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FCC revisited: Net neutrality changes are misleading and not benign

Opinion: Upon finding updated but disturbingly unofficial source documents, David Gewirtz recants his earlier statement that the FCC changes are benign. The FCC's intentions may be out there, but they were not published according to its own guidelines for rulemaking review.
Written by David Gewirtz, Senior Contributing Editor

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Last week, I published an analysis of an FCC proposal document and the Code of Federal Regulations. I concluded in that article that the FCC's proposed changes to internet governance were not a threat to our fundamental internet freedoms.

After posting that article, I was contacted by a number of readers, and as you'll see later in this piece, I now believe my conclusions that the FCC's changes were inconsequential are wrong. An undated, unindexed document has been circulating with substantial differences from the official source document I based my analysis upon. I have amended this analysis to reflect that document and the confusion surrounding it.

The original article, along with a lot of cross-outs, is here. This article is a cleaned-up, easier-to-read version that now reflects my updated conclusions.

The Internet shouting match

No matter where you turn on the internet (unless you visit FCC.gov or a carrier's website), you'll see netizens screaming, "You can't take the net from me!" Since the dawn of the internet, it has been almost a matter of gospel that a free and open internet is essential for the ecosystem to succeed.

But now, newly appointed Trump administration FCC chairman Ajit Pai wants to take it all away. Or so it would seem, if you read the blogs and watch the YouTube videos.

But nothing is as simple as the hype would make you believe. For the past week, I've been trying to get a handle on exactly what Chairman Pai is proposing, what that proposal would mean, and what would change.

TechRepublic: The smart person's guide to Net Neutrality

To that end, I've skipped past all the blog posts, all the well-meaning tech explainers, and all the forceful, yet sincere videos. I've gone straight to the source. I've been reading the law. The actual Code of Federal Regulations, and the actual documents that describe the changes proposed by the FCC.

As it turns out, I was reading the official documents (more on that below). There is another document that's self-describes in the footnotes as "does not constitute any official action by the Commission" that indicates that Ajit Pai now intends to brutally transform and remove internet freedoms. I'll show you that the document was not where it was supposed to be for public discussion, and I'll show you my conclusions. To say I'm not thrilled is an understatement.

Oh, and before I get into this, I have a request: Please no hate mail or death threats this time. I love the internet and our freedoms as much as any of you. I'm describing the result of a long, careful analysis. I'd really rather not see nastiness in my inbox and feeds before coffee tomorrow morning. Think of me as a guide and explorer, not a partisan.

As you can see by the existence of both the update to my original article and this one, I go where the facts take me, even if that's someplace completely different than my original analysis drew me to.

You all know I have very little regard for either political party or their games. Thanks. Now, let's get started.

Politics is ugly

Our journey begins exactly how the FCC's current leadership wanted it to begin: With a press release [PDF]. On Nov. 21, the FCC issued what's called an FCC Statement to announce Chairman Pai's circulation of a draft order, entitled Restoring Internet Freedom Order.

Nothing in this seven-paragraph announcement mentioned "net neutrality" by name.

Instead, the release was almost entirely political theatre.

For example, the headline for the release included the phrase "heavy-handed internet regulations." In fact, the phrase "heavy-handed" was used three times in the 317-word announcement. It also uses other politically charged phrases including "bowed to pressure," "failed approach," "micro-managing," and more.

Rather than focusing on the specifics of a considerable change in how the internet is governed in the US, it gripes and pushes hot buttons that seemed designed to encourage divisiveness.

None of this is particularly helpful for an intelligent discussion of a nuanced issue, but it is business-as-usual for politicians. In this article, I'm going to drill past the hype and political grandstanding to the actual nuts and bolts of the proposal.

Unfortunately, the way they were communicated -- and the way the opposition is also communicating -- seems designed to foster disagreement, rather than constructive problem solving.

What is net neutrality?

Net neutrality is more concept than rubric. The general idea, well-described by the Electronic Frontier Foundation, is: "Internet service providers (ISPs) should treat all data that travels over their networks fairly, without improper discrimination in favor of particular apps, sites or services."

This is messy. There have been some attempts to clarify the key components, and, in fact, if you dig through the FCC documents I'll present to you in this analysis, you'll find there are three main concepts: No blocking, no throttling, and no paid prioritization.

No blocking

The idea of no blocking means that, for example, an ISP can't decide that you're not allowed to see certain websites just because they compete. Verizon, for example, owns Oath, the bizarre new name for their acquisition of AOL and Yahoo. AOL owns, among other internet properties, MapQuest. The no-blocking idea means that Verizon shouldn't be allowed to block, for example, Google Maps, just because it owns MapQuest and wants to boost MapQuest's business.

This also extends to the idea that ISPs can't block content (except for certain illegal content) just because of a political perspective. For example, no-blocking says ISPs can't block this article, even if they don't want their customers to see it. And no-blocking also means they're generally not allowed to replace content (for example, replacing the ads this site sells to support its services with ads that provide revenue to the ISP).

Blocking is bad. No blocking is good. That makes sense.

No throttling

No throttling is the idea that ISPs can't slow down certain classes of traffic. For example, we all know that most of the bits that travel over the internet originate on Netflix and YouTube. Video is not only hugely popular, but also requires (especially 4K video) a lot of data.

Early on, some ISPs were shocked by how much data some customers were consuming when they started streaming video. They hustled to try to limit that, as much out of fear that their networks would implode as over a competitive desire to promote another streaming service.

The no-throttling idea is that ISPs can't intentionally slow down certain classes of internet traffic, particularly video and torrents. AT&T, for example, owns the streaming service DirecTV Now. The no-throttling concept says that AT&T can't slow down (and thereby diminish the watchability) of services like Netflix in order to to push customers to use its own streaming service instead.

Paid prioritization

Paid prioritization is, essentially, a mix of the previous ideas. The idea of paid prioritization is that if you want your service to travel over someone else's lines, you pay for that privilege. In theory, Netflix doesn't have to pay AT&T to cover its extreme bandwidth usage. But, in practice, the huge internet streaming providers need to provide servers near the edge just to make it all work.

See also: How a net neutrality rollback could create a tiered internet | FCC chairman calls Twitter the real threat to an open internet | While India protects net neutrality, an Indian-origin American seeks to destroy it | Deep packet inspection: The smart person's guide

So, really, what paid prioritization is meant to do is allow a new startup to compete against a firm like Netflix and not have added carrier fees assessed to reach viewers or readers. The fact that starting a new service, whether video or text, has a vast array of other costs really makes paid prioritization less of a hot button.

A variation of paid prioritization is what's called "zero-rating." The idea here is that some vendors can pay carriers to not charge for their data. If you've ever seen the T-Mobile ads where certain video services don't count against your data cap, you've seen zero-rating in action. We'll come back to this when we talk about the FCC's changes and what they may (or may not) mean.

How and why my analysis conclusions changed

After careful analysis of officially published source documents, I made the statement that the FCC is not trying to eliminate net neutrality's no-blocking, no-throttling, and no-paid-prioritization rules. That statement may be incorrect, because there is another, unofficial source document that is far more draconian in its changes to internet governance.

I based my analysis in this article on a May 23, 2017 notice of proposed rulemaking [PDF], which is the latest such official document listed in the government's EDOCS system for Docket 17-108, the rule change code for the proposed changes.

Here's what the EDOCS search for Docket 17-108 returned:


EDOCS search for Docket 17-108 on December 4, 2017

As you can see, there is no proposed rules change document for any time in November, which is when Chairman Pai issued his press release.

However, a number of readers sent me a link to a PDF on the site transition.fcc.gov which vastly changes the intent of the proposed rule changes I discuss below.

Prior to publishing this article, I reached out to Tina Pelkey, the listed media contact on the November 21 FCC Statement, to confirm I was looking at the correct rule changes. She did not respond.

The document shown on transition.fcc.gov [PDF] is not only not indexed on EDOCS, but it also does not list a release date nor an adoption date. However, the small print at the bottom of Page 2 does lead me to believe it might supercede the document I analyzed below:

This document has been circulated for tentative consideration by the Commission at its December open meeting.The issues referenced in this document and the Commission's ultimate resolution of those issues remain under consideration and subject to change. This document does not constitute any official action by the Commission.

If this document, even though apparently not an official action, is representative of the changes the FCC is now proposing, it is a vast and deeply worrying change from everything I've reassured you about from the proposed rule changes officially published previously.

Specifically, this new document proposes the following:

Remove and delete in their entirety sections 8.2, 8.3, 8.5, 8.7, 8.9, 8.11, 8.12, 8.13, 8.14, 8.15,8.16, 8.17, 8.18, and 8.19.

If this is, in fact, the new official FCC stance, then much of what in my previous analysis is now incorrect. If 8.5 No Blocking, 8.7 No Throttling, and 8.9 No Paid Prioritization, among the other internet freedom sections are removed, then many of the concerns of the net neutrality proponents are more than justified.

At first, because the document is on transition.fcc.gov, I thought this document might have been published during the presidential transition in 2016 and referenced a December 2016 meeting. But I did a full URL search on Archive.org and the document in question appears to have first been picked up by the Wayback Machine this November:


This looks like a current document.

However, since the document appears to have been made available within a few days of the November 21 FCC Statement, I believe this represents the FCC chairman's current intent with regard to net neutrality.

Failure of journalism or failure of the FCC to follow proper procedure?

There was a failure here. But, quite honestly, I'm not entirely sure whether it was a failure on my part to find the right primary source document or on the part of the government for not publishing their latest source document in the official location reserved for documents of this type.

At some point during my research, I did find a link to this document, but because it was undated, unindexed, and on the transition server, I assumed it was from last year. It wasn't until I published this article and a few readers reached out to me pretty insistent that this was the newest version that I decided to take a more in-depth look. So that was my failure.

But the government's failure is another thing. There is a way these documents are supposed to be presented to the public. The FCC specifically lists on its Rulemaking Process page how draft rules are presented:

To read rulemaking documents or comments received, you may go to EDOCS https://apps.fcc.gov/edocs_public/ (for NPRMs and orders) or ECFS http://apps.fcc.gov/ecfs/ (for comments and ex parte filings) at any time and follow the online instructions for accessing the docket.

The document that appears to change everything was not listed on either EDOCS or ECFS, which violates the FCC's own rulemaking process -- and, not incidentally, resulted in what may have been an incorrect analysis from this researcher.

In any case, I do believe this unofficial document reflects the current intent of the Chairman, which means I've had to revise a lot of what I originally wrote.

What is Chairman Pai trying to do?

Unlike the earlier, official document, which requests the removal of a single, relatively redundant section of the Code of Federal Regulations net neutrality, this new document proposes deleting the entire Part 8, Protecting and Promoting the Open Internet.

On page 189 of the new, unofficial document, the following sections of 47 CFR 8 are removed:

  • 8.2 Definitions [PDF]
  • 8.3 Transparency [PDF]
  • 8.4 -- there is no 8.4 --
  • 8.5 No blocking [PDF]
  • 8.6 -- there is no 8.6 --
  • 8.7 No throttling [PDF]
  • 8.8 -- there is no 8.8 --
  • 8.9 No paid Prioritization [PDF]
  • 8.10 -- there is no 8.10 --
  • 8.11 No unreasonable interference or unreasonable disadvantage standard for Internet conduct [PDF]
  • 8.12 Formal complaints [PDF]
  • 8.13 General pleading requirements [PDF]
  • 8.14 General formal complaint procedures [PDF]
  • 8.15 Status conference [PDF]
  • 8.16 Confidentiality of proprietary information [PDF]
  • 8.17 Review [PDF]
  • 8.18 Advisory opinions [PDF]
  • 8.19 Other law and considerations [PDF]

Section 8.1 of Part 8 does remain, but its primary goal is to more broadly define broadband as:

Broadband Internet access service is a mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints

When I had earlier said there was nothing to be really concerned about, that was because all Ajit Pai had proposed was deleting one relatively redundant section, Section 8.11. The changes above are far more destructive.

What about the mobile changes?

Most of the mobile changes remain substantively the same between the official and unofficial documents, but in light of the nuking of all of Part 8, they take on a much more sinister connotation.

For this next section, we're going to talk about changes to how the government regulates mobile devices. To be clear, we're looking at radio-based devices. That could mean your iPhone, or it could mean an old VAX mounted to a pickup truck bed, if that VAX happened to be able to connect via radio to cell phone carriers.

The point is, the regulation is about the way of connecting, and what's governed by devices that connect using radio, rather than the devices themselves. But don't take my interpretation as gospel. Feel free to do your own research, reach out to lawmakers, and explore on your own.

Redefining commercial mobile radio service

All these are definition changes. If you change the definition of something, you change how it's treated in the law. So, first up is the change in the definition of what is a "commercial mobile radio service."

The FCC has control over radio communications, so if something fits as a commercial mobile radio service, it's governed by the FCC. This is where all the "Title II vs. Title I" stuff that you may have read about comes into play. Briefly, communications that fall under Title II can be regulated as a public utility. Communications that fall under Title I are treated as information services.

In the definition of "commercial mobile radio service," Pai proposes to drop the phrase "including a mobile broadband internet access service as defined in §8.2 of this chapter."

Here's another example of how the law uses political versions of include statements. To fully understand what's being dropped, we need to look at the definition [PDF] in 8.2, which is, "A broadband internet access service that serves end users primarily using mobile stations."

So, essentially, by removing these statements, Chairman Pai is removing mobile internet service from the purview of the FCC. This approach is continued in the two other definition changes in Part 20.

Redefining interconnected service

The first changes the definition of "interconnected service" by, this time, adding one word. Here's the original Part 20 definition [PDF]:

That is interconnected with the public switched network, or interconnected with the public switched network through an interconnected service provider, that gives subscribers the capability to communicate to or receive communication from other users on the public switched network

Here's how Chairman Pai proposes changing it. Can you find the extra word?

That is interconnected with the public switched network, or interconnected with the public switched network through an interconnected service provider, that gives subscribers the capability to communicate to or receive communication from all other users on the public switched network

The word added is "all," and it's used in the context of "all other users on the public switched network." What this means is that for an interconnected service governed by FCC regulations to be considered as such, it has to be able to talk to all users on public networks. That means that private networks, or networks that limit interconnection, by definition then are no longer under the jurisdiction of the FCC's rules for carrier behavior.

Redefining public switched network

The final change proposed is the definition of a "public switched network," and this change is very interesting, indeed. Here's the original wording:

The network that includes any common carrier switched network, whether by wire or radio, including local exchange carriers, interexchange carriers, and mobile service providers, that uses the North American Numbering Plan, or public IP addresses, in connection with the provision of switched services.

Here's the revised wording:

Any common carrier switched network, whether by wire or radio, including local exchange carriers, interexchange carriers, and mobile service providers, that use the North American Numbering Plan in connection with the provision of switched services.

Two things are happening here. First, it eliminates the idea of a network of networks, by removing the phrase "the network that includes." Second, it removes the idea that a public switched network (which is how the FCC refers to the phone system) is something that can be VoIP-based, because it removes the phrase "or public IP addresses" from the definition.

Now that we know what the chairman of the FCC proposed, the issue is whether it's bad, good, or just business as usual. Let's look at that, next.

Will the FCC changes kill net neutrality?

Strap in kids. The ride is about to get bumpy.

Based on the updated document described in this article update, the proposed changes make massive changes to the net neutrality provisions. Even so, I contend that net neutrality is, and has always been, more of an impossible dream than a reality.

Even with the 2015 Obama administration changes, net neutrality wasn't really real.

Net neutrality is an impossible dream

There is no such thing as free and unfettered internet communication. It wasn't better before the Obama administration changes. It wasn't better after those changes.

That's because net neutrality isn't real. Even the EFF, the nonprofit world's most visible proponent of net neutrality, doesn't believe the FCC can make it possible.

For example, there was a huge battle over the practice of zero-rating some services in some plans, but even after the changes in 2015, the FCC allowed it.

Here's another example: There's been some idea that the 2015 regulations kept consumer prices under control, especially when it comes to streaming services like Netflix. The general storyline is that before the 2015 regulations, Netflix fought constant battles with broadband providers and was required to pay premiums to keep its traffic flowing.

We ran reports about both Comcast and Verizon behaving in a non-neutral way, charging Netflix or slowing down service. You would think then that Netflix prices to consumers would have gone up because of Comcast and Verizon's unregulated actions. And they did, for new customers. In 2014, Netflix raised its streaming prices to $9.99 per month for new customers.

On the other hand, after the Obama administration's changes to Title II, you'd then think that net neutrality (if it really existed) would have kept prices under control. But you'd be wrong. In 2016, Netflix removed the grandfathering of older prices, effectively raising prices on all its long-term customers by nearly 25 percent. Then, just a few months ago, prices went up again.

Some would argue that perhaps Netflix pricing doesn't belong in an argument about net neutrality, because that's not about blocking or throttling a service, even if Netflix does have to purchase servers and services near the edge, near consumers. But if prices can go up, and if we can still get our services, are we really talking about communications neutrality any more? No, it's just business.

Another example is even more far afield from the net neutrality discussion, but it shouldn't be. I can't play my Apple Music playlists on my six Alexa devices. That's because Amazon doesn't have a deal with Apple (and probably never will).

An argument might be made that this isn't a net neutrality issue, but my Alexa service is delivered over my broadband, as is my Apple Music service. Shouldn't I be able to get any service I want on any device I have connected to my broadband?

The fact is, that's not how things work. The government can't (and shouldn't) be able to force a company like Apple to code its proprietary service for a competitor. It would probably be good business for Apple, because Alexa compatibility makes Spotify far more compelling than Apple Music, but we're talking a business issue here, not a communications issue.

I could keep going with story after story or corporate workaround after corporate workaround, but we've spent enough time here for today. It all brings me back to the final nail in the coffin of whatever we might think net neutrality means. Since the CFR, even under the Obama administration's more open regulations, allows for blocking and throttling for "reasonable network management," the regulations leave a giant loophole open for any carrier or broadband operator who needs to block or throttle services.

My final analysis

After days and days digging through all this, and finding my original conclusions were based on incorrect official information, I find myself infuriated and frustrated that changes this massive haven't been posted in the EDOCS system as they are supposed to have been.

Whether mobile internet service is classified as information or telecommunications will probably neither increase nor decrease what you spend or what you can access -- at least not any more than it has in the last few years.

As a journalist, I'm seriously troubled that the newest FCC information, that should have been in the EDOCS system, was not only not indexed, it wasn't dated, and the document even lists itself as unofficial. I'm left feeling like this was a purposeful attempt by the FCC to seem transparent while being misleading, and it feels like I got snookered by it.

We're talking about the future of the internet here. The destruction of Part 8 is deeply disturbing and the blogosphere has been right to be upset. If you don't want an internet that completely removes the no-blocking, no-throttling, and no-paid-prioritization protections, definitely contact your congress-critters immediately.

To those of you who read my original article and believed, based on my original analysis, that the FCC changes were benign, I'm very sorry. My goal has always been to provide non-partisan analysis based on official primary sources, but when those primary sources are obfuscated, things get very messy. Thanks for sticking with me through this whole thing, and let's hope enough publicity will drive the Part 8 destruction (and the FCC's violation of its own publication rulemaking process) into the public light.

As for the politicians and their staff who read this column, I have a message: Please, for the love of God, tone down the hyperbole. We don't need all the heavy-handed political gamesmanship for much of what you're doing. Can't we all just get along?

You can follow my day-to-day project updates on social media. Be sure to follow me on Twitter at @DavidGewirtz, on Facebook at Facebook.com/DavidGewirtz, on Instagram at Instagram.com/DavidGewirtz, and on YouTube at YouTube.com/DavidGewirtzTV.

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