Working Up

by Dwayne Phillips

I read the FCC’s document on Net Neutrality (“Report and order,” 2015) and provide my comments.

The FCC recently released the full text of their document on the Open Internet (the full document is available in PDF here). I read all 400 pages of document and assenting and dissenting views of the five commissioners. Here are a few things I noticed while reading the 400 pages. The order of items below is per the order that I read them in the document.

0. The English Language

Government bodies are infamous for butchering the English language. This document continues that tradition. Did anyone at the FCC take English in high school? Perhaps they can hire a few retired high school English teachers part time to proof read these documents. This is just plain awful.

1. Broadband Leaps from the Past

A paraphrase that is repeated often:

We reread the Communications Act of 1934 and found that we have the authority to regulate Broadband Internet access service (BIAS) providers.

2. The Public Good

Another paraphrase:

We believe that the Open Internet is good for the public. Therefore, we declare that we have the authority to prohibit anything that we believe hurts the Open Internet.

3. Clear, Bright-Line Rules

I am not sure what “bright-line” means, but the phrase is used often. Anyways, the meat of the document is:

1. No blocking
2. No throttling
3. No paid prioritization
4. No unreasonable interference or unreasonable disadvantage to consumers or edge providers

If we don’t think about these much, there is nothing to argue. I like these as general goals. As always, the details tend to make a mess of this.

4. Accurate and Precise

This one astounds me. These two words are loaded in the science and technology world. Educated S&T persons don’t use these words unless the are sure what they are doing. The FCC, however, uses them several times in the document. Yikes.

5. Light-Touch Title II

This is a major point in the document as the FCC claims to use Title II (BIAS is a telecommunications service) but only lightly. At lease they don’t call it “Agile Title II.”

6. We Take Credit for the Internet

Several times the document claims that all this great investment and innovation in the Internet is a result of previous FCC regulation. Never do they mention the possibility that the past occurred despite FCC regulation.

7. We are Here to Protect You (from yourself)

The FCC see itself as the grand protector keeping companies from harming the public. The FCC does not see companies as part of the public. I guess this is a part of the “business is evil” concept.

8. Communities of Color

This phrase refers to persons. This phrase is actually in the document in an attempt to represent poor(er) persons. I’m not making this up.

9. Mobile and Fixed Broadband

The FCC believes that these two fall under the same topic, and the FCC has the authority to regulate them both equally.

10. Past Mistakes, Future Infallibility

The FCC admits to past mistakes in classifying Comcast as a provider of information services. Now, Comcast is a provider of telecommunications services. My paraphrase:

We made mistakes in the past, but henceforth, we are infallible.

11. Virtuous Cycle

The document uses this phrase over and over to describe how the Internet has come to be and how the FCC will guide it in the future.

12. Guilty by Ability

The FCC explains how broadband providers have the technical ability to hurt consumers. Hence, the FCC must protect consumers from providers. The first part is true. The second part denies the existence of the marketplace (if I hate Comcast enough, I will switch to Verizon). The second part also assumes future guilt before any action is taken. And all this time I thought we were innocent until proven guilty.

13. Telecommunications

The FCC declares, despite history, that broadband Internet access service is a telecommunications service. That declaration brings with hit some 80 years of declarations, laws, and court decisions. Everyone should be worried about what is buried in those eight decades.

14. (No) Service Level Agreement

The FCC will hear complaints from anyone who has a complaint. They, however, give no fixed time for responding to complaints. They will work as fast as they can or want (whichever they choose). Wow! What a service level agreement.

15. Disagreement Implies Incorrectness

The FCC declares that they are correct. If you disagree with the FCC, you are incorrect.

16. Here Come the Taxes

The FCC reserves the ability to slap taxes on our ISP bills. Remember all those fees on your old phone bill. We will see them again.

17. Justifications

Large portions of the document contain justifications for the rulings. This always makes me suspicious. If the rulings were so simple and good, why would anyone write so many justifications?

18. Dissenting Opinions

Of the 400 pages, 80 of them are dissenting opinions from the two commissioners who voted “no.” Much of the dissenting opinions are that the FCC is bound by law as to how it goes about making such declarative documents. The dissenters contend that the FCC violated many of these laws.

Then there are technical matters. Namely, broadband Internet access service providers fall under information services not telecommunications services.

Then there is the White House, a.k.a., our President and his staff members. The dissenters contend that this declarative document was written at the White House with minor edits at the FCC. Again, this type of thing is illegal.

19. Summary

The report itself is about 320 pages long. That sure seems like a lot of pages to give four bright-line rules. The FCC didn’t issue a draft of the report for public comment; that seems odd. The FCC declarations are amazingly similar to statements made by our President. The similarity leads me to believe that there is no coincidence.

Several people have summarized the document as (paraphrase):

This creates a national jobs program for communications lawyers.

Federal Communications Commission, (2015). Report and order on remand, declaratory ruling, and order (FCC 15-24)