Net Neutrality

Congress Should Write Net Neutrality Into Law

By Mike Montgomery

Net neutrality is a foundational principle in the digital age. But for too long its future has been uncertain due to changes in leadership and politics. That is why it’s important for Congress to do what only it can do through a bipartisan process: enshrine the principals of net neutrality into law.

Wednesday’s announcement by Chairman Ajit Pai that the FCC will open rulemaking proceedings to reverse the Title II regulations put in place by the last administration does not change the need for a law. In fact, it shows what a political football net neutrality has become.

While politicians seem disinclined to agree on anything these days, there are good reasons why they should work together on this. While net neutrality proponents were pushing for the Federal Communications Commission to regulate the internet under Title II of the Communications Act of 1934, many of them instantly suffered from buyer’s remorse when the FCC did just that in 2015.They realized that subjecting the internet to utility-like regulations may not be the best way to encourage innovation around privacy, security and new features that could not only make our lives more efficient but delight us. Companies like Netflix backtracked on their support for Title II.

The problem with Title II is that although it does, in theory, ensure that all data is treated equally and that companies can’t carve out fast lanes, it also opens the door to the internet being frozen into a time capsule that discourages network modernization, the next wave of innovation and competition among providers. The digital world moves at the speed of light. To slow that growth to the speed of bureaucracy would have serious negative effects on the burgeoning tech industry which is creating jobs faster than almost any other industry out there.

Another problem is that while the previous administration was happy to enforce net neutrality through Title II, it’s now clear that the current administration would like to keep the tenets of net neutrality in place, but toss Title II into the regulatory dustbin. Chairman Pai has shown that he’s an advocate for the principals of net neutrality — he just doesn’t agree that the internet should be regulated like a utility.

So here we go again. Proponents of each side of the argument are gearing up for another bite of the regulatory apple as the FCC reopens the debate around net neutrality. Public interest groups are preparing to raise millions by shouting fire in a crowded theater and striking fear into the hearts of consumers. Their counterparts on the right are firing up their many D.C.-based lobbyists to argue for total deregulation.

I used to refer to net neutrality as a food fight. I was wrong. It’s a holy war dressed up as the plot to Groundhog Day. As everyone ramps up the rhetoric, perhaps it’s finally time to stop doing the same thing over and over and consider another path.

If net neutrality is as important as we all think it is, then perhaps we should do more to ensure its survival. We can’t do that by watching the pendulum swing back and forth between Title II and deregulation. We can’t do it through regulations that can be eviscerated every 4 to 8 years (or whenever there’s a regime change in Washington).

We need a law.

Once again, CALinnovates calls upon Congress to take the hint and get to work.  By making net neutrality the law of the land, a political hot potato gets replaced by clarity and certainty, not just for a presidential term or two, but well into the future. And the new law must guarantee key protections for consumers and innovators that are at least as strong as those provided in the Open Internet Order.

By turning net neutrality principals into law, Congress can deliver on behalf of the American people and put this never-ending tragicomedy to rest once and for all.

Mike Montgomery is the executive director of CALinnovates, a coalition of tech companies based in California.

This piece was originally published in The Hill.

CALinnovates Calls On Congress To Enshrine Net Neutrality Into Law

“Net Neutrality is a foundational principle in the digital age. But for too long its future has been uncertain due to changes in leadership and politics. That is why it’s important for Congress to do what only it can do through a bipartisan process: write into law the principles of Net Neutrality. Congressional action will provide innovators with a level playing field and industry with the certainty to make technology and investment decisions to continually upgrade our networks. If Net Neutrality is as important as we all say it is, it should be the law of the land, not a political hot potato resting on the third rail of American tech policy for another decade.” – Mike Montgomery, Executive Director

In These Chaotic Times, Democrats Need to Rethink Priorities

By Mike Montgomery

It was crunch time. With less than two hours to go before the U.S. Senate narrowly confirmed the controversial Betsy DeVos as the next secretary of education, a group of prominent Democratic senators huddled on Capitol Hill for a press conference about … something else.

What could have been more important? The so-called travel ban? President Donald Trump’s foreign policy agenda or the onslaught against federal environmental regulations?

No, they gathered to talk about the future of net neutrality and the concern that at some point in the future, the FCC might decide to alter its approach to governing the internet.

Don’t get me wrong: I fully support a free and open internet, but more fundamental issues must take precedence in these trying times, especially when a torrent of constituent feedback can permanently turn the tide on matters of national importance — where focusing on net neutrality today may mean a constituent decides not to weigh in on opposing Steve Bannon’s spot on the National Security Council.

As a parent and a progressive Democrat, I am disappointed to see vital energy and focus diverted from the DeVos vote. On Tuesday, the Senate confirmed the unqualified DeVos to run the department that serves 50 million students across more than 100,000 schools. Why was discussing something like net neutrality, on that day specifically, more important than discussing a contrasting progressive vision for the future of our public school system or supporting actual education voices?

That’s not to say that net neutrality isn’t important. It is and will remain so. But progressives who are also net neutrality proponents should be disappointed that any attention was deflected on an historic and consequential day to discuss what the FCC might do in the future regarding net neutrality.

DeVos was confirmed by the narrowest of margins – and perhaps if senators were focused on that issue and not net neutrality, perhaps there could have been at least one more last-gasp attempt to convince one additional Republican to vote against DeVos. Instead, they were preparing for a press conference that did not need to be held that day.

Unfortunately, what’s done is done. There is no reset button for anyone to push. DeVos is the secretary of education, and net neutrality is in place as firmly today as it was earlier this week.

Net neutrality deserves attention and protection — but it needs a thoughtful legislative conversation to codify an open internet, not press conferences and partisanship. For those who want to preserve the basic principles of net neutrality but are fearful that the FCC will abolish the Open Internet order, it’s time to take this fight to Congress. As we’ve said all along — only by cementing net neutrality into law can the government hope to create a stable environment for consumers and existing and future tech companies alike. We need bipartisan legislation that will remain immune to the whims of any particular administration and survive partisan politics.

Many people I know feel displaced and voiceless in today’s political environment. The last few weeks have shown that activists are finding new ways to express their points of view – but the firehose of issues is unrelenting and daunting. Health care, immigration, education, the Supreme Court, the environment – the list goes on. We all need to remind ourselves that there’s a proper time and place for important debates like net neutrality. Tuesday was not that day.

Mike Montgomery is executive director of CALinnovates, a nonpartisan coalition of tech companies, founders, funders and nonprofits determined to make the new economy a reality.

Originally published in Morning Consult

CALinnovates Calls on Congress to Enact Bipartisan Net Neutrality Legislation

February 7, 2016

The following quote can be attributed to CALinnovates Executive Director Mike Montgomery:

“To quote Yogi Berra, ‘It’s déjà vu all over again.’ Well into a decade of debate about Net Neutrality, it simply won’t go away. CALinnovates takes very little satisfaction in saying we saw this coming, but we’ve been calling for a Third Way that could affirmatively cement the tenets of Net Neutrality into law forever. Instead, Net Neutrality is apparently back on the table, perhaps having experienced a slightly longer shelf life than a ripe banana.

“By passing bipartisan Net Neutrality legislation, Congress can enshrine lasting laws into place that will remain immune to the whims of any particular administration and survive partisan politics. A regulatory roller coaster makes consumers and the business community queasy. Let’s settle this issue once and for all. The time is now.”

In Tech-Driven Economy, FCC Needs to Step Up

By: Mike Montgomery

It’s clear that technology is a key driver of prosperity in today’s modernizing economy. Trillions of dollars in economic activity flow through the networks which make up the internet, making America’s digital economy the envy of the world. Networks are redefining the services people consume and the income people derive. For example, according to a Pew survey, 72 percent of Americans have used a sharing or on-demand service.

That’s why the Federal Communications Commission has never been more important. From last year’s Net Neutrality rules to current proceedings about set-top boxes, internet privacy and business services, FCC rules are shaping the future of the internet – and the broader economy that it fuels. Whether you agree or disagree with these regulations, everyone agrees they will have a profound impact.

That is why it’s so disconcerting to see the FCC disconnected from the economic impact of its decisions. In a report he published in July, the FCC’s very own former chief economist, Gerald Faulhaber, Ph.D., raised alarms about the agency’s dangerous turn away from economic analysis in its decision making.

In the report, Dr. Faulhaber asks: Why do the U.S. Department of Labor, the U.S. Environmental Protection Agency and the Consumer Financial Protection Bureau all conduct stringent cost-benefit analyses on their decisions while the FCC does not?

The FCC has simply become too important to the economy for it to fail to explore the economic impact of its decisions. For example, numerous economists warned the FCC that its decision to impose so-called Title II regulations on internet service providers, which treats today’s advanced broadband access in the same way as telephone services from generations ago, will have a negative impact on investment and innovation while not solving the issue we all want addressed: how to ensure that internet traffic is treated fairly across networks, regardless of where it comes from. Yet, when issuing its Open Internet Order, the FCC conducted no economic analysis of the impact its proposed rules would have on consumers, innovation or investment.

How is that possible?

The problems continue. The FCC is currently facing a major backlash from Congress, Hollywood and many innovators for its proposed new technology standards for set-top boxes.

Read the full article here.

Congress must resolve net neutrality once and for all

By: Mike Montgomery

When the U.S. Court of Appeals backed the Federal Communication Commission’s (FCC) so-called netneutrality rules this week, PC World nailed the problem with its headline: “The decision will be challenged, and the case could drag on for years.”

Regardless of how the court ruled, net neutrality was destined to play out in courtrooms for the next decade as policymakers, technologists and consumers grapple with how to ensure open access to the internet while not crushing innovation and discouraging investment that created the Web in the first place.

Today the battle is largely between ISPs and edge providers. But as we’ve seen with buyers’ remorse statements from companies such as Netflix and Cloudflare, as well as EFF’s John Perry Barlow, in the future these legal battles may become more muddled as tech titans realize that they could be captured by the rules designed to keep the internet accessible to all.

These battles would test the patience of Bill Murray’s character in “Groundhog Day,” which is why there is only one entity that can settle the issue once and for all: Congress. Critics of the FCC contend the agency overstepped its bounds and applied 20th Century rules to innovative and rapidly changing technologies. At the same time, everyone wants to ensure that the internet continues to remain open and that we don’t create fast lanes, ban blocking and enhance transparency.

Only Congress can solve this problem by rewriting the laws that the FCC uses to base its rules. However well meaning the FCC was with its approach, two obvious negatives exist. The first is that the uncertainty over a decade-long legal fight leads tech companies – both those that supply the pipes and those who rely upon them – to play wait and see on new investments or innovations. That’s bad news for consumers and really bad news for an economy that needs a tech jolt.

The second is that we risk accepting that the Web deserves to be treated no differently than our water or electrical utilities – plodding and innovation-free, devoid of competition. That harms consumers and innovators alike due to a lack competition, choice and investment.

Read the full article here.

Netflix Exploited a Gaping Loophole in Net Neutrality Regulations

By: Mike Montgomery

Netflix hasn’t looked this bad since the whole Qwikster fiasco.

The streaming video company recently admitted that is has been throttling data speeds for customers watching Netflix on Verizon and AT&T-powered devices. If you’re one of those unlucky Netflix subscribers, like me, and were wondering why your video stream wasn’t as glossy and smooth as it should have been, now you know the reason.

Apparently, this has been going on for five years. So while Netflix was not only lobbying the Federal Communications Commission (FCC) and demanding that Internet Service Providers (ISPs) be prohibited from a litany of items that most everyone agrees are bad for the digital era, the streaming giant alleged that certain ISPs (such as Verizon) were throttling Netflix’s video traffic to their customers. The FCC relied on that misrepresentation as a basis for their regulatory intervention.

Netflix is defending itself by saying that it wasn’t trying to hurt customers. In fact, it was trying to help them because video uses a lot of data so they were just trying to save customers from the expense of exceeding their data limits. But secretively slowing traffic on its own network to a large base of its subscribers while blaming others is simply abhorrent behavior from a previously trusted brand.

And terribly hypocritical.

The Netflix story should teach everyone even remotely interested in the Net Neutrality debate that there are entities in the Internet ecosystem, beyond ISPs, that have the ability and power to impact the future of an Open Internet.

I’d like to say I’m surprised but I’m not. When the FCC decided last year to regulate the Internet under Title II of the Communications Act, I wrote that this wasn’t the end of the fight. Although many supporters felt they had won a major victory, I pointed out that the rule was not going to be enough.

While ISPs are now required to treat all data equally, “edge providers” like Netflix do not need to abide by those same rules. So while Netflix argued that companies like Verizon were throttling its content, Netflix was lying to regulators, the press and consumers.

Read the full article here.

Verizon Sees The Light On Net Neutrality But It’s Too Little Too Late

By: Mike Montgomery

Verizon’s most recent statement on net neutrality is really the height of hypocrisy. To be clear, I completely agree with the no blocking and no throttling principles outlined in the post. Yet their sudden enthusiasm to ban zero rating services and grant the FCC power to chill innovation through antiquated regulation will ultimately harm broadband investment and consumer access to modern 21st century Internet-based services and applications. It’s curious that Verizon has recently found religion on this single-most divisive and long-lasting tech public policy issue of this century.

For the past six years my organization has been pushing for a third way on net neutrality: laws that support an open, free Internet but are affirmatively enshrined into law by Congress instead of mandated by the FCC and are subject to change every 4–8 years. Unfortunately, we’re currently in legal no-man’s land, and, as we predicted, the rules are now going through the legal meat grinder as we are essentially legislating through litigation.

As we predicted, the FCC has set in motion a process where tech policy is set through litigation, rather than through collaborative and publicly vetted legislation. This creates many problems. Waiting means incredible uncertainty for anyone building a business that might be affected by changing net neutrality rules (in other words, everyone building a business on the Internet).

No one knows what the courts will decide. The legal process is, by definition, uncertain. And we’re in the middle of a heated presidential race.

Read the full article here.

Net Neutrality: a Response to Representative Anna Eshoo

By Mike Montgomery, Executive Director of CALinnovates

Representative Anna Eshoo (D-Palo Alto) got it right when she wrote about the importance of Net Neutrality to the next generation in an op-ed published in the San Francisco Chronicle.

Millennials already live their lives online. If business or the government makes it more difficult for those young people to have clear access to all parts of the Internet, it will only further isolate them from the processes of government. Already, as Eshoo points out, roughly half of Millennials don’t identify with any political party. Take away Net Neutrality and it sends the strong message that government doesn’t share Millennials’ priorities. That would only push the next generation father away.

And while I agree with Rep. Eshoo’s assessment that an Internet without fast lanes is essential to the future, she is missing a critical point about the future of the open Internet.

Read the full article here.

So Far Net Neutrality Hasn’t Broken The Internet

Shares of Verizon — the future home of this publication — a company viscerally opposed to net neutrality, are down a fraction in a down market. Investors, it seems, aren’t pricing much downside into net neutrality in the immediate aftermath of its enaction.

There is a certain irony to the Verizon point. Verizon brought the last suit against net neutrality that led to the new rules. Title II is in no small way due to the actions of that ISP.

Legal challenges to net neutrality are on a fast track and should be wrapped up, perhaps, by the end of 2015. The key aspect to an accelerated court schedule is that the market needs certainty on the matter. If the FCC’s rules are overturned, things change. If the agency succeeds in court, things don’t change.

Following the FCC’s victory to put down a stay of its rules, Wheeler said that the decision “give[s] broadband providers the certainty and economic incentive to build fast and competitive broadband networks.” ISPs would rather have it another way.

Aside from legal threats, another potentiality looms for net neutrality: A new administration’s FCC changing the rules. That fact adds another wrinkle to the current presidential election cycle — who wins will be able to either maintain, or shape, net neutrality policy in a different direction.

Congressional action, of course, remains a possibility.

Mike Montgomery of CALinnovates, a technology interest group, told TechCrunch that if the party in the White House changes, things could rapidly shift:

A Republican President will surely make the appointment of a new FCC Chairman a priority, and that new Chairman would likely take a sledgehammer to the Open Internet Order as her or his first order of business. […] The new President’s appointment of a new FCC Chairman will shift the balance of power at the Commission, turning a 3-2 Democratic majority into a Democratic minority, thus providing the votes to either completely overturn the imposition of Title II or drastic forbearance, leading to a theoretical ‘wild west’ that would lack any clear rules of the road, which would create a nightmare scenario for consumers, startups and the greater business community, and investors.

Montgomery said that if the net neutrality rules lose in court, it could lead to “a situation where fast lanes, blocking, and throttling will be squarely back on the table.”

In short, here we are, as expected. Welcome back to net neutrality.

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