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Net neutrality blowback: Cities say no. Court says whoa. Trumpster blames Canada for not going slow

Remember how awful it was last time around? Just you wait

By Kieren McCarthy, 1 May 2017

Blowback from the decision to reopen net neutrality rules in America is continuing, with cities, the Washington courts and presidential advisors all piling in.

Several large city mayors are not impressed by the move; the DC court of Appeals has refused a telco legal challenge; and one of President Trump's telco policy advisors continues to slam a decision by Canada to go in the opposite direction.

The most immediate impact of US comms watchdog the FCC's new policy process is that the legal challenge against the existing rules has been effectively shut down.

Citing FCC chair Ajit Pai's new "notice of proposed rulemaking" that will seek to reverse the classification of ISPs as "Type II" carriers, the Washington, DC, Court of Appeals refused a request by large telcos to be heard by the full court.

"The parties who unsuccessfully challenged the Order before the panel have now filed petitions seeking review by the full court sitting en banc," the decision [PDF] published Monday stated. "The court today denies en banc review [which] would be particularly unwarranted at this point in light of the uncertainty surrounding the fate of the FCC's Order."

It continues: "In that light, the en banc court could find itself examining, and pronouncing on, the validity of a rule that the agency had already slated for replacement."

The telcos challenged the Open Internet Order on two grounds: the FCC didn't have the authority, and it broke the First Amendment. The court ruled against them, so the telcos asked for a full Appeals Court review (which would see all nine judges rather than a subset of three judges decide).

A larger group of eight judges denied that request, with the majority (two dissented) taking the opportunity to reiterate that they believe the FCC has the authority to decide the rules, even though the rules did not receive Congressional approval – something that undermines the most persistent argument put forward by net neutrality opponents – and that they did not break the First Amendment.

"No Supreme Court decision supports the counterintuitive notion that the First Amendment entitles an ISP to engage in the kind of conduct barred by the net neutrality rule," the decision notes.

The telcos will now have to decide whether to appeal to the Supreme Court.

City on this

Meanwhile, the leaders of several of the largest US cities – including Boston, New York, Seattle and San Francisco – have slammed the FCC's decision to reopen the whole debate.

By seeking to remove Title II classification, the new FCC administration is effectively saying it trusts Big Cable not to abuse its power.

Boston's chief information officer (CIO) Jascha Franklin-Hodge was not impressed. "It is essentially the equivalent of a police officer throwing away his gun, Taser and handcuffs, and saying, 'Well, people were behaving themselves an hour ago, so I'm trusting things will stay as they need to be'," he summarized.

New York City's CTO Miguel Gamino was equally forthright. "Net neutrality is critical to the city's robust and growing tech community," he argued. "The principle of net neutrality – requiring internet service companies to treat all content equitably – is fundamental to the promise of the internet as an engine of democracy."

And Seattle CTO Michael Mattmiller said that the FCC's new proposals "would be disastrous to a free and open Internet."

A representative for San Francisco Supervisor Mark Farrell suggested that the city – which hosts many of the world's largest tech companies and is a fervent supporter of net neutrality – would not stand by.

"It's a fight that I think you're seeing cities take a strong position on because we are so close to the people and organizations that are impacted by this change of direction, he said, adding: "Ultimately it's a fight that's going to be taken at every level of the government."

Trumpsters

There are two groups happy with the effort to rescind the rules however: cable companies and Trump advocates.

Comcast has been publishing a series of posts from its senior executives praising the decision and promising not to do anything that would upset anyone. "We won't block, we won't slow, we won't throttle content," says an animated gif that the cable company is paying to push out to social media platforms with an accompanying blog post.

"Chairman Pai's proposed reversal of Title II does not mean there will be no open Internet protections, but rather creates an environment where we can have a fresh constructive dialogue," claimed Comcast CEO Brian Roberts, while his VP David Cohen is pushing the cable industry line that "Title II and net neutrality are not the same" – which, while strictly true, actively ignores the context and history surrounding the debate.

Verizon has gone one step further and made a video with its general counsel Craig Silliman, who explains that everything is fine and that the only reason people may be hearing otherwise is because of "advocacy groups that fundraise on this issue" – groups that "stir people up with outrageous claims" and "just say things that aren't true to rile up the base."

There is, of course, nothing to the fact that it was Verizon's decision to legally challenge the previous net neutrality rules that led to the FCC's drawing up the new rules. Verizon loves net neutrality so much it sues anyone who passes rules around it.

Youtube Video

The advisors

President Trump's advisors tend to take a more negative and aggressive line, so faced with a proposal to do exactly what they want, FCC advisor Roslyn Layton resorted to attacking Canada for its recent net neutrality decision that strengthened rules and shut down "zero rating," where ISPs allow specific services to be delivered for free and with no impact on data caps.

Referring to the Canadian regulator CRTC (Canadian Radio-television and Telecommunications Commission), Layton tweeted: "US, EU, Slovenia and now Netherlands say zero rating is OK. What gives CRTC? Sorry Canada, now you're in the class with backward India."

She then gave an interview with the Globe and Mail pushing the other main argument made against the Open Internet Order – that it would lead to lower investment in broadband infrastructure.

"My biggest concern for Canada is that you continue to add regulation that deters the incentive to invest," she told the paper, adding that the Canadian government was going in the wrong direction and they should allow zero-rating for Canadian content and charge US companies to have theirs streamed to Canadian citizens. "All Canadian content should be zero-rated," she said. "Canadian content should have a fast lane."

Many voices, one goal

It is worth noting while here that the majority of the articles and op-ed pieces in praise of Pai's decision to recast the rules (for a fourth time) have been written by a core group of people who are paid by the Center for Internet, Communications, and Technology Policy, at conservative think tank the American Enterprise Institute.

It's also worth noting that all three of President Trump's FCC advisors work at the center: Jeff Eisenach, Mark Jamison and the aforementioned Roslyn Layton.

So if you read any articles by them – or by others at the center such as Gus Hurwitz, Daniel Lyons, Brett Swanson or Babette Boliek – it is worth recognizing the fact that they all belong to the same think-tank that is actively strategizing around how to push its agenda. Do not expect much thought or effort to be given to any other perspectives. ®

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