Wednesday, January 17, 2024

FSF Submits Reply Comments on the Safeguarding and Securing the Open


Today, Free State Foundation President Randolph May and Director of Communications Policy Studies Seth Cooper filed reply comments showing why the FCC’s proposal to convert Internet service providers into public utilities is unwise and unlawful.
Here are a few key excerpts from the Introduction and Summary:
"It's well-documented that proponents of public utility regulation of broadband Internet services decried the RIF Order’s repeal of that regulation as the unleashing of a dystopian nightmare in which the Internet would grind to a halt and broadband providers would prey on consumers, innovators, and small businesses. Of course, their deliberately outlandish claims were quickly proven wrong. For this reason alone, the views of these pro-utility regulation advocates should be given no credence whatsoever. Indeed, were they to be given credence, the Commission’s own credibility would be further called into question.”
"Despite being so spectacularly wrong about the effect of the RIF Order, many of those same pro-regulatory proponents are back, calling for the reimposition of the short-lived public utility regime established in the now-repealed 2015 Title II Order. The FCC cannot accord the claims of these parties – or the claims of allied parties – any credibility whatsoever regarding the future of broadband services when they were so wrong last time around. If it does so, it will confirm that the Commission is intent on regulation as an end in itself, not a means to an end when warranted. Since the RIF Order was adopted in late 2017, Internet speeds have significantly increased. Next-generation technologies such as fiber, 5G mobile wireless, and fixed wireless access have deployed and offer significantly improved capabilities as well as more competitive choices for consumers. And broadband service pricing has been more consumer friendly and resistant to price increases than most other service markets.
"Title II reclassification will not protect Internet openness, national security, or public safety. To the limited extent that pro-utility regulation comments actually try to prop up the Commission’s dubious national security, public safety, cybersecurity, and network resiliency rationales for Title II reclassification, such comments offer no analysis or facts, or concrete dangers or solutions, to substantiate those claims. There is no reason to expect government interference, based on supposed bureaucratic expertise, will make networks perform better or more safely. Comments opposed to the proposed rulemaking rightly point out that broadband Internet service providers (ISPs) already have economic incentives to make available high-performance, resilient networks. Indeed, ISPs demonstrated their performance capabilities under the stress of traffic demand spikes amidst COVID-related government-imposed lockdown orders.”
"It is no surprise that comments by many longtime supporters of public utility regulation of broadband do not cite any specific credible examples of ISPs blocking or throttling their subscribers’ access to legal content of their choice. Instead of the predicted broadband Internet wasteland following Title II regulation repeal, since early 2018 there is no record evidence that ISPs engage in such harmful conduct or that they are likely to do so. The fact that ISPs do not block or throttle indicates that the existing light-touch policy based on the Commission’s transparency rules and Federal Trade Commission enforcement of ISP terms of service pledges is working. ISPs’ consensus against blocking or throttling cannot be explained away by pointing to state net neutrality laws. Net neutrality laws exist only in a handful of states, and yet blocking and throttling have not occurred in states that have no net neutrality laws.”
"We agree with comments opposed to the proposed rulemaking that the Commission’s pretensions to secure or safeguard Internet openness, national security, and public safety are illusory and arbitrary because the rulemaking focuses on only one aspect of the Internet – Internet access services – and does not address far more serious concerns posed by other aspects of the Internet – including Big Tech platforms and other online edge providers that actively censor, shadow ban, and deprioritize speech content. Also, the Commission’s myopic focus on ISPs for supposed security and safety purposes leaves completely untouched numerous other major providers in the Internet ecosystem that may pose much greater risks to security and safety than ISPs.”
A PDF of the complete FSF reply comments, with footnotes, is here.