Trump calls for US 5G leadership once more

At a press conference the US President endorsed FCC plans to improve the country’s position in the global 5G race.

President Trump likes to cherry-pick the people who stand behind him when he is public speaking and, as well as FCC Chaiman Ajit Pai, on first glance he had what appeared to be a Village People tribute band in attendance. As you can see from the video below, however, they turned out to be telecoms engineers and some kind of rural broadband lobby group.

The main theme of Trump’s introduction to the latest 5G initiatives was the need for the US to be the world leader in 5G technology. He apparently views 5G as a key component in his geopolitical tussle with China and had previously tweeted his enthusiasm for the technology, even going so far as to bring up 6G in the process, a step too far he seemed to acknowledge in this speech.

He then made way for Pai, who announced a bunch of initiatives designed to make Trump’s 5G dreams come true. This wouldn’t be the US if the plan wasn’t encapsulated by a forced acronym and in this cast we have FAST, which stands for Facilitate America’s Superiority in 5G Technology. Here are the essentials of the FAST plan, which you can read more about here as well as watching Pai’s presentation below.

Spectrum

Later this year, the FCC will auction the upper 37 GHz, 39 GHz, and 47 GHz bands. There were only vague aspirations offered about mid and low band spectrum as well as unlicensed spectrum

Infrastructure Policy

They’re trying to make infrastructure investment more attractive as well as reducing the bureaucratic hassle around deploying small cells.

Modernizing Outdated Regulations

This includes the net neutrality dispute, ease of access to cell sites, investment in fibre and of course the ongoing matter of keeping Chinese companies out of the network.

Since you have all the footage below we won’t bother extracting any written quotes, noting only that Trump moves on to troll critics of his immigration policy towards the end of the speech, which is quite amusing. The most substantial criticism of the FAST plan seems to be the lack of activity around mid band spectrum which will, initially at least, be much more useful for 5G than all that millimetre wave stuff they’re currently focused on.

 

Politics is broken, and the net neutrality conflict proves it

The sceptics and cynics might be right; politics is nothing but pageantry and theatre with the idea of serving the greater good dying with the invention of teeth whitening services.

Yesterday saw the House of Representatives, of which the Democrats have a majority, pass the pompously named ‘Save the Internet’ bill by 232-190 votes. This bill proposes the re-introduction of net neutrality rules, undermining and unravelling the equally pompously named ‘Restoring Internet Freedoms’ Order introduced in June last year.

For the Democrats, this vote will be chalked up as a victory, but ultimately it is a sign politics is broken and the General Public is getting screwed by self-righteous and self-serving politicians.

“The House’s vote to re-instate net neutrality reflects the will of millions of Americans who made their voices heard that they don’t want their costs of using the Internet to go up unfairly, they do not want their freedom to be constricted, and that if they should decide to start up a business, they deserve to be on an equal playing field with their larger competitors,” said Senate Minority Leader Chuck Schumer.

The passing of this bill is nothing more than a symbolic gesture. It is a metaphoric ‘F*ck you’ to the Trump administration and the Republican party. But it achieves very little. Republican Majority Leader of the Senate Mitch McConnell has already stated the bill is “dead on arrival” when it hits the floor of the Senate, and even in the unlikely scenario it does pass, the White House has already promised a Presidential Veto, what would be the second during Trump’s tenure.

The Democrats already knew this bill would fail to pass one of the legislative hurdles, or if they didn’t they should have their heads examined but maintained course. It might be considered an act of defiance, but in reality, it simply clogs up the legislative machine, ensuring no progress is made to better the lives of everyday US citizens.

If the Democrats cared about protecting and enhancing the lives of US citizens, actions would have been taken to offer more of an opportunity for the bill to pass. Not only would this be progress, it would also not deny another worthy bill time for debate. As it stands, there is not much more than a net loss for the US citizens.

Such is the partisan state of politics in the US, the idea of concessions is preposterous. The objective is no-longer to improve the lives of US citizens through innovative and considered legislative action, but to entertain and rouse.

Even the names of the bills are geared towards theatre. The ‘Save the Internet’ bill or ‘Restoring Internet Freedoms’ Order should make any reasonable individual cringe, such is the transparent nature of the propaganda, but it makes a great sound bite when preaching to the converted at political rallies.

Another bill further undermines the futility and self-serving nature of the Democrat quest.

The ‘Open Internet Preservation’ Act is a Republican piece of legislation, first proposed by Tennessee Senator Marsha Blackburn, which appears to be a middle-ground between the two parties. Blackburn is a slightly unusual Republican politician, having supported many net neutrality rules in the past, and the ‘Open Internet Preservation’ Act represents that. However, the ‘Open Internet Preservation’ Act is struggling to gain support in the Democrat controlled House of Representatives.

The Act effectively works in two ways. Firstly, it prevents the telcos from blocking lawful content, applications and internet traffic, and also stops them from degrading the performance of any services. However, it does allow the telcos to offer premium transmission services to customers, effectively creating a virtual toll road. Those who want to improve customer experience can pay to have their traffic sped up.

This is by no-means a perfect piece of legislation, several other abuses of net neutrality concepts are still possible, though it does venture more towards the middle-ground which is the healthiest position. As it stands, the Democrats heavy-handed regulation is too far one direction, while the Republican ideal of a wild-west internet is too far the other. A middle-ground is needed.

This Act does prevent the telcos from penalising enterprise customers, effectively holding them to ransom through slower speeds, but allows them to offer premium services. Telcos are commercial organizations who have spent billions deploying faster networks and should be afforded the opportunity to monetize their investments. The current status quo, with the OTTs getting somewhat of a free-ride, creates an unbalanced equation which should not be allowed to continue. Biting the hand that feeds you is only sustainable for a short period of time.

The Democrats argue that this bill rewards the rich, Netflix for example, and prevents any start-ups from mounting a challenge. These start-ups would never be able to afford the virtual toll road, therefore would not be fighting Netflix on an even playing field, as the streaming giant can pay for better customer experience. There is some credibility to this argument, but others would suggest this is also market dynamics of a capitalist economy. Critics will argue, however many of these individuals are in comfortable positions because the US is a capitalist society.

In theory, the telcos could create a mediocre service and a premium one, with the former being sub-standard enough to force customers into paying for the virtual toll road. This could be the fear from some Democrats, and one of the areas the ‘Open Internet Preservation’ Act falls short.

Perhaps this is where more regulation is needed, as it is an omission from the ‘Open Internet Preservation’ Act. Introducing rules which limit the virtual toll roads to a 25% premium on the standard service would be a happy middle-ground, allowing the telcos to create value added services, but theoretically protecting the market from abuses.

When arguing the benefits of the ‘Save the Internet’ bill, the Democrats seem to have forgotten to mention a number of the bill’s features are already written into the ‘Open Internet Preservation’ Act. Republicans want to protect consumers from traffic throttling and blocking, but this position does not fit nicely into the Democrat rhetoric which has been built around the idea that the Republicans light-touch regulatory environment is designed to screw Joe Bloggs.

The majority of the argument is based around the definition of the telcos, but this is not a debate which interests the consumer therefore needs to be ‘sexed up’. The Democrats want a Title II designation, a common carrier or utility, where as the Republicans want Title I, a communications service and therefore shielded from more stringent regulation. This is the crux of the net neutrality argument.

When you break the argument down, have a look at what protections are already being afforded to US citizens, strip away the political propaganda and emotional baggage, this debate seems to be more about defying the Republican stance than achieving anything beneficial for the consumer.

What is wrong with the middle-ground? It would certainly be representative of the majority of attitudes across the US, but it is hardly going to attract PR inches and photoshoot opportunities for those pearly whites. Politics is broken and there’s nothing the sensible or reasonable can do about it.

Trump starts huffing and puffing with net neutrality veto threat

President Donald Trump is once again threatening as veto should Congress pass the ‘Save the Internet’ Act to reinstate net neutrality rules across the US.

Having largely unwound the net neutrality regulation during the first year of the Trump administration, Congress is one track to continue the seesaw ride which has been net neutrality. In a statement released by the Executive Office of Management and Budget, the White House has promised a veto, quoting statistics and trends which have nothing to do with the ‘Restoring Internet Freedom’ Act, which it is trying to protect.

The ‘Save the Internet’ Act, introduced by a horde of Democrats led by Representative Anna Eshoo, would effectively undermine the ‘Restoring Internet Freedom’ Act and reinstate net neutrality rules. A vote was supposed to take place on April 9, though this has been delayed thanks to a number of amendments. The vote may well happen this afternoon, April 10.

“Last year, the FCC returned to the light-touch regulatory scheme that enabled the internet to develop and thrive for nearly two decades by promoting internet freedom and encouraging network investment,” the statement reads.

“Since the new rule was adopted in 2018, consumers have benefited from a greater than 35 percent increase in average, fixed broadband download speeds, and the United States rose to sixth, from thirteenth, in the world for those speeds. In 2018, fiber was also made available to more new homes than in any previous year, and capital investment by the Nation’s top six Internet service providers increased by $2.3 billion.”

Let’s break this down claim by claim, starting with the broadband speeds.

The statement is of course correct, broadband speeds have been increasing but this has nothing to do with repealing net neutrality laws. The White House seems to be using an Ookla report from December which uses data from Q2 and Q3 2018. Broadband speeds did increase year-on-year, though the repeal of net neutrality rules only occurred in June, mid-way through this period suggesting broadband speeds were already on the up.

Removing net neutrality rules was not like flicking a switch to make the internet faster. According to the Republicans, it was supposed to more freely enable investment in the network, something which would take months, if not years, to realise the benefits of. Linking these speeds to any success of the repeal is at best incompetent or at worst, directly misleading.

On the fibre side, the statement claims that fibre deployments are on the increase though this again might have nothing to do with the net neutrality repeal. Firstly, as part of the Time Warner transaction AT&T was forced through regulation (ironic) to deploy more fibre broadband. Secondly, fibre deployments were gradually increasing and the increase in the US is in-line with overarching trends. It’s not necessarily a new development which should be attributed to any form of external influence or catalyst.

The threat of a veto is never far away, but so far it has proved to be nothing more than hot air from the inflated President. Despite having threatened vetoes for infrastructure, immigration and security bills which have not taken his fancy, the President has only used the power of veto once since his appointment. This might change now a Democrat Congress will be pushing through bills which he won’t like however.

While the power of the veto is something which can be viewed as undemocratic, it is not uncommon. Barack Obama used the veto 12 times during his tenure, as did George Bush before him. Bill Clinton bagged 37 vetoes between 1993-2001, while George Bush Senior managed 44 in his four-year presidency.

Amazingly, these all pale in comparison to the leader of the veto. Grover Cleveland, the only US President to serve non-consecutive terms (1885-89 and 1893-97), used the right to veto an incredibly 584 times, while seven more were over-ridden by the sitting politicians.

Although the ‘Save the Internet’ Act does look doomed to failure, perhaps that is not necessarily as important as it would seem. The bill would still have to pass through the Republican controlled Senate, which would have been incredibly unlikely, though it gives a measure of support.

Before too long, the lawsuits from the 23 Attorney Generals supporting net neutrality across the country will start to be considered, and there is the small matter of the 2020 election. Trying to decide which way the next Presidential election will head is a futile task, though a Democrat heading back into the White House is not unforeseeable.

Should the Republicans lose the election, FCC Chairman Ajit Pai would step down from his position, as is customary, and a Democrat Chairman would be installed. This would effectively tip the balance of voting power back towards the Democrats in the FCC (3-2), allowing rules such as net neutrality to make a return.

Despite all the efforts to kill net neutrality, the concept is still hanging on. It might not have a home in the rulebook any more, but Pai is finding it difficult to block any legislative paths to return the rules. The ‘Save the Internet’ Act will most likely fail, either being shot down by the Senate or vetoed by Trump, but it demonstrates the intentions of a Democrat administration.

Europe has not been great at net neutrality – report

Nearly three years after the EU net neutrality regulations came into effect, neither service providers nor national regulators have been role models in following the rules, a new report concluded.

The Vienna-based non-profit organisation Epicenter.works recently published a report to present its multi-year research into how the EU’s net neutrality regulation has been implemented. The report, titled “The Net Neutrality Situation in the EU: Evaluation of the First Two Years of Enforcement”, examined how the regulation was interpreted differently by the regulators and how the service providers have taken it into their own hands to decide what to implement, or not implement in the 28 EU member states as well as the three EEA nations ((Norway, Iceland and Liechtenstein). The results were not the most encouraging reading.

The EU regulation on net neutrality came into effect on 30 April 2016. The Body of European Regulators for Electronic Communication (BEREC) was mandated to lay down guidelines on the implementation for the national regulators. However, unlike other laws like GDPR, the net neutrality rules give member states the authority to decide the level of penalties if the rules are broken.  “This has lead (sic.) to a situation where some member states have not laid down rules for violations of net neutrality protections two years after the regulation entered into force,” the report says.

More specifically, 17 out of the 31 countries examined have not defined “effective and dissuasive penalties”, while in those countries that have defined monetary penalties, the amounts varied from a symbolic €9,600 in Estonia, to up to 10% of relevant turnover in the Netherlands or the UK. The report finds that, as a result of the less than strict implementation, “the largest telecom companies in Europe can choose not to comply with the law because it is financially advantageous for them.”

The area that the most offences were committed was differential pricing practices, in particular zero-rating data for selected applications and services. Although only Bulgaria and Germany have excluded “illegal commercial practices” (price discrimination when providing access to specific applications and services, in this case, zero-rating certain apps or services) from their penalty provisions, a total of 186 differential pricing products are being offered in all but three member states (Finland, Slovenia, Bulgaria), the majority (144 offerings) of them zero-rating (the rest are application-specific data volume). 17 countries’ regulators have started formal assessment processes into the differential pricing products offered by the service providers in their countries since the regulation came into effect, while the other 14 have not.

The report went on to analyse the impact of zero-rating offers on the consumer data price, and discovered that over a two-year period, the average data price (€/Gb) in countries with zero-rating offers largely held or slightly rose while the comparable price in those countries without zero-rating products went down by about 10%.

net neutrality data price

The reason for the steady price can be attributed to competition dynamics created by zero-rating, according to the report. Since the large service providers (e.g. Deutcshe Telokom) often have the biggest sway in partnering with content and application providers, the authors reckon, they create a “unique selling proposition” to attract consumers and no longer need to compete on the data package size or prize, which MVNOs and smaller operators can match their offers. This in effect has led to a slow-down in the growth of data package sizes or drop in prices in these markets.

It is not only the consumers that have been denied benefits by zero-rating, the authors find, there is also cost on the content and apps providers. In most zero-rating deals, the content and app providers will pay the fee for the traffic to the service providers (according to a report published by the Polish regulator UKE), which will then offer it to consumers at zero-rating. In this case, zero-rated data is actually sponsored data.

On top of the fees, in order for the billing to be correctly done, operators would require the content and app providers to make special data transport setup for the partnerships, e.g. change CDN contracts. This will also add operational cost to the content providers. In a high-profile case, when Vimeo did not participate in Deutsche Telekom’s “StreamOn” programme, it stated in an open letter to the German regulator that, although they are a 200 employee strong company, they cannot sustain co-operations with all the service providers whose customers they want to reach with their service through special programmes like this.

Two knock-on effects also come out of such partnerships. Due to the demand on fees and increased operational cost, most app and content providers can only afford to enter into limited deals. By the authors’ count, the large majority of app and content providers entered no more than three pricing programmes.

net neutrality number of programs

On the other hand, more often it would only be the Silicon Valley heavyweights that could afford to tie multiple partnerships with different operators in different markets, they occupy most of the spots on the leader table of differentially priced services being offered. “Among the top 20 zero-rated applications only three are from the EEA,” the report calculated.

net neutrality Silicon Valley heavy

The findings by the organisation has caught some attention. The Austrian regulator RTR will conduct its own research into the impact of zero-rating on data prices into more recent years and on operator level. The European Commission will also provide an evaluation report of the net neutrality provisions of the regulation by 30 April 2019, three years after the regulation came into effect.

Options are running out for net neutrality supporters

FCC Chairman Ajit Pai has released a gloating statement after Democrats failed to invalidate the pompously named ‘Restoring Internet Freedom’ order, making the path for net neutrality much rockier.

In June last year, net neutrality was officially struck from the FCC rulebook as the ink dried on the aforementioned order. There has been much protest and opposition to the rules, and while there are still routes to restore the Tom Wheeler-era rules, the number of options are getting smaller. With a new Session of Congress now in play, the path of invalidation is now closed.

As the rules were passed during the previous Session, the Democrats had a limited amount of time to try and invalidate the ‘Restoring Internet Freedom’ order passed by Pai and his Republican Commissioner cronies. Unfortunately for the net neutrality supporters, the 218 votes required in the Senate was a step too far. By close of play on January 2, only 182 votes, the majority of whom where Democrat, were mustered.

“I’m pleased that a strong bipartisan majority of the US House of Representatives declined to reinstate heavy-handed Internet regulation,” said Pai. “They did the right thing – especially considering the positive results for American consumers since the adoption of the Restoring Internet Freedom Order. Over the past year, the Internet has remained free and open.

“In short, the FCC’s light-touch approach is working. In 2019, we’ll continue to pursue our forward-looking agenda to bring digital opportunity to all Americans.”

What does this mean for net neutrality? There is still a route back for the rules, though it is becoming increasingly difficult.

Invalidating the rules was the simplest option, though the Democrats only had one shot at this. A new Session sets the rules in play, though there are other routes, both legal and regulatory.

On the legal side of things, there are still challenges being made to the ‘Restoring Internet Freedom’ order by numerous companies, consumer groups and Attorney Generals throughout the US. While many of the lawsuits are fundamentally arguing the same point, albeit with various different nuances, the courts will be asked to rule on one area in particular; whether the individual States can enforce their own localised legislation on net neutrality.

Central to this conundrum is California. Having agreed to delay the implementation of its own net neutrality rules in the State, judges will have to ponder the age-old debate of Federal vs. State. This is where it gets very complicated; as the internet is not a localised ‘service’, can California guarantee it will only impose the rules on traffic which is restricted to its borders? Should traffic traverse the cables elsewhere, the State has no right to implement net neutrality rules. This is a concept which is stated in the US Constitution.

On the regulatory front, the Democrats could attempt to force through new legislation which would supersede the ‘Restoring Internet Freedom’ order, in the same was this order did to net neutrality. This would be complicated as you have to suspect the Democrats to not have enough bodies in the room to drive through a majority.

All of the options remaining for the net neutrality supporters are time coming however, which is a factor which will certainly work against them. Pai can take his time and attempt to prolong the issue, as the longer it takes to resolve the less interest the general public and other politicians will have. We are fickle people, we get bored easily, and politicians are as shallow as we are fickle. If net neutrality is no longer getting the necessary amount of attention in the press, less enthused politicians will find a new cause to champion in pursuit of PR points.

The net neutrality battle is not over, but, unfortunately, Pai is winning.

Net neutrality’s last life kept intact by Supreme Court

The Supreme Court has rejected attempts by the telco industry and the Trump administration to completely erase net neutrality rules from the lawbooks.

With petitions filed by AT&T and various industry lobby groups to quash a ruling made in favour of the Obama-era net neutrality rules in 2015, a ruling which is the only glimmer of hope for net neutrality’s survival, the Supreme Court offered a lifeline. It seems rolling back net neutrality is not enough for FCC Chairman Ajit Pai, as the Republican is seemingly attempting to destroy any future attempts to reinstate the rules, which the 2015 District Court ruling holds.

While Pai and his cronies have effected taken the US back to the light-touch regulatory playing field of 2015, moves made by his predecessor Tom Wheeler to reclassify the internet service providers still stood. In passing net neutrality rules, Wheeler classified ISPs in the same league as telephony providers, and therefore under stricter regulation. This decision was upheld by the US Court of Appeals for the District of Columbia Circuit, which AT&T, NCTA, CTIA, USTelecom, and the American Cable Association were challenging here.

The presence of this case might not have any impact on the telcos today, though it would offer any future administration, who might be pro-net neutrality, a foundation to rebuilt the walls of regulation. Pai doesn’t just want to remove the rules, he wants to drive the concept of net neutrality to extinction with no prospect of return.

This ruling however, is a win for the net neutrality camp, a rare one which just might add enough momentum to sustain life until a change in administration.

“This is good news for net neutrality supporters,” said John Bergmayer, Senior Counsel at Public Knowledge, a pro-net neutrality lobby group which is also suing the FCC for the initial roll back. “The DC Circuit’s previous decision upholding both the FCC’s classification of broadband as a telecommunications service, and its rules prohibiting broadband providers from blocking or degrading internet content, remains in place.

“While the current FCC has repealed those rules – a decision Public Knowledge is currently challenging in court – this means that the previous decision is binding on the current FCC, and on the DC Circuit panel that hears the current challenge. Much of the current FCC’s argument depends on ignoring or contradicting the D.C. Circuit’s earlier findings, but now that these are firmly established as binding law, the Pai FCC’s case is on even weaker ground than before.”

The NCTA, the Internet and Television Association, is unsurprisingly miffed with the decision.

“It is not surprising that the Supreme Court declined to hear this case dealing with the Wheeler FCC’s 2015 Order,” the NCTA said in a statement. “Once the current FCC repealed the 2015 Order, almost all parties – including NCTA – agreed that the case was moot. Today’s decision is not an indication of the Court’s views on the merits but simply reflects the fact that there was nothing left for the Court to rule on.”

It seems the absence of two Republican Supreme Court judges was the deciding factor here. The newly, and controversially, appointed Justice Brett Kavanaugh removed himself from the process, having participated in the judgement of the original appeal, while Chief Justice John Roberts supposedly owns shares in AT&T.

For the pro-net neutrality supporters this was a critical win in the courts. Firstly, for the rules to be reinstated the classification as telcos as common providers is a must, though momentum was gathering for Pai and his cronies in the blood-thirsty mission.

This is not to say net neutrality camp is not without its support, but with President Trump adding his weight to the hunting trip, the pressure was starting to build. Another factor is precedent. The legal community use decisions made elsewhere in the industry for guidance, and there were a lot of decisions going against net neutrality over the last few months. Momentum was building and the issue is becoming increasingly politicised. The light was fading, though the 2015 decision being upheld is a win.

Whether this decision acts as a catalyst for net neutrality momentum and support remains to be seen, though California’s challenge to the FCC is still hanging in the balance. After signing its own net neutrality rules in State Law, despite contradictions with federal agency positions, California has decided to put the implementation of the rules on-hold until it has resolved its own lawsuit with the Department of Justice which argues the state has acted unconstitutionally.

Elsewhere around the US, various states are lining up their own, local, net neutrality rules. Washington State has already signed its own into law, while states such as Hawaii and New York are seemingly waiting for various rulings. While the approach might be broadly similar, there will be differences in each state. This patch-work of regulatory environment is something the US government is very keen to avoid, and it would turn into an operational disaster for the telcos.

In a separate lawsuit, 23 Attorney Generals throughout the US, including Maine, North Carolina, Rhode Island and Delaware, led by New York Attorney General Eric Schneiderman, are challenging the original 3-2 decision made by the FCC to roll back the net neutrality rules. The criss-cross of lawsuits, each of which relies somewhat on another decision and precedent, is starting to become complicated.

The dominos are certainly lining up across the US, each decision may send the entire stack into freefall. The weight of each ruling is getting heavier and heavier.

Vermont follows Califorina into the dock over net neutrality

The State of Vermont has been hit with a net neutrality lawsuit after passing a Senate Bill and signing an Executive Order forcing ISPs to follow the banned principles for government contracts.

The lawsuit, filed by the CTIA, cable industry lobby NCTA, telco lobby USTelecom, the New England Cable & Telecommunications Association, and the American Cable Association (ACA), calls into question requirements for ISPs to follow net neutrality rules should they want to be considered for government contracts. The lawsuit follows the same argument as the California case; it contradicts the Communications Act, the ‘Restoring Internet Freedom’ rules and two clauses in the US Constitution.
“This case concerns two interrelated attempts by the State of Vermont to unconstitutionally regulate the provision of broadband Internet service” the filing states.
“As the FCC has repeatedly recognized, Internet traffic flows freely between states, making it difficult or impossible for a provider to distinguish traffic moving within Vermont from traffic that crosses stateborders. Both the Supremacy Clause and the dormant Commerce Clause protect broadband Internet service providers from a patch work of inconsistent regulations that are impossible for them to comply with as a practical matter. The Court should declare that the Executive Order and S.289 are preempted and unconstitutional, and should permanently enjoin the Defendants from enforcing or giving effect to them.”

Senate Bill 289 was signed by Governor Phil Scott on May 22, while the Executive Order from Scott was signed in February. The telco lobbyists might be a bit slow off the mark, but this is a bit more of a complicated matter.

In California, and Washington State for that matter, net neutrality rules are being applied to the ISPs in every context. This is a much easier position for the telcos to push back against, though in the Vermont case it is only conditions for public sector contracts. The argument here is relatively nuanced; organizations should be allowed to apply their buying power to place requirements on vendors competing for lucrative contracts, but it does contradict rules set forward by the FCC.

Because this is not a blanket approach to net neutrality regulations, as is the case in California and Washington State, there is a better chance of the rules standing. The rules are being applied to specific relationships which lean on conditional approval and benchmarks for applicability. These are not unusual concepts in the world of procurement, but the net neutrality seems to be too contentious for any exceptions to be considered. The court will be interferring with market dynamics in Vermont, it is a delicate matter.

Another interesting idea is that of precedent. States such as Hawaii, New Jersey, Montana and Rhode Island have all passed similar rules, dictating ISPs wanting to compete for public sector contracts would have to adhere to net neutrality principles, and will be watching the outcome of this case closely. If Vermont wins there is precedent to maintain their position, however a win from the telco coalition will destroy the foundations.

Both cases, California and Vermont, come down to the old state versus federal battle ground and the interpretation of clauses in the Communications Act and the US Constitution. This is the bueaty and beast of the legal world, interpretation of the law and its implications means so much. The telco lobbyists do have a strong position though, especially considering the potential for a constitutional crisis.

Finally, perhaps the most interesting aspect of this on-going saga are the lawsuits themselves. In searching for a more light-touch regulatory landscape, the telco lobbyists are, ironically, seeking state intervention to maintain their position.

25% of Brits would ditch ISP if porn is blocked – MoneySupermarket

The net neutrality debate could be emerging on the UK horizon but the message here is don’t mess around too much; it wouldn’t take much for consumers to switch ISPs.

New research from MoneySupermarket has indicated UK consumers are pretty sensitive when it comes to the idea of the open internet. This is a debate which has certainly captured the imagination of the US, though the UK has largely been shielded by its inclusion in the European Union and rules being written in Brussels. With Brexit looming large, it is possible the UK would no longer be answerable to BEREC (Body of European Regulators for Electronic Communications) and free to decide its own course down the net neutrality road.

But the message from MoneySupermarket is simple; becoming too authoritarian on what content consumers can access and they will leave pretty sharpish. 64% of respondents would switch ISPs if blocks were put in place, with one in four specifying the blocking of porn as a reason to leave. Right now the status quo is holding solid, with the telcos largely only blocking requested and illegal content, though Brexit could change this.

By leaving the Union the UK is giving up the right to influence any new policies. Therefore, if it remains as part of BEREC it would have to comply with rules it has no influence over, Emily Thompson of MoneySupermarket points out. This would contradict the rationale of Brexit in the first place, though in the pursuit of a healthy relationship with Europe, the rules might have to be swallowed. Having the power to write the rules which govern the land is something which every government around the world would want, therefore staying in BEREC seems unlikely.

“While the dialogue regarding net neutrality in the UK is relatively low-key, it has controversially been repealed in the US, suggesting that it could become a much bigger issue once Brexit is finalised and we look at rethinking European legislation,” said Thompson. “For now, ISPs need to decide what’s in the best interest of their customers: eschewing the current net neutrality laws to reduce competition or getting on the side of the consumer and keeping the internet fair and equal.”

One of the areas which will come under scrutiny should the UK and BEREC part ways is net neutrality. We have already seen how divisive this debate has become in the US, with California introducing its own state level rules contradicting the FCC and potentially leading to a constitutional crisis. The scenario is slightly different in the UK, though the telcos will still want the opportunity to make more money.

Part of the reason net neutrality is such a big topic in the US is due to competition. A notable number of customers have limited options when selecting a broadband provider, which is not the case in the UK. Thanks to the UK being a small island and Openreach laying the foundations for broadband access, most customers have options when it comes to providers. ISPs cannot dictate the terms as much as across the pond and will have to be careful about blocking websites or promoting certain traffic for fear of losing customers to competitors.

However, executives might not be able to resist the temptation of making more money. The idea of a two-speed digital highway would be attractive to the telcos, monetizing the speed of delivery to the consumer. Experience is everything nowadays, and a slow-loading website might be enough for a consumer never to consider that curry house or wallpaper manufacturer ever again. We doubt the ISPs would go as far as holding the businesses to ransom by blocking websites who don’t pay or because a competitor pays for it, but it is a possibility.

Predicting which way the relationship with BEREC will go is a tricky one right now as it relies on the final deal the UK strikes with the European Union. We can’t imagine the UK Government will be happy about being told about how to regulate its own telco industry, irrelevant of how friendly the final terms are. It might not be too long before the net neutrality debate washes ashore; prepare for some propaganda from the telcos about why it is fair to create a digital toll-road to help fund the rollout of infrastructure.

Telco industry accuses California of violating US Constitution

It was only going to be a matter of time, but the telco industry is taking California to court over the decision to reinstate net neutrality rules.

While the rules prevent the telcos from making additional revenue through the creation of a two-lane communications highway, there is something bigger at stake here. In reinstating the net neutrality rules, California is not only questioning the validity of the Communications Act, the bedrock of regulations in the telco industry, but according to the coalition of associations suing the state, it is contradicting and undermining the US Constitution.

The American Cable Association (ACA), The Wireless Association (CTIA), The Internet & Television Association (NCTA) and USTelecom are the plaintiffs in the case, with California Attorney General Xavier Becerra is named as the defendant.

“This case presents a classic example of unconstitutional state regulation,” the filing reads. “The State of California has enacted SB-822, entitled the ‘California Internet Consumer Protection and Net Neutrality Act of 2018’, directly regulating the provision of broadband Internet access services (BIAS).

“This statute was purposefully intended to countermand and undermine federal law by imposing on BIAS the very same regulations that the Federal Communications Commission (FCC) expressly repealed in its 2018 Restoring Internet Freedom Order (and by adopting even more restrictive regulations), despite the fact that both the FCC decision and the federal Communications Act of 1934, as amended (Communications Act), prohibit states from taking such action with respect to jurisdictionally interstate services like BIAS.”

According to the lawsuit, the State of California is not only violating the FCC’s 2018 Order, it is ignoring clauses in the Communications Act, which declare states cannot pass local regulations which contradict FCC rules, and also two important aspects of the US Constitution. Firstly,  article VI, clause 2, the Supremacy Clause which states the Constitution, federal laws made pursuant to it, and treaties made under its authority, dictate the supreme law of the US.

Secondly, the Commerce Clause declares no state can regulate conduct occurring outside of its borders. As California (or anyone for that matter) fully dissect what traffic originates, traverses and terminates in the state exclusively, California is indirectly imposing its own rules on other states, and potentially other countries.

In signing net neutrality back into the regulatory rulebook, Governor Jerry Brown has opened up a whirlwind of complications and consequences. As Chairman of the FCC, Ajit Pai has the authority to dictate the future of the telecommunications industry. This has been formalised in both the Communications Act and the US Constitution.

In splintering the rulebook, California is undermining the concept of US law and regulatory policy. Should the net neutrality rules be allowed to stand in California, the whole rule book and regulatory landscape could be shaken up; California would have set precedent in contradicting both the Communications Act and the US Constitution. This is of course dependent on whether you agree with the coalition’s interpretation of the documentation, but could this be the beginning of a constitutional crisis?

Of course, as we are in a time of incredibly combative politics in the US, the two parties could not be further apart. Pai is pushing for an internet which would be the digital equivalent of the wild-west, while California is promoting heavy handed regulation. The answer lies somewhere in the middle.

The telcos, remaining at arms-length from the conflict, are at the centre of this debate. Net neutrality prohibits the telcos from making money through prioritised traffic, and while we do not necessarily agree with this strategy, these are organizations which do need to be afforded the opportunity to make money. Regulating the industry as a utility won’t work, but neither will the hands-off regulatory position.

On one side, these are not utilities. Pricing regulations and strict practises can be imposed on other verticals, such as energy companies, because the vast majority of infrastructure has already been deployed. The world is expecting the telcos to spend billions deploying new infrastructure to enable the digital economy, though there are few opportunities to secure additional revenues outside of connectivity. The OTTs have destroyed revenue generators such as SMS and voice, but then lobbies government to block other means of making money. The balance of this ecosystem is not centred and it is only a matter of time before it cannibalises itself. How long will it be before the ability to rollout future-proof infrastructure gets scaled back due to a lack of revenue generation and profitability at the telcos?

However, the telcos are not exactly trust-worthy organizations. There are numerous examples were a lack of regulation or competition has led to higher prices for customers or monopolistic tendencies. These are companies which are under shareholder pressure to deliver on the promises of 5G and recapture the fortunes of yesteryear; the situation needs to be carefully managed to ensure the balance of power remains fair. Regulation is absolutely necessary in this industry.

Net neutrality over regulates the industry, while the Pai approach is not interventionist enough. There needs to be a middle ground, but it hasn’t been found yet. One thing is clear, the current climate of contradiction, undermining regulations and conflict is not healthy for the consumer in the US, or the US on the global stage.