• September 23, 2015
    Guest Post

    by Olivier Sylvain, Associate Professor, Fordham University School of Law. Professor Sylvain’s post draws from arguments he makes in a law review article coming out in Hastings Law Journal early next year. See Olivier Sylvain, Network Equality, 67 Hastings L. J. __ (forthcoming 2016).

    *This post is part of ACSblog’s symposium on the FCC’s net neutrality rules.

    Two Cheers for the Open Internet

    The FCC’s Open Internet Rules establish that users and application developers should be able to connect to all lawful Internet content, applications, and services of their choice without the permission of their broadband service providers.  The Rules do this by imposing bright-line rules on broadband providers against (a) blocking subscribers’ Internet connections, (b) throttling subscribers’ Internet connections, or (c) prioritizing their affiliated content, applications, or services over those of their rivals.  And, in a catch-all provision, the Rules also bar providers from otherwise unreasonably interfering with subscribers’ Internet connections.  This is to say that broadband providers now must have really good reasons to interfere with or disadvantage paying subscribers’ Internet connections. 

    The Rules enshrine in public law the view that users and developers at “the edges of the network” should be the primary sources of innovation in our networked information economy.  Service providers should be little more than conduits or, in the parlance of public law, “common carriers” through which Internet communications should be able to travel freely.

    This is not the first time that regulators have treated commercial gatekeepers like broadband service providers in this way.  This regulatory approach is very old, dating back to the old English common law treatment of ports, granaries, and other indispensable gateways of commerce. 

    And, in the United States, the distinction between broadband providers as common carriers on the one hand and content, applications, and services on the other is at least four decades old.  In the late 60s and 70s, the agency’s concern was with protecting the nascent industry in networked computing against the predations of service providers.  Then, not unlike now, the FCC sought to ensure that service providers supplied network access to all comers – affiliates and competitors alike.    

  • January 21, 2011
    Verizon, apparently bent on challenging any amount of government regulation of the Internet, is aiming its resources at the Federal Communications Commission's recent regulations intended to keep service providers from blocking content in cyberspace.

    In a lawsuit lodged in the U.S. Court of Appeals for the District of Columbia Circuit, Verizon is arguing that the FCC regulations, widely considered a compromise, between groups who advocate for the greatest possible access to Internet content and business interests, such as Verizon, are onerous.

    Michael Glover, a Verizon senior vice president, issued a statement saying, "We are deeply concerned by the F.C.C.'s assertion of broad authority for sweeping new regulation of broadband networks and the Internet itself. We believe this assertion of authority goes well beyond any authority provided by Congress, and creates uncertainty for the communications industry, innovators, investors and consumers."

    Free Press a public interest group that promotes "universal access to communications," blasted Verizon's lawsuit.

    Aparna Sridhar, the group's policy counsel, said in a statement:

    Verizon's decision demonstrates that even the most weak and watered-down rules aren't enough to appease giant phone companies. It's ironic that Verizon is unhappy with rules that were written to placate it, and it's now clear that it will settle for nothing less than total deregulation and a toothless FCC in the relentless pursuit of profit.

    In a guest post for ACSblog, the Electronic Frontier Foundation's Abigail Phillips examined the FCC's regulatory proposal on net neutrality, writing that according to FCC statements, the new rules "appear to be riddled with loopholes and exemptions, to the point where the FCC's declaration that the order represents bright-line rules and a framework for predictability is hard to reconcile."

  • December 28, 2010
    Guest Post

    By Abigail Phillips, senior staff attorney, Electronic Frontier Foundation

    After a down-to-the-wire push, the Federal Communications Commission recently approved by 3-2 its long-awaited regulatory proposal on net neutrality. We haven’t finished combing through the actual rules document, all 200 pages of which were recently released, but nonetheless the summary documents gave us some important hints about what the rules contain.

    Contrary to some expectations, the FCC is offering new theories for its basis for regulating the Net, opting not to re-assert the “ancillary” legal theory rejected by the D.C. Circuit Court of Appeals. Following the ‘throw it against the wall and see what sticks’ approach, the FCC has volunteered a smorgasbord of potential justifications, the sum of which apparently demonstrates that "[b]roadband Internet access services are clearly within the Commission’s jurisdiction." The lead argument appears to be Section 706 of the Telecommunications Act, which requires the FCC to report to Congress and take steps to help create universal broadband availability. We’ll see if the courts agree that this allows the FCC to create broad rules of the road for the Internet.

    The merits of the specific net neutrality proposals not withstanding, the FCC’s continued attempt to find a broad, unfocused basis for jurisdiction is a disconcerting strategy. An ungrounded rationale for regulatory authority is easily abused, opening the door to other, undesirable regulation.

    Now to the substance. From what we’ve learned from FCC statements and bulletins, the rules appear to be riddled with loopholes and exemptions, to the point where the FCC’s declaration that the order represents bright-line rules and a framework for predictability is hard to reconcile. It’s likely there won’t be much clarity around the rules’ application until they get invoked in FCC enforcement actions or otherwise.

    Following are the main points previewed in the FCC’s release:

    (1) Carve-outs for wireless. The FCC order creates a subset of less restrictive rules that apply exclusively to wireless services: Wireless operators need only ensure that consumers are able to access lawful websites and also apps that compete with the providers’ own services (both requirements subject to ‘reasonable network management’ needs). In addition, the rule against unreasonable discrimination does not apply to wireless services. Similar to past proposals, only a transparency requirement in the current order applies equally to wireless and wireline. This is significantly disappointing. From a consumer perspective, we don’t see a valid distinction between wired and wireless internet use.

  • November 11, 2010
    Google's Street View project may not have greatly troubled the Federal Trade Commission (FTC), but as The Washington Post reports the Federal Communications Commission (FCC) is taking a different tack. The FCC, the newspaper reports, has launched an investigation into whether the Street View mapping program violated any communications laws when it apparently inadvertently sucked up personal information such as e-mails and passwords from unsecure Wi-Fi networks.

    The announcement follows the FTC's decision to close an inquiry into the Street View project, and news of international governments ramping up their criticism of the mapping program, which was launched in 2007 to gather street-level images from the U.S. and 30 other countries.

    The New York Times reports, Google cars "were also recording information about Wi-Fi networks in nearby homes and businesses, data that can be used to help mobile devices determine their locations. But Google went beyond noting the existence of such networks and recorded information that was sent over them."

    In a statement regarding its investigation, Michele Ellison, chief of the FCC's enforcement bureau, said, "Last month, Google disclosed that its Street View cars collected passwords, e-mails and other personal information wirelessly from unsuspecting people across the country."

    But, as The Post notes, the FCC has not provided much more about its investigation. Marc Rotenberg, head of the Electronic Privacy Information Center (EPIC) told the newspaper, "Intercepting communications traffic is a serious crime in the United States."

    Earlier this year, EPIC urged the FCC to open an investigation into Google's Street View program. In its letter, EPIC asserts that Google's collection of personal information "could easily" amount to a violation of a federal wiretap law. Rotenberg told The Post that the act is "one of the strongest privacy laws we have because of the strong privacy presumption in network communications."

    Authorities in Britain, Germany and Canada have raised concerns about the Street View program and violations of privacy.

    Google issued a statement yesterday saying it was "profoundly sorry for having mistakenly collected payload data from unencrypted networks."

  • August 20, 2010
    Beyond irking advocates of net neutrality, the Google-Verizon proposal regarding regulation of wireless Internet access has drawn fire from a couple of FCC commissioners.

    Reporting for FDL, David Dayen writes that FCC Commissioners Michael Copps and Mignon Clyburn, "slammed the Google-Verizon joint policy and strongly endorsed net neutrality last night at a hearing before hundreds of citizens in Minneapolis giving the Chairman of the federal agency Julius Genachowski all of the support he would need to regulate broadband Internet if he so chose." The commissioners, Dayen continues, criticized the Google-Verizon proposal saying if adopted it "would eliminate any openness provision over wireless, which is where all Internet applications are going."

    Critics of the Google-Verizon proposal say it is an affront to net neutrality, which calls for information via the Internet to be easily and fairly accessible to all people. The proposal offered earlier this month maintains that net neutrality should not apply to wireless access.

    The FDL post notes that Sen. Al Franken has also criticized the Google-Verizon proposal. FDL includes video of Franken addressing the two companies' ideas. "We can't let companies write the rules that we the people are supposed to follow. Because if that happens those rules will be written only to protect corporations," Franken said.

    Google's team-up with Verizon sparked great consternation among supporters of net neutrality principles, with several claiming that Google had abandoned its commitment to those principles.

    Jordon Rohan, an Internet analyst at Stifel Nicolaus, told The New York Times, "I don't know that Google pondered the moral decision this time. I think the business decision to cooperate with Verizon superseded the other complications and side effects that it may cause."