Public Knowledge Expresses Strong Concerns About Sen. Thune’s Net Neutrality Discussion Draft

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Today, Senator Thune (R-SD) released a discussion draft of a bill that would limit the Federal Communications Commission’s authority over net neutrality.

The following statement can be attributed to Harold Feld, Senior Vice President of Public Knowledge:

“We appreciate the effort by Senator Thune and his colleagues to engage on these issues by releasing this discussion draft. While this represents a good faith step forward, it also takes several very real steps back from the Commission’s 2010 rules – and certainly does not provide the kind of robust protection consumers need for what the President has rightly called ‘the critical service of the 21st century.’

More specifically, the discussion draft:

Allows discrimination in violation of the principles of the Open Internet. By changing the broader principle of ‘no discrimination’ into the very narrow and limited case of ‘no paid prioritization or throttling,’ the bill falls short of even the inadequate rules of 2010, let alone the more robust rules the President called for and the American people demand.

For example, these principles would not have prevented AT&T from limiting FaceTime to particular tiers of service – as it tried to do in 2012. It would not address discriminatory use of data caps, such as Comcast has used to favor its own streaming content over that of rivals. It would not address potential issues arising at Internet interconnection, the gateway to the last mile. Even worse, by eliminating any flexibility on rulemaking or enforcement, the bill would prevent the FCC from addressing any new forms of discrimination and threats to openness that arise.

If the proposed principles cannot even stop forms of discrimination we’ve already seen, how can it possibly protect the open Internet going forward? Any proposed rule ought to at least be able to handle discrimination we’ve already seen.

Does not effectively block ‘fast lanes.’ Even with the protection the draft does provide – addressing blocking, fast lanes, and throttling – it opens a huge, undefined loophole of ‘specialized services.’ As this draft reads, Comcast or AT&T or any other provider can offer its over-the-top online streaming service as a ‘specialized service’ and give itself prioritized service. Companies could essentially sell prioritized service to specific applications or content simply by calling these fast lanes ‘specialized services.’

It is true that the FCC’s 2010 rule had a similar loophole, but the FCC announced it would continue to address this with future rulemakings. This draft creates the same loophole, but strips the FCC of the power to plug it. While the draft addresses specialized services that are clearly a sham, it gives the FCC no power to define this and leaves open specialized services that effectively create fast lanes but with some fig leaf alternative explanation.

Consumers lose protections while special interests gain new ones. Ever since the FCC first reclassified broadband as an information service, it has recognized that it needs to provide vital consumer protections such as privacy and meet important fundamental values such as universal service. The Commission has tried to address these with numerous tools such as ancillary authority and Section 706. The draft proposes to strip the FCC of its entire toolkit for protecting consumers while leaving nothing in its place.

But while consumers lose, Hollywood wins. The draft contains a special carve out so that broadband providers can act as Hollywood’s special enforcers. It is totally inappropriate for Congress to strip consumers of even the most basic protections. It adds insult to injury  to simultaneously grant new privileges to powerful special interests.

Enforceability. This draft would prevent the FCC from providing more clarity about what behavior runs afoul of the stated Internet openness principles. By requiring that the FCC only  hear complaints, only the most well-heeled and well-lawyered companies and individuals may be able to enforce their rights.  But the Open Internet is not about protecting companies who can pay for lawyers to bring complaints to the FCC—it’s about protecting ordinary consumers, start-ups, and innovators from discriminatory conduct.

Other unintended consequences. Because broadband is now the critical service for communication, legislation to dramatically impact broadband has huge unintended consequences. As Republicans have repeatedly cautioned, first do no harm. This draft would undo nearly five years of work on universal service reform based on Section 706 authority, seriously disrupting efforts to provide broadband to rural areas. It would eliminate the FCC’s authority to preempt limits on community broadband. It could have serious unintended impacts on voice-over-IP services, placing the stability of the 9-1-1 system at risk and interfering with the FCC’s efforts to resolve rural call completion. Among other things, it could also limit the FCC’s authority to promote access by the disabled to communications services, protect consumer privacy, promote broadband deployment by ensuring that new competitors have access to utility poles and rights of way.

Senator Thune and his colleagues likely do not intend this discussion draft to have these consequences. Nevertheless, the broad language of this draft guts the FCC’s authority over the network on which all of critical communications now ride.”

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