Tag: FCC

Categories
Tech

Transparency cannot replace net neutrality

Earlier this month, the chief financial officer of Verizon, one of the nation’s largest internet service providers, discussed the build-out of the company’s broadband fiber network to homes.

The network, which goes by the name FiOS, “continues to be a very good product,” Matt Ellis, the CFO, told investors at a conference sponsored by UBS. According to Ellis, consumers who opt out of cable but who subscribe to so-called over-the-top services such as Netflix “want the best broadband experience you can get, and FiOS is the best broadband experience in the marketplace.”

Therein lies the problem with the action led by FCC Chairman Ajit Pai to repeal so-called net neutrality rules, which prevent ISPs from blocking, slowing or impeding content from providers they don’t own. The rules, to borrow Ellis’ phrase, help to assure the best broadband experience you can get regardless who owns the content you consume.

As the Republican majority at the FCC sees it, net neutrality constitutes “heavy-handed, utility-style regulation” that depresses investment and innovation.

Rather than order ISPs to keep their networks open – which, by the way, is the whole point of the internet’s decentralized design – the FCC will require ISPs “to disclose information about their practices to consumers, entrepreneurs, and the Commission, including any blocking, throttling, paid prioritization, or affiliated prioritization.”

According to Pai, the market – backed by laws governing competition and consumer protection – will achieve the ends of net neutrality without the need for rules to achieve it.

The evidence suggests otherwise. Most of us connect to the internet through our ISP. And for most of us, the market for ISPs tends to be a monopoly. In the neighborhood where I live, you can choose Spectrum as your ISP. That’s the choice.

Last February, New York’s attorney general accused Spectrum of misleading consumers with promises of speeds for wired internet that, as it happened, were as much as 70 percent slower than promised. The company allegedly charged customers as much as $109.99 per month for premium plans that could not achieve speeds promised by Spectrum in its slower plans.

Consumers knew they were being ripped off. (You can test the speed of your connection.) But acting alone, there was little they could do to compel Spectrum to honor its promise.

Though a class action may force the company to reimburse consumers for the wrong, a rule that required Spectrum to serve customers at speeds the company promised would have allowed them to receive the service they paid for.

In short, all the transparency in the world won’t help if you’re served by a monopoly.

The internet is the infrastructure of our modern age and, for that matter, the medium of our democracy. It resembles the electric grid more than it does the entertainment, sports and social networks that stream across it.

As most consumers know, ISPs can (and do) charge as much for connections as the market will bear. Net neutrality asks in return that they not privilege one stream of content over another.

Categories
Law Tech

DOJ endorses net neutrality

The Trump administration is leading a double life when it comes to competition in the market for content that arrives via the internet.

The Department of Justice on Monday sued AT&T and Time Warner to block a proposed merger between the two that the government charges would lessen competition in violation of federal law.

The lawsuit upends a transaction that the companies announced a year ago, when AT&T agreed to pay about $85 billion for Time Warner, which owns CNN, HBO, Turner Sports and other networks.

Jekyll and Hyde?

DOJ contends that the deal, which is riding on regulatory approval, would set back competition and lead to higher prices for consumers.

A day later, the Federal Communications Commission voted to roll back rules that prevent cable companies and other internet service providers from blocking or slowing websites or social networks that do not pay for priority.

“We have one government, but two separate agencies with opposing views,”  Spencer Kurn, an analyst at New Street Research, told the Times. “You’ve got one agency saying that marrying content and distribution results in too much market power, and another agency saying there’s no problem with a distributor favoring their content over someone else’s.”

Net neutrality, as the rules are known, prevents ISPs from prioritizing content from companies they own. The FCC chairman opposes the rules, saying they slow development of broadband networks by lessening the incentive of the companies that own them to add connections.

But the arguments advanced by DOJ in court seem to validate the concerns that net neutrality reflects. A combination of AT&T and Time Warner (the owner of CNN and HBO, among other networks) would give the combined company the ability to throttle programs that someone else owns, leading to higher prices for consumers, DOJ charges.

“After the merger, the merged company would have the power to make its video distributor rivals less competitive by raising their costs, resulting in even higher monthly bills for American families,” the government told the court.

That sounds like a defense of net neutrality.

The rollback at the FCC is a win for AT&T, which is vowing to fight the move by DOJ to block the company’s deal for Time Warner.

Categories
Law Privacy

Phone companies should not be required to store call data, privacy advocates say

A federal rule that orders phone companies to retain records of calls for a year-and-a-half disregards the privacy of millions of Americans, according to a coalition of civil liberties groups that is asking the Federal Communications Commission to rescind the requirement.

As currently configured, the mandate that carriers hold for 18 months the name, address and telephone number of callers, along with numbers called and the dates, times and length of each call exposes consumers to data breaches, thwarts innovation and does little to aid law enforcement, according to a petition filed Tuesday with the FCC by the Electronic Privacy Information Center (EPIC) on behalf of itself and 28 organizations.

The retention requirement makes little sense in an age when phone companies bill customers for unlimited or non-measured calling, compared with a time when companies itemized calls, according to EPIC, which contends that requiring companies to keep such records in bulk results in retention of information about nearly all American adults regardless of whether the government suspects them of wrongdoing.

“These telephone records not only show who consumers call and when, but can also reveal intimate details about consumers’ daily lives,” wrote Marc Rotenberg, EPIC’s president. “These records reveal close contacts and associates, and confidential relationships between individuals and their attorneys, doctors, or elected representatives.”

According to EPIC, the FCC proposed 30 years ago to eliminate the record keeping entirely before the Department of Justice asked the FCC to extend the retention period to 18 from six months, contending that retaining phone records aided investigation and prosecution of criminal conspiracies. But the value of the records has eroded as billing has changed, charges EPIC, which notes that DOJ conceded as much in comments filed with the FCC in 2006. Further, law enforcement agencies still could request that records be retained in connection with investigations, said EPIC.

Retaining calling records also amplifies the risk of data breaches, such as the one recently at the Office of Personnel Management, according to EPIC. “The best strategy to reduce the risk of an attack and to minimize the harm when such attacks do occur is to collect less sensitive information at the outset,” the petition notes.

Discontinuing the requirement that carriers retain call records for 18 months would lower the cost of record keeping and allow phone companies to compete for customers on basis of privacy, “which many believe is the market-based solution to the enormous privacy challenge confronting the nation today,” Rotenberg added.

The FCC declined to comment on the petition.

Revisions last spring to post-9/11 surveillance laws ended bulk collection of phone call metadata by the government. Under the terms of the USA Freedom Act, the National Security Agency can obtain such information from phone companies if authorized by the Foreign Intelligence Surveillance Court. But the act does not require phone companies to collect or store metadata.

Categories
Law Privacy

FCC to address Internet privacy

The chairman of the Federal Communications Commission announced in June that the agency plans this fall to address privacy in the context of consumers’ use of the Internet.

The spur for putting privacy on the agenda is the decision last winter by the FCC to enshrine the principle of an Internet open to all providers of content—a concept better known as net neutrality—within the agency’s authority to regulate common carriers pursuant to Title II of the Communications Act.

The decision included a determination that providers of broadband Internet service, including broadband delivered via mobile devices, will be subject to a section of the law that governs so-called customer proprietary network information (CPNI), which includes such things as the frequency, duration and timing of calls. In short, information that telecommunications companies know from providing service to customers.

Except for billing, emergencies and other exceptions provided by law, carriers cannot use CPNI without the approval of customers. But until the FCC’s net-neutrality ruling, the rules that govern use of CPNI applied only to services such as Voice over Internet Protocol—think Skype—that tie to the telephone network.

That seems likely to change. As the FCC noted in its net-neutrality ruling, the rules that govern use of CPNI by telephone companies would not be “well suited” to broadband Internet service. The reason: In recent years the FCC has revised the rules that govern CPNI after initially classifying broadband Internet service as a so-called information service, which exempted Internet service providers (ISPs) from common carrier status and later led a federal appeals court to order the FCC to revise its approach.

In addition, “the existing CPNI rules do not address many of the types of sensitive information to which a provider of broadband Internet services is likely to have access, such as (to cite just one example) customers’ web browsing history,” the FCC explained.

Until it can adopt rules that address the use of CPNI by broadband Internet providers specifically, the FCC says it “intends to focus on whether providers are taking reasonable, good-faith steps to comply” with restrictions on the use of CPNI set forth in the Communications Act. Note that CPNI does not include customers’ names, addresses and other personal information, the handling of which is governed by laws such as the Cable Television Privacy Act and the privacy notices that cable and phone companies deliver to subscribers.

So what protections for privacy should apply to broadband networks? In July, nine Democratic senators, including Elizabeth Warren and White House hopeful Bernie Sanders, wrote to FCC Chairman Tom Wheeler with some suggestions. The proposals include ensuring the definition of CPNI includes data pertaining to Internet usage, online activity and payments; directing ISPs to collect data transparently; requiring ISPs to obtain consumers’ express consent before sharing information; ordering ISPs to safeguard customers’ information and to notify customers in the event of a data breach; and giving consumers a clear process for resolving complaints.

“We call on the Commission to adopt a comprehensive definition of CPNI as it pertains to broadband,” the senators wrote. “Every click consumers make online paints a detailed picture of their personal and professional lives.”