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Answering Questions About Title II and Munis - Community Broadband Bits Episode 138
As we near the FCC open meeting at the end of next week, when it will decide on both the Chattanooga and Wilson petitions regarding their wish to expand as well as a proposal to reclassify Internet access a Title II service in order to ensure it can maintain the same open Internet we have long loved.
We have mostly focused on the muni petitions, but after hearing some concerns from some munis regarding Title II, we realized we have to delve into the Title II reclassification more deeply. Enter Chris Lewis, VP of Government of Affairs for Public Knowledge. I've always enjoyed talking with Chris on various issues around telecom policy and we asked him to come on and answer some of the questions we have heard.
We talk about the prospects of rate regulation, unbundling, transparency requirements, and the process for filing complaints until Title II. Overall, our conclusion is that the rules as we understand them, are quite reasonable and should not pose a problem to munis that are already committed to providing a high quality service. You can read a Fact Sheet about the proposed rules here.
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Chris Lewis: The chairman is finding the sweet spot of having strong consumer protections under the strongest possible legal justification, which is under Title II. But not going to any extremes by bringing up highly controversial issues, like unbundling or rate regulation.
Lisa Gonzalez: Hello. This is the Community Broadband Bits Podcast, from the Institute for Local Self-Reliance. I'm Lisa Gonzalez.
FCC Chairman Tom Wheeler has stated that reclassifying Internet service providers as common carriers under Title II is an idea that deserves serious consideration. President Obama has already publicly stated that he believes new network neutrality rules should include this update. The issue has been hotly debated lately, with network neutrality advocates often in support of the proposal, and large providers opposed to it. Large providers are not the only ones who question the wisdom of the policy, for several reasons. A small number of municipal networks have also expressed concern.
In order to address some of those concerns, Chris decided this week to talk with Chris Lewis, Vice President for Government Affairs for Public Knowledge. Lewis has worked for the FCC, and has also spent some time working for the U.S. Senate. He's able to fill in some of the information gaps related to this question of Title II and how it would be implemented.
We bring you the Community Broadband Bits Podcasts, with guests like Chris Lewis, each week, ad-free. But we could certainly use your support. We hope you'll consider contributing to our work. Please go to ilsr.org and click on the orange "donate" button. And remember, every little bit helps.
Now, here's Chris, interviewing Chris Lewis, from Public Knowledge, about Title II and network neutrality.
Chris Mitchell: Welcome to another edition of the Community Broadband Bits Podcast. I'm Chris Mitchell. And today I'm speaking with Chris Lewis, the Vice President of Government Affairs for Public Knowledge. Welcome to the show.
Chris Lewis: Thanks for having me, Chris.
Chris M: Chris, I'm excited to have you on the show. You know, we've had Harold on a couple of times -- Harold Feld, your colleague -- but I've long really enjoyed seeing you whenever I come to DC, and I've thought of you as someone who, I think, is really sharp in our community. So, thanks for coming on.
Chris L: Yeah. Thank you. That's kind of you.
Chris M: One of the things that I wanted to just note for the listeners is that you're not just someone who, you know, believes strongly in the public interest and that sort of thing, but you also have experience working within the FCC -- the Federal Communications Commission. And so that's why I think you're a particularly good person to talk to today.
Chris L: Yeah. Yeah, I did spend three and a half years working at the Federal Communications Commission -- actually, while they were working on the 2010 network neutrality rules. That was one of the many things I worked on there. So, it was a great time. I learned a LOT about telecom policy, since I came at it as a layperson. The agency is made up largely of lawyers and engineers, and I was neither of those. So I got to learn quite a bit.
Chris M: Well, today we're going to talk a little bit about some of the Title II things that we know. The official rules, I believe, have not been released, but we have a very good sense of where they're going with it. And we've heard some rumblings from some of our municipal folks -- that they have some concerns about the rules. And I think, frankly, that some of it -- some of the concern -- is scare-mongering from some of the industry lobbyists. Although I always like to point out that there is a history at the FCC -- a long, multi-decade history, I think -- of not really properly listening to the voice of small providers. So I don't want to say it's illegitimate. But in this case, I do think they're incorrect. And I want to have you on to talk a little bit about a couple of the individual concerns.
So, thank you for being, you know, someone to help us understand these. But, you know, the first two are somewhat related, and we'll take them one at a time. But there's a concern from a number of the munis that the order, even though it is not contemplating rate regulation, where the FCC would set rates, that in the future, the FCC might change its mind, and then set rates. So, maybe you can just quickly walk us through how the pending Title II network neutrality regulation involves rate regulation.
Chris L: Right. So, the first point is that the rules, as they've been described and outlined by the Chairman in his proposal, do not involve rate regulation. And you have that right. In fact, Chairman Wheeler has proposed -- and the FCC will vote on a proposal that forbears from -- or, you know, "forbearance" is just the fancy FCC word for "waives" -- will, you know, basically waive applying the sections of Title II of the Communications Act that deal with rate regulation. They'll forbear from using that against broadband providers. There are sections that explicitly deal with that, that are going to be subject to forbearance. There are sections that also generally deal with the standards for non-blocking non-discrimination, that some folks feel like may apply to rate regulation in the future. I think that's the danger you're referring to. But the good news is that this chairman has said explicitly that he does not intend to create rules that create rate regulation for broadband providers. And that's a good thing. I think he's listened to the concerns of broadband providers, in setting up that sort of balance. If the FCC, in the future -- let's say when this chairman, who's not in favor of rate regulation -- if the FCC in the future wanted to try and go down that path, it would have to go through a whole new process, where the public would be able to give their input. And, you know, by and large, you know, the public, to date, has said they're not interested in rate-regulating broadband.
Chris M: Is there any history? I mean, do we know anything in that past about how often the FCC changes its mind regarding forbears? Sorry, I just want to make jokes about bears and wolves and stuff.
Chris L: I know. It's quite a word -- "forbearance."
Chris M: Well, and actually, let me just say briefly that recently someone said that they weren't sure if "unforbear" was a word. Or "unforborne." So, we'll try and ....
Chris L: Well, we could make it a word.
Chris M: [laughs] I think so.
Chris L: Yeah.
Chris M: So, has the FCC ever "unforborne" a rule that it once "forbeared"?
Chris L: You know, I don't know of any unforbearance in the history of the FCC.
Chris M: Yeah. That's my understanding.
Chris L: The -- usually you see it go the other direction, where they start with strong rules and then forbear from sections of the act. And you can forbear from the regulations. Or you can forbear from larger parts of the statute. And the courts have been very clear that that is up to the agency. So if you want to "unforbear" -- if that's possible -- I would assume that it would take a whole public process for the FCC to make a case for it and get the comment from the public on it. It could not be just snuck in.
Chris M: And I think it's worth maybe just taking a short step back, now that we've jumped into this, and noting that the way this sort of works, you have -- Congress originally gave the Federal Communications Commission authority to regulate different kinds of technology differently, in different kinds of "buckets": Title I, Title II, Title whatever. And, you know, you can correct me if I'm wrong, but I think of it as, each one of these buckets has a broad set of rules. And so, you have wireLINE voice services in Title II, and you have wireLESS voice services in Title II. And so even though both could be subject to all the same rules, the FCC has chosen to forbear certain rules, as appropriate, based on the technology.
Chris L: That's right. There was a major effort to forbear from parts of Title II when they categorized mobile voices as a Title II service. And so, mobile voice, you know, is subject to some of the rules in Title II but not all of them. And they went through a forbearance process to do that. In addition to the spectrum rules in Title III, which deals with, you know, spectrum management. Which is, you know, how mobile service works.
Chris M: So, I think we can roll right along. And the rest of these ones will take a little less time, because we've gotten the lingo out of the way. And the next one, in fact, is pretty much, I think, the same answer as rate regulation. What are the chances of unbundling, or the FCC requiring that anyone who owns a network has to share it with rivals?
Chris L: Right. So, you know, the Chairman, again, in his proposal did not say that he was going to require unbundling. So, you know, that is -- I think that is a fear out there that has not been founded by the proposal that the Chairman of the FCC put forward. I think he's been very careful to do what he needed to do to 1) protect basic net neutrality principles -- of non-blocking, non-discrimination, you know, banning paid prioritization -- and, of course, the important transparency principle. Then he's been very careful to selectively forbear, in his proposal, from sections of the act that don't have anything to do with broadband, or that could be harmful to the promotion of broadband. So, for example, he has said he's going to forbear from pieces of the universal service statute, so that companies are not burdened with fees immediately upon reclassification. And if the FCC wanted to look at putting universal service fees onto broadband, they would have to go through a process, or a proceeding, with the public's input, to figure out if that's something that they wanted to do. So, he's been very careful. And when it comes to services that don't own the network -- or unbundling -- you know, that's something that I think could be teed up in the future. But he has not expressed any interest in doing that. And it would require a very public process to do it.
Chris M: And let me ask you something. 'Cause, you know, your job is to know what is possible in DC. And, for the foreseeable future, given the power of Comcast and AT&T and Verizon, you know, even though some in the public interest community strongly believe that we should have an unbundling policy, can you imagine where that -- how that might happen, within the FCC? Or is that just look totally unrealistic?
Chris L: I think, you know, in today's debate, it is unrealistic. Just looking at the political scene here, there is STRONG support -- bipartisan support -- amazing polls out there that show, you know, 80 percent, 85 percent of Republicans supporting the idea of net neutrality. Then you see, as you get more specific, as you talk about net neutrality using Title II rules, you see less and less support. You see more of that support just on the Democratic side. When you start to talk about thinks like unbundling or rate regulation, the support really just diminishes and drops off. So, it kind of shows that, you know, the Chairman is kind of finding the sweet spot of having strong consumer protections under the strongest possible legal justification, which is under Title II. But not going to any extremes by bringing up any highly controversial issues like unbundling or rate regulation.
Chris M: Right. And I just want to say that I'm not -- I don't want to speak out against unbundling, because a number of our listeners strongly believe in open, neutral networks. And our answer has been that if you want open, neutral networks, you need to build them at the city level yourself. Because we don't see a future where the government's going to require that of others who have built networks.
So, I want to turn to, or come to a question about transparency. You know, there's a question about how the transparency rules might differ from what we currently have. Do you have any sense of that?
Chris L: Well, remember when the court vacated the 2010 open Internet rules, it kept the transparency rules from 2010. So, transparency was not as controversial as the rules that got vacated and sent back to the FCC for more work. They're not meant to be burdensome either. Transparency rules are meant to be just a way for consumers and users on the network to understand how networks intend to manage their traffic. And, you know, that means posting them publicly. And it's -- you know, I would be surprised that it would be burdensome to a company to share what the expectations are for how they're going to manage their customers' networks. It's not something that I would think would need to change often. And when it does change, you know, it just requires reposting your practices.
Chris M: The final issue I wanted to ask you about is a concern for small providers that generally have always resolved complaints locally. There's some intimidation factor, in terms of the idea that now I as a citizen could complain about their broadband service to the FCC in DC, and that it would be challenging to resolve a complaint that's, you know, so far from my community, and that sort of thing. And so, what can you tell us about how this ability to file complaints might be different from what we're used to?
Chris L: Well, you know, first of all, the FCC has had a long history of letting consumers file complaints about service, whether, you know, it's on the phone network, or whether it's the decency laws that everyone's so familiar with from recent history. But -- so, it's common for consumers to complain at the FCC. I think that it's important, actually, in these rules that there's the opportunity for consumers to complain. It's often hard for consumers to see when they're being degraded. It's much easier to see when they're being blocked from going to a certain part of the Internet. But that's why I think, you know, the complaint process under Title II is actually better for consumers. And hopefully not burdensome on network providers. You know, in the Chairman's original proposal, he had a standard for adjudication that was called the commercial reasonableness standard. And it has a list of things that have to be checked in order to see if each individual case was, in fact, a case of discrimination or blocking online. I think the advantage of having rules under Title II is that it sets a very simple standard of unjust and unreasonableness, rather than a multi-tiered, multi-faceted commercial reasonableness test. And the standard for what the FCC sets as unjust and unreasonable discrimination can be understood at a high level and network providers can, you know, prevent themselves -- can proactively keep themselves from crossing that line. It would be strange to have rules and not allow people to actually complain about violations. Otherwise, those rules would have no teeth.
Chris M: Unjust and unreasonable. Can I go to the FCC and say, you know what, like, Comcast is too slow in fixing my outage, and so I'm going to file a complaint and get them embroiled. Or I don't like that my utility just raised my price. Is that something that I can just go an file a complaint over?
Chris L: Not under net neutrality rules. But ...
Chris M: So, I guess -- you know, what I'm trying to get at is -- is there a way for someone to abuse the system with frivolous complaints? Or does the FCC have a filtering mechanism?
Chris L: Right. So, when complaints come in, the FCC has to look into them. But they also have to figure out if they make sense -- if they're worthy of further investigation. So -- Believe me, I've received -- In my time working at the FCC, I've received calls from consumers where they had concerns. And I didn't even have to pass it on to, you know, an attorney for a further investigation because, it was very simple, the consumer is asking for something that is not required under the law. So -- or under FCC regulations. So, you know, you need to give people a chance to voice their concerns. I think that's an important function of a regulatory agency. But then, I think the agency is very careful to make sure that they are only investigating those complaints that truly, you know, raise a question about service. And companies, you know -- it's important that they have a chance to respond. And so there's a process set up for how you respond to those complaints.
Chris M: Now, let me just finish off by asking you to just -- Again, we'll take a step back and look at the broad view. You know, Public Knowledge -- you're not just a -- you're not just out there advocating about telecom issues. You're often working with entrepreneurial, small, nimble businesses that don't -- that aren't ones that are normally, you know, working around heavy-handed rules, and that sort of thing. So I feel like Public Knowledge, you know, is not the only organization that knows how to strike a balance. But I think you really do know how to strike a balance. And what's your impression of how the balance has been struck on Title II?
Chris L: You know, I think they've worked very hard, in this proposal, to strike a fair balance. You know, in the notice of proposed rulemaking, the document that started this whole proceeding, the FCC highlighted what they call the "virtuous cycle" of investment. And I think that's key. Because they made it very clear that they want to make sure that the demand that's driving the growth of the Internet is hot harmed. And that cycle comes both on the network side -- the side of companies that build the infrastructure and roll out new networks -- but it also comes from the content that rides over it -- you know, the edge providers that you hear about. And if you harm either one of those, that you hurt the balance -- that virtuous cycle of investment that is driving consumer demand. You know, the new and innovative applications and services online make people want better and faster networks. And better and faster networks lead to newer, innovative services online that can use those networks in ways that people have never thought of. So it is a virtuous cycle. And I think the FCC has noted that, as the court has. And people are very aware of striking a balance that doesn't hurt either side of that growth in the Internet, both on the content side and the network side. We want to see that. And when you see an FCC Chairman put out a proposal that carefully forbears from parts of the act, you can tell that he's sensitive to the concerns of all types of businesses as well as consumers.
Chris M: Well, thank you so much for coming on this show, and helping us to get down into something that's really pretty technical.
Chris L: Yeah. Thanks for having me, Chris.
Lisa: Send us your ideas for the show. E-mail us at email@example.com . Follow us on Twitter. Our handle is @communitynets .
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We want to thank Persson for the song, "Blues walk," licensed through Creative Commons. And thank you for listening. Have yourselves a great day.