A misinterpreted federalism narrative fuels more misinterpretation of net neutrality

A number of state legislatures are ramping up for their legislative sessions where they will pass bills addressing various matters from funding their governments to other state government operational issues to civil rights to fighting crime. I have been giving some thought to the sovereignty of states, to these so-called laboratories of democracy and I am starting to question just how sovereign states are? As I read between the four corners of the U.S. Constitution, I am at a point where I don’t believe states were meant to be sovereign. Instead, states are merely administrative lordships existing to better manage the population, manage the extraction of resources, and convert citizens into tax coin. The U.S. Constitution makes clear that the extent of their powers is set by the federal government, not the other way around, and the regulations of state powers, in my mind, eliminates any claims to sovereignty.

The Tenth Amendment of the U.S. Constitution is usually referred to when describing the extent of state sovereignty. It reads:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The Tenth Amendment reads like a “shifting screen”, where the federal government via legislation passed by the Congress or changes in how the administrative states interprets its rules, can determine the amount of power it will either delegate or take back. We have seen over the last 85 years how the federal government has used the U.S. Constitution’s commerce clause to support laws and extend regulations into social and commercial relationships that on the surface seem confined to a particular state, bakery, or bedroom. With changes in presidential administrations or U.S. Supreme Court membership, we also expect to see changes in this shifting screen as public policy, regulations, or court rulings redefine federal and state powers.

Besides, how sovereign can a state be if, as spelled out in Article I, Section 10 of the U.S. Constitution, it is not allowed to enter into any treaties or alliances with other national governments? How sovereign can a state be if it cannot mint and issue its own coin? How sovereign can a state be if it cannot, without the consent of Congress, assess duties on imports and exports? How sovereign can a state be if it cannot even maintain troops and ships in time of peace?

In the net neutrality debate where a number of states, either through legislation or executive orders issued by their governors, states have made the assumption that promoting how an advanced communications network is to be managed is a power reserved to the states under the U.S. Constitution. The internet, as an advanced communications network, is a platform responsible for moving an increased amount of commerce across state and international borders. As a channel for commerce, its regulation falls under the jurisdiction of the Congress, as determined by Article I, Section 8 of the U.S. Constitution. This alone, in my opinion, invalidates any attempts on the part of the states to use the net neutrality narrative to regulate the internet.

I would go one step further. Net neutrality is a management philosophy stemming from the business judgment of network managers and designers. It would not benefit a network manager to provide the public access to an interconnected global network of computers if that manager blocked its subscriber’s access to certain websites.

Nor would it make good business sense to degrade a subscriber’s experience by slowing down the speed of traffic from a subscriber’s chosen content provider. And given the level of competition between network providers, being transparent about prices and charges that a network manager’s subscribers face not only increases the level of faith subscribers have in a network, but also gives the network manager an edge over other competitors. She would be seen as being considerate to her subscriber’s consumer protection interest, a position a network manager can ill afford to ignore in these days of privacy violations.

Because of the interstate nature of the internet, the responsibility lies with the federal government to ensure the above net neutrality principles are met. State governments, as administrative lords over certain populations and territory, should focus on aligning their state advanced communications policy with national policy, including properly administering any national funds allocated for encouraging the deployment of advanced communications. To interpret “state sovereignty” as permission to go one’s way would disrupt the interstate nature of commerce and its regulation by a central government.

Rather than regurgitating the standard rhetoric of “states’ rights”, policymakers need to take a fresh look at federalism and adjust its meaning to the proper interpretation under the four corners of the Constitution.

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Does an “open internet” promote a representative democracy? No, because democracy is not its job

Techopedia defines the open internet as “a fundamental network (net) neutrality concept in which information across the World Wide Web (WWW) is equally free and available without variables that depend on the financial motives of Internet Service Providers (ISP).”

The political debate over net neutrality over the last three years has focused on the ability of ISPs such as Comcast and AT&T to discriminate against third-party content provider traffic in favor of ISP content, to the extent that ISPs are expected to use their gateway status to slow down traffic from certain websites or outright block subscriber access to certain websites.

The internet as a platform plays an important role in American commerce as American consumers are expected to spend an estimated $7.8 billion on Cyber Monday. Net neutrality violations could mean lost advertisement revenues for content providers who are unable to get their products and advertisements in front of consumer eyeballs.  Being cut out of $7.8 billion of revenues during the holiday season could pose an existential threat for small businesses depending on those holiday sales to break even or stay in the black.

Besides the issue of staying in the black is the issue of whether an open internet promotes the components of American political culture; whether an open internet or lack thereof poses an existential threat to the American republic.  I think as currently construed, an open internet does not pose an existential threat to the American republic. On the contrary, when it comes to navigating the political-economic environment of the United States, knowledge on how well American representative democracy is working is best ascertained by reviewing hard political-economic data published by public agencies or academic or other research institutions.

The open internet has inundated the political economy with junk. It has Americans sacrificing value of specialized information for volumes of narcissistic junk.

First, why has the internet not eroded the American republic?  Contrary to the hoopla surrounding assertions that the Russian government sponsored psychological warfare on the American electorate during the November 2016 elections, the populace participated in the selection of the electors that voted for the president of the United States. More votes were cast for president in 2016 (135,719,984) than were cast in 2012 (128,768,094).

In addition, what I refer to as “insurgent” parties, i.e., the Green Party, the Libertarian Party, etc., did better in 2016 than they did in 2012.  The Gary Johnson-led Libertarian Party ticket picked up approximately 4.5 million votes in 2016 compared to 1.3 million votes in 2012.  The Jill Stein-led Green Party almost tripled its 2012 showing during the 2016 campaign, with approximately 1.5 million votes cast for the Green Party in 2016 versus approximately 470,000 votes in 2012.

Rather than eroding representative democracy, an argument could be made that the internet provided less expensive outlets for insurgent parties to get their messages out to the voting public.  I saw more of Gary Johnson and Jill Stein on YouTube than I did mainstream press.

America’s founding aristocracy chose a republic as the best vehicle for promoting the three major components of American political culture: liberty, equality, and democracy.  Does the open internet help promote these characteristics of American political culture? I would argue only if the government expressly decides to use the open internet itself in order to accomplish these goals or requires by charter that every private entity operating on the internet do so.

Liberty is freedom from government control where Americans expect a great degree of economic and personal freedom without the government unreasonably regulating personal and commercial behavior.  The open internet itself does not have this responsibility. In the end it is just a communications platform.  Problems would arise if government were to use the internet for surveillance purposes, i.e., use deep packet reading to ascertain what messages you are sending over the internet or, under the guise of “smart city” technology, surveil minority neighborhoods to regulate citizen movement.

Nor does the internet have the responsibility of creating political equality. Political equality refers to the right to participate in politics equally based on the principle of “one person, one vote.”  Notwithstanding the alleged Russian interference in the 2016 general elections, the “one person, one vote” characteristic of American political culture is, again, the responsibility of national and state governments.  Online voting as a concept is in its infant stage.  And while the Russians allegedly interfered by waging a messaging campaign via social media, there were other outlets, both online and offline, where Americans could get their information and strengthen their “one vote” with knowledge.

Lastly, there is democracy itself, the right to cast that one vote for the candidate of your choice.  How does the unimpeded flow of information across 100,000 interconnected global computer networks impact your ability to choose a leader? The above discussion summarizes the answer: it doesn’t.  Yes, one could go to the internet and look up information on a candidate, but there are millions of Americans with no access to broadband that function normally in society; that buy groceries, go to work, and yes, vote, without having to access the information floating around the internet that is deposited by various sources.  Besides traditional media, they probably access information from the original sources i.e. city council meetings; public access television, government agency public information offices, and make just as accurate a political decision as the woman surfing the internet in her bunny sandals and pajamas.

Yes, the internet has afforded millions of people to express themselves in cyberspace via blogs, websites, podcasts, and online videos, but the open internet neither promotes or hinders democracy.  Only humans can and there are other sources of information through which humans can accumulate knowledge on liberty, equality, and democracy.  Democracy is the responsibility of government and its citizens.  The open internet is neither savior, devil, or panacea….

Atlanta should avoid the net neutrality debate. It’s not good for business

Internet Innovation Alliance co-founder Bruce Mehlman posted an article yesterday discussing the positive impact relaxed regulatory requirements can have on investment in and deployment of broadband networks. According to Mr. Mehlman, investment in broadband rose by $1.5 billion to $76.3 billion.  He contrasts this to the $3.2 billion decline in investment between 2015 and 2016.

What made the difference? According to Mr. Mehlman it was the decision last year by the Federal Communications Commission to repeal their 2015 open internet order, a decision that put into regulatory code a number of net neutrality principles.  The 2015 order treated broadband access providers as telephone companies by applying consumer and telephone network management rules that were based on communications law from the 1930s.  That approach, according to Mr. Mehlman, just can’t fly in the 21st century.

Unfortunately, Washington has been embroiled in a debate over how net neutrality principles should be applied.  There is a consensus among opponents to and proponents of net neutrality principles that consumers should be able to access web content of their choice; that content providers should not have their traffic speeds throttled by broadband access providers; and that broadband access providers should be transparent about the terms and conditions of their services.  Whether a rule by a regulatory agency is the best approach to ensuring these policy goals is an issue.

Getting to yes on net neutrality may be best brought about by an action of Congress.  Defining net neutrality in the law and laying out the components of its meaning will give content providers and broadband access providers definitive guideposts that help settle any conflicts in the future.  Without a congressional action, the industry and consumers run the risk of a back and forth regulatory battle driven by changes in political power, particularly when a new presidential administration takes over and a new chairman is appointed.  That type of uncertainty every four years is not good for consumers or business.

As more people and businesses move to Atlanta, regulatory certainty becomes an asset for the person who telecommutes; for the financial technology company that needs to maintain connection to its app subscribers; to the student who relies on distance learning to complete assignments.

Treating a broadband provider facing competition from three or four more broadband providers as if they were a monopoly local telephone company in 1934 won’t contribute to Atlanta’s continued growth.

Net neutrality challenges the affordability of information

Last weekend, the State of California upped the ante in the net neutrality debate when Governor Jerry Brown signed into law SB 822, a bill that put into California law net neutrality requirements that were contained in the Federal Communications Commission’s 2015 Open Internet Order, a set of rules that were later repealed by the FCC in its 2017 Restore Internet Freedom Order.  Section 3101(a) and Section 3101(b) of SB 822 provide the core element of the legislation and reads as follows:

“3101. (a) It shall be unlawful for a fixed Internet service provider, insofar as the provider is engaged in providing fixed broadband Internet access service, to engage in any of the following activities:
(1) Blocking lawful content, applications, services, or nonharmful devices, subject to reasonable network management.
(2) Impairing or degrading lawful Internet traffic on the basis of Internet content, application, or service, or use of a nonharmful device, subject to reasonable network management.
(3) Requiring consideration, monetary or otherwise, from an edge provider, including, but not limited to, in exchange for any of the following:
(A) Delivering Internet traffic to, and carrying Internet traffic from, the Internet service provider’s end users.
(B) Avoiding having the edge provider’s content, application, service, or nonharmful device blocked from reaching the Internet service provider’s end users.
(C) Avoiding having the edge provider’s content, application, service, or nonharmful device impaired or degraded.
(4) Engaging in paid prioritization.
(5) Engaging in zero-rating in exchange for consideration, monetary or otherwise, from a third party.
(6) Zero-rating some Internet content, applications, services, or devices in a category of Internet content, applications, services, or devices, but not the entire category.
(7) (A) Unreasonably interfering with, or unreasonably disadvantaging, either an end user’s ability to select, access, and use broadband Internet access service or the lawful Internet content, applications, services, or devices of the end user’s choice, or an edge provider’s ability to make lawful content, applications, services, or devices available to end users. Reasonable network management shall not be a violation of this paragraph.
(B) Zero-rating Internet traffic in application-agnostic ways shall not be a violation of subparagraph (A) provided that no consideration, monetary or otherwise, is provided by any third party in exchange for the Internet service provider’s decision whether to zero-rate traffic.
(8) Failing to publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of those services and for content, application, service, and device providers to develop, market, and maintain Internet offerings.
(9) Engaging in practices, including, but not limited to, agreements, with respect to, related to, or in connection with, ISP traffic exchange that have the purpose or effect of evading the prohibitions contained in this section and Section 3102. Nothing in this paragraph shall be construed to prohibit Internet service providers from entering into ISP traffic exchange agreements that do not evade the prohibitions contained in this section and Section 3102.
(b) It shall be unlawful for a mobile Internet service provider, insofar as the provider is engaged in providing mobile broadband Internet access service, to engage in any of the activities described in paragraphs (1), (2), (3), (4), (5), (6), (7), (8), and (9) of subdivision (a).”

Political actors that favor the FCC’s implementation of net neutrality rules have managed in the past to endear their position to the public by describing efforts opposing the rules as a barrier to freedom of expression.  Net neutrality rules proponents argue that internet service providers have a financial incentive to use their positions as gateways to internet access to favor their content over that of edge providers.  Favoring ISP content may take the form of throttling data coming from a favored website or blocking a consumer’s access to their favorite website.

Net neutrality rules proponents would also argue that even if their access to a website was not blocked or data from their favorite website not slowed down, the receipt by an ISP of compensation in exchange for giving an edge provider higher priority of their traffic may mean that smaller content providers are put at a disadvantage compared to larger content providers with deeper pockets.

Opponents of putting net neutrality into an agency rule would agree that the principles of net neutrality should be adhered to.  However, as network operators, ISPs argue that they cannot afford to devalue their networks by frustrating consumer access to internet content.  The internet has grown in use and popularity as a result of the “network effect” where as more consumers use the internet, the demand for and supply of content and other services increases thus increasing the value of an operator’s network.  In the end, blocking, throttling, or prioritizing content would only work against the network operator.

Often overlooked in the net neutrality debate is the global nature of the internet.  Facebook users, for example, take for granted that most of the social network’s subscribers are not located in the United States and that we all access a network of interconnected computers located in multiple countries. The traffic you receive can come from a number of jurisdictions before landing on your computer.

Ironically, California leads the way in North America when it comes to internet traffic density.  According to data from Akami, California accounts for 5.1% of traffic flows in North America.  Statista.com reports that internet traffic in North America amounts to  1,411,021 terabytes a month. This means that California’s approximate share is 71,962 terabytes a month.

And the amount of internet traffic flowing is expected to continue increasing.  According to findings by Cisco, internet traffic is expected to increase by 278 exabytes a month by 2021.  As gateways for internet traffic, ISPs concerned about managing congested networks may want to employ a time honored method of congestion management: price, and this method of determining where resources flow is what is really being kept in check by SB 822.

SB 822 prohibits ISPs from charging content providers for the handing off of edge provider traffic.  It is ironic that proponents of these rules on the one hand support the notion of regulating broadband providers like telephone companies, but prohibit the very practice telephone companies have used to recover a portion of their network costs. As internet traffic increases along with the costs for delivering traffic, would proponents prefer ISPs increase the prices the end use consumer pays while providing edge providers with free content? If this is the case, then net neutrality proponents in California, many of whom are unwittingly support keeping edge provider costs low, may find accessing information on the internet less affordable.

 

The likelihood of net neutrality being codified in statute looks dim…

Republicans in the U.S. House and U.S. Senate have been pushing for legislation that codifies net neutrality principles, making them a part of federal law.  Even with control of both chambers of the U.S. Congress, Republicans have not been able to convince enough Democratic members of Congress to get on board with passing a law that would avoid the back and forth pendulum between promulgating and repealing net neutrality rules on the agency level at the Federal Communications Commission.

Last spring, 52 U.S. Senators, including three Republicans, voted to reinstate net neutrality rules that were repealed in December 2017 by FCC chairman Ajit Pai’s Restoring Internet Freedom Order.  Mr. Pai’s treatment of net neutrality keeps the emphasis on one of the open internet’s four principles, transparency but leaves the other three principles; throttling, paid prioritization, and blocking, up to the “network effect”, where broadband access providers argue that discouraging use of the internet by blocking, throttling, or discriminating between carriers would lead to a devaluation of their networks, thus an illogical approach to take.

GOP control of the House is under threat this November.  If election sentiment carries over into the midterms, it is likely that the Democratic Party will capture the House.  Rasmussen Reports found that 47% of likely voters in the United States’ midterm elections are likely to vote for the Democratic Party while 42% of likely voters may cast their ballots for the Republican Party.

In the U.S. Senate, Republicans hold 51 seats while the Democrats hold 47 seats. Two independents, Angus King of Maine and Bernie Sanders of Vermont, caucus with the Democrats.  The Democrats need at least four seats to regain control of the Senate.

In the U.S. House, Republicans hold 236 seats to the Democrats 193.  Democrats need to pick up at least 25 seats to garner a House majority.

Will Democrats run on net neutrality as an issue? Based in polling from Pew Research, net neutrality is likely not an issue to grab the eardrums of voters.  For all voters, economic issues overall took first place, according Pew’s poll.  When broken down, the top six issues were:

  1. Immigration
  2. Health care
  3. Education
  4. Politicians/Government systems
  5. Guns/gun control/gun laws
  6. Economy/economic issues

For Democrats, while the top three overall issues for all voters were also a part of the Democrats of top three issues, gun control, politicians and government systems, and jobs rounded out the bottom three of their top six concerns.

House Democrats are aligning with their base’s apparent lack of priority for net neutrality.  Looking at a sample of 102 House Democrat websites, only four (3.9%) of those sites mentioned net neutrality, the open internet, or internet freedom as a key issue.

The low priority given to net neutrality this campaign season by voters and House Democrats tells me that Democrats will be in no hurry to join Republicans in drafting a bipartisan net neutrality bill.

 

FCC to vote on a 5G order designed to deploy more broadband

On 26 September 2018, the Federal Communications Commission will vote on an order that members of the Commission believe will help pave the way for deployment of the small cell technology that supports 5G technology.

5G refers to a next generation wireless technology that promises to deliver wireless communications at faster speeds with increased data capacity.  Writing for TechTarget.com, Margaret Rouse describes 5G as a technology that could provide data traffic speeds of 20 gigabits per second while enabling increases in the amount of data transmitted due to more available bandwidth and advanced antenna technology.

“In addition to improvements in speed, capacity and latency, 5G offers network management features, among them network slicing, which allows mobile operators to create multiple virtual networks within a single physical 5G network. This capability will enable wireless network connections to support specific uses or business cases and could be sold on an as-a-service basis.” — Margaret Rouse

Unlike current 4G Long Term Evolution wireless technology that relies on the deployment of large cell towers, 5G depends on the deployment of small cell antenna sites that are placed on utility poles or rooftops.  5G is designed to operate in frequencies between 30 GHz and 300 GHz allowing for greater data capacity but over shorter distances.

Commissioner Brendan Carr has been given credit for driving the development and release of this order.  Mr. Carr has been traveling the United States advocating for streamlined regulations that in turn would facilitate deployment of 5G technology.  Mr. Carr sees local and state regulations for cell tower and other facility siting as an issue and is making the argument that Sections 253 and 332(c)(7) of the Communications Act of 1934 can be leveraged to make local and state regulations less adverse to 5G deployment.

Under Section 253 of the Communications Act, the Commission may preempt any local or state statute or regulation that prohibits an entity from providing intrastate or interstate telecommunications services. States and localities can regulate telecom companies in order to preserve universal service, protect the public safety and welfare, and manage public rights-of-way.  Section 332(c)(7) maintains a state or local government’s authority over decisions regarding placement, construction, and modification of personal wireless facilities.

Mr. Carr argues that the order will generate $2 billion in cost savings for the wireless industry while generating an additional $2.4 billion in wireless investment.  Actual deployment is still nascent with expectations as to what 5G can do versus what it is actually doing.  Phones using 5G standards, according to Ms. Rouse’s article, are expected in 2019.  Cities are still constructing their blueprints for reconciling their smart city concepts and the “internet of things” with 5G expectations.  It may not be until 2030 that 5G becomes commonplace.