Last week’s Net Neutrality ruling highlights the dangers of letting agencies “write” law. The FCC took a loophole in the present law and then went for the brass ring, using legislation that was designed to deregulate communications markets – that’s right, take regulations off the books – to selectively hyper-regulate ISPs with 19th-Century, natural-monopoly law.

(Most of America has a choice of two wired and four wireless broadband providers – hardly a MONOpoly situation – but I digress)

In essence, the Court ruled that for its deference to apply (which would allow the agency’s rule), all the FCC had to do was supply reasons – any – why its Net Neutrality regulation should go forward. Remember those millions of unverified, black box comments pouring into the FCC during the rulemaking process? Well, those reasons, and others that they approve of, will do. Basically, the Court’s inquiry stops there.

Letting agencies like the FCC write the law creates a rough road for all Americans.

We / Congress should stop letting agencies like the FCC write the law – it’s created a rough road that will soon prove impassable (if it already isn’t).

But tell me, what’s reasonable when 80 years of communications law “reasonableness” gets thrown out the window as if it never occurred? When free market arrangements – such as paid priority agreements, which are pro-consumer tools at work in every other core sector of our economy – get banned like they’re contracts of adhesion, or for illegal services like prostitution or drug trafficking, based solely on speculation, not facts or any actual harm to consumers?

I mean, paid priority agreements are Beelzebub’s spawn? Tell that to the Post Office, or our highway express lanes, or to Amtrak.

Gimme a break.

If facts do not matter, when reason has been cast aside, we’re in a whole-heap of trouble, Travis. At any point, three unelected bureaucrats can decide what’s “reasonable,” and then go about rearranging our economy, our commerce, our property, our speech, to conform to their views and ideology. And that’s just at the FCC.

Goodness, we’re [expletive deleted].

Congress must act to correct this with clear and focused law which clamps down on this game. If we do not soon, we deserve the rough road our Federal agencies have paved for us.

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This week’s Court ruling affirms – so far – that Net Neutrality is the law of the land. It will be at least a year-and-a-half before this can be challenged, and that outcome realized, via another DC Circuit appeal, or at the Supreme Court. Of course, clear congressional legislation overturning the ruling would be nicer, but I’m not holding my breath.

For the time being, Net Neutrality – and the regulatory shackles it brings to other aspects of the Internet ecosystem – will continue protecting Silicon Valley / Google from vigorous, pro-consumer competition. Consequently, the Court’s ruling fully thrusts the ecosystem into phase two of the law – that is, regulatory bypass by ISPs, and the resulting wack-a-mole steps the FCC will eventually exert to clamp down on that behavior (which is the full-employment-for-telecom-lobbyists-and-lawyers history of Title II).

Thankfully, there’s a small silver lining in all of this for ISPs. Necessity being the mother of invention, ISPs will begin working ever-more feverishly – and “creatively” – to keep apace with Silicon Valley. It stinks and is wasteful in that it has to be so indirect (instead of just spontaneously offering to the market otherwise “legal” products that are presumed to stand outside of any arbitrary regulatory quarantine), but heck, it’s gonna’ happen because of the needless distortions in the law which all but demand it.

The ISPs will start to introduce ways to legally, creatively bypass the FCC's Net Neutrality mess, as seen in this mock-up gift card. An added wasteful step to the already difficult and unpredictable process of innovation.

The ISPs will start to introduce new ways to legally (and “creatively”) bypass the FCC’s Net Neutrality mess, as seen in this mock-up gift card above. Sadly, it is an added wasteful step to the already difficult and unpredictable process of innovation.

Already, we see some of the biggest ISPs buying content vehicles and networks, seeking to gain a better toehold in / against the asymmetrically regulated edge space. I can envision other consumer-friendly techniques to be employed, too – like metered pricing, or “1-800” pricing, or bandwidth-on-demand, or user-directed priority lanes – to better monetize value stranded (or purposely made harder to mine) by the FCC’s spurious Net Neutrality law.

Innovation is a non-linear process. It is risky, too. The rigged regulatory game only makes that worse – which, I guess is its point, as it protects the very companies (e.g., Google, Facebook, Netflix, etc.) which pushed for those regulations.

Consumers demand better. Hopefully the ISPs will quickly figure numerous pro-consumer ways to bypass the FCC’s new regulatory labyrinth.

More to come…

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The following statement may be attributed to Mike Wendy, President of MediaFreedom.org:

Today, the DC Circuit Court of Appeals affirmed the FCC’s Internet power-grab, ruling that the Agency’s most recent Net Neutrality Order remains the law of the land. What is clear from the lengthy and detailed ruling is this: the FCC now holds the power to do just about anything it wants to in order to protect the “Open Internet.” This will not end well for consumers, free enterprise and free speech.

What does that mean in a practical sense?

It opens the door to a withering and new array of government-sponsored confiscations and perversions, all purportedly to protect the public interest. We already have a good indication of what that will look like with the FCC’s controversial ISP privacy and so-called “Unlock-the-Box” proposals, among others. Expect that to only increase as time goes by.

With this in mind, the question must be asked: Who’s going to (willingly, freely) take risk to build out new Internet infrastructure when it can be easily swept away by regulatory loophole?

Not many.

This is an important note of caution for Google, Facebook, and all the others who worked feverishly to impose this shackle on the American consumer. The power that the FCC used to create its Net Neutrality web will be employed widely, beyond merely ISPs – it is a regulatory certainty, a physical law.  It’s just a matter of time before the edge gets hauled into the next or subsequent FCC to “explain itself,” etc.

This was not Congress’ will.  We urge that Congress take back its jurisdiction and guide the “Open Internet” in a manner which reduces government control of the ecosystem, not increases it, as the FCC has clearly done.

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Fixing the traffic jam along the FCC's Electronic Comment Filing System means doing more than just changing the GUI.

Fixing the traffic jam along the FCC’s Electronic Comment Filing System means doing more than just changing the GUI.

The other day I participated in an FCC webinar which outlined new changes to the Agency’s beleaguered Electronic Comment Filing System. You may know that the system, which collects comments from stakeholders and the public on various proceedings before the FCC, has come under increased scrutiny of late due to its shutting down and / or its inability to quickly process filings at critical points during some important policy deliberations.

Heralding the soon-to-be new system was a blog post from the FCC’s CIO, which had this line:

“…we have spent months engaging with external stakeholders from law firms, industry and public interest groups, the press and FCC staff to solicit their feedback on the new system…”

Who knew (it’s about time)?

You see, during one of those comment shut downs, the FCC reportedly worked with Left-of-Center activists to get their comments on board and counted, basically ignoring Right-of-Center groups and about one million of their comments which faced a similar challenge. The result of the FCC’s unusual collaboration was a purposeful kiting of the numbers – a powerful PR datapoint – which was used to further “prove” the veracity of the activists’ and FCC’s pro-Net Neutrality cause.

If the FCC was working with the public to fix its ragged system, and, importantly, the potential for gaming it, I’d want to be part of that.  So, I inquired over to the FCC about the CIO’s “engagement” statement because this was the first I had heard about it.

The FCC spokesperson got back to me with this quote:

“FCC staff invited a large and diverse group of external stakeholders to attend webinars and demonstrations of the prototype of the new ECFS system over the past several months. This group includes recommendations from the members of the FCC’s advisory committees and include industry associations, law firms, non-profits, companies and consumer groups. Since the beginning of the process of modernizing ECFS, the public has been invited to provide feedback and attend webinars to learn more about the new system as it was being updated. All stakeholders and members of the public are invited to attend scheduled demonstrations of the new system to be held this month. After the switch-over to the new system later this month, the FCC will continue to make improvements based on public feedback.”

If I wanted to know exactly who the FCC contacted, I was told I could easily FOIA those lists. (Yeah, “easily.”)

Internally, I asked if anyone in our market-based listserve (which is comprehensive) had received such outreach or an invite. None had. Notably, two prominent figures who bore the brunt of the aforementioned ECFS shutdowns told me they hadn’t heard boo from the FCC on improving the system.  It seems some outreach could have / should have gone there, eh?

(“Blindspots” like this only confirm the belief that the Commission has it out for the small government crowd.  But I digress.)

Sure, the new system looks and works better than the old one. But, at a top level, the underlying process issues don’t appear to be addressed.

For practitioners, we know who we are. We’re from firms, companies or orgs. Any FCC official can get on the horn and see if our comments are real, and what they are about. That keeps our stuff in check. But, as in the case of the four million (wrongly-called pro) Net Neutrality commenters – the agency doesn’t, can’t, and won’t verify that. Their IP addresses aren’t kept. We don’t know if they’re even American. Quite frankly, there’s no way of knowing if they’re real, or if they’re an algorithm from some black box in San Jose, or Jakarta, or Johannesburg, etc. Yet they get “considered” by the Commission and are often used to bolster the Agency’s case. This disenfranchises real voices and their concerns.

I think the agency wants to keep it that way because, well, it works for it (at least this Commission). But that ain’t right.

When I questioned the FCC official giving the webinar how the Commission prevents against fraud – basically the answer was that the system wasn’t really built for that mission. Its primary value is ease of use for commenters. The obvious stuff – like one million comments coming in through a single IP address – that can get “dealt with” (whatever that means).  Beyond that…next question, please.

In a time of digital activism, e-grassroots tools are very sophisticated and can (and likely have) gamed the system. I don’t get a sense from the Commission that there are adequate checks to ensure this does not happen, or is minimized, or is “weighted” in some manner when it occurs. Digital ghosts crowding out real people is a racket, not due process. Putting Band-Aids on the ECFS does nothing to change that.

The Commission must work to ensure that real voices with real concerns are presented before it via the ECFS and elsewhere. Willful blindness to faux / special interest, digital spin perverts policy and harms the public interest.

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Only Cronyism Prevents FCC from Following FTC Privacy Model

June 6, 2016

Activist groups pushing for heavy-handed, public utility-style Internet privacy regulations cry that FTC enforcement of Internet privacy – one which has guided the Internet’s development for ISPs and edge companies these past two decades – no longer works… …for ISPs, that is. For companies like Google and Facebook – the most dominant and inescapable data […]

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Innovation at Government Speed – 8 Years to Update FCC’s Electronic Comment System

June 2, 2016

The President ushered in and mastered the web as a powerful tool to win elections and policy battles. You know, MoveOn.org, etc. The FCC picked up on this and encouraged the public to comment via the Web in its rulemaking process since the beginning of the Obama Administration. It’s cited those comments in its 2010 […]

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MediaFreedom Urges FCC to Avoid Preventing ISPs from Competing in Data Markets

May 28, 2016

Yesterday afternoon, MediaFreedom filed comments with the FCC on its proposal (in WC Docket No. 16-106) to effectively prevent ISP competition with edge providers in the data marketplace.  In brief, MediaFreedom urged the Commission to avoid such heavy-handed, asymmetric regulation, which benefits only companies like Google and Facebook, not consumers, and instead rely on the […]

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Many Robo-Comment Campaigns Are Really DoS Attacks to Disenfranchise Your Voice

May 20, 2016

Have you seen these tweets (pictured below) urging legislators to urge the FCC to “Unlock the Box.” They’ve clogged the @FCC twitter feed making it virtually useless these past couple of days. They follow a similar pattern – three or four tweets in a row, many from apparent Twitter newbies, all using the same cut-and-paste […]

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Facebook Bias Is Good for Us All

May 11, 2016

Chairman of the Senate Commerce Committee John Thune is highly exercised over Facebook’s reported left-tilt, anti-conservative bias in its influential “trending” section. So much so that yesterday Senator Thune sent Facebook CEO Mark Zuckerberg a sharp letter demanding some answers about the recent news reports. My advice to the Chairman would be this: Stand down, […]

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Google’s LTE-U FUD

May 9, 2016

Last week, Google-sponsored New America Foundation hosted a “briefing” in New York City called “Fast and Free.” It featured an NYC official who outlined the City’s programs to wire its most marginalized communities to broadband. Turns out, a lot of those efforts depend on wi-fi. And, didn’t you know that a new technology – called […]

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