Net Neutrality

End The Policy Pingpong, Cement Net Neutrality Into Law

By Mike Montgomery

Like any reality show that hinges on ginning up new drama for its captivated viewers, the debate over net neutrality, now more than a decade old, is fueled by manufactured conflict.

Since 2005, here’s the scorecard: three attempts by the Federal Communications Commission (FCC) to implement net neutrality rules, two reversals, endless litigation and a whole lot of outrage by interest groups and think tanks on all sides of the issue that rely on perpetual conflict to fundraise.

That outrage has worked, inspiring more than 20 million net neutrality comments since 2014 — more than have been submitted about any issue in FCC history.

 

This endless loop is not doing most stakeholders any good; not the small businesses that net neutrality is designed to protect from being relegated to slow lanes, nor the consumers who want the new services and ever-increasing internet speeds that innovation and investment create.

Americans seem to understand this: According to a new survey, Americans overwhelmingly favor a permanent law over regulations that can be changed from administration to administration. Indeed, 74 percent of Americans said they would support net neutrality legislation that enabled them to use the internet free from government or corporate censorship, while creating rules that ensure a level playing field.

It’s time to end the slowest game of policy pingpong before it drags into another decade. It is high time for Congress to finally step up — after multiple decades of hibernation — and pass affirmative, bipartisan legislation that makes net neutrality the law of the land. That is something that CALinnovates has proposed for three years now; we are gratified that others are finally jumping on the bandwagon.

Unfortunately, many still balk. They would rather decry what the FCC is doing in reconsidering the Open Internet Order or rail against “government control.” In an ironic move, the “Day of Action” really highlighted the inaction we are stuck with — yet another round of public protests and bluster against the inevitable FCC reconsideration of the Open Internet Order instead of real action to demand that Congress enshrine net neutrality into law.

Let’s call that what it is: faux outrage. There is an opportunity — right now — to settle net neutrality once and for all with legislation that would ensure that whoever is in the White House and in charge of the FCC won’t rewrite the rules. Neither side is likely to get 100 percent of their demands, but there’s clear agreement over the core 95 percent that should be cemented into law.

Such legislation must guarantee clear rules that prohibit blocking and throttling and guarantee transparency. In short, there should be no discrimination whatsoever. Legislation should ensure that no “fast lanes” for preferred content are allowed to develop through paid prioritization, with few exceptions, such as free data. Free data (aka zero rating) and other offerings that don’t count against data caps must demonstrate how they provide consumer benefits and encourage, rather than stifle, competition.

Such legislation is likely to garner wide support, especially among younger voters. The recent survey revealed a surprising nuance about younger voters’ stance on internet governance. Contrary to previous understanding about millennials’ views on internet issues, the survey found these Americans are the most likely to think the internet is over-regulated. In fact, 18- to 29-year-olds were nearly twice as likely to favor congressional action over FCC oversight.

If Congress were to enact bipartisan legislation, the principles of an open internet would be the law — and the net neutrality reality show would be cancelled prior to season 13. Is there another option? Sure. Partisans could wait for the next Democratic president to appoint an FCC chair. At the earliest, that’s in 2021. Can the country go that long without net neutrality?

We can’t, and shouldn’t have to wait for inevitable swings in partisan control to settle this for the benefit of all sides. Congress must wake from its two-decade slumber regarding internet policy to take the decision away from the FCC and cement net neutrality once and for all.

As a strong supporter of the principles of net neutrality, CALinnovates believes Congress can muster such courage. Now it is time to see if interest groups representing all positions in this debate will set aside their faux outrage long enough to put their heads where their hearts are.

Mike Montgomery is the executive director of CALinnovates, a coalition of tech companies, founders, funders and nonprofits that aims to educate policymakers, elected officials and regulators on the virtues of the 21st-century digital economy and raise the issues of importance to the technology community at the local, state and federal levels of public policy.

This piece was originally published in The Hill.

Day of Action Should Not Just Be One Day

By Mike Montgomery

As many know, today is a day of action on net neutrality. For everyone who believes in the principle of net neutrality, however, we shouldn’t reserve just one day. That’s because for nearly a decade a cloud of uncertainty has hung over the future of net neutrality. It is time for that uncertainty to end but it will take a sustained effort, not just one day of protest to fix this. For too long the fate of net neutrality has been subject to whomever sits in the White House and nominates the FCC chairperson.

As we have been saying since 2014, we need to translate today’s day of action into a sustained effort to get Congress to write into law the principles of net neutrality, which are foundational in the digital age. That will protect entrepreneurs and provide a level playing field. This isn’t a new approach for CALinnovates as it is for many engaged in the debate. We have said for 3 years that legislation is not only important, but that it is vital. As one of the first voices to argue for legislation to codify these important principles in stone, we didn’t push the easy button and accept temporary regulations.

We know there are some who don’t see it that way. They would rather rail at the FCC for once again reversing its position. But what good does that do? If a Republican is in charge, the FCC sees net neutrality implementation one way; if a Democrat is in charge, the FCC sees implementation another way. Either way the other party raises campaign funds arguing that when they are in charge next they will switch things up. Meanwhile, consumers and entrepreneurs lack certainty that legislation would provide about fair, clear rules of the internet road.

This back and forth is the worst of all worlds because it creates uncertainty: for consumers, for entrepreneurs and for the infrastructure providers. Here’s what we know: the current FCC is going to go in a different direction when it comes to net neutrality. Whether you agree with that — and there are a lot of technologists and policymakers on both sides of the issue — that’s the political reality. So where do we go from here?

CALinnovates has long sought a third-way on net neutrality — one that ensures it is a guiding principle but doesn’t lock into place provisions that freeze future innovation. A lot of the focus has been on the FCC’s use of

Title II of the Communications Act of 1934. And it’s not just CALinnovates that is concerned with Title II — a large group of Internet pioneers have raised serious concerns (the list of these tech leaders is below).

Here’s what one leader, John Perry Barlow — the co-founder of the Electronic Freedom Foundation — wrote: “Telecom regulations give a lot of leverage to organizations whether governmental or corporate to close down the right to know. My long experience says as soon as you give government the authority to impose regulations on the Internet you are doing something to frustrate the right to know. People tend to presume on theoretical grounds a little right minded regulation will help people build beneficial architectures and organizations. I do not think there is anything to support that theory. Every time I have seen any sort of regulation of the Internet the results have been mayhem. Declaring the Internet and the telephone network to be the same thing is like declaring a Buick and a symphony to be the same thing because they both make noise.”

The problem with Title II is that although it does, in theory, ensure that all data is treated equally and that companies can’t carve out fast lanes, it also opens the door to the internet being frozen into a time capsule that discourages network modernization, which supports the next wave of innovation and increased competition among providers. The digital world moves at the speed of light. To slow growth to the speed of bureaucracy would have serious negative effects on the tech industry that is continually transforming.

When others were calling for regulations, we argued for legislation. We were ahead of the curve while others engaged in the food fight that defines the net neutrality debate. Now, though, we are glad others are finally echoing what we’ve been saying since 2014. Bipartisan legislation would end for once and for all the endless cycle of FCC rule-making, litigation by those who oppose it, more FCC rule-making, repeal of FCC rule-making, protests, more protests and counter-protests. Our position hasn’t made us popular with those who profit from protest, but it has been the right thing to do the whole time. Today, we reiterate our call for Congress to enact commonsense legislation that put flexible but important principles into law that protect consumers and give some direction to entrepreneurs.

If net neutrality is as important as we all say it is, it should be the law of the land, not a political hot potato resting on the third rail of American tech policy for another decade.

Tech leaders concerned about Title II regulation of the Internet :

1. John Perry Barlow, lyricist, activitist, and co-founder EFF

2. Gordon Bell, researcher emeritus, Microsoft

3. Mark Cuban, founder, AXS TV & Owner, Dallas Mavericks

4. Tim Draper, co-founder, Draper Fisher Jurvetson

5. Tom Evslin, founder & former, CEO ITXC

6. Dave Farber, Professor Emeritus, CMU & Board Member ISOC and EFF

7. Toby Farrand, VP Engineering, Ooma

8. David Frankel, founder ZipDX, Jetstream, & HD voice pioneer

9. Martin Geddes, former BT Strategy Director

10. Charlie Giancarlo, Sr Advisor, Silver Lake & former Chief Development Officer, Cisco

11. George Gilder, futurist and author

12. John Gilmore, activist and co-founder EFF

13. Bryan Martin, Chairman and CTO, 8×8

14. Doug Humphrey, co-founder Digex, Cidera & first east coast ISP

15. Joe McMillen, founder Complex Drive & lead developer first carrier grade VoIP gateway

16. Scott McNealy, co-founder SUN Microsystems

17. Bob Metcalfe, Professor, University of Texas & co-founder 3Com, inventor of Ethernet

18. Andrew Odlyzko, Professor, University of Minnesota

19. Ray Ozzie, creator of Lotus Notes & former CTO Microsoft

20. Jeff Pulver, cofounder, Vonage & Zula

21. Sandra Rivera, VP Data Center Group and GM Network Platforms (leads SDN/5G initiatives)

22. Michael Robertson, CEO, MP3.com

23. Les Vadasz, former EVP, Intel

Mike Montgomery is Executive Director at CALinnovates.

Mike Montgomery: Title II And Common Carriers: How The FCC Can Save Net Neutrality And Still Ruin the Internet

By Mike Montgomery

Prolonged discussions of Federal Communications Commission regulations are typically about as stimulating as a fistful of Ambien — except when it comes to net neutrality.

With the FCC poised to issue new rules governing how Internet service providers manage and price the traffic that flows through their networks, Americans woke up and spoke up so loudly that they crashed the agency’s website last month. The million-plus comments from concerned citizens were the most the FCC has ever received during a proposed rule’s public comment period — and just a few hundred thousand shy of the number of complaints that poured in after Janet Jackson’s infamous “wardrobe malfunction.” When we’re comparing tech regulations to Super Bowl nipple slips, you know we’re in a different kind of debate.

You probably haven’t had a chance to read all 1,067,779 comments. Neither have I. But most support an outcome preserving the wide-open Internet that birthed our current era of innovation, transformation and disruption. The question now is how to achieve this.

The debate so far has been oversimplified: Are you for net neutrality or against it? That reductive framing may lead us to embrace a solution that doesn’t solve the problem.

From where I sit at CALinnovates, representing tech companies dependent on the open Internet to survive, this debate is incredibly important. Disruptors like ride-share platform Sidecar and conference-call service Speek shouldn’t be forced to bid against deep-pocketed giants — or anyone, for that matter — for their share of bandwidth. Nor should they be forced to adapt to regulations that would suppress new ideas or hamstring the entrepreneurs who hatch them.

They, along with countless other startups and aspiring innovators, agree: We need an outcome that preserves the openness of the Internet.

Unfortunately, it’s not so simple. Let me explain. The leading proposal in Washington to achieve that goal is to reclassify broadband providers as “telecommunications services.” This would allow the FCC to regulate providers using authority granted it under Title II of the Communications Act of 1934.

As you have undoubtedly noticed, the Communications Act of 1934 was passed in 1934. That means the FCC is gathering input as it considers adopting the same legislative framework for the Internet that existed back when “wireless” meant the hand crank on your grandparents’ AM radio.

Title II turned our nation’s telephone system — a single network operated by a single company, Ma Bell — into a highly regulated utility, just like water and electric companies. While they helped protect consumers from the excesses of a corporate monopoly, Title II’s restraints hardly made that phone network an innovative one.

Ask your parents: Under Title II, innovation in telecom meant being able to buy a different color of the same phone chosen by the monopoly at a price set by the government. This same law can’t accommodate today’s sprawling, bustling, magically fragmented Internet, a miracle of technology unimaginable in 1934 — or even in 1996, when the act was updated for the “modern” era.

By turning the Internet into a utility, we’ll bleed tech innovation with a thousand paper cuts. Would we even know what an iPhone is if Steve Jobs had to run his pricing models past the FCC? Would Twitter be fomenting revolution if Jack Dorsey needed to check with regulators about what kind of data can be shared online and by whom?

It sounds far-fetched, but that’s how it would work. Under Section 214 of Title II, common carriers have to ask for approval before discontinuing nonperforming platforms or launching new ones.

Shoehorning Internet companies into Title II and treating them as common carriers won’t just slow Silicon Valley down to Beltway-at-rush-hour speed; it will also render impossible a great many things that have become part of our daily routines, like using on-demand services from location-based smartphone apps.

Under Section 222 of Title II, companies have a duty to protect the confidentiality of customers’ proprietary network information. Sounds benign, right? Well, it means wireless location data could no longer be shared with Internet companies for mapping or advertising. Location-based companies would be limited by, in the regulators’ lyrical stylings, the “use or disclosure” of “call location information concerning the user of a commercial mobile service.” In plain English, that means companies like dating service Tinder, car navigation service Waze and ride-sharer Uber could soon become relics of the past. At the least, they would have far higher hurdles and costs in launching and attracting investment capital.

The big losers in all this would very likely be startups and the consumers they seek to serve. For large, established digital companies, these new regulations would probably just be an inconvenience. For startups that don’t have the resources to fight Title II classification, or the in-house legal teams to interpret the new requirements, the rule changes would be a death knell.

Before we trade the devil we know for the devil our grandparents knew, we should pause to ask ourselves whether legally defining the Internet as a utility will keep it both open and innovative — or act as a drag on creativity and growth.

I’m pro-net neutrality, but anti-1934-style strangulation. Where does that leave me? According to the approaches under consideration, I may soon be a man without a country. Good thing the Internet, at least for now, doesn’t require a passport.

Mike Montgomery is the Executive Director of CALinnovates,

This piece was originally published in The Huffington Post.

Mike Montgomery: New Report by Faulhaber, Singer, And Urschel Shows That In Tech-Driven Economy, FCC Needs To Step Up

By Mike Montgomery

It’s clear that technology is a key driver of prosperity in today’s modernizing economy. Trillions of dollars in economic activity flow through the networks which make up the internet, making America’s digital economy the envy of the world. Networks are redefining the services people consume and the income people derive. For example, according to a Pew survey, 72 percent of Americans have used a sharing or on-demand service.

That’s why the Federal Communications Commission has never been more important. From last year’s Net Neutrality rules to current proceedings about set-top boxes, internet privacy and business services, FCC rules are shaping the future of the internet – and the broader economy that it fuels. Whether you agree or disagree with these regulations, everyone agrees they will have a profound impact.

That is why it’s so disconcerting to see the FCC disconnected from the economic impact of its decisions. In a report he published in July, the FCC’s very own former chief economist, Gerald Faulhaber, Ph.D., along with economists Dr. Hal Singer and Augustus Urschel, raised alarms about the agency’s dangerous turn away from economic analysis in its decision making.

In the report, Dr. Faulhaber, Dr. Singer, and Urschel ask: Why do the U.S. Department of Labor, the U.S. Environmental Protection Agency and the Consumer Financial Protection Bureau all conduct stringent cost-benefit analyses on their decisions while the FCC does not?

The FCC has simply become too important to the economy for it to fail to explore the economic impact of its decisions. For example, numerous economists warned the FCC that its decision to impose so-called Title II regulations on internet service providers, which treats today’s advanced broadband access in the same way as telephone services from generations ago, will have a negative impact on investment and innovation while not solving the issue we all want addressed: how to ensure that internet traffic is treated fairly across networks, regardless of where it comes from. Yet, when issuing its Open Internet Order, the FCC conducted no economic analysis of the impact its proposed rules would have on consumers, innovation or investment.

How is that possible?

The problems continue. The FCC is currently facing a major backlash from Congress, Hollywood and many innovators for its proposed new technology standards for set-top boxes.

Economists and legal analysts, including Harvard’s Laurence Tribe, are protesting a new FCC proposal to apply stifling “opt in” rules for internet privacy – distorting the market by creating arbitrary and inconsistent requirements for the same data when it is used by different companies and precluding companies from even the most mundane communications with their customers.

The agency is even considering abandoning years of economic precedent on whether and how markets should be regulated to impose rate regulations in business services where competition is thriving.

How the country utilizes spectrum is another issue where the FCC seems intent on picking winners and losers instead of maximizing the economic value of this public resource. In other words, once again, economics is taking a back seat to some other agenda.

If the FCC had undertaken rigorous economic analysis and evaluated the costs and benefits of these proposals it could have avoided these controversies and worked toward genuine consensus on pro-consumer, pro-innovation policies. That is what we should expect from a government agency that is supposed to be a subject-matter expert.

Traditionally, responsibility for managing the economy fell to the White House, the Treasury Department and the Federal Reserve — all economically expert operations. But the FCC is now elbowing its way into this mix by flexing jurisdiction over the internet and much more. But as the saying goes, with great power comes great responsibility.

So what can be done? If the White House isn’t prepared to insist the FCC factor economic impact into its decisions, it will be up to Congress.

Lawmakers have many tools at their disposal. Oversight hearings can shine a light on how the FCC makes its decisions. Congress can ask the Government Accountability Office to investigate how the FCC factors economics into its decisions – or fails to. And, of course, if Congress thinks the FCC has made decisions based on faulty or no economic reasoning, it can pass legislation to overturn faulty rules.

Hopefully the FCC will take stock of the criticism from people – like Faulhaber– who know it best, and make changes that will help the agency take the economic impact of its decisions into account.

After all, if the FCC wants to sit at the “adult table” when it comes to deciding our economic future, the very least we can expect them to do is their homework. According to Dr. Faulhaber and others, the agency hasn’t earned that seat just yet.

Mike Montgomery is executive director of CALinnovates, a San Francisco-based technology advocacy coalition.

This piece was originally published in Morning Consult.

Congress Should Write Net Neutrality Into Law

By Mike Montgomery

Net neutrality is a foundational principle in the digital age. But for too long its future has been uncertain due to changes in leadership and politics. That is why it’s important for Congress to do what only it can do through a bipartisan process: enshrine the principals of net neutrality into law.

Wednesday’s announcement by Chairman Ajit Pai that the FCC will open rulemaking proceedings to reverse the Title II regulations put in place by the last administration does not change the need for a law. In fact, it shows what a political football net neutrality has become.

While politicians seem disinclined to agree on anything these days, there are good reasons why they should work together on this. While net neutrality proponents were pushing for the Federal Communications Commission to regulate the internet under Title II of the Communications Act of 1934, many of them instantly suffered from buyer’s remorse when the FCC did just that in 2015.They realized that subjecting the internet to utility-like regulations may not be the best way to encourage innovation around privacy, security and new features that could not only make our lives more efficient but delight us. Companies like Netflix backtracked on their support for Title II.

The problem with Title II is that although it does, in theory, ensure that all data is treated equally and that companies can’t carve out fast lanes, it also opens the door to the internet being frozen into a time capsule that discourages network modernization, the next wave of innovation and competition among providers. The digital world moves at the speed of light. To slow that growth to the speed of bureaucracy would have serious negative effects on the burgeoning tech industry which is creating jobs faster than almost any other industry out there.

Another problem is that while the previous administration was happy to enforce net neutrality through Title II, it’s now clear that the current administration would like to keep the tenets of net neutrality in place, but toss Title II into the regulatory dustbin. Chairman Pai has shown that he’s an advocate for the principals of net neutrality — he just doesn’t agree that the internet should be regulated like a utility.

So here we go again. Proponents of each side of the argument are gearing up for another bite of the regulatory apple as the FCC reopens the debate around net neutrality. Public interest groups are preparing to raise millions by shouting fire in a crowded theater and striking fear into the hearts of consumers. Their counterparts on the right are firing up their many D.C.-based lobbyists to argue for total deregulation.

I used to refer to net neutrality as a food fight. I was wrong. It’s a holy war dressed up as the plot to Groundhog Day. As everyone ramps up the rhetoric, perhaps it’s finally time to stop doing the same thing over and over and consider another path.

If net neutrality is as important as we all think it is, then perhaps we should do more to ensure its survival. We can’t do that by watching the pendulum swing back and forth between Title II and deregulation. We can’t do it through regulations that can be eviscerated every 4 to 8 years (or whenever there’s a regime change in Washington).

We need a law.

Once again, CALinnovates calls upon Congress to take the hint and get to work.  By making net neutrality the law of the land, a political hot potato gets replaced by clarity and certainty, not just for a presidential term or two, but well into the future. And the new law must guarantee key protections for consumers and innovators that are at least as strong as those provided in the Open Internet Order.

By turning net neutrality principals into law, Congress can deliver on behalf of the American people and put this never-ending tragicomedy to rest once and for all.

Mike Montgomery is the executive director of CALinnovates, a coalition of tech companies based in California.

This piece was originally published in The Hill.

CALinnovates Calls On Congress To Enshrine Net Neutrality Into Law

“Net Neutrality is a foundational principle in the digital age. But for too long its future has been uncertain due to changes in leadership and politics. That is why it’s important for Congress to do what only it can do through a bipartisan process: write into law the principles of Net Neutrality. Congressional action will provide innovators with a level playing field and industry with the certainty to make technology and investment decisions to continually upgrade our networks. If Net Neutrality is as important as we all say it is, it should be the law of the land, not a political hot potato resting on the third rail of American tech policy for another decade.” – Mike Montgomery, Executive Director

In These Chaotic Times, Democrats Need to Rethink Priorities

By Mike Montgomery

It was crunch time. With less than two hours to go before the U.S. Senate narrowly confirmed the controversial Betsy DeVos as the next secretary of education, a group of prominent Democratic senators huddled on Capitol Hill for a press conference about … something else.

What could have been more important? The so-called travel ban? President Donald Trump’s foreign policy agenda or the onslaught against federal environmental regulations?

No, they gathered to talk about the future of net neutrality and the concern that at some point in the future, the FCC might decide to alter its approach to governing the internet.

Don’t get me wrong: I fully support a free and open internet, but more fundamental issues must take precedence in these trying times, especially when a torrent of constituent feedback can permanently turn the tide on matters of national importance — where focusing on net neutrality today may mean a constituent decides not to weigh in on opposing Steve Bannon’s spot on the National Security Council.

As a parent and a progressive Democrat, I am disappointed to see vital energy and focus diverted from the DeVos vote. On Tuesday, the Senate confirmed the unqualified DeVos to run the department that serves 50 million students across more than 100,000 schools. Why was discussing something like net neutrality, on that day specifically, more important than discussing a contrasting progressive vision for the future of our public school system or supporting actual education voices?

That’s not to say that net neutrality isn’t important. It is and will remain so. But progressives who are also net neutrality proponents should be disappointed that any attention was deflected on an historic and consequential day to discuss what the FCC might do in the future regarding net neutrality.

DeVos was confirmed by the narrowest of margins – and perhaps if senators were focused on that issue and not net neutrality, perhaps there could have been at least one more last-gasp attempt to convince one additional Republican to vote against DeVos. Instead, they were preparing for a press conference that did not need to be held that day.

Unfortunately, what’s done is done. There is no reset button for anyone to push. DeVos is the secretary of education, and net neutrality is in place as firmly today as it was earlier this week.

Net neutrality deserves attention and protection — but it needs a thoughtful legislative conversation to codify an open internet, not press conferences and partisanship. For those who want to preserve the basic principles of net neutrality but are fearful that the FCC will abolish the Open Internet order, it’s time to take this fight to Congress. As we’ve said all along — only by cementing net neutrality into law can the government hope to create a stable environment for consumers and existing and future tech companies alike. We need bipartisan legislation that will remain immune to the whims of any particular administration and survive partisan politics.

Many people I know feel displaced and voiceless in today’s political environment. The last few weeks have shown that activists are finding new ways to express their points of view – but the firehose of issues is unrelenting and daunting. Health care, immigration, education, the Supreme Court, the environment – the list goes on. We all need to remind ourselves that there’s a proper time and place for important debates like net neutrality. Tuesday was not that day.

Mike Montgomery is executive director of CALinnovates, a nonpartisan coalition of tech companies, founders, funders and nonprofits determined to make the new economy a reality.

Originally published in Morning Consult

CALinnovates Calls on Congress to Enact Bipartisan Net Neutrality Legislation

February 7, 2016

The following quote can be attributed to CALinnovates Executive Director Mike Montgomery:

“To quote Yogi Berra, ‘It’s déjà vu all over again.’ Well into a decade of debate about Net Neutrality, it simply won’t go away. CALinnovates takes very little satisfaction in saying we saw this coming, but we’ve been calling for a Third Way that could affirmatively cement the tenets of Net Neutrality into law forever. Instead, Net Neutrality is apparently back on the table, perhaps having experienced a slightly longer shelf life than a ripe banana.

“By passing bipartisan Net Neutrality legislation, Congress can enshrine lasting laws into place that will remain immune to the whims of any particular administration and survive partisan politics. A regulatory roller coaster makes consumers and the business community queasy. Let’s settle this issue once and for all. The time is now.”

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