Federal Telecom Policy Actions Affect Oregonians

Editor’s Note: This blog was originally published on May 8, 2017. We have updated it to include a link to a CUB Action Alert, launched on Thursday June 1, 2017, asking Oregonians to add their names to comments CUB will submit later this summer urging the FCC not to roll back Title II protections for broadband Internet service. To add your name to our comments, visit our Action Alerts page, and read on for more information about why we’re asking you to help protect the “Open Internet”.

With a recent upsurge in legislative and regulatory activity concerning the federal government’s role in regulating Internet service, it is important that Oregon customers understand how this activity affects them and why they should care.

First, take a step back –

It is easy to forget that the Internet largely came to prominence during 1990’s under then President Clinton. George W. Bush watched it evolve during the first decade of the new century, and Mr. Obama ushered in a new digital age.

The Internet, unlike the once ubiquitous landline telephone, had no obvious technological predecessor. This made it difficult for policy makers to nail down the best way to ensure fair, affordable, and consistent access to service.

Eventually, though, it became increasingly obvious that Internet access is an essential utility service for the benefit of the public similar to landline telephone or electricity. This is what the Federal Communications Commission (FCC) said in 2015 under then Chairman Tom Wheeler and with direction from the Obama Administration.

Yet the conversation about what to call the Internet and how to regulate its delivery to customers started several years prior. (To read an in-depth analysis, check out a CUB blog from 2015.)

The basics are that during the George W. Bush years, a growing number of consumer advocates and Internet-based companies began to take stock of the broad and unencumbered powers afforded to service providers under federal law.

These groups argued that accessing the Internet was, for better or worse, essential to meaningful participation in the modern world. Internet access, they said, was akin to electricity or the telephone. And if electricity and telephone service are subject to regulations designed, at least in part, to protect consumers, then so should the Internet. This is the central premise of “net neutrality”.

The Bush-era FCC agreed in large part, and so attempted on more than one occasion to establish basic net neutrality or “Open Internet” rules for service providers designed at promoting fair and consistent consumer protections. These proposed rules were, however, rejected in the courts, but did lay most of the groundwork for what eventually became the 2015 Open Internet Order.

The key takeaway is that the 2015 Open Internet Order grants the FCC legal authority to impose a broad suite of consumer safeguards by labeling the Internet a telecommunications service as opposed to an information service. Opponents take offense because the much toothier Title II of the Communications Act regulates telecommunication services and so authorizes the FCC to treat service providers like common carrier public utilities. The fear is that “heavy-handed government regulations” will stifle growth and innovation and, over time, degrade the quality and availability of service for consumers.

Of course, the flip side of that argument – the side on which CUB falls – is that without common sense regulatory oversight, service providers will do only what is in the best interest of their investors and not that of their paying customers.

Fast forward to early 2017 –

President Trump nominated Ajit Pai, a staunchly conservative FCC Commissioner, to replace Chair Wheeler. (To read an in-depth review of Pai’s first weeks in office, see CUB’s blog from February of this year).

The takeaway is that Pai, as a Commissioner and Verizon attorney before that, fiercely criticized Title II reclassification. His appointment sent a clear signal to both advocates and a Republican Congress that Obama-era policies were on the chopping block with or without a legislative mandate.

First to go were digital privacy rules that would have gone into effect later this year. With Trump in the White House and Pai at the FCC, a Republican-controlled House and Senate felt emboldened to use the Congressional Review Act to eliminate protections for consumers from having their web browsing and application-usage history sold to marketers and the like.

Shortly thereafter, Pai stated his intention to walk back the Open Internet Order – namely Title II oversight. He released a plan and Notice of Proposed Rulemaking (NPRM) at the end of April.

The plan would essentially do the following:

1. Remove the Title II label and replace with the less stringent Title I
2. Pass regulatory authority to the Federal Trade Commission (FTC)
3. Service providers voluntarily prescribe net neutrality rules for the FTC to enforce

The NPRM is not a formal proposal; it launches the “Restoring Internet Freedom” docket. The public can submit comments in advance of a May 18 Commission vote on the Notice. This sets into motion two rounds of more formal public comments. The first round begins after the May 18 vote and lasts for 60 days. Final comments are due 30 after that. The Commission then reviews all the information to create a final Order on which they vote.

Pai and others have made a point of suggesting that what matters most is not the sheer number of comments, but, rather, the quality of the arguments. This did not stop over 150,000 people from crashing the FCC’s site within only a few days.

Concurrent to the FCC effort is one led by nine GOP Senators. The “Restoring Internet Freedom Act” would prohibit the FCC from labeling Internet service providers as common carriers under Title II. This is particularly troubling for advocates like CUB because such legislative action would prevent a new Administration or FCC Chair from reinstating Title II classification down the line.

Circling back to this post’s original premise –

These policy decisions made in Washington affect Oregonians because, similar to combating absent federal leadership on climate change, individual states can enact policies independent of the White House or Congress. A prime example is on the issue of digital privacy.

Not long after the President agreed to eliminate digital privacy consumer protections, a number of bills popped up in state legislatures all over the Country. Each one is a bit different from the next, but a consistent theme throughout is strong bi-partisan support. This, of course, is not at all surprising because not many people feel good about having their web browsing or application usage history shared and then possibly used against them. CUB strongly agrees and has already begun research on what digital privacy laws in Oregon might look like. Stay tuned to our Blog for updates on this topic and more.

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