing concern and opposition to the merger. For example, in February, Senator Richard Blumenthal (D-Conn.) and eight Senate colleagues released a letter to expressing “staunch opposition” to the proposed merger and calling on the FCC and DoJ to reject.
The new House letter, available in full online below, notes:
“The proposed merger will kill American jobs and drive down workers’ salaries. It will drive up prices for those who can least afford it and fails to cover millions of rural Americans already struggling for affordable access to high-speed networks. Both companies have the capacity and indeed intend to build 5G networks absent a merger. The sole reason for this merger between T-Mobile and Sprint appears to be helping a handful of individuals get significantly wealthier. We urge you to reject the proposed merger of T-Mobile and Sprint and put the American people ahead of corporate profits.”
According to CWA Research and Telecommunications Policy Director Debbie Goldman,
“The more Members of Congress learn about the proposed T-Mobile/Sprint merger, the less they seem to support it. The merger would kill jobs, harm consumers, and fail to deliver on rural promises. We thank Rep. Tlaib and the other signers of the new House letter — representing districts from Staten Island to Youngstown to San Diego — for recognizing that their constituents would be harmed by the proposed merger and for speaking out in opposition.”
The letter signed by 37 Members of Congress (PDF)
Blumenthal Leads Eight Senators Urging Department of Justice & FCC To Reject Proposed T-Mobile & Sprint Merger
5 Reasons Why It’s Been A Rough Week for Backers of the T-Mobile/Sprint Merger
We must protect our networks from foreign spying.
Follow Protect America’s Wireless (@SafeWireless) for real-time updates on why we must protect our networks from foreign spying.
Sandy Hook was 5 years ago today. This was the day that Republicans made it acceptable and even American to kill innocent little children and their teachers while safe at school. Republicans have refused to make any legislation on gun control and have defended the rights of the blind and mentally ill to own guns. Once America made it OK to slaughter babies and their caregivers, it opened the door to more mass shootings, a pedophile for Senate, killing the Children’s Health Insurance Plan, and a “President” Trump and everything that goes with it. There is no bottom. We just keep dropping through each new bottom.
Token White House black woman, Omaorsa, got fired. She threw a fit, set off the alarms, and got tossed out on her ass.
Omarosa in 2016: “Every critic, every detractor, will have to bow down to President Trump. It’s everyone who’s ever doubted Donald, whoever disagreed, whoever challenged him. It’s the ultimate revenge to become the most powerful man in the universe.”
Alabama is so gerrymandered that even if the Dems win the popular vote in 2018, they’ll only get one congressional seat.
CNN’s Jim Acosta was warned not to ask Trump any questions during a bill signing event or he would get a smack on his bottom.
Kentucky state legislator Dan Johnson committed suicide a day after a police report from 2013 became public where he was accused of getting drunk and sexually molesting a 17 year old girl who had sought refuge at a church where he was the pastor. He left a suicide note on Facebook blaming fake news. Dan Johnson is the guy who compared President Obama and the First Lady to monkeys.
The FCC decides on net neutrality today. State attorney generals are screaming, “hold the bus!” — some of the millions of comments on the website are fake!
If Net Neutrality is not saved, consumers could pay over $60 a month just to continue using Twitter, Snapchat, Youtube, and Netlfix. If you want to search anything on Google, that will cost you — per search.
Some of the Republicans in congress are jonesing for a war. They think that the nuclear crisis can be solved by war in North Korea. Sure, 2 million people will die, but they’ll die over there.
North Korea’s missile can hit anywhere in North America.
At the Nobel Prize ceremonies, it was mentioned that the world is being threatened by a dangerous world leader who is mentally unstable and poised to launch a nuclear attack. Everybody understood who they were talking about — and it wasn’t Kim jong Un.
The US has the nuclear capability to destroy the planet in 30 minutes.
“Conservatives” are voting to pass debt on to our children and grandchildren without even knowing how much debt they are passing on. A bill with an approval level in the 20s is being decided by congress members with an approval rating in the teens. Their claim that this tax plan will improve our bottom line is bullshit, just like everything else they have said and done this year.
If Mitch the Bitch held the Supreme Court seat open for a year until they could fill it, what will stop him from holding the Alabama seat for a year so Doug Jones can’t vote on any of their bills? He refuses to swear him in until after the vote on the tax bill.
Republican hypocrite fun fact: In 2010, Mitch held all votes until they could seat newly elected Republican Scott Brown from Massachusetts. Most importantly, he wanted to hold the seat so he could vote against the Affordable Care Act.
Democratic president fun fact: Obama defended Scott Brown’s senate win in Massachusetts and said he must be seated right away to be part of the decision making process, even though it meant a vote against his health bill.
For the first time in a year, Americans didn’t feel like they were rotting at rock bottom, thanks to Alabama.
It’s official. Freedom to the internet is dead, as decided by the FCC. Today’s very controversial decision by the FCC involved the removal of net neutrality. Without net neutrality, many popular websites, such as Netflix or Youtube, may be slowed down, or blocked completely.
Net neutrality is the concept that internet service providers should treat everything, and anything on the internet the same, and not throttle (slow down) or completely block anything on the internet.
In other words, imagine that you got your internet from Verizon, and you wanted to look up how to cook spaghetti on Google. Now that net neutrality is no longer in effect, Verizon might want you to use their own search browser, Yahoo! Ask, and charge you extra for using their competitor Google. But during the era of net neutrality, you can do this with no additional cost to your monthly bill. This has been the way the internet has worked since 2015. Net neutrality has paved the way for an open internet, and is a major milestone for the free people.
At least, it was a major milestone.
In 2015, the Obama-era FCC administration had voted to put net neutrality rules in effect. During that time, the internet was defined as a public utility, meaning no more throttling, and no more complete control over the internet. In essence, net neutrality.
In November of this year, Chairman of the FCC Ajit Pai, who had always been against net neutrality ever since the FCC first voted on it, announced plans to repeal net neutrality. Today, December 14, the FCC had met to vote on whether to reclassify the internet. The decision ending in a 3–2 vote, with the FCC deciding to reclassify the internet as a private service. Because the FCC can only regulate public utilities, the internet is no longer under the protection of net neutrality. Without this protection, the internet is no longer truly free.
The fight isn’t over yet. We can still save net neutrality and make the internet free again. Ironically, the solution lies within our government.
We need the support of Congress to help stop the FCC with going through with the net neutrality repeal. Congress had signed a bill called the Congressional Review Act in 1996 which gives it the power to overrule any decision imposed by any federal agency. The FCC is one of them, and their decision can be overturned.
However, we only have 60 days to do so. In order for this to work, a special type of bill called a resolution must be introduced, voted on, and passed by both the Senate and the House of Representatives. Senator Ed Markey has taken care of step 1 for us, with 17 other Senators pledging support for the resolution, which will be voted on soon. Then, the resolution must be signed by the President.
This is where we have a problem. President Donald Trump is against net neutrality, which is precisely why he appointed Ajit Pai as the Chairman of the FCC. Alternatively, the resolution can be granted a veto-override with ⅔ of the Senate and House of Representatives’ approval.
We need you to let your local Congressman know where you stand on this issue! This is a major problem that can decide on the ultimate fate of the internet! If you stand for an open internet, a place of knowledge and entertainment for those who need it most…if you stand for the key values of the internet, then it is up to you to let Congress know. Now!
TEXT “BATTLE” to 384–387, OR VISIT HTTPS://BATTLEFORTHENET.COM TODAY!
C’est le groupe Renault qui aura marqué l’actualité industrielle cette semaine. Et qui laisse entrevoir doucement une des avenirs possibles du monde automobile.
La voiture qui roulait toute seule…
Challenges. Tout change avec la prise de participation de Renault ?
Média ? Justement… l’autre actualité de Renault cette semaine c’est cette prise de participation à hauteur de 40% dans le groupe Perdriel, propriétaire entre autres du magazine Challenges. Le groupe industriel français a donc décidé de prendre une part active dans le monde des médias.
Rien de nouveau dans le croisement de l’industriel et du média : Dassault et le groupe Figaro, SFR et Altice, Lagardère bien avant ça… le mélange des genres est traditionnel en France, principalement pour des raisons de lobbying et d’influence sur des projets industriels stratégiques, voire politiques.
Mais les justifications de Renault quant à cet investissement sont tout autres. Renault l’exprime très clairement :
“Le développement de la voiture connectée et autonome va libérer du temps utile aux utilisateurs”
La phrase apparaît noir sur blanc dans le communiqué de presse annonçant la prise de participation. Rien de politique ici donc, Renault anticipe bien une mutation industrielle de son métier.
Ouverture de l’ère du média automobile
On revient sur la Symbioz ? Renault n’a pas conçu avec cette nouvelle voiture un simple “véhicule”. Le modèle présenté par Renault est également mis en scène dans un prototype de maison destiné à l’accueillir.
Le véhicule peut entrer en toute autonomie dans la maison — sans polluer, il est bien entendu électrique — et prendre place sur une plateforme tournante au milieu du salon.
Avec ses portes à ouverture large et ses sièges pivotables à 360°, la Symbioz se conçoit en fait comme une pièce à part entière de la maison… et l’autonomie du véhicule fait que la transition entre domicile et mouvement est de plus en plus transparente.
Symbioz est à la limite du prototype d‘une maison mobile, en tout cas de pièce à vivre sur roue, dans laquelle une expérience de loisirs peut très bien se vivre indépendamment du mouvement.
Commencer un film chez soi et le continuer en prenant la route pour Deauville, sans que le départ ne soit une “friction”, voilà ce que promet Symbioz.
Que vient faire Challenges là dedans ? Avec Symbioz, la mobilité n’est plus le coeur de la promesse de Renault, c’est l’absence de contrainte de la mobilité qui devient son argument. Et qui dit absence de contrainte dit “temps libre”.
Les acteurs automobile sont en train de suivre la même transformation que celle vécue par les compagnies aérienne ou la SNCF : ils deviennent simplement des plateformes d’entertainment dont le but est d’occuper le “temps libre contraint” qu’ils créent. Et dans ce nouveau modèle, la question est : qui fournira les contenus qui occuperont ce temps libre ?
Car oui, l’automobiliste libéré de la conduite devient un spectateur, et en conséquence l’automobile n’est alors plus qu’un nouvel écran.
Qui maîtrisera les contenus diffusés sur ces nouveaux écrans ? A l’heure où Disney rachète la 21st Century Fox et où la concentration des médias n’a jamais été aussi grande, Renault fait le choix d’une relative indépendance en devenant lui aussi acteur du média. Le combat de Renault est le même que celui de Vivendi, SFR/Altice ou Orange : devenir tout à la fois opérateur et producteur.
Tout ça, à l’heure des débats sur la neutralité du Net ? Tout est décidément bien imbriqué…
Pour aller plus loin, les références de cet articles :
Renault Symbioz, le concept présenté sur le site officiel du constructeur : https://www.renault.fr/vehicules/concept-car/symbioz-concept-car.html
Le test de la Renault Symbioz par le site américain Engadget : https://www.engadget.com/2017/12/13/renault-symbioz-concept-ev-vr-impressions/
La prise de participation de Renault dans le groupe Perdriel, vue par Ouest-France : https://www.ouest-france.fr/economie/entreprises/renault/renault-prend-40-du-groupe-de-presse-perdriel-possedant-challenges-5444227
Disney rachète les actifs de 21st Century Fox, mais plus pour maîtriser sa diffusion que pour enrichir son portefeuille de contenu : http://www.lemonde.fr/economie/article/2017/12/14/disney-rachete-la-plupart-des-actifs-du-groupe-americain-21st-century-fox-pour-52-4-milliards-de-dollars_5229762_3234.html
La Neutralité du Net aux USA, c’est fini… : https://www.theverge.com/2017/12/14/16776154/fcc-net-neutrality-vote-results-rules-repealed
Et pour la suite ? Likez ce billet ou abonnez-vous à cette chaîne Medium. Ou venez discuter de tout cela avec moi sur Twitter : @fhouste
Net neutrality is the concept that all content served over the internet is delivered without interference from internet service providers (ISPs). They can’t meddle with the speed of certain websites and charge extra fees based on content. For example, Comcast can’t charge an extra $5 to see a particular website (only I can do that, as the owner of my website).
As with many things, it’s better explained through pizza:
Let’s say you call Joe’s Pizza and the first thing you hear is a message saying you’ll be connected in a minute or two, but if you want, you can be connected to Pizza Hut right away. That’s not fair, right? You called Joe’s and want some Joe’s pizza. Well, that’s how some telecommunications executives want the Internet to operate, with some Web sites easier to access than others. For them, this would be a money-making regime.
The law that protected net neutrality — the treatment of ISPs as neutral “common carriers” like utilities, through Title II classification — was repealed on December 14, 2017 by the FCC.
This (fake) picture captures the fear that consumers will have to pay extra for certain “packages” of websites, just like cable TV customers have no choice but to pay for television bundles:
Despite the outpouring of support for net neutrality, it’s worth examining the counterarguments that people have made. Is net neutrality worth defending?
In 2014, the Heritage Foundation attempted to dispel eight “myths” about internet regulation. It’s worth noting that this ExxonMobil-funded think-tank also labels as “myth” the idea of anthropogenic climate change. I’ve copied sections of their arguments and then responded with my own commentary.
New FCC regulation would chill innovation, not protect it. Under FCC regulation, especially if the agency opts to impose comprehensive common carrier regulation, access providers’ new and innovative business practices, their pricing systems, and potentially even improvements in service or technologies would be subject to government approval or be banned entirely.
As a result, such regulation could be the death knell for small start-ups, not a lifesaver. In fact, Jeff Pulver, a pioneer in Internet telephone service, has stated that potential investors in his venture held back for a decade, fearing that the FCC would use regulation “as a club to force conformity and stop new upstarts.” The constant innovation that has long defined the Internet would be stymied by government regulation, not the absence of it.
The authors have conflated ISP “innovation” with internet innovation in general. By definition, if internet service providers are regulated, they’ll be legally unable to perform the actions prohibited by the regulation. But this tautology isn’t an argument that anyone is making — it’s a straw man.
The real argument by proponents of net neutrality is this: If ISPs are allowed to implement pay-per-view business models and charge extra fees for loading certain websites faster than others, every other form of internet-based innovation will be threatened. Startups or individuals will be less able than incumbents to pay ISPs to serve their content in the “fast lane,” and site visitors —including prospective customers, readers, and fans — will lose patience. Meanwhile, oligopolists like Google, Facebook, and Amazon would remain the fastest websites in the world by a huge margin.
MYTH #3: Net neutrality is a David versus Goliath battle.
Supporters of FCC net neutrality rules have often described themselves as a “rag-tag band” fighting for the little guys against corporate behemoths. Certainly, many of the Internet providers that would be subject to the restrictions are large. Yet the pro-regulation camp represents firms that are as large as or even larger than ISPs, including Google, Microsoft, and Amazon.com.
Nor would regulation necessarily aid “small” firms in their dealings with “big” firms. Many of the content providers that would benefit from such regulations are huge players in the marketplace, such as Netflix, which accounts for 34 percent of peak Internet traffic in America. At the same time, many firms that would be subject to the proposed rules, such as Sprint and T-Mobile, are relatively small players in the field.
Thus, the portrayal of the net neutrality debate as a battle between corporate Goliaths versus rag-tag Davids is simply not true. The proposed rules would not help little firms as opposed to big firms — nor should they. Size alone — as opposed to other considerations such as market power — is not a particularly relevant policy consideration. The ever-tempting storyline of big versus small just does not fit the facts.”
Indeed, the Heritage authors would like you to sympathize with Sprint and T-Mobile as underdogs. In their minds, these publicly traded companies with multimillionaire CEOs, who stand to gain exorbitantly from noncompetitive, unfettered pay-per-view business model, are “David”, and my mom’s blog about bird watching is “Goliath”.
MYTH #5: No one pays for “fast lanes” on today’s Internet.
… paying more for better service is a profoundly routine practice in most markets. From airline travel to theater tickets to package delivery, premium service offerings are an established and essential part of business. Even on highways, HOT lanes have proven a successful and pro-consumer practice.
Nor is the concept of a fast lane new to the Internet itself. While no ISP yet offers such service, content generators have long employed third-party networks to expedite their traffic. Companies such as Akamai and Level 3 have long operated such “content delivery networks” (CDNs), with servers installed near or at ISP data centers. For a fee, content providers can store content at these locations, allowing their data to reach the ultimate consumer more quickly and reliably. Taking the concept further, some firms own their own CDNs, allowing them to deal directly with ISPs. For instance, Netflix contracted with Level 3’s CDN to handle its content until 2012, when it began to operate its own CDN.
These arrangements are clearly beneficial to consumers because they enable users to stream high-quality digital video smoothly and quickly. Like the paid prioritization schemes denounced by President Obama and other advocates of regulation, they allow firms to pay a little more to receive better service. This is neither new nor problematic.
To be clear, the concept of net neutrality has nothing to do with CDNs, which are offered by web hosting providers, not internet service providers. The conflation of web hosting costs (a service)with pay-per-view internet fees (a de facto utility) is intentionally misleading.
To run a website that receives a reasonable amount of traffic, a site author generally pays a hosting company to configure and operate a computer that acts as a web server for them. If the author wants their website to be faster, they’ll pay the hosting company according to their budget.
In contrast, with pay-per-view internet service, the owner of a website could continue to pay the hosting company, in addition to any number of ISPs for fast-lane privileges; and the visitor of the website could additionally be required to pay for sufficient bandwidth to access particular sites.
MYTH #6: Internet regulation is needed because there is no competition in broadband service.
In September of this year, FCC Chairman Tom Wheeler gave a speech assessing the state of competition in U.S. broadband markets
Grim-sounding numbers like these have led many to conclude that the broadband market is not working and that regulation is therefore required.
However, Wheeler’s numbers do not stand up to scrutiny. By limiting the definition of broadband to service offerings of 25 Mbps, much less 50 Mbps, he excluded the service that the vast majority of Americans receive. Only about one in six broadband subscribers even get 15 Mbps speeds.
The market looks a lot different at more common speeds. At 5 Mbps (fast enough to receive streaming high-definition video), the FCC says 75 percent of consumers have a choice of providers, and 15 percent have three or more.
The chairman also excluded wireless broadband from his calculations. If wireless providers are included in the mix, more than 90 percent of Americans have a broadband choice.
The authors are desperately trying to prove that Americans have a good choice of fast internet providers, but who are they fooling? Thanks to our country’s ISPs, whose “innovative” potential the authors so ardently believe in, America does not even land in the top 10 nations in terms of average internet speed.
For the record, the number of ISP “choices” I have at my address in California is exactly two: AT&T, or TimeWarner. The former is acquiring the latter.
It’s not just me. 100 million Americans live in areas where every single ISP has admitted to violating net neutrality.
As expected, Comcast released a series of statements and blog posts strongly in support of the FCC Chair’s efforts to end the common carrier classification — and they simultaneously declared support for net neutrality. Wait, what?
They argue that net neutrality is indeed a worthy principle, which they fully support — but common carrier classification is not the right way to enforce it, because it’s… old.
Comcast’s only specific argument against Title II appears to be the age of the concept. It was introduced in the 1930s, ergo it must be out of date. But rather than offer any specific way to update the details of the classification, they support only its complete removal.
This line of reasoning is akin to: “We believe in free speech, but the Bill of Rights is outdated by hundreds of years, so let’s replace it with something else, but not right now. In the meantime, we promise we’ll play nice.”
Does anyone trust the most hated company in America to play nice, when playing nice is no longer required by law?
By Caroline Holland, Mozilla Tech Policy Fellow, Former Official at the U.S. Department of Justice Antitrust Division, Former Chief Counsel of the Senate Antitrust Subcommittee
Competition has long driven ingenuity and economic growth in the U.S. and around the world. It also ensures that consumers get the highest quality goods and services at the best prices while fueling the innovation and revolutionary ideas that will transform our lives. In the fast-paced and ever-changing digital world, competition is particularly important to ensuring the openness and accessibility of one of our greatest and most powerful public resources — the Internet.
That is why Mozilla is supporting my research on the intersection of competition and the promotion of a healthy Internet as a Mozilla Tech Policy Fellow. Looking through the competition lens, a healthy Internet is one where consumers have access to affordable and competitive high speed broadband and equal access to the lawful content they desire. A healthy Internet also has a level playing field for competition among operating systems, websites, apps, and platforms.
The antitrust laws in the U.S. serve a critical law enforcement function to protect competition and consumers by stopping mergers and business practices that harm the competitive process, resulting in higher prices, lower quality good and services, or reduced innovation. Over the last several years, the U.S. Department of Justice (DOJ) and Federal Trade Commission (FTC) — the antitrust agencies — successfully challenged anticompetitive mergers and conduct of health insurance companies, hospitals, banks, appliance makers, cable, broadband, and mobile service providers, pharmaceutical companies, online product reviews and ratings platforms, and office supply stores, among others. And enforcers may soon be examining a merger between T-Mobile and Sprint, which would leave consumers with only three choices for nationwide wireless service and at risk of higher prices for worse service and less innovation.
With growing concern about concentration in some markets and its potentially harmful impact on competition, “trustbusting” and the antitrust laws are taking center stage in policy discussions. It is a common-sense policy exercise to reassess the effectiveness of the law and weigh whether changes may be needed. A perennial question is whether U.S. antitrust laws are still relevant for the high-tech economy and whether they are sufficiently nimble to address concerns in the fast-changing digital world. Indeed, the wisdom of the antitrust laws is that they contain broad principles that can be readily applied to any industry and can tackle new competition problems as technology advances. Antitrust enforcers and courts are well-accustomed to applying these principles to evolving market dynamics.
So what is new now that demands our attention? While size alone is not indicative of an antitrust violation or competition problem, as large digital platforms increase their reach into so many aspects of our everyday lives, they raise a number of important competition questions that I hope to tackle through my work with Mozilla:
Are we headed toward a future where a large part of our web-based interaction is channeled through a few large firms? What does this mean for competition, consumers, and innovation?
What challenges and nuances are there in defining digital markets and assessing market power? How does the collection of data affect market power and the ability of new firms to enter and compete?
In the merger context, how skeptical should we be of large players acquiring tiny startups that could become the disruptive competition of the future even though they are not significant direct competitors today?
What competition risks are posed when large platforms vertically integrate to compete head to head with the firms that depend on these very platforms to do business?
What are the competitive dynamics that drive innovation in digital markets? How can antitrust enforcement and competition policy protect and promote innovation and how might enforcement or policy prescriptions threaten or slow technological innovation?
The ultimate question, of course, is what solutions are possible under the antitrust laws if and when competitive harm occurs? In addition to thinking creatively about how to deploy the antitrust toolkit, the antitrust agencies and policy-makers should consider whether industry or problem-specific rules or guidelines may be a more effective way to protect and promote competition. Many federal agencies have statutory authority to promote competition and they can help by adopting rules or regulations that increase competition or by eliminating rules and regulations that create barriers to competition. Some agencies have a mission that is complementary to competition, such as the Federal Trade Commission’s consumer protection mandate that can address potential data and privacy concerns in the digital space.
One recent example of a successful policy solution to a competition issue is the Federal Communication Commission’s 2015 net neutrality rules. Consumers typically have only one or two choices for high-speed broadband. As a result, Internet service providers (ISPs) face little risk of losing consumers if they block or slow down content or create paid fast-lanes. Yet, they have both the incentive and ability to do these things to bolster their bottom line, especially when the content competes with their own products and services.
While antitrust laws could likely be used to stop the most nefariously anticompetitive conduct, detecting, investigating, and litigating antitrust violations is a lengthy process and would be too-little-too-late for a startup that has been blocked from reaching consumers to compete.
Antitrust also may not be able to address non-competition values that we associate with an open Internet such as free speech and expression. Instead, strong net neutrality rules most effectively and efficiently counter the incentive and ability of dominant ISPs to stymie competition. These rules not only protect consumers, but they help drive innovation by ensuring a pathway to competition for new Internet products and services.
As someone who has been steeped in antitrust and competition policy for many years, I’m excited by the growing energy around competition and antitrust. I look forward to learning from technologists, academics, economists, and advocates to better understand the competitive landscape and potential competition challenges in the Internet ecosystem. And I hope to contribute to the debate about what role the antitrust laws can play to address competition concerns, what changes to the laws may be helpful, what research and learning would be useful to advance effective antitrust enforcement and competition policy, and what policy tools beyond antitrust law can promote a robust competitive environment on the Internet.
For the five anti-net-neutrality templates with the most total comments sent to the FCC, at least 80% of those who replied to our email denied submitting the comment. For two templates, everyone who responded denied having sent the comment. Conversely, for the top five pro-net-neutrality templates, between 89–100% of responses affirmed submitting the comment.
Based on our analysis, across all templates and unique responses, over 70% of pro-net-neutrality respondents confirmed that they submitted comments. Under 10% of anti-net-neutrality respondents confirmed that they submitted comments.¹
In total, we identified 8.6 million anti-net-neutrality comments from templates and 12.3 million pro-net-neutrality comments from templates. We eliminated comments from obviously fake and duplicate email addresses and then scaled the remaining comments by the percent of pro- or anti-net-neutrality comments who confirmed sending the comments. Finally, we analyzed the 650,000 non-template comments attributed to unique email addresses to determine which were pro- or anti-net-neutrality. We found that 90% were pro-net-neutrality, 2% were anti-net-neutrality, and the remaining comments were null or blank. (Incidentally our result independently confirms Jeff Kao’s result reported here). In total, we conclude that the FCC received just over 600,000 legitimate anti-net-neutrality comments and 1.3 million legitimate pro-net-neutrality comments.
It should be noted that our email survey was not able to reach 2.3 million commenters who submitted to the FCC without email addresses. It is entirely likely that some of these comments are legitimate (seeing as the FCC did not require an email address to submit a comment). But the effort required to reach out to these people personally was beyond the scope of this analysis.
However, the vast majority of these comments, about 2.1 million, were pro-net-neutrality. This means our estimate, that 66% of commenters favor net- neutrality is low. If even half of all comments without email addresses were verified as legitimate, our estimate jumps to 77% of commenters favoring net-neutrality.
The FCC received just over 600,000 legitimate anti-net-neutrality comments and 1.3 million legitimate pro-net-neutrality comments (34% vs 66%).
The vast majority of comments submitted to the FCC regarding net neutrality were from bots. We estimate 91% of all anti-net-neutrality submissions were from bots, as opposed to 79% of pro-net-neutrality comments.
After eliminating comments attributed to fake and duplicate email addresses, over 70% of pro-net-neutrality respondents said they submitted comments. Under 10% of anti-net-neutrality respondents said they submitted comments.
Net neutrality activists are having a field day with last week’s Ars Technica report that Verizon “throttled” the mobile data usage of the Santa Clara County Fire Prevention District (FPD), one of the California counties currently fighting the largest wildfire in the state’s history. Gigi Sohn, who’s led the net neutrality movement for over a decade, claims, in an NBCNews op-ed, that the FCC’s 2015 net neutrality rules would have prevented Verizon from “restricting” the fire department’s Internet service.
Sohn and others are ignoring the facts and misconstruing the law to fit their long-standing political agenda. What really happened wasn’t a net neutrality issue: The FPD simply chose a data plan for their mobile command and control unit that was manifestly inappropriate for their needs. The FPD needed a lot of high-speed 4G mobile data — up to 300 GB/month when the device was deployed. (The typical consumer uses ~4 GB/month.) Verizon sold such pay-as-you-go plans to government users, but FPD opted for a much cheaper plan: up to 25 GB at 4G speeds, with slow speeds after that point. The 2015 Open Internet Order is quite explicit that data plans with speed restrictions don’t violate the throttling rule, so long as the company is clear about what users are getting.
Make no mistake: public safety communications are vital, and what happened involved mistakes by all parties involved. Verizon may or may not have been clear enough about the difference between the two plans, and using the word “unlimited” to refer to the kind of cheaper plan FPD chose might be confusing, since consumers do get as much data as they want to use — but not, once they reach their basic data allowance, at 4G speeds. But even if Verizon did mislead its customers (and it’s not clear they did), it wouldn’t really be a net neutrality issue requiring special FCC rules; it would be a standard consumer protection issue, the kind the Federal Trade Commission deals with all the time. Indeed, the FTC has already sued AT&T over how it marketed its own “unlimited” plans, and after the Ninth Circuit ruled that the lawsuit could proceed, the company settled.
But Sohn is right about one thing: the FCC could have found Verizon to be violation of the 2015 Order’s “general conduct” standard, if that were still in place (or at least, the underlying statutory authority: Title II of the 1934 Communications Act). But that merely proves the infinite elasticity of that… well, it’s not really a “standard,” because that word implies some limitation upon the regulator’s discretion — whereas this was a blank check for the FCC to declare any broadband practice illegal.
And here, in a nutshell, is the essence of the net neutrality debate: (1) widespread agreement on the “rules” (no blocking, no throttling, transparency and even how to address paid prioritization) — but (2) a complete deadlock as to whether the agency should, in addition to enforcing those rules, have broad discretion to do anything else it wants.
Congress could have codified net neutrality a decade ago — as I’ve explained many times. Failing to legislate allowed this issue to become hopelessly politicized. In 2014, thanks to John Oliver, Sohn and a small band of hardcore activists succeeded in redefining the issue: “strong” net neutrality now meant that the FCC had to be able to regulate broadband as a public utility under Title II — which allows the agency to… you guessed it… regulate “common carriers” basically however it sees fit. That regime was first applied to the Ma Bell monopoly telephone network, based on regulation of railroad monopolies in the 1880s — both circumstances where competition was impossible.
Sohn and co. may talk about public safety, but what they really want, more than anything, is the ability to regulate broadband prices. Democrats emphatically rejected that idea in the late 1990s, and continued to until 2014. In 1998, John Kerry and Ron Wyden warned that Title II “seriously would chill the growth and development of advanced services to the detriment of our economic and educational well-being.” Bill Kennard, President Clinton’s FCC Chairman, likewise said: “‘I don’t want to dump the whole morass of Title II regulation on the cable pipe.” And why not? Because nothing deters investment like the government’s ability to dictate, or second-guess, prices.
The “Broadband Price Controls” gang thought they had won — until Hillary’s surprise defeat. In late 2017, the Republican FCC did what everyone always knew they would do: rolled back the Title II classification in the 2015 Order. This wasn’t because Republican Commissioners were against net neutrality, but because they think Congress never intended the FCC to regulate broadband under Title II service. Undoing Title II reclassification did, necessarily, mean ending the FCC’s 2015 rules (except the transparency rule, which could stand on simpler legal authority).
That roll-back finally took effect this June. Yet, and contrary to the Chicken Little hysteria of almost every media report on the topic of net neutrality for years, nothing changed: the Internet went trucking along just fine, “free and open” as ever.
So Sohn and others needed a way to get their base fired up again — and to keep the donations flowing. (Since John Oliver’s 2014 segment on the issue, the activist groups pushing for Title II have seen their budgets explode.) The idea that Verizon was — gasp! — “throttling” firefighters made for the perfect narrative: evil broadband company versus John Q. Public. It’s so perfect… one has to wonder if there’s more to the story. But first, let’s explain what really happened, and the legal mechanisms to address it.
The particular 4G wireless device at issue here provides connectivity for FPD’s command and control system. It gets deployed only when firefighting teams from multiple jurisdictions are deployed to fight a single, massive fire — when there needs to be a technical interface to ensure they can all communicate with each other.
There were essentially three mistakes along the way that led to this blow-up:
Mistake #1: Selecting the Wrong Data Plan: Two critical facts: (1) when deployed, the device can consume a whopping 5–10 GB/day and (2) it doesn’t work without 4G speeds. Despite knowing this, FPD bought the cheapest possible data plan: $37.99 for unlimited data — but 4G speeds only for the first 25 GB/month (and much slower speeds beyond that). Knowing they might need as much as 300 GB/month at 4G speeds, the FPD clearly should have bought one of Verizon’s pay-as-you-go plans. Those plans are more expensive (especially when you consider the overage charges the FPD might incur if their device were deployed more than a few days a month) — but they have no speed restriction. Here’s the menu of such plans Verizon sent FPD in early July:
Could Verizon have done more to avoid confusion between the two plans? Maybe. But that’s a pure question of deceptive marketing — right up the FTC’s alley. You don’t need Title II for that
Mistake #2: Confusion Over Getting the Speed Restriction Dropped: Just out of a sense of “corporate social responsibility,” Verizon has a general policy of suspending the speed restriction whenever a government says the device is necessary for an emergency. It’s not clear whether the policy was to suspend for a single month or potentially several — if the government user said the emergency would last longer — but the key point is that such suspensions are temporary. Verizon has no way of verifying such requests, so to prevent abuse, they simply require the user to call back in to repeat the request. Otherwise, there’d be nothing to stop fire departments from, for example, claiming that a wireless router was needed for emergencies, when in fact it was simply used to stream Netflix all day in the break room — something the company tells me did happen in some cases under the initial version of the policy, resulting in terabytes of monthly data usage.
Last December, apparently the last time the unit was deployed (and possibly also the first time — we don’t know), Justin Stockman, one of the FPD Fire Captains, complained to Verizon about the speed restriction, so Verizon suspended it — temporarily. But in late June, the next time (apparently) the unit was deployed, Captain Stockman emailed Verizon, recalling that the speed restriction had been suspended back in December, but adding that this Verizon rep had “communicated that Verizon had properly re-categorized the device as truly ‘unlimited.’” It’s not clear whether the Stockman misunderstood what had happened back in December (and, if so, whether the Verizon representative simply wasn’t clear in his explanation) or whether he simply misremembered what had happened.
Mistake #3: Failure of Verizon Training: When Stockman complained in late June, the new Verizon customer service rep handling the issue, Silas Buss, should have immediately dropped the speed restriction, just as in December — as Verizon has readily acknowledged. But, from the email exchange, Buss didn’t seem to be aware of the corporate policy.
To understand how this all happened, it’s important to note that no one from FPD reminded Buss of the policy (not that it was the customer’s responsibility to do so, but just for context), because they insisted the device had simply been exempted from the speed restriction — which was impossible. In short, confusion on both sides.
Under the 2015 Open Internet Order, it was perfectly lawful to offer customers the choice between (1) unlimited data plans with speed restrictions beyond the basic data allowance or (2) pay-as-you-go plans with no speed restriction: “Usage allowances may benefit consumers by offering them more choices over a greater range of service options, and, for mobile broadband networks, such plans are the industry norm today, in part reflecting the different capacity issues on mobile networks.” The Order specifically discussed speed reductions like Verizon’s:
Because our no-throttling rule addresses instances in which a broadband provider targets particular content, applications, services, or non-harmful devices, it does not address a practice of slowing down an end user’s connection to the Internet based on a choice made by the end user. For instance, a broadband provider may offer a data plan in which a subscriber receives a set amount of data at one speed tier and any remaining data at a lower tier. If the Commission were concerned about the particulars of a data plan, it could review it under the no-unreasonable interference/disadvantage standard.… We note that user-selected data plans with reduced speeds must comply with our transparency rule, such that the limitations of the plan are clearly and accurately communicated to the subscriber.
In other words, the FCC recognized that the kind of plans offered by Verizon were generally beneficial: obviously, if all data plans had to include unlimited usage at top speeds, the vast majority of users (all but the biggest data users — like FPD) would pay more. So instead of banning such plans, the FCC proposed two ways to deal with potential concerns.
First, the FCC would enforce its 2010 transparency rule to make sure service plan information was clearly disclosed. That rule was a pale imitation of what the Federal Trade Commission has been doing for decades: ensuring that consumers get the benefit of a bargain. That making sure both (a) that the bargain is clear and (b) that companies don’t fail to provide “material” information (i.e., information that might have influenced their choice).
Second, the FCC could have evaluated Verizon’s data plans under the “general conduct standard.” As Sohn writes:
Had the FCC maintained its oversight over broadband, the FPD could have filed a complaint alleging that Verizon’s throttling of its emergency services and doubling of its broadband costs were unjust and unreasonable charges and practices prohibited by Title II. But the repeal made that option impossible.
Indeed, the FCC could have declared Verizon’s practice illegal — even though it wasn’t covered by the throttling rule. But it’s worth noting two things. First, the Open Internet Order contemplated applying that standard for a completely unrelated concern. After noting the benefits of speed-restricted plans (quoted above), the Order said:
Conversely, some commenters have expressed concern that such practices can potentially be used by broadband providers to disadvantage competing over-the-top providers. Given the unresolved debate concerning the benefits and drawbacks of data allowances and usage-based pricing plans, we decline to make blanket findings about these practices and will address concerns under the no-unreasonable interference/disadvantage on a case-by-case basis.
The text of the General Conduct Standard clearly focuses on anti-competitive ways that ISPs might interfere with the way consumers used the Internet:
Any person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not unreasonably interfere with or unreasonably disadvantage (i) end users’ ability to select, access,and use broadband Internet access service or the lawful Internet content, applications, services,or devices of their choice, or (ii) edge providers’ ability to make lawful content, applications, services,or devices available to end users. Reasonable network management shall not be considered a violation of this rule.
Sohn, who helped lead the writing of the Order as a top advisor to then-Chairman Tom Wheeler, now insists the FCC could have used the general conduct standard to address a fundamentally different concern: not that Verizon was structuring its plan offerings to favor its own affiliated services (say, a home video security service not subject to the data cap), but simply that she doesn’t think fire departments (or, by the same logic, anyone) should have to pay the Verizon was charging for extremely large volumes of data use. (Again, note that the FDP’s device could use seventy-five times as much data per month as the typical consumer — yet Sohn seems to insist they should both be charged the same flat monthly rate.) Yes, it’s a brazen bait and switch, but as a legal matter, she’s right: the general conduct standard was so broadly worded that it could have allowed the FCC to declare any practice illegal.
When the FCC first announced the General Conduct standard in 2015 (the 2010 Order contained no such provision), FCC Chairman was asked what it meant at a press conference. He replied:
We don’t really know. We don’t know where things will go next. We have created a playing field where there are known rules, and the FCC will sit there as a referee and will throw the flag.
In other words, the FCC could do whatever it wants. In 2015 (after President Obama backed him into a corner and forced him to abandon his plans to avoid using Title II), Wheeler became the most ardent defender of Title II. He disclaimed any intention to regulate prices (the principal objection to Title II), and insisted that the FCC had avoided such a possibility by granting “sweeping forbearance” from a slew of provisions in Title II, including one specifically dealing with price regulation. But the FCC did not forbear from the core Title II powers under Sections 201(b) and 202(a). Those provisions are all the FCC needs to set prices — and gave the FCC free rein to regulate broadband. The “General Conduct Standard” is simply a combination of these two provisions (and, arguably, may be even more open-ended).
That’s what is so brilliant, and disingenuous, about Sohn’s argument — and the entire framing of this story in so many media reports.Sohn and her allies have finally found the perfect poster child for their real agenda: invoking public safety to justify giving the FCC unfettered discretion to regulate any aspect of broadband service — while making price regulation seem unobjectionable, even normal. “Of course, the government should decide how much broadband should cost!”
Sohn and her allies have finally found the perfect poster child for their real agenda: invoking public safety to justify giving the FCC unfettered discretion to regulate any aspect of broadband service — while making price regulation seem unobjectionable, even normal.
This, rather than opposition to net neutrality, is the nightmare scenario that caused broadband providers (as well as nearly all Democrats until 2014) to oppose Title II.
There is one catch that Sohn doesn’t mention: Yes, it’s true that the FCC’s general conduct standard and the underlying authority in Section 201(b) would have allowed the FCC to sanction Verizon here, and effectively require the company to give away unlimited data service with no speed restriction to public safety users, government users, or any other class of users the agency wanted (including all users) for a fraction of what the company wanted to charge. (Again, we’re talking about FPD effectively paying the same monthly rate as the typical consumer, despite using as much as 75 times more data.) But the FCC tied itself into a bind by, at the same time, issuing a ban on “paid prioritization” so broadly and vaguely worded that giving one class of users access to unlimited data usage with no speed restriction for any fee (even if it’s less than most users would pay) could amount to payment for prioritization. Think about it: you get up to 25GB/month and the FPD, for the roughly the same price, gets 300 GB. How is that not prioritization?
Now, you might say that the FCC could simply choose to overlook its paid prioritization rule in this particular case — because it’s “good” prioritization and this isn’t the typical “prioritization” fact pattern. Maybe, but it’s not clear how a court would handle this situation if the provider challenged the agency’s action as arbitrary and capricious. More importantly, though, we’re no longer talking about the FCC enforcing such a rule, but rather states. California is just one state to have passed its own version of the 2015 Open Internet Order. There’s no telling how 50 states might interpret such a rule in situations like this.
Thus far, I’ve taken everything the FPD asserts for granted — and I’m not suggesting their employees were anything other than confused. But when you consider how this case ties in with the litigation over the FCC’s authority, a distinct political subtext emerges.
This isn’t just any fire department we’re talking about here. The FPD joined Santa Clara County in filing suit against the FCC back in February. Santa Clara is the only local government to have done so — and thus effectively represents the concerns of all local governments.
The remarkable coincidences don’t stop there. Last December, James Williams, the top lawyer for Santa Clara County, filed 15 pages of detailed comments with the FCC insisting on the need for Title II. Among his principal arguments was that the FPD needed the FCC to guarantee net neutrality for the use of the exact device at issue here. Clearly, Williams was intimately familiar with how this device worked. He may or may not have been aware, when he made that filing, of the details of how the FPD first (apparently) encountered the speed restriction on this device, and the situation resolved it — i.e., that Verizon temporarily lifted the restriction, not permanently, as the FPD claimed in June. But whether the filing or that incident happened first hardly matters, because Williams had to be aware, at some point in December, of what had happened, given his focus on net neutrality concerns specific to the FPD and his focus on this exact device.
Having parsed the FPD’s two rounds of email exchanges with Verizon closely, I don’t doubt that the Fire Department employees were simply, genuinely, confused and frustrated. Internal miscommunication — and especially miscommunication over time, in failing to record what was said for the benefit of the organization months or years in the future — is an inherent problem in a bureaucracy of any size, miscommunication can occur.
What’s hard to understand, though, is how the FPD could go through the same issue not once, not twice, but three times, on three separate deployments in the field (December 2017; June 29 — July 5, 2018; and July 29–30) and then, three weeks later, their experience winds up in a legal brief as evidence of the dire public safety implications of the FCC’s inability to regulate broadband — all without the county’s lawyer clearing up the confusion about what was happening and how to ensure uninterrupted use of the device for public safety in the future.
I’ll give public safety professionals the benefit of the doubt every time: Firefighters put their lives on the line all the time; obviously, they care far more about making sure all their equipment works in an emergency than anyone’s litigation strategy. But given the obviously close involvement of the County’s lawyers in the FPD’s issues, one has to wonder about their role in advising the FPD at least three points in this story:
Why did the FPD stay on a manifestly inappropriate data plan? Maybe the FPD thought that they could have it both ways: stay on the cheapest plan but get the speed restriction dropped permanently. Maybe they never understood that the only way to get what they wanted was to buy the more expensive data plan. But the county’s lawyer? The guy who cared enough about this issue to file 15 pages of FCC comments around the same time as the FPD’s first encounter with the speed restriction — and who enlisted the FPD as a co-plaintiff three months later? He couldn’t figure it out?
Or he didn’t think to advise the FPD either to switch plans or to make sure to specifically invoke Verizon’s generous policy of asking to have the speed restriction temporarily lifted upon each emergency? He didn’t understand that these were the only two ways to ensure uninterrupted data service for a mission-critical device? It just doesn’t add up.
Why didn’t the lawyers help resolve confusion in June and July? The second conversation with Verizon, in late June, was polite enough, with Justin Stockman, the Fire Captain, explaining the problem to Verizon’s Silas Buss. By late July, FPD’s frustration’s had peaked. On July 29 (late on a Sunday night), Dan Farrell, FPD’s systems analyst, sent Verizon a curt email:
Remove any data throttling on OES5262 effective immediately.
And then early the next morning:
Please work with us. All we need is a plan that does not offer throttling or caps of any kind.
Obviously, Farrell’s frustrations had peaked. But Buss had already explained, back on July 9, how FPD could chose such a data plan — including an attachment laying out the available data plans. This confusion could have been resolved weeks earlier — simply by switching to the kind of pay-as-you-go-plan that the County’s lawyers should have realized was the only plan appropriate for the device back in December. So why wasn’t the situation resolved? When were did the County’s lawyers get involved?
Obviously, they did get involved at least early August, because they drafted an affidavit for the Fire Chief, and reconstructed the email thread — all for inclusion as Exhibit A attached to Mozilla’s brief arguing against repeal of Title II. (Mozilla joined Santa Clara County and FPD as co-plaintiffs in the litigation back in February.) But were they aware of what was happening during the two conversations with Verizon about the speed restriction in two separate deployments in late June and late July? If so, why didn’t they help resolve the confusion? Surely, someone in the County Counsel’s office must have been paying attention back in December, and must have understood that the speed restriction could only be lifted temporarily — unless FPD switched to the pay-as-you-go plan. If that wasn’t obvious in December, it should have been by July 9. Yet the issue continued unresolved.
If this were any other fire department in America, maybe it wouldn’t be reasonable to expect the FPD to mention this issue to their lawyers — or for their lawyers to engage. But remember, the FPD had already joined Santa Clara County in a lawsuit against the FCC back in February. The County’s lawyer, three months before that, had warned the FCC of the public safety implications of rolling back Title II, citing this exact device. So it’s hard to believe that the lawyers were made aware of what was happening only after the second dispute with Verizon in a month — which also happened to be just in time to turn those two incidents into an Exhibit A in a legal filing insisting on the need for Title II.
How did the lawyers decide what to tell the court? Even if the County’s lawyers only got involved after July 30, they still had the opportunity to decide how to present this issue to the court — specifically, what to say in the affidavit they drafted for the Fire Chief and which emails to include to document what had happened. The affidavit concludes:
County Fire believes it is likely that Verizon will continue to use the exigent nature of public safety emergencies and catastrophic events to coerce public agencies into higher cost plans ultimately paying significantly more for mission critical service — even if that means risking harm to public safety during negotiations.
Presumably, since the Fire Chief signed the affidavit, this seemed like an accurate summary of the situation to him. Note, though that he had recently been promoted to the position and may not have been closely engaged (or engaged at all) in any of the three rounds of conversations about the data plan (December, June and July).
But the County’s lawyers had to know that the affidavit’s summary description didn’t really accurately characterize what had happened: they had to know, at some point (even if only in August, when it was too late), that (1) the FPD had always had the option of picking a pay-as-you-go-plan with no speed restriction, but (2) that the FPD instead opted to stay with a speed-restricted plan and (3) that that plan made sense only on the understanding that it would be necessary to invoke Verizon’s policy of temporarily suspending that speed restriction upon request. Yes, Verizon’s customer service representative failed to apply that policy in June and July, but the FPD didn’t mention it either — insisting that the device had been permanently exempted from the speed restriction. Again, that’s perhaps an understandable mistake for the FPD to make, but the county’s lawyers, who negotiate procurement all the time, had to have known better.
It’s also worth noting that the emails the County’s lawyers decided to include in the record tell only part of the story: There are no emails from December, which might have made more clear what, exactly, Verizon told FPD about the policy, why they decided to stay on that data plan, etc. And of course, while there are internal emails among FPD staff, there are no emails between FPD and the county’s lawyers — so there’s no way to tell how involved the lawyers were or when they got involved, or what they knew. Seeing those emails would certainly help to explain what had happened.
We may never know exactly what happened inside the County Counsel’s office, or what their role was here, but it seems clear that they were either completely asleep at the switch, or on the hunt for a fact pattern to fit the arguments they wanted to make in court.
And there’s one more reason to suspect that they were more concerned about their political agenda than with ensuring that the FPD got the uninterrupted data service it needed: the County’s outside counsel on the brief they filed in February were the Mills Legal Clinic at Stanford Law School. That’s important because Stanford Law School has been at the center of the advocacy for Title II for years. Stanford Law Professor Barbara van Schewick has used her perch as director of Stanford’s Center for Internet & Society (CIS) to push for Title II at the FCC, in Congress, and before the Courts at every turn. Bizarrely, for an academic institution, CIS even replaces its homepage with an activist page designed by Fight for the Future late last year, in protest of the Republican FCC’s plans to roll-back Title II. Schewick is as deeply engaged in this issue as an activist as Gigi Sohn — but she brings Stanford Law School to the table as her heavy artillery (and the thin veneer of academic neutrality).
Put it all together and one gets the distinct impression that, while FPD struggled to just make their equipment work, the County Counsel and their outside counsel from Stanford were more focused on proving their point: that Title II was somehow connected to public safety. On some level, it doesn’t matter: this story doesn’t prove that connection even if one takes for granted everything in the record appended to Mozilla’s legal brief. But the remarkable series of coincidences in this story leave plenty of room for skepticism about the panicked narrative woven around that record.
One thing’s for sure: this won’t be the last “net neutrality” panic. Other than Comcast’s blocking of BitTorrent traffic in 2008 (which, again, the FTC could have resolved as a matter of deceptive marketing without any intervention by the FCC), the handful of supposed “net neutrality violations” cited as examples of the need for regulation over the years just don’t hold up to scrutiny when you dig into what actually happened (as I documented back in 2010).
If anything, this tempest-in-a-teapot illustrates two things. First, after more than a decade, the net neutrality debate continues to be driven by the same dynamic that characterizes all politicized technopanics: a sensational report of the latest in a long line of corporate depredations, based on a record that’s too complex for any journalist to bother trying to parse objectively, delivered in such a way as to achieve maximum political effect. Here, the facts change, but the basic narrative hasn’t changed in years: the sky will fall unless the FCC has absolute discretion to regulate the Internet however it sees fit.
Second, the only way this dynamic is ever going to change would be to create some independent, neutral and objective body technical experts that could assess alleged net neutrality violations and report on what really happened. No, having such a report days or weeks after the fact won’t stop the initial panic cycle, but it will at least set the record straight — in the way I’ve tried to do here, but with more authority. And, knowing that someone with such authority will actually call out misrepresentations for they are will make it a lot harder for people with a political agenda to misrepresent, or overstate, what happened in a particular case — as Santa Clara’s lawyers clearly did here.
Fortunately, there’s already a body of such experts from industry, academics, and civil society that could be tasked with this function: the Broadband Internet Technical Advisory Group, which launched out of Silicon Flatirons, the Internet law program at the University of Colorado Boulder in 2008. Equipping BITAG to do something like Politifact for net neutrality — or starting another organization modeled on BITAG — would separate legitimate net neutrality violations from contrived political hysteria, and allow regulators to focus on real problems, rather than contrived and cynical exploitation of public concerns about net neutrality, public safety, free speech, or whatever the next blow-up entails.