Broadband and Net Neutrality

The Federal Communications Commission (FCC) has been ordered by a federal judge to turn over server logs associated with fake net neutrality comments to a pair of New York Times reporters.

The logs will contain the IP addresses linked to the millions of public comments supporting the repeal of net neutrality that were sent to the agency in the run up to the December 2017 net neutrality vote. 

New York Times reporters sued the FCC under the Freedom of Information Act after it initially refused to allow them to view the records, Gizmodo reports.

The agency previously argued that handing over the records containing IP addresses would represent an “unwarranted invasion of personal privacy.” However, Judge Lorna Schofield countered that the FCC didn’t specify how releasing the data would harm anyone.

Schofield ordered the agency to release the records, stating that the filing of fake comments poses a threat to the entire public comment system. The “notice-and-comment process has failed if there are more fraudulent comments than real ones,” Schofield said.

Time to ‘come clean’

In a tweet, Democratic FCC Commissioner Jessica Rosenworcel said it’s time for the agency to “come clean” about the fake comments. 

“Remember when the FCC tried to cover up fraud & fake comments in its #netneutrality proceeding? Journalists wanted to get to the bottom of this mess. The FCC told them go away. But a court just told the FCC to stop hiding from the press. So it’s time for the agency to come clean,” Rosenworcel stated. 

The release of the records is expected to shed light on the scope of the fake commenting and help investigators find out which groups may have been involved. 

Research carried out in 2018 suggested that the “vast majority” of real comments filed with the FCC ahead of the net neutrality vote were in favor of keeping net neutrality protections. FCC Chairman Ajit Pai insisted that there was Russian interference during the public commenting period. 

The FCC hasn’t commented on the judge’s order. 

Net neutrality is back in the news again. On Wednesday, the Federal Communications Commission (FCC) came out victorious over efforts by Mozilla -- the company that makes the Firefox web browser -- to reverse the commission's repeal of net neutrality. 

This is just another detour for net neutrality. The FCC can’t seem to find something it likes and stick with it. In the last couple of years alone, it’s discussed scrapping it and rolling it back, and officials were even getting hauled into a California court to face challenges brought by internet rights advocates.

Don’t put the cart before the horse, FCC

There’s a twist to this latest bit of unfolding news. Even though federal judges agreed with the FCC on the Mozilla case, they have asked the commission to further investigate if repealing the law for the sole purpose of preventing a multi-speed internet has had any negative repercussions. 

Those upshots include checking if repealing net neutrality has harmed public safety, reduced spending in infrastructure, or hampered the FCC’s Lifeline program.

Lifeline is an FCC initiative designed to make communications services affordable for low-income consumers. The Lifeline package of deals includes a discount on monthly telephone service, broadband Internet access service, or voice-broadband bundled service purchased from participating providers.

Bad move?

Not all FCC officials agree when it comes to the agency’s stance on net neutrality.

“The FCC got it wrong when it repealed net neutrality. The decision put the agency on the wrong side of history, the American public, and the law,” FCC Commissioner Jessica Rosenworcel said in a public statement.

She goes on to say that the court's decision will enable the FCC to get more public feedback so that the best course can be decided. She advises consumers to make their voices heard when the comment period begins.

“The American public should raise their voices and let Washington know how important an open internet is for every piece of our civic and commercial lives.  The agency wrongfully gave broadband providers the power to block websites, throttle services, and censor online content. The fight for an open internet is not over. It’s time to make noise,” Rosenworcel said.

Consumers who would like to comment on net neutrality can make their thoughts known through the FCC's Electronic Filing System by simply entering 17-108 (Restoring Internet Freedom) in the proceedings box. Comments are open until March 30, 2020.

An appeals court has ruled that the Federal Communications Commission (FCC) can’t legally ban states from implementing their own net neutrality laws. 

The federal appeals court handling Mozilla’s 2018 case against the FCC over its gutting of net neutrality rules said the agency “lacked the legal authority to categorically abolish all fifty States’ statutorily conferred authority to regulate intrastate communications.” 

However, the court upheld the FCC’s repeal of net neutrality laws. For this reason, FCC Chairman Ajit Pai called the decision a "victory.” 

"Today’s decision is a victory for consumers, broadband deployment, and the free and open Internet," Pai said in a statement. "The court affirmed the FCC’s decision to repeal 1930s utility-style regulation of the Internet imposed by the prior Administration. The court also upheld our robust transparency rule so that consumers can be fully informed about their online options."

Ongoing fight to maintain net neutrality

Mozilla said in a statement that it would continue to fight to “preserve net neutrality as a fundamental digital right.”

"We are encouraged to see the Court free states to enact net neutrality rules that protect consumers,” said Amy Keating, the chief legal officer for Mozilla. “We are considering our next steps in the litigation around the FCC’s 2018 Order, and are grateful to be a part of a broad community pressing for net neutrality protections in courts, states and in Congress."

Lawmakers in several states, including California, have voted to reinstate net neutrality protections at a state level. If maintained, the court’s ruling would preserve the right for those states to keep their own protections and would give other states the right to set their own as well. 

The House has approved a measure that restores net neutrality as the law of the land. But the chances of it becoming law are slim.

That’s because while Democrats now control the House, Republicans are still in the majority in the Senate, and Senate Majority Leader Mitch McConnell says the measure is not likely to ever be brought up for a vote.

The House action was largely symbolic since many Democrats had campaigned on a promise to restore net neutrality, a policy codified in 2015 by the Obama administration but overturned by the Trump administration’s Federal Communications Commission (FCC).

The principle of net neutrality holds that internet service providers (ISP) must treat all network traffic the same. They can’t offer faster speeds to one kind of traffic while slowing down other kinds.

Net neutrality supporters have warned that without this protection, ISPs -- such as AT&T and Verizon -- might favor their own content over their rivals’.

Restores regulations

The measure passed by the Democratic majority in the House would restore the FCC’s authority to regulate ISPs under Title II of the Communications, making them a public utility. Republicans have consistently argued that ISPs are not public utilities.

“This legislation not only protects consumers from large corporations, but it also strengthens our economy by promoting innovation and small businesses,” said Rep. Michael Doyle (D-Pa.),, author of the bill. “Net neutrality ensures that any business, no matter how small, gets the same internet at the same speeds as giant corporate interests. That’s only fair, there should not be favorites.”

A moot point?

While the legislation may have no chance of passage the issue of net neutrality continues to divide Republicans and Democrats. But some industry experts have suggested the arrival of 5G internet service make the issue a moot point.

In a recent editorial, Investors Business Daily said Verizon’s new 5G Home internet service “obliterates” the argument for net neutrality. The writer argued that 5G service offered by providers will end the monopoly of wired ISPs.

“With 5G, the cost of bringing high-speed internet to everyone, nationwide, plunges,” the editorial states. “There's no doubt that traditional cable companies will start building out their own networks, for fear of losing all their customers to faster, cheaper 5G services.”

With 5G, some argue there will be enough speed and bandwidth to accommodate all content providers. The editorial suggests that “the use of wires to connect homes to the internet could very well become as antiquated as those old dial-up modems.”

Republicans are pushing back against the Save the Internet Act, a bill announced last week by Democrats. The bill, which was introduced in both the House and Senate, would reinstate net neutrality regulations by codifying the Federal Communications Commission’s (FCC) 2015 Open Internet Order into law.

In a hearing on Tuesday before a subcommittee of the House Energy and Commerce Committee House, Republicans called the bill "extreme,” the Hill reported.

"Instead of engaging with us to try to solve the problem, my colleagues have retrenched back to the most extreme position in this debate," said Rep. Bob Latta (R-Ohio), a ranking member on the committee. "[The bill] has no chance of even passing the Senate or being signed into law."

Partisan issue

Democrats have argued that internet service providers (ISPs) should be classified under portions of Title II of the Communications Act, a section that allows the FCC to protect consumers against unfair internet traffic practices such as blocking, speeding up, or slowing down access to specific online services.

Republicans disagree that the “Title II” classification is necessary. At the hearing, Republicans promoted three bills recently introduced by Reps. Latta, Greg Walden (R-Ore.), and Cathy McMorris-Rodgers (R-Wash.) that would reinstate some net neutrality protections without reimposing the Title II classification.

Subcommittee Chairman Mike Doyle, D-Pa., who sponsored the legislation, said at the end of the hearing that the bill will continue the committee process in the House.

Doyle said the legislation would “restore popular, bipartisan, common sense net neutrality protections–and put a cop back on the beat to protect consumers, small businesses, and competitors from unjust and unreasonable practices by Internet Service Providers.”

Democrats on Wednesday introduced a bill to reinstate net neutrality laws repealed by the Trump administration’s FCC.

The bill, called the Save the Internet Act of 2019, aims to restore laws preventing internet providers from blocking, speeding up, or slowing down access to specific online services.

"This legislation brings the power of the internet to every corner of this country, from rural America and to our cities," House Speaker Nancy Pelosi, D-Calif., said in an announcement Wednesday. "A free and open internet is a pillar in creating opportunities."

Senate Minority Leader Chuck Schumer called the bill a “real bipartisan effort.”

“Last spring, our colleagues in the United States Senate were given that choice to side with the average person, rather than the big special interests, to side with protecting consumers and entrepreneurs,” Schumer said.

“Unfortunately, all but three Senate Republicans voted on behalf of special interests. It passed the Senate, but unfortunately a Republican House of Representatives shelved it. Now we have a Democratic House and Republicans have a second chance to right the Trump Administration’s wrong.”

The Save the Internet Act is being introduced in both the Democrat-controlled House and the Republican-controlled Senate, with hearings on the bill set to begin next week.

Efforts to restore net neutrality

Net neutrality rules were rolled back in 2017 by a Republican-dominated FCC. The agency’s chairman, Ajit Pai, argued that the “light-touch” regulatory approach that took the place of the Obama-era regulations would give broadband providers more incentive to innovate and build networks.

"In place of that heavy-handed framework, the FCC is returning to the traditional light-touch framework that was in place until 2015," the FCC said. "Moreover, the FCC today also adopted robust transparency requirements that will empower consumers as well as facilitate effective government oversight of broadband providers’ conduct."

In the time since the rules were repealed, several states have voted to reinstate net neutrality laws and 22 state attorneys general have come together to block the FCC’s rollback of net neutrality.

The activist group Fight for the Future has garnered nearly 25,000 signatures in a petition asking legislators to defend net neutrality and "protect the free and open Internet for generations to come."

“With the Save the Internet Act, Democrats are honoring the will of the people,” Pelosi said.

Net neutrality found itself at another fork in the road over the weekend, with the Texas State House of Representatives considering a bill to make throttling data during emergency situations unlawful.

Specifically, State Representative Bobby Guerra’s proposed bill lays out that, effective September 1, 2019, “mobile Internet service provider(s) may not impair or degrade lawful mobile Internet service access in an area subject to a declared state of disaster.”

Having had its fill of recent disasters like Hurricane Harvey, Texas wants to make sure it doesn’t suffer the same money grab that California did in the midst of its 2018 firestorm. During the Golden State’s incendiary ravage, Verizon was heavily criticized when it throttled the data plans of firefighters working at the Santa Clara County fire department.

“This throttling has had a significant impact on our ability to provide emergency services,” Santa Clara County Fire Chief Anthony Bowden said at the time. “Verizon imposed these limitations despite being informed that throttling was actively impeding County Fire’s ability to provide crisis-response and essential emergency services.”

Money over sense?

Reportedly, Bowden's staff approached Verizon to try to remedy the situation. While Verizon confirmed that throttling did occur, it agreed to restore the fire department to “essential” data speed if -- and only if -- the fire department upgraded to a new plan.

“If that situation sounds slightly ridiculous to you, you certainly aren't alone,” wrote Techspot. “The fire department was frustrated by Verizon's response, to say the least, and sent Verizon account manager Silas Buss a series of hectic emails in a desperate attempt to get the restrictions lifted.”

Reports say that Buss finally relented somewhat and offered a $99 plan that would cost the fire department an extra $8 per gigabyte once it reached its 20GB cap. Ars Technica reported the fire department decided that plan was the best fix, but only for the short-term.

Evan Greer, deputy director of the nonprofit advocacy group Fight for the Future, points out that Texas' proposed law could be a good first step towards restoring protections that were overturned by the current Federal Communications Commission (FCC).

"Telecommunications companies like Verizon, Comcast, and AT&T hold tremendous power. We saw during the wildfires in California that, without proper oversight, they can abuse this power in ways that not only undermine free speech but also public safety. It's great that states like Texas are pushing for legislation to hold these mega-corporations in check, but it's not a replacement for a functional FCC that is actually doing its job and protecting the public," Greer said in a statement to ConsumerAffairs. 

"Congress should act immediately to reverse Ajit Pai's repeal of basic open internet protections, and demand that the FCC engage in proper oversight of internet providers to ensure they don't behave in ways that put people in danger." 

Debate over an even internet playing field continues

All of this push-and-pull goes back to net neutrality -- the assumption that internet service providers should treat all transmission of data over the internet equally and not discriminate or charge differently based on user, content, website, platform, application, type of equipment, or method of communication.

In its power to the people stance, California has spared no effort to try to reverse the FCC's controversial decision to roll back Title II net neutrality protections.

However, the state’s attempts might be an uphill climb. FCC Chairman Ajit Pai claims that net neutrality, as envisioned by California law, hurts consumers. Pai says that under the law, large service providers like Verizon would be prohibited from offering some free data plans that he says allow consumers to stream video and music, exempt from any data limits.

“They have proven enormously popular in the marketplace, especially among lower-income Americans,” Pai said. “But notwithstanding the consumer benefits, this state law bans them.”

A federal appeals court has rejected the Federal Communications Commission’s request to delay a court hearing regarding its decision to repeal net neutrality rules.

Earlier this week, the agency requested that oral arguments be postponed due to the ongoing government shutdown. The FCC argued that the shutdown has translated to a lack of sufficient time and resources for lawyers to prepare for the hearing.

“Due to the recent lapse in funding for the FCC and the relevant component of the Department of Justice, the Commission believes that, in an abundance of caution, it should move for an extension to ensure that attorneys may fully prepare for argument," FCC attorneys said in a motion.

But on Thursday, a three-judge panel on the D.C. Circuit Court of Appeals rejected the request. The court is still scheduled to hear arguments on February 1.

Net neutrality advocates to speak out

At the hearing, a coalition of groups opposing the FCC’s December 2017 repeal of net neutrality regulations will argue that the rules are necessary to prevent broadband providers from engaging in censorship and harming competitors.

“In a case where consumer protections are at stake, we are glad to see the hearing proceed as planned,” said Amy Keating, Mozilla Corporation’s general counsel. “We are looking forward to appearing on Feb 1.”

Another group challenging the FCC’s order, the trade group Incompas, said the agency’s “misguided and unlawful repeal of the network neutrality rules” has put consumers “at risk of substantial harm from Internet Service Providers (‘ISPs’), which may now interfere with access to lawful Internet content without the restraint of the net neutrality rules.”

“There is a need for a timely decision in this important matter,” Incompas wrote in papers filed this week.

The government shutdown has not affected the operations of the U.S. Court of Appeals for the District of Columbia, although the Federal Communications Commission (FCC) apparently wishes it would.

The FCC has filed a motion with the court seeking a delay in oral arguments in a case that could potentially restore net neutrality. Oral arguments in a case, brought by a number of industry groups, are scheduled for February 1.

The plaintiffs are seeking to reverse the FCC’s action in overturning Obama administration rules that codified net neutrality, meaning ISPs must treat all internet traffic the same. While the government shutdown has not affected the court’s operations, it has impacted the FCC.

“Due to the recent lapse in funding for the FCC and the relevant component of the Department of Justice, the Commission believes that, in an abundance of caution, it should move for an extension to ensure that attorneys may fully prepare for argument," FCC attorneys said in a motion.

The FCC said the Justice Department has advised federal agencies to request delays in active civil cases until government funding has been restored. The FCC asked the court to rule quickly on its motion so that FCC attorneys can adequately prepare if oral arguments take place as scheduled.

Plaintiffs oppose any delay

One of the industry groups suing to restore net neutrality is also opposing the FCC’s bid to postpone the proceedings. The group INCOMPAS filed a counter motion saying the issue is too important to delay.

“The repeal of the rules also threatens edge providers, as they are facing the risk of blocking, throttling, and other practices by ISPs,” the group said in its motion.

INCOMPAS represents streaming companies, edge providers and broadband network builders who say they will be harmed by the end of net neutrality. The group points out there is legal precedent during previous government shutdowns for moving forward with scheduled court actions. A delay, the group contends, holds risks to consumers and the streaming revolution.

“Over 80 percent of Americans oppose the FCC action to end strong net neutrality policies that gave rise to the streaming revolution and brought stronger open internet freedoms,” the group said in a statement. It’s time for net neutrality to have its day in court, so consumers, streamers and internet dreamers can have the threat of ISP gatekeeper fees, paid prioritization and blocking behavior removed from the equation.”

Not enough votes were gathered in the House of Representatives by the end of the year to use the “legal loophole” that would make it possible to undo the Federal Communication Commission’s decision to repeal net neutrality rules, so the legal battle is headed to the court of appeals.

The FCC, led by Republican chairman Ajit Pai, voted in December 2017 to roll back the Obama-era rules that would require all internet traffic to be treated the same. The rules were officially repealed in June of this year.

Since then, lawmakers in several states, including California, have voted to reinstate net neutrality protections at a state level. However, the Justice Department filed a lawsuit against the state of California in September charging that the state’s new net neutrality rules law place “unlawful burdens” on the federal government's efforts to deregulate the internet.

Moving to appeals court

Now, CNET reports that Democrats were unable to garner enough votes to use the Congressional Review Act as a way to undo the FCC's decision to wipe net neutrality rules from the books.

“Attorneys general from 22 states, along with several activist groups and tech companies like Mozilla, have filed suit, accusing the FCC of arbitrarily rolling back the rules and overstepping its authority to ban states from passing their own protections,” CNET reports.

“The heated legal battle could eventually end up at the Supreme Court, where all eyes will be on the newly appointed Justice Brett Kavanaugh, who questioned the FCC's authority to adopt the original net neutrality protections,” according to the tech website.

Matt Schettenhelm, a legal analyst with Bloomberg Intelligence, said he expects the next phase of the legal battle over net neutrality to “be mostly about waiting for litigation." Oral arguments are scheduled to begin on February 1 at the Federal Court of Appeals for the DC Circuit.

The Justice Department has launched an investigation into the fake comments that were submitted to the Federal Communications Commission (FCC) in the runup to the agency’s controversial net neutrality vote.  

The Justice Department is looking into whether the fraudulent comments, which potentially number in the millions, constitute a crime based on the fact that millions of people’s identities were posted on the FCC’s website without their permission.

BuzzFeed News reported over the weekend that two organizations that had previously received subpoenas regarding a separate New York attorney general’s office investigation confirmed that they had received new subpoenas from the FBI.

“The reports are the first that federal investigators are taking in interest in the case, which was already subject to an investigation previously announced by the New York Attorney General’s office,” BuzzFeed reported. “Both organizations had previously been subpoenaed by New York and said the scope of those subpoenas were similar.”

Fake net neutrality comments

Over 22 million comments were filed to the FCC’s digital comment system ahead of its vote to ultimately roll back Obama-era net neutrality rules. Since then, researchers have analyzed how many of the comments were actually unique and in favor of rolling back the regulations.

A study conducted earlier this year found that 99.7 percent of unique comments (meaning those that weren’t made through campaigns that filed fake comments using the names of real people) were in favor of keeping net neutrality protections.

The FCC maintained for several months that its comment system was the target of a cyberattack, preventing consumers from utilizing the website to voice their opinion on the proposed net neutrality decision. Chairman Ajit Pai later admitted that the so-called cyberattack never took place.

Pai said recently that about 500,000 of the comments were linked to Russian email addresses. However, he has refused to release the data logs because he says the information must be kept private in order to help prevent cyber attacks.

Releasing the data logs would also violate the privacy interests of Americans who commented on the net neutrality repeal, he said.

Commissioner Jessica Rosenworcel, the agency’s only Democratic chairperson, argued that the regulator is trying to "hide" behind Freedom of Information Act exemptions.

Federal Communications Commission (FCC) Chairman Ajit Pai said it’s a “fact” that there was Russian interference in the public comments filed ahead of the net neutrality decision last year. Pai said a “half-million comments” were submitted from Russian email addresses.

Pai’s claims, made via a memorandum this week, were issued in response to a lawsuit brought by the New York Times. A few weeks ago, the Times requested access to the IP addresses and server logs of those who submitted comments during the agency’s net neutrality docket.

In obtaining the records, the newspaper said it hoped to “shed light to the extent to which Russian nationals and agents of the Russian government have interfered with the agency notice-and-comment process about a topic of extensive public interest.”

Withholding server logs

During the time the FCC was seeking public comments ahead of the controversial vote to roll back net neutrality rules, the agency reportedly received more than 23 million comments. In October, a study found that 99.7 percent of unique comments filed on the FCC’s website ahead of the vote were in favor of keeping net neutrality protections.

Pai said this week that the FCC chose not to release the records because the information must be kept private in order to help prevent cyber attacks. Releasing the data logs would also violate the privacy interests of Americans who commented on the net neutrality repeal, he said.

The same memorandum also included a statement of a different tone from Jessica Rosenworcel, the Commission’s only Democrat, who said, “something here is rotten— and it’s time for the FCC to come clean.”

Earlier this year, Rosenworcel said in an op-ed for the Washington Post that the agency “logged about half a million comments sent from Russian email addresses. It received nearly 8 million comments from email domains associated with FakeMailGenerator.com with almost identical wording.”

The Commission’s decision not to release the data logs comes a few months after the agency admitted that it lied about a so-called cyberattack on its comment system ahead of its ultimate repeal of net neutrality rules in December of 2017.

Prior to the admission, the agency had told the media on numerous occasions that the comment system had been targeted by hackers, preventing consumers from voicing their opinion on the vote.

“We look forward to challenging in court the FCC’s refusal to provide this information, which the public is entitled to have,” a spokesperson for the New York Times told Gizmodo.