FCC Set to Move on Net Neutrality Changes Amid Outcry

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By Kyle Daly and Tommy Shen

The Federal Communications Commission is scheduled to begin unwinding its current net neutrality rules May 18, despite a campaign by tech companies and public policy groups trying to preserve them.

The brewing policy battle pits internet service providers such as Comcast Corp. and AT&T Inc., which have chafed under the rules barring blocking or throttling of network traffic in most circumstances, against the tech companies and public groups.

FCC Chairman Ajit Pai is proposing to undo the Democrat-controlled FCC’s 2015 reclassification of broadband as a common-carrier service under communications law. Pai also wants input on whether the commission should modify or kill most of the net neutrality rules that relied on that reclassification.

The vote is only the first step in a process that will take months for the FCC to complete and possibly years for the courts or Congress to settle. Among the rules under the microscope is a ban on paid prioritization that prevents ISPs from charging companies such as Netflix Inc. and Alphabet Inc.'s Google to deliver their content to consumers faster.

The FCC already has received more than 1.6 million public comments on its proposal. Many of them appear to be automated submissions from bots, according to a Bloomberg BNA analysis. A majority of nonautomated comments analyzed by Bloomberg BNA came from people opposed to Pai’s plan.

FCC officials have told Bloomberg BNA that they intend to weigh comments according to the merit of the arguments made, not by volume.

Opponents’ criticisms are unlikely to be a problem for the FCC under the Administrative Procedure Act, which establishes how federal agencies make rules and includes requirements for soliciting and heeding public comments.

“It’s not a vote-counting exercise,” John Bergmayer, senior counsel at one of the policy groups, Public Knowledge, told Bloomberg BNA. “What really matters for APA purposes is the evidence in the record as found in the more substantive comments.”

Several groups are assembling evidence to support substantive comments. Pai has said the existing rules must be loosened because they’ve harmed investment and innovation in broadband. A draft of the proposal that the FCC released in April cited research from the Phoenix Foundation, U.S. Telecom and economist Hal Singer, all concluding that ISPs have reduced capital expenditures since the rules were approved. Another public policy group, Free Press, and the Internet Association, whose members include Google, Amazon.com Inc. and Facebook Inc., recently released reports reaching the exact opposite conclusion: that capital investment in the internet is in fact up, both among ISPs and major content providers. The FCC may have to meaningfully address those sorts of claims to justify its final rules.

“You can’t ignore those comments,” said Gigi Sohn, a fellow at the Open Society Foundations policy group who helped craft the current net neutrality rules as an aide to former FCC Chairman Tom Wheeler. “You ignore them at your peril under the APA.”

Comment Breakdown

The FCC will also have to weed out spam or junk comments generated to simulate support for one side of the issue.

There were roughly 450,000 comments calling for a rollback of the current rules posted between May 8 and May 11. Large segments of those contained identical language and were posted in alphabetical order based on commenters’ names. That suggests a mass submission drawn from a database or mailing list—and potentially done without the listed commenters’ knowledge, according to Bloomberg BNA’s analysis.

A separate bot campaign calling on the FCC to keep the existing rules appears to have begun late May 10. Between then and the morning of May 11, tens of thousands of those comments came in tied to non-existent physical addresses and email addresses automatically generated from form submissions.

Several thousand more comments supportive of the current rules were identical but seemed to come from legitimate commenters. They were tied to seemingly genuine names and addresses and matched the text suggested in email campaigns from pro-net neutrality groups Battle for the Net and the Electronic Frontier Foundation.

Looking to Congress

Republican lawmakers are planning to write legislation to codify the FCC’s final revisions to the net neutrality rules. After the commission acts, opponents of Pai’s plan will turn to pressuring Congress to instead step in and write rules modeled on the Democrat-controlled FCC’s approach.

That may prove difficult. Sen. John Thune (R-S.D.), chairman of the Senate Commerce, Science and Transportation Committee, told Bloomberg BNA recently that he believes there is, in fact, room for bipartisan legislation on net neutrality. But, he said, Republicans’ first priority would be killing the underlying common-carrier regulatory classification.

“The key for us is, we’ve got to get away from the Title II framework where we classify the internet basically as a public utility,” Thune said. “That’s our thing, and if we can get past that, I think there’s a lot of other stuff that we could do that the Democrats probably have an interest in.”

Still, net neutrality proponents believe sustained pushback against Pai’s approach could sway even GOP lawmakers. Sohn said lawmaker town halls and persistent contact from constituents could “make this an election issue so that Republicans say, ‘Well, maybe this isn’t such a great idea.’”

David Goldman, chief Democratic counsel for the House Energy and Commerce Committee, shared a similar view at a recent Washington, D.C., event.

“We should show them where a majority of the American people are,” Goldman said. “Members of Congress do care. Maybe Chairman Pai doesn’t have to run for re-election, so he doesn’t care about that, but there are elected officials who do.”

To contact the reporters on this story: Kyle Daly in Washington at kdaly@bna.com; Tommy Shen at tshen@bna.com

To contact the editor responsible for this story: Keith Perine at kperine@bna.com

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