Restoring Internet Freedom: Questions for Legislators

The Federal Communications Commission (FCC) has asked for a lot of information in its Restoring Internet Freedom proposed Notice of Proposed Rulemaking (NPRM). Several of the questions open the door for state legislators to help make the case for allowing consumers, the free market and federalism to direct the internet experience. Through this resource, state legislators may find some topics and questions they can ask in their states to help the FCC “#FreeTheNet.”

The questions below are divided into several categories, including broadband infrastructure investment and deployment, consumer protection, regulatory authority, and Title II municipal broadband impact.

Once legislators receive answers to some, or all, of the questions below, they can craft comments to the FCC to explain the answers and submit the data received in response to those answers.

Broadband infrastructure investment and deployment

Because the FCC passed Title II reclassification two years ago, states may be able to ascertain (1) whether there was a reduction in infrastructure investment and, if so, (2) areas where the reduction may have hit especially hard.

• Ask the commission or agency responsible for overseeing the telecommunications industry whether it collects information on broadband deployment or infrastructure development.
• If so, what type of information?
• Has it collected monetary investment numbers (e.g. how much a particular company is investing in broadband deployment), permits requested, variants requested or other data regarding infrastructure build out?
• Can the commission, or agency, determine where and how much infrastructure build out occurred between 2004 and 2014? What about 2015-2016?

Consumer protection

Many of the arguments the FCC used to justify its reclassification in 2015 are hypotheses. This includes the fact that consumers may be harmed when Internet Service Providers (ISPs) block websites, throttle data or engage in paid prioritization practices. Many of these myths have existed since the early 2000s, when Professor Timothy Wu drafted an initial essay, filed comments with the FCC and published a law review article speculating as to what ISPs could do to harm consumers. Since Prof. Wu speculated on the potential harms over a decade before the Title II Order, states are in a unique position to help the FCC determine if ISPs actually engaged in those practices.

For example, in paragraph 40 of the NPRM, the FCC requests comments “on specific ways in which consumers were harmed under the light touch regulatory framework that existed before the Commission’s Title II Order.” Similarly, in paragraph 50, the FCC asks whether “pre-existing federal and state competition and consumer protection regimes” were sufficient to address isolated incidents of consumer harms or market failures.

States can ask for data from either the state Attorney General, or any other agency charged with consumer protection, as to whether consumers filed complaints against ISPs between 2003 and 2016. The data can be subdivided between the pre- (2002-2014) and post- (2015-2016) Title II classification years.

Questions to Ask of the State Attorney General

• Ask the state’s attorney general whether its consumer protection or other comparable department received any complaints about ISPs blocking websites between 2003 and present.
  • If yes, in what year was each complaint received?
  • What was the nature of those complaints?
  • Did the AG’s office investigate? How were the complaints resolved?
• Has the state attorney general’s office, or other agency responsible for protecting consumers, received complaints that an ISP is:
  • Preventing, or restricting, access to lawful content;
  • Preventing, or restricting, the ability to use apps, or other software applications;
  • Preventing, or restricting, the ability to connect personal devices to the network, a Local Area Network (LAN), a Virtual Private Network (VPN), home network, or any other type of network; or
  • Preventing or restricting the ability to obtain service plan information?
• Has the state attorney general’s office or other agency responsible for protecting consumers received any complaint that an ISP has harmed consumers by either blocking content from competitors or providing an unfair competitive edge for content or programming it generates?

Questions to Ask of a Consumer Protection Agency or Utility Commission

• If the state has an agency responsible for protecting consumer rights other than the AG’s office, the same questions can be asked of that agency.
• Does the state’s utility commission, or other agency responsible for overseeing the telecommunications industry, collect information regarding service complaints?
  • If so, what types of complaints relating to ISPs does it receive?
  • How many complaints regarding ISPs does the utility commission, or other agency responsible for overseeing the telecommunications industry, receive on an annual basis?
  • What is the character of those complaints?
  • Has the agency seen an increase or decrease in the number of complaints filed in the last two years (2015-2017)?
  • Has the nature or character of those complaints changed in the last two years?

State Regulatory Authority

Prior to the Title II Order, many state utility commissions or agencies lacked authority to regulate ISPs or broadband, as it was considered an “information service,” falling under Title I. Traditional state regulatory authority rests in the telecommunications space, usually running concurrent with federal Title II jurisdiction.

• With Title II reclassification of the internet and broadband services, did state utility commissions or agencies promulgate or intend to promulgate rules designed to extend state telecommunications regulations to ISPs or other broadband companies (including mobile broadband)?
• Similarly, did the state attorney general intend on extending consumer protection actions traditionally reserved for telephone companies to ISPs and broadband companies?
• Are there any additional state fees or taxes related to telecommunications services that would have applied to ISPs or mobile broadband providers because of the Title II reclassification?

Title II Municipal Broadband Impact

For states with municipalities owning/operating broadband networks (known as “municipally owned broadband networks” or “munibroadband”), legislators may be able to direct questions toward that broadband network:

• How has the Title II reclassification of broadband impacted operations?
• Have resources (manpower, finances, etc.) been shifted to regulatory compliance?
  • If so, what type of regulatory reporting burdens did Title II classification add?
  • How were the resources shifted—from what function to regulatory compliance?
  • How much money and manpower did Title II classification divert away from the prior functions just identified to regulatory compliance?
  • Did the Title II classification result in either hesitancy to invest in infrastructure or in an actual reduction in infrastructure investment?
  • If so, please describe and list, to the best you are able, the actual fiscal reduction in investment.
• How will the FCC’s proposal to reclassify broadband as a Title I information service impact operations?
  • Will Title I reclassification regulation permit you to better serve taxpayers/customers? If so, how?
• Are there plans to invest in infrastructure as a result of Title I reclassification? If so, please describe the plans and list the anticipated monetary investment.