The Bot Wars, begun they have. Over the past two years, automated social media accounts and fraudulent regulatory filings have been used by anonymous parties to obscure public opinion, distort public discourse, and corrupt the integrity of rulemaking in the … Continue reading
Today, Federal Communications Commission Commissioner Ajit Pai released a statement & fact sheet on the non-public FCC’s proposal for Open Internet Rules, which would be applied to regulating broadband Internet service providers. He tweeted out a picture of himself holding the document (above) several days ago. In his statement today, Pai said that the American people are being misled about what’s in the rules and broke out an outline of the 300-page document. Reporting and analysis of Pai’s objections to the proposal may be found at the New York Times and National Journal. Subsequent to Pai’s statement and press conference, FCC Special Counsel for External Affairs Gigi Sohn tweeted out a series of rebuttals, including a clarification regarding the size of the document.
Here, I’ll focus on something else: the commissioner took FCC Chairman Tom Wheeler to task for not releasing them ahead of the scheduled vote on February 26th, in DC, although Pai did note that doing so would be “unprecedented.” In fact, FCC commissioner Mike O’Rielly tweeted much the same thing, stating that “all FCC meeting items should be made public when circulated to Commissioners. ”
In August, I wrote a blog post urging the Commission to post on its website the actual text of the items to be considered at our Open Meetings at the same time they are provided to Commissioners. I made the suggestion because the inability of the public to obtain a complete picture of what is in a pending notice of proposed rulemaking or order routinely leads to confusion over what exactly is at stake. Making matters worse, Commissioners are not allowed to reveal the substantive details to outside parties. We can’t even correct inaccurate impressions that stakeholders may have received, and we are barred from discussing what changes we are seeking. This barrier to a fulsome exchange can be extremely frustrating for all involved. Despite positive feedback from people at the FCC, outside parties, Members of Congress,  and the general public, four months later, we have yet to post a single meeting item in advance. Moreover, the lack of full disclosure and transparency has continued to be a problem as some parties have not been fully briefed on recent items, such as the recently adopted 911 Reliability NPRM, while others are not briefed at all. The reason that nothing has happened, I am told, is that there are two basic concerns with the proposal: 1) that it could be harder to comply with the Administrative Procedure Act (APA); and 2) that it could be more difficult to withhold documents under the Freedom of Information Act (FOIA). I do not find either argument persuasive or insurmountable
Wheeler took a question on this issue in a press conference last month: “The precedent here, through Democratic chairmen and Republican chairmen, has always been that just like, you know, in the court system, and elsewhere that when you’re handling cases like this, you have an internal discussion and then you release what the result of that vote is. And you don’t change that decades of precedent overnight without following the procedures to review questions like that.”
Asked for comment, FCC press secretary Kim Hart Jonson said that “Chairman Wheeler circulated his proposal to his fellow Commissioners three weeks before the planned vote in accordance with long-standing FCC process. We are confident the other Commissioners will give the proposal an exhaustive review. The Chairman looks forward to receiving their input and releasing it to the public after the February 26 vote.”
What this boils down to is that publishing proposed rules before a vote is technically legal but has never been done before. As Pai himself noted, “FCC rules prohibit disclosure of nonpublic information except as authorized by the Chairman.” Then-FCC chairman Julius Genachowski didn’t pull the full version of the 2010 Open Internet rules up until right before Christmas, well after the vote. The standard FCC procedure for rulemaking is to circulate the draft rules at least 3 weeks prior to a vote, incorporate edits received from FCC commissioners, then finalize everything. In practice, however, some commissioners have complained that edits may be made right up until a vote. Once rules have been voted upon, they’re published in the federal register.
As long-time readers know, I was critical of that decision at the time, and remain so. To reiterate what I said them, Genachowski made a commitment to a more open, transparent and data-driven F.C.C. under President Obama’s Open Government Directive. In many respects, in its first year of open government, the agency made commendable progress, with strides towards taking public comment through e-rulemaking at OpenInternet.gov, Broadband.gov and Reboot.FCC.gov. The sites were deployed by an able new media team that has used online communications in unprecedented ways. The chairman and his managing director, Steven Van Roeckel, both deserved credit for their plans to reboot FCC.gov as a platform for government including the use of APIs and open source technologies like Drupal.
When it comes to the question of whether the public could see the proposed Open Internet rules before the commissioners vote upon it, the agency fell short of its transparency pledge. I have not found a legal precedent that explicitly gives the agency authority to keep the text of a proposed rule secret until it is voted upon by the Commission. While it is true that the FCC does not appear to be under no legal obligation to do so, given that the members of the commission presumably had to negotiate on the details of the final rules for vote, the decision not to share a version publicly may have made such discussion more flexible.
The choice not to post the proposed rules online before the most reced vote is an example of the same level of government transparency in the creation of important regulation as before, not more. It’s possible that the legal context for how the FCC operates might change in the future, if a bill by Senator Dean Heller (R-NV) were to be passed. Per his office, the FCC Reform Act would:
“provide more opportunities for the public to see pending FCC action by publishing the exact rule or amendment to a rule for at least 21 days and by allowing any Commissioner to ask for a vote on any order issued by a bureau. *Enhance consistency and transparency in the Commission’s operations by requiring the FCC to establish procedures for handling extensive new data submitted towards the end of a comment period, adequate review and deliberation regarding pending orders, providing the status of open rulemaking proceedings, minimum public review periods for statistical reports and ex parte communications. *Empower the Commission to operate more efficiently through reform of the “sunshine” rules, allowing a bipartisan majority of Commissioners to meet for collaborative discussions subject to transparency safeguards.
A provision that the FCC must “identify a market failure, consumer harm, or regulatory barrier to investment before adopting economically significant rules,” however, may well mean that Democrats in the Senate won’t support its advance. As always with these net neutrality stories, to be continued.
UPDATE: Commissioner Pai tweeted another picture of a revised plan February 21, including his intention to vote against it and again noting that the public cannot see it before the vote. In the tweet, he says the plan is now 317 pages, which means it has been trimmed by 15 pages.
Here is Pres. Obama’s revised 317-page plan to regulate the Internet. The public still can’t see it. I’m voting no. pic.twitter.com/RirBVPChmV
— Ajit Pai (@AjitPaiFCC) February 25, 2015
As a candidate, Senator Barack Obama said on November 14, 2007 that “I will take a back seat to no one in my commitment to network neutrality, because once providers start to privilege some applications or websites over others, then the smaller voices get squeezed out and we all lose. The Internet is perhaps the most open network in history, and we have to keep it that way.” Over the past six years, however, his voice has often been missing from the debate over how the providers of broadband Internet service should be regulated. This morning, however, President, Barack Obama came out much more strongly in favor of net neutrality.
In his statement (video embedded above, text linked) the president outlined 4 “bright line rules” that he wants the Federal Communications Commission to adopt for how consumer broadband Internet providers should behave (no blocking, no throttling, no paid prioritization, more transparency) and a rationale for how they should be regulated.
— The White House (@WhiteHouse) November 10, 2014
On that count, the biggest news comes further down in President Obama’s statement: “…the time has come for the FCC to recognize that broadband service is of the same importance and must carry the same obligations as so many of the other vital services do. To do that, I believe the FCC should reclassify consumer broadband service under Title II of the Telecommunications Act — while at the same time forbearing from rate regulation and other provisions less relevant to broadband services.”
That position is unquestionably a big win for activists, who are thrilled about the news this morning. If you’re unclear about what “forbearance” means, beyond the dictionary meaning of “holding back,” here’s a good article by Nancy Scola and and here’s a much longer post, by Harold Feld, which has more on the topic, and why it’s contentious among telecom lawyers and policy wonks. Should this plan actually make into Open Internet rules and be voted in, how forbearance is handled what Stacey Higgenbotham suggested watching in her excellent analysis of this net neutrality proposal.” They have the patience and lobbying muscle to ensure that in the process of forbearing them from certain practices that are irrelevant for a broadband era, they can get concessions that may make Title II less onerous for them,” she wrote.
Forbearing from rate regulation, or artificially controlling the price for a set level of service, would address one of the most significant objections to Title II that have been raised by American telecommunications companies. Other countries, like Argentina, are going a different route.
— Alex Howard (@digiphile) October 30, 2014
That didn’t stop Verizon from warning that reclassification under Title II would cause “great harm to an open Internet, competition and innovation. The National Cable and Telecommunications Agency released a statement that (former FCC chairman) CEO Michael Powell was “stunned” by the president’s statement on net neutrality and that the matter belongs in Congress.
“There is no substantive justification for this overreach, and no acknowledgment that it is unlawful to prohibit paid prioritization under Title II,” he said. “We will fight vigorously against efforts to impose this backwards policy.”
In a tweeted statement that was subsequently posted to Comcast’s blog, David L. Cohen, an executive vice president at Comcast Corporation, similarly said that President Obama’s policy stance would “jeopardize this engine for job creation and investment as well as the innovation cycle that the Internet has generated” and suggested that reclassification this was a matter for Congress to decide:
To attempt to impose a full-blown Title II regime now, when the classification of cable broadband has always been as an information service, would reverse nearly a decade of precedent, including findings by the Supreme Court that this classification was proper. This would be a radical reversal that would harm investment and innovation, as today’s immediate stock market reaction demonstrates. And such a radical reversal of consistent contrary precedent should be taken up by the Congress.
The other key detail in the policy position on net neutrality the White House published today was picked up over at the Verge: President Obama asked the FCC to apply these rules to mobile broadband internet providers as well. In his statement, he said that “the rules also have to reflect the way people use the Internet today, which increasingly means on a mobile device. I believe the FCC should make these rules fully applicable to mobile broadband as well, while recognizing the special challenges that come with managing wireless networks.”
As the president also noted, that “the FCC is an independent agency, and ultimately this decision is theirs alone,” but there’s no question that the President of the United States has put his thumb on the scale here, finally, and that it will put some pressure on the two Democratic commissioners, along with the man he nominated to lead the FCC, chairman Tom Wheeler.
Ball is still in the FCC’s court on #NetNeutrality. They aren’t required to follow the President’s approach. But it will be tough not to.
— Kevin Werbach (@kwerb) November 10, 2014
Here’s the statement released by Wheeler this morning, in response to the President’s position:
The President’s statement is an important and welcome addition to the record of the Open Internet proceeding. Like the President, I believe that the Internet must remain an open platform for free expression, innovation, and economic growth. We both oppose Internet fast lanes. The Internet must not advantage some to the detriment of others. We cannot allow broadband networks to cut special deals to prioritize Internet traffic and harm consumers, competition and innovation.
As an independent regulatory agency we will incorporate the President’s submission into the record of the Open Internet proceeding. We welcome comment on it and how it proposes to use Title II of the Communications Act.
In January, a federal court struck down rules that prevented Internet Service Providers from blocking and discriminating against online content. In May, the Commission sought comment on how to best reinstate these rules to protect consumers and innovators online while remaining within the parameters of the legal roadmap the court established. The goal was simple: to reach the outcomes sought by the 2010 rules. We sought comment on using Section 706 of the Telecommunications Act, as discussed by the court to protect what the court described as the “virtuous circle” of innovation that fosters broadband deployment and protects consumers.
The purpose of the Commission’s Notice of Proposed Rulemaking proposal was to elicit comments. In the past several months, we’ve heard from millions of Americans from across the country. From the beginning I have pledged to finally bring to an end the years-long quest for rules that are upheld in court. In May we sought comment on both Section 706 and Title II and I promised that in this process all options would be on the table in order to identify the best legal approach to keeping the Internet open. That includes both the Section 706 option and the Title II reclassification. Recently, the Commission staff began exploring “hybrid” approaches, proposed by some members of Congress and leading advocates of net neutrality, which would combine the use of both Title II and Section 706.
The more deeply we examined the issues around the various legal options, the more it has become plain that there is more work to do. The reclassification and hybrid approaches before us raise substantive legal questions. We found we would need more time to examine these to ensure that whatever approach is taken, it can withstand any legal challenges it may face. For instance, whether in the context of a hybrid or reclassification approach, Title II brings with it policy issues that run the gamut from privacy to universal service to the ability of federal agencies to protect consumers, as well as legal issues ranging from the ability of Title II to cover mobile services to the concept of applying forbearance on services under Title II.
I am grateful for the input of the President and look forward to continuing to receive input from all stakeholders, including the public, members of Congress of both parties, including the leadership of the Senate and House committees, and my fellow commissioners. Ten years have passed since the Commission started down the road towards enforceable Open Internet rules. We must take the time to get the job done correctly, once and for all, in order to successfully protect consumers and innovators online.
Whether this very public position by the White House leads the FCC to act any differently will be open to debate over the next month, as the deadline to get rules made and circulated to the commissioners before the last open meeting on December 11th grows near. It certainly gives them more political cover.
If the FCC does reclassify, expect the incoming 114th Congress and Republican majority to seek to shape that regulatory choice, perhaps by legislation, and that regulatory wrangling over net neutrality to end up in the courts. Again. (Conservatives concerned about the impact of applying Title II to the Internet may find this post by James Heaney of considerable interest.) Speaker of the House John Boehner was unequivocal in a statement released in response to President Obama’s position, asserting that “net neutrality hurts private-sector job creation“:
“It’s disappointing, but not surprising, that the Obama administration continues to disregard the people’s will and push for more mandates on our economy. An open, vibrant Internet is essential to a growing economy, and net neutrality is a textbook example of the kind of Washington regulations that destroy innovation and entrepreneurship. Federal bureaucrats should not be in the business of regulating the Internet – not now, not ever. In the new Congress, Republicans will continue our efforts to stop this misguided scheme to regulate the Internet, and we’ll work to encourage private-sector job creation, starting with many of the House-passed jobs bills that the outgoing Senate majority ignored.”
Evidence for the Speaker’s assertion regarding the impact of net neutrality laws on jobs is scant, as Carl Brooks, an IT analyst with 451 Research, noted: “Connection markets are robust and competitive in [the European Union] for business; for consumers, prices are dramatically lower.” (The European Parliament enacted a strong net neutrality law earlier this year.) “Net neutrality in the EU is explicit policy to encourage competition [and] benefit consumers on the backs of state telecom,” he went on.
Regardless of the political outcome in Congress, close observers of the FCC expect the rules to be delayed until 2015. What the American people get for a holiday present online is — reclassification or some form of tiered services — remains, for now, something only St. Nick knows.
This post has been updated with more statements, links, media and analysis.
Today, dozens of websites “slowed down” for a cause, collectively advocating against Open Internet rules proposed by the Federal Communications Commission. None of the participants in today’s “Internet Slowdown Day” actually delayed access to their websites: instead, they used code to add a layer to visitors’ Web browsers with one of the loading icons grimly familiar to anyone who’s ever waited for a long download or crufty operating system function to finish in an overlay and linked to BattleForThenet.com/September10, which encouraged visitors to sign a letter supporting net neutrality, or to use online tools to call Congress.
While many big tech companies didn’t participate, millions of visitors to Reddit, Tumblr, Netflix, Free Press, Reddit, Netflix, Mozilla, Kickstarter, Upworthy, Automattic, Digg, Vimeo, Boing Boing, Urban Dictionary, Foursquare, Cheezburger and the Sunlight Foundation saw the spinning icon, among others.
The effort appears to have made a difference: According to the FCC*, by 6 PM ET the agency saw 111,449 new public comments added to the already record-setting total, with some 41,173 filed into the 14-28 docket of the FCC’s website since and another 70,286 sent to the email@example.com inbox, setting a new high water mark of some 1,515,144 to date, with more yet to come. As reported by Mike Masnick, citing ThinkProgress, the Internet slowdown generated 1000 calls per minute to Congress. *Update: Fight for the Future claims that more than 740,000 comments were submitted through Battleforthenet.com and that the FCC hasn’t caught up. According to the nonprofit, “this happened during our last big push too when their site crashed. We are storing comments and will deliver all.”
“We sent 500K+ comments,” wrote Tiffaniy Cheng, co-founder of Fight for the Future, in an email. “They’re getting backlogged as the FCC can’t handle the amount of data. The FCC asked us to hold as they could not accept them and can’t handle all the load. So, they only just got to accepting them again.”
That means there have been at least 409,522 reply comments filed since July 18, with five days left in the reply comment period, with more than one quarter of them coming in a single day. (*If Fight for the Future’s total is correct, the number of reply comments filed passed 800,000, with the total nearing 2 million.) The FCC will host a public Open Internet roundtable discussion on September 16, the day after the period closes. According to an analysis of the first 800,000 public comments by the Sunlight Foundation, less than 1 percent of the submissions were clearly opposed to net neutrality.
These numbers are still dwarfed by the millions of calls and emails sent to Washington during the campaign to halt the Stop Online Piracy Act (SOPA) and PROTECT-IP Act in Congress in 2012, when Google and Wikipedia connected visitors to their websites to switchboards on Capitol Hill. They may also have less of an effect on an independent regulatory agency that has yet to chart a sustainable legal course in the storm of online criticism and intense lobbying by affected industries.
According to a FCC spokesman, the agency expected an increased volume of traffic due to the “slowdown.” Perhaps anticipating the interest, the @FCC’s first tweet today encouraged people to submit comments via email:
Next Monday 9/15 is the deadline for the 2nd round of #OpenInternet comments. Submit via firstname.lastname@example.org.
— The FCC (@FCC) September 10, 2014
The total number of comments on the Open Internet proceeding is sure to grow in the remaining week, with the number of emails sent to the FCC’s dedicated inbox likely to go past a million. (Update: On Thursday morning, the FCC confirmed that a total of 632,328 comments filed to ECFS and 1,118,107 sent to email@example.com, for a cumulative total of 1,750,435.) In many ways, that outcome feels appropriate.
When the FCC’s 18 year-old online commenting system has groaned under a huge volume of online traffic, people have routed around the downed comment system and used the original killer app of the Internet: email, the “tremendous, decentralized, open platform on which new, innovative things can and have been built,” based upon the same kinds of open protocols that enabled the unprecedented growth of a wealth of networks to grow around the world.
Update: At the end of the day after the Internet Slowdown, the FCC still working to enter all of the new comments created the day before into their systems — and the agency decided to offer another way to file comments: using email attachments.
In fact, FCC asked for something unexpected, simple and smart: for comments to be submitted at bulk open data, as .csv files of no more than 9 MB each. While the FCC doesn’t refer specifically to the comments that Fight for the Future has collected, this option does offer an easy way to electronically transfer the comments through an established channel. In the future, perhaps this will become the default option for
filing bulk comments collected by advocates, at least until Congress funds a new online filing system or the agency finds a way to use Dropbox. It should certainly make releasing them online as structured data for third-party analysis much easier; if the FCC wanted to, if could publish them almost as quickly as the comments came in.
The agency’s chief information officer, David Bray, explained the additional option in a blog post:
The volume of public feedback in the Open Internet proceeding has been commensurate with the importance of the effort to preserve a free and open Internet.
The Commission is working to ensure that all comments are processed and that we have a full accounting of the number received as soon as possible. Most important, all of these comments will be considered as part of the rulemaking process. While our system is catching up with the surge of public comments, we are providing a third avenue for submitting feedback on the Open Internet proceeding.
In the Commission’s embrace of Open Data and a commitment to openness and transparency throughout the Open Internet proceedings, the FCC is making available a Common Separated Values (CSV) file for bulk upload of comments given the exceptional public interest. All comments will be received and recorded through the same process we are applying for the firstname.lastname@example.org emails.
Attached is a link to the CSV file template along with instructions. Once completed, the CSV file can be emailed to email@example.com where if it matches the template the individual comments will be filed for the public record with the Electronic Comment Filing System. When you email this file, please use the subject “CSV”. We encourage CSV files of 9MB or less via email.
The Commission welcomes the record-setting level of public input in this proceeding, and we want to do everything we can to make sure all voices are heard and reflected in the public record.
Has the Internet showed up to comment on the Federal Communication Commission’s rulemaking around net neutrality, as I wondered when the Open Internet proceeding began? Well, yes and no. According to FCC press secretary Kim Hart, the FCC 677,000 or so total public comments on Net Neutrality submitted before tomorrow’s deadline.
— Kim Hart (@khart) July 14, 2014
As Wall Street Journal reporter Gautham Nagesh tweeted, the FCC’s action on media deregulation a decade ago received the most public comments of any of the agency’s rulemakings to date, with two million or so comments.
— Gautham Nagesh (@gnagesh) July 14, 2014
What this total number means in practice, however, is that network neutrality advocates have failed to stimulate public interest or engagement with this issue, despite “warnings about the FCC’s fast lane” in the New York Times. While that is in part because net neutrality is to many people a “topic that generally begets narcolepsy,” to use David Carr’s phrase, it may also be because cable, broadcast and radio news haven’t covered the issue, much less shown the email address or offered a short URL for people to officially comment. The big jump in the graphic below after June 1st can reasonably be attributed to John Oliver’s segment on this issue on his HBO show, not other media.
That doesn’t mean that the comments haven’t flowed fast and furious at times, taking down the FCC’s ECFS system after Oliver’s show. (Shenanigans may have been at fault with the outage, too, as Sam Gustin reported at Vice.)
“During the past 60 days, the Commission has received a large number of comments from a wide range of constituents,” wrote FCC chief information officer David Bray on the FCC blog, where he reported the rate and total number of email comments on the Open Internet proceeding as open data and shared two graphics, including the one below.
Chairman Tom Wheeler and I both enthusiastically support open government and open data, so with this post I wanted to share the hourly rate of comments submitted into the FCC’s Electronic Comment Filing System (ECFS) since the start of public comments on the FCC’s Open Internet Proceeding (Proceeding 14-28). Here’s a link to a Comma Separated Values (CSV) text file providing those hourly rates for all comments submitted to ECFS and those specific to the Open Internet Proceeding; below is a graphical presentation of that same data.
I’m hoping we see the content of those public comments, too. I’ve asked.
Bray also wrote that the FCC’s inbox and (aged) public comment system will remain open and that the agency continues to “invite engagement from all interested parties.” He also indicated that the FCC will be considering ways to make it easier to third parties to scrape the comment data from the system.
The FCC IT team will also look into implementing an easier way for electronic “web scraping” of comments available in ECFS for comment downloads greater than 100,000 comments at once as we work to modernize the FCC enterprise.
The number of people submitting comments is impressive, underscoring the importance of this issue and the critical role public engagement plays in the Commission’s policy-making process. When the ECFS system was created in 1996, the Commission presumably didn’t imagine it would receive more than 100,000 electronic comments on a single telecommunications issue. Open government and open data is important to our rapidly changing times both in terms of the pace of technology advances and the tightening of budgets in government. I hope you find this information useful.
In the meantime, you have until tomorrow to participate.
UPDATE: On the afternoon of July 15th, the FCC extended the Open Internet comment period until Friday, July 18 at midnight. It appears that online interest was a large part of the decision. FCC press secretary Kim Hart:
“The deadline for filing submissions as part of the first round of public comments in the FCC’s Open Internet proceeding arrived today. Not surprisingly, we have seen an overwhelming surge in traffic on our website that is making it difficult for many people to file comments through our Electronic Comment Filing System (ECFS). Please be assured that the Commission is aware of these issues and is committed to making sure that everyone trying to submit comments will have their views entered into the record. Accordingly, we are extending the comment deadline until midnight Friday, July 18.”
If you wish to participate, learn more about the issue, see other comments and submit your own comments online atDocket 14-28 or email comments to firstname.lastname@example.org, where they will become part of the public record. Your email address will then become part of the Open Internet Rule docket.
— Alex Howard (@digiphile) July 15, 2014
One additional clarification from Hart, regarding the total number of comments and public access to their contents: emails are being entered into the official docket in ECFS but are not being filed individually in the docket. “A large number of them are put into a big PDF and then that single PDF is filed into ECFS, rather than filing them one by one,” she said, via email. “So they will all be in the docket, but in a couple dozen large files rather than individually. Some are already entered, but there’s a bit of a lag.”
Update: As of Wednesday morning, the FCC has received 780,000 comments on this proceeding.
Update: Per Hart, as of Thursday morning, the FCC has received a cumulative total of 968,762 comments: 369,653 to ECFS,
599,109 emails to the Open Internet inbox.
“This is the most comments the FCC has received in a rulemaking proceeding,” said Hart.
Statement from FCC Chairman Tom Wheeler regarding this outpouring of comments:
“When the Commission launched its effort to restore Open Internet protections that were struck down in January, I said that where we end up depends on what we learn during this process. We asked the public a fundamental question: “What is the right public policy to ensure that the Internet remains open?” We are grateful so many Americans have answered our call. Our work is just beginning as we review the more than one million comments we have received. There are currently no rules on the books to protect an Open Internet and prevent ISPs from blocking or degrading the public’s access to content. There is no question the Internet must remain open as a platform for innovation, economic growth and free expression. Today’s deadline is a checkpoint, not the finish line for public comment. We want to continue to hear from you. “
Statement from FCC spokesman Mark Wigfield regarding the process for reviewing these comments:
“We appreciate the high level of public engagement on the Open Internet proceeding and value the feedback we have received. The FCC has a great deal of experience handling complicated issues that draw extensive public comment. Managing this flood of information requires a combination of good technology, good organization and good people. We are currently examining a number of approaches. The FCC will deploy staff from across many bureaus and offices who have the training, organizational expertise, and track record of success sorting through large volumes of information to ensure that we account for all views in the record.”
Update: At the close of the initial comment period of the Open Internet proceeding, the FCC had received 1,067,779 comments: 446,843 were filed through the Electronic Comment Filing System, and 620,936 through the Open Internet inbox. Now, the “reply” period begins, and will run through September 10. Update: the FCC extended the reply period until September 15th to allow more time for the public to comment.
Statement from Mark Wigfield:
“The comment and reply deadlines serve to get public input to the FCC in a timely and organized way to provide more time for analysis.
However, comments are permitted in this proceeding any time up until a week before a vote is scheduled at an Open Meeting (the “Sunshine” period under the Sunshine in Government Act). ”
This post has been updated with more numbers, links and commentary, including the headline.
This morning, the Federal Communications Commission (FCC) voted 3-2 to approve a Notice of Proposed Rulemaking (NPRM) on Open Internet Rules.
The commission has released a fact sheet on the rules to the media and published the release online as a .doc, .pdf, HTML and .txt. I’ve published the FCC FAQ below and linked to the NPRM on Protecting and Promoting the Open Internet.
The FCC asks the public several important question in this NPRM:
- Should the FCC should bar paid prioritization completely?
- Should the FCC apply Open Internet rules to mobile broadband Internet service, not just fixed broadband Internet?
- Should the FCC reclassify broadband Internet service as a telecommunications service under Title II of the Telecommunications Act?
For more background on net neutrality, read:
- Brian Fung at the Washington Post
- Gautham Nagesh at the Wall Street Journal, including this net neutrality primer
- Stacey Higgenbotham at GigaOm on the problem with this network neutrality compromise, including her useful timeline of net neutrality policy at the FCC, going back to 2004 when then-FCC Chairman Michael Powell gave a speech outlining four “Internet Freedoms.”
- Jon Brodkin‘s analysis of the law of the land at Ars Technica
- Mark Coddington’s excellent digest at the Nieman Lab, which provides even more context for the origins of net neutrality and what’s next over the rest of the year:
Earlier in the week, The Wall Street Journal reported that Wheeler was planning on revising his proposed rules to ensure that non-paying companies’ content wouldn’t be put at an unfair disadvantage. Stanford’s Barbara van Schewick and Morgan Weiland called the reported revisions a good start, with a long way yet to go. In a Twitter chat, an FCC representative gave some more details about the proposal and said the commission is still considering regulating Internet access like a utility. Columbia professor Tim Wu and TechFreedom’s Berin Szoka debated that prospect in The Wall Street Journal.
Opposition to the plan hasn’t reached a fever pitch, but it is building. Quartz’s Yitz Jordan looked at the way net neutrality has united leftist and corporate tech interests, and The New York Times’ David Carr said he’s betting on the Silicon Valley powers aligning against the FCC plan over the Beltway establishment backing the proposals. The New York Times’ profiled an intellectual leader of the net neutrality movement, Columbia’s Tim Wu, and Time and CNET talked to one of the most prominent voices against the plan in Washington, Sen. Al Franken.
Update: The White House released a statement on network neutrality from the press secretary:
The President has made clear since he was a candidate that he strongly supports net neutrality and an open Internet. As he has said, the Internet’s incredible equality – of data, content, and access to the consumer – is what has powered extraordinary economic growth and made it possible for once-tiny sites like eBay or Amazon to compete with brick and mortar behemoths.
The FCC is an independent agency, and we will carefully review their proposal. The FCC’s efforts were dealt a real challenge by the Court of Appeals in January, but Chairman Wheeler has said his goal is to preserve an open Internet, and we are pleased to see that he is keeping all options on the table. We will be watching closely as the process moves forward in hopes that the final rule stays true to the spirit of net neutrality.
The President is looking at every way to protect a free and open Internet, and will consider any option that might make sense.
FACT SHEET: Protecting and Promoting the Open Internet
May 15, 2014
The Internet is a vital platform for innovation, economic growth and free expression in America. And yet, despite two prior FCC attempts, there are no rules on the books to prevent broadband providers from limiting Internet openness by blocking content or discriminating against consumers and entrepreneurs online. The “Protecting and Promoting the Open Internet” Notice of Proposed Rulemaking (NPRM) begins the process of closing that gap, which was created in January 2014 when the D.C. Circuit struck down key FCC Open Internet rules.
This Notice seeks public comment on the benefits of applying Section 706 of the Telecommunications Act of 1996 and Title II of the Communications Act, including the benefits of one approach over the other, to ensure the Internet remains an open platform for innovation and expression. While the Notice reflects a tentative conclusion that Section 706 presents the quickest and most resilient path forward per the court’s guidance, it also makes clear that Title II remains a viable alternative and asks specifically which approach is better. In addition, the proposal asks whether paid prioritization arrangements, or “fast lanes,” can be banned outright.
We Are Listening: An Extended Four-Month Public Comment Period is Open
Since February, tens of thousands of Americans have offered their views to the Commission on how to protect an Open Internet. The proposal reflects the substantial public input we have received. The Commission wants to continue to hear from Americans across the country throughout this process. An extended four-month public comment period on the Commission’s proposal will be opened on May 15 – 60 days (until July 15) to submit initial comments and another 57 days (until September 10) for reply comments.
The NPRM seeks comment on a number of questions designed to:
Develop the Strongest Legal Framework for Enforceable Rules of the Road
- Reflects the principles that Chairman Wheeler outlined in February, including using the Section 706 blueprint for restoring the Open Internet rules offered by the D.C. Circuit in its decision in Verizon v. FCC, which relies on the FCC’s legal authority under Section 706 of the Telecommunications Act of 1996. At the same time, the Commission will seriously consider the use of Title II of the Communications Act as the basis for legal authority.
- Seeks comment on the benefits of both Section 706 and Title II, including the benefits of one approach over the other to ensure the Internet remains an open platform for innovation and expression.
- Explores other available sources of legal authority, including also Title III for wireless services. The Commission seeks comment on the best ways to define, prevent, expose and punish the practices that threaten an Open Internet.
Ensure choices for consumers and opportunity for innovators
- Proposes a requirement that all users must have access to fast and robust service: Broadband consumers must have access to the content, services and applications they desire. Innovators and edge providers must have access to end-users so they can offer new products and services.
- Considers ensuring that these standards of service evolve to keep pace with of innovation.
Prevent practices that can threaten the Open Internet
- Asks if paid prioritization should be banned outright.
- Promises clear rules of the road and aggressive enforcement to prevent unfair treatment of consumers, edge providers and innovators.
- Includes a rebuttable presumption* that exclusive contracts that prioritize service to broadband affiliates are unlawful.
(*Rebuttable presumption is a presumption that is taken to be true unless someone comes forward to contest it and proves otherwise)
- Enhance the transparency rules to provide increased and specific information about broadband providers’ practices for edge providers, consumers.
- Asks whether broadband providers should be required to disclose specific network practices, performance characteristics (e.g., effective upload and download speeds, latency and packet loss) and/or terms and conditions of service to end users (e.g., data caps).
- Tentatively concludes that broadband providers should disclose “meaningful information” about the service, including (1) tailored disclosures to end users, (2) congestion that may adversely impact the experience of end users, including at interconnection points, and (3) information about new practices, like any paid prioritization, to the extent that it is otherwise permitted.
Protect consumers, innovators and startups through new rules and effective enforcement
- Proposes the creation of an ombudsperson with significant enforcement authority to serve as a watchdog and advocate for start-ups, small businesses and consumers.
- Seeks comment on how to ensure that all parties, and especially small businesses and start-ups, have effective access to the Commission’s dispute resolution and enforcement processes.
- Considers allowing anonymous reporting of violations to alleviate fears by start-ups of retribution from broadband providers.
Consider the Impact on the Digital Divide: Ensuring access for all communities
- Considers the impact of the proposals on groups who disproportionately use mobile broadband service.
- Asks whether any parts of the nation are being left behind in the deployment of new broadband networks, including rural America and parts of urban America.
Link to Chairman Wheeler’s February Open Internet framework: http://www.fcc.gov/document/statement-fcc-chairman-tom-wheeler-fccs-open-internet-rules
Comment on the Open Internet proposals: http://www.fcc.gov/comments
This post has been updated with addition statements and revised as the FCC put more documents online.
Over at The Verge, editor-in-chief Nilay Patel is urging his readers to contact the Federal Communications Commission and urge the regulator to stand up for consumer protections, competition and to classify the Internet as a utility. The post includes a big graphic with the FCC’s phone number and FCC Chairman Tom Wheeler’s email, encouraging readers to weigh in.
The passionate post and call to action is missing a key component, however: a link to the new public docket on the Open Internet where people can submit official comments through the commission’s electronic file system. As useful as it might be to get the FCC’s phone’s ringing — and as entertaining as it might seem to make the FCC chairman’s ability to get to Inbox Zero impossible — not sending a river of traffic to that docket means that people won’t be adding their voices to those of the companies that are being regulated.
That’s a shame: These comments are entered into the public record and are legally binding. If this is something you care about, on either side of the issue, go weigh in here.
Unfortunately, people are continuing to comment on docket for the first open Internet rulemaking, from years ago. Given that the FCC has no indication on thus FCC.gov webpage that it’s the old one, you can hardly blame them. You can still see all of the old filings online from 2009 at the FCC’s ECFS system, from Level 3 Communication’s recent plea to avoid “anticompetitive, monopoly rent-seeking conduct” one from one B.Davis”: “It is vital that the internet stay neutral and an open field without influence forced upon consumers by internet providers. The internet should be considered as a utility.”
The relaunch of FCC.gov years ago was supposed to make all this easier.
““It is our intention that every proceeding before the agency will be available for public comment,” United States Chief Information Officer Steven VanRoekel told me. (He was the managing director of the FCC then). “If we think of citizens as shareholders, we can do a lot better. Under the Administrative Procedure Act, agencies will get public comments that enlighten decisions. When citizens care, they should be able to give government feedback, and government should be able to take action. We want to enable better feedback loops to enable that to happen.”
As he noted then, comments from Broadband.gov or OpenInternet.gov were entered into the public record. “Today, you can take us to court with one of the blog comments from Broadband.gov,” said VanRoekel. “More than 300,000 citizens gave comment on the Open Internet proceeding.”
Unfortunately, the FCC is not going the extra mile to get people onto the docket. While the commission has tweeted links to the chairman’s statements and fact sheet, they haven’t tweeted or put up a blog post that will lead people directly there. To be blunt, not doing so looks like public engagement malpractice to me, promulgating press releases but failing to directly engage the American people on an issue of public interest using free social media tools and considerable platform the agency has built over the years.
The FCC may be seeking public comment but anyone clicking this tweet would be hard pressed to figure out how to give it: there’s no link to the Open Internet proceedings on the page.
— The FCC (@FCC) February 19, 2014
— The FCC (@FCC) February 27, 2014
As of March 5th, there were 9,341 comments submitted to proceeding 14-28.
UPDATE: As of May 15, the day of the FCC Open Hearing on the Notice of Proposed Rulemaking on the Open Internet, the 14-28 docket had received 21,017 comments. Watch live online at FCC.gov/live.
David Bray, a seasoned national intelligence executive (CV), will be the next chief information officer of the Federal Communications Commission. He’s expected to finish his work in the intelligence community at the Office of the Director for National Intelligence and commence work at the FCC in August.
“As the next FCC CIO, I look forward [to] aiding the FCC’s strong workforce in pioneering new IT solutions for spectrum auctions, next-gen cybersecurity, mobile workforce options, real-time enterprise analytics, enhanced open data, and several other vital public-private initiatives,” wrote Bray, in an email sent to staff and partners Monday night.
Bray holds a a PhD in information systems, a MSPH in public health informatics, and a BSCI in computer science and biology from Emory University, alongside a visiting associateship from the University of Oxford’s Oxford Internet Institute, and two post-doctoral associateships with MIT’s Center for Collective Intelligence and the Harvard Kennedy School. He also has served as a visiting associate with the National Defense University. Bray’s career also includes deployments to Afghanistan, projects at the Department of Energy and work at the Center of Disease Control.
Bray will inherit many IT challenges from former FCC CIO Robert Naylor, who announced that he’d be stepping down in December 2012. His background in the intelligence community will serve him well, with respect to network security issues, but he’ll need to continue to transition an agency that has traditionally outsourced much of its technology to 21st century computing standards and approaches to building infrastructure and meeting increasing demand for services.
Bray’s past work in collective intelligence, informatics, public health and data science suggest that he’ll have no shortage of vision to bring to the role. His challenge, as is true for every federal CIO these days, will be to work within limited budgets and under intense scrutiny to deliver on the promise.
To get a sense of Bray, watch his talk on “21st century social institutions at a brunch for Emory University scholars, in 2013: