Caribbean media producers need paid prioritization

In his 2015 open internet order, former Federal Communications Commission chairman Tom Wheeler argued for a seamless internet that promotes a virtuous cycle of innovation.  This seamless internet ecosystem would include every point on the internet between the end user sitting at his laptop or on his smartphone and the website from whence the end user is attempting to download information. To ensure this seamless experience, Mr Wheeler invoked the four open internet principles of transparency; no paid prioritization; no throttling of a website’s traffic; and no blocking an end user’s attempt to access the website of her choosing.

As of 11 June 2018, Mr Wheeler’s rules are no more, repealed and replaced by the Restoring Internet Freedom order issued by the Commission in December 2017.  While the Restoring Internet Freedom order kept language from the open internet order that addressed transparency i.e. the public disclosure of accurate information regarding network management practices, performance characteristics, and terms and conditions of service, etc., it repealed language addressing throttling of traffic from website, paid prioritization creating faster lanes for content providers, and blocking consumer access to legal websites.

The 2017 order addresses throttling, blocking, and paid prioritization concerns by providing language defining reasonable network practices. A network management practice is reasonable if it takes into account a legitimate business goal, the network’s architecture, and the technology of the broadband service. But critics of the Restoring Internet Freedom order are interpreting the repeal as authorizing ISPs to block or throttle internet traffic or allow large content providers to pay ISPS for the privilege of faster data lanes to their subscribers.

Critics can also be found in state legislatures where, according to data compiled by the National Conference of State Legislatures, 65 pieces of legislation were offered in state legislatures that put the FCC’s 2015 rules on net neutrality into state law. Eight of these states (California, Georgia, Maryland, Massachusetts, New Jersey, New York, Pennsylvania, and Virginia have metropolitan areas where significant Caribbean populations are located.  None of these states have enacted net neutrality legislation yet. Net neutrality legislation has already failed to pass in three of these states: Georgia, Maryland, and Virginia.

I understand the idea of transparency because of the importance it plays in negotiating for broadband access services. I never understood, however, why so-called proponents of net neutrality rules were against voluntary strategic partnerships between ISPs and content providers.  For example, the Caribbean has an emerging entertainment industry, one that recognizes the benefits of digitization. In the 21st century artists have to leverage the internet to get to an audience that is viewing more video traffic via mobile. Getting in front of a sizeable Caribbean immigrant audience in the United States may mean leveraging paid prioritization in order to ensure the availability of bandwidth necessary to stream video and music.

The FCC’s decision to repeal paid prioritization may benefit entertainment producers from the Caribbean in the long run.  Attempts by the states to balkanize communications regulation should not be allowed.

If you needed the internet that bad, you would have created it yourself

Monday 11 June 2018. We will see a repeat of the weeping and wailing that Hillary Clinton’s supporters did as they witnessed what they thought was impossible: an electoral loss to Donald Trump. Advocates for the treatment of broadband access as a telecommunications service will weep and wail not because of the loss of internet service, but because they will be out of bullets when the scare tactics imposed on millions of consumers do not come to fruition. As June goes into July into August into election season into Kwanzaa, another argument for attracting anti-Trump voters will fade away.  As the tyrannical Fake Left jump onto social media and create new forums and hashtags for the next rally, they will soon take for granted that the internet still works after all.

What I find disconcerting is the emotion attached to internet access. “If everyone is not connected, we will all sink into the pits of Hades.” “If I am not online, I am inconsequential.” “The internet is crucial to our daily living and well-being.”  None of this is true. Unlike water and energy, internet access is not a necessity for the continuation of life. Approximately 11% of Americans do not use the internet, according to data from Pew Research. More than likely, these individuals are getting information they determine as pertinent to their lives from old tried and true sources: first hand observation, published news sources, direct contact with government agencies, family and friends. These data sources are not as fast or as glitzy, but they have worked for centuries and more than likely were used by the individuals who built this digital world.

I expect the percentage of Americans not using the internet to fall over time when you consider that in 2000 approximately 48% of Americans were not online.  Our children are already internet savvy and this use of online services will only continue as they get older. As we on the tail end of the Baby Boom enter retirement, we may find ourselves using it more to connect with fellow Boomers who, unfortunately, may not be up to travel for various reasons.

What we need to avoid is allowing political factions such as the Fake Left to play on the emotions stemming from the belief that without net neutrality rules, consumers won’t be able to get to the websites of their choice, see speeds from their favorite websites slow down, or have their data sold to third parties they did not approve.  This narrative should be seen for what it is; another way to get votes.

If the Fake Left were really concerned about protecting your privacy and the speed at which you access data, they would tell you that you are responsible for reading the fine print of every service agreement for every information service provider you access. Arguing that terms and conditions are written in “legalese” is no excuse for skipping over disclosures and subjecting your privacy to abuse.  If, as the Fake Left argues, the internet is that crucial to everyday living, so crucial that it should be treated like a utility, then equal fervor should be applied to the consumer who decides to use online services.  In other words, the Fake Left should stop encouraging people who can’t fly to buy an airplane and attempt to fly it without bearing the consequences.

If you can’t get what your want from an information service provider in terms of privacy or speed, then maybe you should invest in consumer encryption services such as a virtual private network, or using a heavily encrypted network or browser such as TOR.

There are also the old methods of information gathering: a telephone (landline) and a newspaper, from which you can access by paying cash, the ultimate form of encrypted currency. Bottom line, there are ways to protect your individual privacy without implementing more onerous rules on society.

A market-based, voluntary open internet, privacy regime is doable

The best protection on the internet is self-protection and a self-protection regime does not have to be implemented via any additional government rules. Rather, for a subscriber to broadband access services provided by an internet service provider, the subscriber should avail themselves of the opportunity to enter into voluntary agreements as to the level of privacy and open internet protections they wish to purchase. The discussion regarding the confusing legal verbiage of written terms and conditions offered to a broadband access subscriber by an ISP should raise the question, “Would transparency best brought about if negotiation of agreements were more bilateral in nature?”

Before delving in any further to the primary question, let me attempt to dispose of one other question that arose in your mind when I posed the first question. “Do people have time to negotiate an agreement for broadband access services?” My response: “Why not?”

Advocates for net neutrality rules captured in the Federal Communications Commission’ 2015 Open Internet Order argue that broadband is now an essential part of the life of the individual and that today’s economy is robust because of high-speed access to the internet. Broadband access, the advocates would argue, should be treated like a utility service given its importance in sustaining the household.

Some would argue that broadband access does not arrive to the level of human necessity, no matter what a number of international organizations have argued.  Among those in disagreement with the “broadband equal to a utility” argument is FCC member Michael O’Rielly, who on a number of occasions has clearly expressed that people do not need broadband to live.  Mr O’Rielly is not alone in his assessment. His two other Republican colleagues, FCC chairman Ajit Pai and FCC member Brendon Carr also agree that 20th century treatment of a competitive 21st century technology such as broadband should not be regulated as a utility.

But for the sake of argument, let us say that broadband access arises to the level of a utility service. If it is that important to life, why would you not negotiate its terms and conditions?  During a negotiation for broadband access, more than likely the ISP would offer some canned language describing minimum services with a list of add-ons and opt-ins for the subscriber to voluntarily agree to. The ISP may offer different tiers of service where each tier provides various levels of privacy protection, transparency, and options for download and upload speeds. If technology permits, there could even be allowance for traffic from chosen websites that receive priority.

In the end, a subscriber’s willingness and ability to pay for different tiers of service will determine the level and amount of privacy and openness she receives on the internet.

I think an answer from the second question provides an answer to the first. Negotiating terms and conditions of service should lead to more transparency because the consumer had a direct hand in creating her services package.  The subscriber would have first hand knowledge about the amount of privacy protection she has bargained for.  But the direct hand in negotiating agreements requires the subscriber’s willingness to educate herself on how her product works. This is a level of knowledge that consumers fail to obtain because they may consider gaining that knowledge to expensive and time consuming. Hence their love for consumer protection agents. They can punt the responsibility of an alleged important, utility style service to them.

Morgan Freeman finds out that the internet has turned millions of Americans into lawyers, prosecutors, and jurors

The only thing missing from today’s internet charge, trial, and conviction of actor Morgan Freeman on allegations of sexual harassment at a workplace are the digital eyewitnesses like the ones that caught Al Franken play-fondling Lauren Tweeden’s breasts.  In Mr Freeman’s case, the eyewitnesses were human. The prosecutors, lawyers, and jurors, however, are mostly digitized and charges and convictions merge and rapidly go viral in a globe that is increasingly connected.

My title implies that the number of arm chair attorneys and jurors has increased. Check your Twitter and Facebook timelines and observe your followers and friends opining on allegations by eyewitnesses (allegations not yet entered into any legal record) and an apology issued by Mr Freeman (questionable as to whether it is admissible as evidence and probably meaningless since he admitted to nothing). As to whether the number of commenters contributed significantly to the degree of virility, I would answer that while there was some contribution, the number of commenters was not the significant contributor. The main contributor is the number of online editors or gatekeepers.  There are more people today that are giving a “thumbs up” to posting a story.

If you lived in Charlotte Amalie, U.S. Virgin Islands in the 1970s, you had one newspaper and two television stations providing you news. That meant three editors deciding what local news got broadcasted and back then local TV news coverage was sparse, in my opinion.  Today the internet has changed that.  Alternative online news sites and blogs mean that a non-story to one editor is a scoop to another. It is not that the same level of information is spreading faster. Viral means to increase the amount of available information that gets to more consumers via digital means.

The increase in the amount of information reported is compounded by an enlarged forum within which the public is exchanging ideas. Some net neutrality advocates would call an enlarged forum an example of the openness of the internet where more media consumers can be heard. Hence the millions of armchair lawyers and jurors.

How valuable are these opinions? In a court they don’t mean much. Judges and attorneys would not want juror assessment tainted by uninformed opinion, meaning these days they would have to look under a rock to find people outside an earshot of a podcast on the matter.  To a social scientist the public exchanges online provide some data on attitudes toward the tawdry behavior Mr Freeman is accused of, but as an experiment, as a measure of opinion the public exchanges don’t provide the best data because the collection is not subject to the best controls.

Probably the only benefit that matters is that people can claim that while they are not a lawyer, they slept at a Holiday Inn and the ability to vent support, denial, anger, or frustration en mass is benefit enough.

Old school regulation of internet service providers raises the threat of less broadband competition and more consolidation

Yesterday’s vote in the U.S. Senate that upended the Federal Communications Commission’s repeal of its net neutrality rules was more political grandstanding than good policymaking. S.J. Res. 52 nullified the Commission’s “Restoring Internet Freedom” rules that would have gone into effect on 11 June 2018. The Restoring Internet Freedom rules reclassified broadband access service as an information service; reinstated private mobile service classification of mobile broadband internet access service; required internet access service providers to disclose information about their network management practices, commercial terms and conditions, and performance characteristics; and eliminated the internet conduct standards and bright-line rules.

By repealing the Commission’s Restoring Internet Freedom rules, the Senate signaled its preference for the Commission’s 2015 Open Internet order. The order, based on the premise that broadband access providers posed a threat to openness on the internet and could hinder the virtuous cycle of innovation being introduced by edge providers, the Commission created a regulatory framework that classified broadband access service as a telecommunications service. The 2015 order also established what it referred to as “bright-line” rules that prohibited paid prioritization; the throttling of traffic from websites; and the blocking of consumer access to the legal online content of their choice. In addition, broadband access providers were required to provide consumers with information as to their network management practices, network performance, and commercial terms and conditions. The rationale for this transparency was the need to ensure that consumers made choices based on accurate information.

With its declaration that broadband access is a telecommunications service, the 2015 order subjects broadband access providers to certain sections of the Communications Act of 1934, specifically sections 201, 202, and 208. Although the Commission expressed an intent to not regulate the rates that broadband access providers charge consumers, including edge providers, section 201 of the Communications Act allows broadband access providers to establish different classifications of service.

For example, services may be classified into day, night, repeated, unrepeated, letter, commercial, press, government, etc. So, while no content delivery service can pay a broadband access provider a little extra in order to have their traffic placed ahead of another content provider while in the same class of service, section 201 allows broadband access providers to establish different classes of service that content providers can explore and use.

Let us assume that for some reason the resolution is also approved in the U.S. House of Representatives and President Trump fails to issue a veto. Given the application of sections 201, 202, and 208, small broadband access providers may be faced with the opportunity of being acquired. If a large broadband access provider offers various classes of broadband access, it in essence is carving out smaller markets within which it will dominate. If a broadband access provider carves out a classification that competes with a smaller broadband access provider, that smaller provider will face existential choices. Either lower its rates to where it no longer sees a profit and eventually leaves the market or be acquired which means getting to non-existence a lot faster. The 2015 Open Internet order could well be an example of how regulation stifles competition.

Lastly, I would expect that states will want to get in on the action. I have made this argument before. Under a 2015 Open Internet order regime, states will reassert themselves as the frontline for consumer protection. State public utility commissions don’t see themselves as agencies that sit around and handle consumer complaints all day. They rather those annoying complaints be addressed by their states’ respective attorneys general. State public utilities would rather flex their muscles in the pricing arena and will probably tailor state rules that align with sections 201, 202, and 208 of the federal communications act. The rules and the accompanying administrative procedures that broadband access providers would have to comply with will become burdensome on smaller players.

The result: regulation creating a less competitive market.

Why is net neutrality a partisan issue and how is it negatively impacting privacy rules?

Net neutrality shouldn’t be a partisan issue. The internet isn’t a government agency even though a number of governments around the world would like to restrict their citizens access to it and regulate the content that flows through it. If the internet, as it is viewed in the United States, is a means by which liberty, equality, and democracy intersect and are expressed, then shouldn’t the Republican and Democratic wings of Congress unite on those three pillars of American society?

Is there any contention in the area of liberty as it pertains to the internet?  It does not appear that way. The left replaces the word “liberty” with “freedom” and sticks pretty close to the traditional wording of the open internet, meaning no blockading of consumer access to the legal content of a website.

The right would agree with the left that consumers should be able to access the legal content of their choice. This issue goes to the fundamentals of conservative philosophy, liberty.

Regarding equality, I see contention. On the left, equality on the internet means that traffic from one website is treated the same as traffic from another website. A broadband access provider should not be allowed to throttle a site’s traffic prior to delivering the traffic to a consumer. The principle of equality would also hold, according to left internet philosophy, regarding the issue of paid prioritization. Paid prioritization occurs when a content provider pays a broadband provider for the privilege of special treatment of its traffic. The broadband provider may provide the content provider with “faster lanes” or some other privilege that grants that content deliverer’s traffic some priority over other traffic.

The right may not necessarily disagree that paid prioritization grants a one provider an advantage over another. Whether that advantage is fair or merely a valid business decision is the question and if the decision to provide priority to one type of service versus another is reasonable, then why not?

Prioritization occurs every day. Take the example of packages sent via a common carrier such as the post office. A consumer of postal services has an option of paying to send mail via regular mail or by priority mail, getting his package to its final destination within the next one or two days. The content of the mail may be such that rush delivery is of the essence.

Taking a flexible approach to prioritization may be in keeping with varying demands of different applications. In its recommendation for bipartisan legislation on net neutrality, the Information Technology & Innovation Foundation noted that:

“Legislation should allow clear flexibility for traffic differentiation for applications that require it, avoiding an overbroad flat ban on prioritization, while clearly prohibiting anticompetitive conduct. Legislation should put some restrictions on paid prioritization to limit the potential for abuse, such as a simple ban on exclusive dealing or a requirement
to offer similar terms to all customers.”

Finally, the left has made vigorous arguments that broadband access providers have the potential to threaten democracy on the internet because of their technical capability to block and throttle traffic. This potential bad behavior would restrict a consumer’s ability to choose or produce the content of her choice.

While conservatives may empathize with the self-expression argument, I would expect a two-pronged rebuttal. First, since broadband access and the internet (for the most part) is a private, commercial enterprise, there is no state action intervening in a citizen’s right to participate in the political process. That alone should make the concerns about democracy moot. Second, it is not in a broadband provider’s best business interest to discourage the use of its network. The more users and more traffic exchanged, the greater the revenues and profits and lower the operational costs of the network.

Given the heightened concern over the last two years about privacy on the internet, the left and right wings of Congress should use the need to bring certainty to privacy as a catalyst for closing the philosophical gaps in the vision for the internet. Privacy is being placed on the backburner which is unfortunate because while most consumers are fine for the most part with the internet as it is (growth in ecommerce is one such indicator of the internet’s health), codifying net neutrality principles, general principles that the left and right agree with, in the form of a statute plus providing bright-line rules on privacy and privacy enforcement will bring certainty to consumers of broadband services as to a safer internet and certainty to broadband providers that wish to continue investment absent the nightmare that a back-and-forth that the current regulatory framework creates.

Will states seize the opening if net neutrality rules are resurrected?

11 June 2018. On this date the decision by the Federal Communications Commission that repealed the 2015 Open Internet Order will go into effect. Democratic members of the United States Senate hope to vote on a resolution that nullifies this recent decision by the Commission. In other words, the Democrats want to roll back to the way things were in 2015 with the Commission regulating broadband internet access service as if broadband access was a telephone service.

The Senate’s vote, expected to take place the middle of next week, is expected to go nowhere in the U.S. House of Representatives where Republicans hold firmer control. Partisanship is expected to rein supreme. And even if the House were to join the Senate in condemning the Commission’s decision to repeal net neutrality regulations, President trump is expected to veto the bill, sending it back to Congress where an override of the veto has next to no chance of happening.

For students of federal government, this congressional review action demonstrates a major weakness in the legislative branch of federal government. Congress may hold the purse strings, but when it comes to wielding any power, Congress is slow, its actions cumbersome. It is no wonder it gets accused of doing nothing. It is not that it doesn’t try. Congress is designed not to usurp the power of the executive, but simply to keep him or her in check.

Congressional Democrats could have expended energy drafting legislation that not only codified open internet principles but addressed transparency and privacy of consumer data handed over to social media firms such as Facebook or Twitter.  But when it’s time for political theater, no place is better than the chambers of Congress. Senator McCarthy’s search for communists. The Warren Commission. The Nixon impeachment. Iran/Contra hearings on Oliver North’s gun trading in Nicaragua. The Clinton impeachment. All great theater. Democrats may want to add to this list a vote on net neutrality.

Unfortunately for the Democrats, Congress will slide into a couple summer recesses mixed in with campaigning for the November 2018 midterm elections. Except for uninformed millennials and assorted nerds, there will be little attention paid to net neutrality.

Twenty-two states will give repeal the college try, however. A lawsuit filed by a number of state attorneys general hopes to show that the Commission’s action was arbitrary and capricious. I suspect that even if the states were successful in their attempt to overturn the repeal via the courts, I don’t see them doing much on the state utility commission level to regulate broadband access providers.  Just let their states AGs expend resources to tackle on a case-by-case basis complaints alleging throttling, blocking, and lack of transparency on the part of providers. Regulating broadband as a telephone service is fun to say and probably gets a few voter brownie points, but states have spent the past two decades moving away from utility-style regulation of phone services and are not about to roll the clock backward.

Besides, the old heads like me who were members of the public utility commission staffs that did the regulating have moved on and aren’t interested in revisiting the ghosts.