HTF Comments on Title II NPRM
Here are the comments I filed in the latest Title II docket at the FCC. The NPRM for this proceeding is by far the most poorly-reasoned and amateurish one I’ve ever seen.
Re: WC Docket No. 23-320, Safeguarding and Securing the Open Internet
I offer these comments to aid the Commission in reaching the proper conclusion in the matter of the regulatory classification and treatment of Broadband Internet Access Services (BIAS.) The FCC re-opened this issue in an NPRM released on Oct. 30, 2023.
The NPRM challenges the status quo created by the 2018 RIF order, wherein the Commission determined that Congress had not expressly directed it to regulate BIAS as if it were a standalone offering of telecommunications service. In the absence of such a directive, the RIF Order declined to continue the practice of imposing frivolous regulatory constraints on BIAS and revoked the then-freshly minted Title II regulatory framework.
The Commission’s reasoning held that a transparency rule coupled with the Federal Trade Commission’s authority to punish anticompetitive behavior and unfair trade practices would be sufficient to prevent harmful conduct on the part of BIAS providers. The continued improvement of BIAS, the absence of bad conduct on the part of BIAS providers, the advancement of BIAS technology, and the unprecedented improvement of the competitive landscape have validated the RIF Order.
Nevertheless, the Commission proposes to re-classify BIAS as a Title II service in order to assert authority to manage the BIAS marketplace. The Commission believes it needs to expand its authority not to control existing bad behavior but to constrain unknown and speculative forms of conduct that may appear in the future. An alternative would be to continue the wait-and-see status quo, reserving the proposed increase in authority until such challenges appear.
The Commission’s reasoning isn’t completely irrational as no one knows what the future will bring. It’s certainly conceivable – if not likely in today’s marketplace – that a faster path to intervention may prove valuable in some unforeseeable set of circumstances. But this tactic does raise questions in light of the Supreme Court’s major questions doctrine and the continued refusal of Congress to clearly direct the Commission to intervene in the BIAS marketplace with a hyper-regulatory framework.
The RIF Order does need improvement, however. In the Mozilla challenge, the DC Circuit Court issued a mischievous opinion declaring, for the first time in history, that light touch regulation on the part of the FCC is reversible by states, even those states poorly equipped to formulate meaningful regulation of a market and a technology whose complexity is beyond their limited comprehension and even when such state regulations impinge on interstate commerce.
The Williams dissent is perfectly clear that the majority’s acceptance of the Title I classification and simultaneous invitation to the states to overrule it is inconsistent with precedent and sound public policy goals. The majority clearly substituted its own policy judgment for that of the agency, a pattern of conduct they repeated in the subsequent Environmental Health Trust challenge to the FCC’s analysis of radio frequency emissions and public health in 2021.
As long as the FCC treats BIAS regulation as a partisan exercise and as long as the DC Circuit is willing to take part in the charade, flip-flops and regulatory uncertainty will be the true status quo. There is ample reason for Americans of all stripes to be embarrassed about the behavior of our government in these times. We would be better served by an FCC that prioritizes the continual improvement of the Internet over the expansion of its regulatory scope and power.
The natural experiment on light touch vs. active intervention in the marketplace for Internet service has demonstrated that light touch is the winner. The FCC should take the win and move on to other issues, most notably spectrum auctions and meaningful subsidy programs. There is much about the Internet that needs improving, but broadband isn’t the problem it was thought to be some 20 years ago when the idea of network neutrality was born. This docket will be best concluded with a unanimous vote on the final order.
The State of the Broadband Market
The marketplace for broadband Internet service in the U. S. is healthier than it has ever been.
- Performance metrics continue to exceed all-time highs.
- The number of nationwide ISPs has tripled since 2018.
- The number of markets served by more than three broadband providers is at a record level.
- Most Internet edge traffic is wireless.
- TV has largely switched from linear cable and satellite to Internet-based services.
- Video conferencing is routine, built-in to current operating systems and useable by children.
- The rate of fiber optic installation is only limited by available workforce.
- The rate of FWA installation is limited only by available spectrum.
- LEO satellite launches by SpaceX alone are expected to take place every 2.5 days in 2024.
- Newer LEO satellites connect directly to newer mobile phones.
- Reports of ISP misbehavior with respect to traffic management are virtually non-existent.
- Wireless Internet subscribers are more satisfied with their services than those who subscribe to completely wire-based offerings.
- While gatekeeping-as-a-service is lucrative for Cloudflare, malicious gatekeeping doesn’t exist in the U. S.
- Prices of networking silicon have fallen so low that Apple no longer sees value in making its own Wi-Fi and 5G chips.
- Share prices of semiconductor manufacturers involved in general-purpose computing and AI are skyrocketing.
These facts being the case, it’s difficult to even imagine how the Commission expects that applying Title II regulations is going to improve matters even more. We certainly didn’t see any of these things happening during the reign of Title II, neither pre-Brand X nor during the Wheeler period.
The argument from privacy doesn’t work because Congress has blocked the FCC from issuing stern Title II privacy rules. The public safety rationale is appealing, but only until we remember that the first problem with Santa Clara County’s firefighters and Verizon took place while Title II regulations were in place. The regulations didn’t prevent SCCFD’s ordering consumer-grade limited data packages for its firefighters.
The argument about subsidies doesn’t work because the FCC was able to work with ISPs to keep people connected without Title II during the pandemic.
Perhaps the Commission knows something it hasn’t shared with the public, such a comprehensive list of achievable goals it expects to hit if only it had Title II on its side. If so, it would be wise to share the list prior to the reply deadline.
The FCC is right to attempt to sell the new/old regulatory framework on the back of speculative harms as current events certainly don’t justify a change of course.
The RIF Order’s Policy Rationales
The NPRM seeks to relitigate the matter of information service as a component of BIAS in section III.6. On the question of incentives for investment, the NPRM highlights speculative projections offered in the 2015 Order based on the Free Press/Internet Association papers. This question was fully examined in the Mozilla opinion and the NPRM brings no new insights to it.
However, we are now able to contrast the record in investment under Title I (in challenging economic conditions) with the Title II record. As mentioned, we can disregard the BEAD program, which has yet to produce any results, and simply examine private investments in FWA and LEO constellations that are increasing competition. These things didn’t happen under Title II, of course. Whether they might have will always be a question for economic analysis and speculation, but we know for a fact that these buildouts are happening now. And we also know that the FCC has done precious little to promote them as the slow pace on the lower 3 GHz band and the over-allocation to Wi-Fi in the 6 GHz are both on the record.
How much more FWA would we have if carriers were able to purchase licenses in the upper 6 GHz band and the rest of the lower 3 GHz band? No one knows, but the answer is surely more than zero.
The FCC’s fixation on Title II is part and parcel of an attitude toward ISPs. Does the FCC seek to be a helpful partner that makes it easier for small and large ISPs to serve the people or does it see its role strictly in terms of throwing up obstacle to Internet service?
During the dawn of the Net Neutrality era, ISPs were the only large firms operating on the Internet, so they were reflexively seen as the black hats. But history has turned the calculus on its head such that the Magnificent Seven hyper-giants are now seen as the villains while ISPs get by on thin margins as they expand capacity to keep up with hyper-giant demands.
The old thinking no longer applies, if it ever did. Hence, there is no sound policy rationale for treating “edge service” as particularly needy with respect to interconnection. The trend in much of the world is to tax hyper-giants to fund broadband capacity increases, but that trend is most common in areas such as Western Europe where Title II-like regulations prevail.
Telecommunications vs. Information Services
The Mozilla Order cites and quotes from the amicus brief I filed along with my colleagues John Day, Tom Evslin, Martin Geddes, and Shane Tews around page 30. The court noted that our depiction of DNS as an entity distinct from telecommunications was consistent with the description offered in the brief filed by former FCC Chief Technologists Scott Jordan and Jon Peha in support of petitioners.
The court’s Mozilla order said [paragraph breaks inserted for clarity]:
“Internet architects deliberately created DNS to be entirely independent from the IP packet transfer function,” Jordan/Peha Amicus Br. 17, and “a BIAS provider’s DNS is an extraneous capability * * * not required for the core service,” id. at 17–18 (emphasis added). But if DNS is “extraneous” to operating the network, it is at least debatable whether DNS is used in “the management, control, or operation of a telecommunications system or the management of a telecommunications service.”
“Amici for the Commission [that’s us] make related points, observing that “[a]n app’s DNS translation transaction ends before the BIAS transmission begins,” “DNS transactions do not provide the BIAS provider with information about the best path to the destination,” and they “do not have the power to either optimize or impair the BIAS provider network.” Bennett et al., Amicus Br. 13. Thus it is at least reasonable not to view DNS as a network management tool. Id. at 13–14. Granted, Jordan and Peha remark that running DNS helps an ISP “reduce the volume of DNS queries passing through its network.” Jordan/Peha Amicus Br. 18.
“But in the deferential posture of Chevron the points quoted above by Jordan/Peha seem in part to support the Commission’s reading of the record (consistent with Bennett et al.) as showing that, whereas “little or nothing in the DNS look-up process is designed to help an ISP ‘manage’ its network,” 2018 Order ¶ 36, DNS is “essential to providing Internet access for the ordinary consumer,” id., for whom “DNS is a must,” id. ¶ 34 (quoting Brand X, 545 U.S. at 999).
“The Commission extends the same logic to caching, though matters here are less obvious. It explains that caching “does not merely ‘manage’ an ISP’s broadband Internet access service and underlying network,” but “enables and enhances consumers’ access to and use of information online.” 2018 Order ¶ 42. It makes clear that ISP caching service is not just “instrumental to pure transmission” but, rather, “enhances 31 access to information” by consumers by facilitating “rapid retrieval of information from a local cache or repository.” Id.
“As the Title II Order had put it (albeit drawing a different lesson), “caching * * * provide[s] a benefit to subscribers in the form of faster, more efficient service,” id. ¶ 368 n.1037, by “enabling the user to obtain ‘more rapid retrieval of information’ through the network,” id. ¶ 372 (quoting Cable Modem Order, 17 FCC Rcd. at 4810 ¶ 17 & n.76); cf. Brand X, 545 U.S. at 999–1000 (stating that “[c]acheing [sic] obviates the need for the end user to download anew information from third-party Web sites * * * , thereby increasing the speed of information retrieval”).”
It should be noted that DNS requests and replies are cached; without this caching, DNS would be extremely dysfunctional because obtaining authoritative replies is a very time-consuming process. Encryption doesn’t impair DNS caching, regardless of Judge Millett’s opinions on the matter.
This is to say that DNS is an Internet-scale distributed database that contains much more than name/address pairings. It is indispensable to email authentication, as noted in our brief (attached to this filing,) and it can store and make available for retrieval literally anything the domain manager in charge of DNS data wants it to contain.
The idea that DNS is nothing but an adjunct-to-basic phone directory is wrong, and the idea that DNS is involved in routing is even more wrong.
Because there is no Internet service without DNS and DNS is an information service proves, by itself, that BIAS belongs under Title I.
There is a larger issue, however: from its inception the Internet has been viewed by its creators and users as fundamentally different from the Title II telephone service. It is best regarded as a paradigm shift in communications, replacing direct telephone calls with mediated information transactions, as we explained in our brief.
Consequently, it warrants its own regulatory framework. This is something that only Congress can create, and it is long overdue. In the meantime, it’s wise for the Commission to refrain from regulating what it has not been directed to regulate. This should not be a free pass for states to muddle about in interstate commerce either.
What the FCC Should Do
The FCC should not impose Title II on BIAS again. Title II did not spur investment and innovation; it did not protect consumer privacy as the major threat to privacy comes from the hyper-giants; it did not enhance public safety as now have FirstNet and increasing sophistication on the part of the public safety community; and the all-encompassing general conduct standard was never used.
The Internet needs three things from the FCC today:
- More spectrum licenses for FWA in the 3, 6, and 7 MHz bands;
- Preemption of state attempts to regulate Internet service; and
- A model statute that can win bipartisan support from Congress laying out a strategy and set of expectations for the Internet that clarifies FCC authority to regulate ISPs, edge providers, and semi-infrastructure providers such as the gatekeepers, the content delivery networks, and the transit providers.
The preemption question requires the FCC to identify legal means to keep the states in their lanes without imposing irrational restrictions on the Internet. This wasn’t hard before 2015 and it shouldn’t be hard today. A unanimous order would be hard for the partisan DC Circuit to overturn.
But most of all, the FCC needs to guide Congress toward a regulatory status quo that enables the Commission to function to its full capability so that the Internet can fulfill its potential. The FCC and the Internet are not at war with each other, you are both partners in making a better tomorrow.
 I am an independent network engineering consultant and policy analyst, presently working at High Tech Forum as editor and founder. These remarks are offered in my personal capacity and do not necessarily represent the opinions of any client or sponsor. I have previously offered comment in the “Preserving the Open Internet”, “Broadband Industry Practices”, and “Restoring Internet Freedom dockets,” GN 09-191, WC 07-52, and WC Docket 17-108 respectively, and offered testimony at the FCC En Banc Public Hearing on Broadband Network Management Practices in Cambridge on February 25, 2008 as an invited technical expert. My amicus brief was cited by the DC Circuit in its opinion on the Mozilla challenge to the RIF Order. My CV is available at http://www.bennett.com/resume.pdf.
 In 2018, the fastest ISP in the US was Xfinity with a Speedtest score of 104.67; the current leader is Cox with a median download speed of 260.09 Mbps.
 Adding 4 FWA networks and 2 LEO.
 Follows from point 2.
 Cisco et al.
 Stephen Clark, “Next Year, SpaceX Aims to Average One Launch Every 2.5 Days,” Ars Technica, October 20, 2023, https://arstechnica.com/space/2023/10/next-year-spacex-aims-to-average-one-launch-every-2-5-days/.
 “2023 U.S. Residential Internet Service Provider Satisfaction Study,” J.D. Power, October 12, 2023, https://www.jdpower.com/business/press-releases/2023-us-residential-internet-service-provider-satisfaction-study.
 Dan Robinson, “Apple Still Struggling with Its Own 5G Modem Silicon,” accessed December 14, 2023, https://www.theregister.com/2023/11/17/apple_qualcomm_modem_independence/.
 See NVDA and AVGO.
 Mozilla Corporation et al., 18-1051 (US Court of Appeals for the DC Circuit August 20, 2018).