CAGW Submits Ex Parte Presentation for April 10 meeting with Commissioner Gomez
Agency Comments
Statement of Deborah Collier Vice President for Policy and Government Affairs Citizens Against Government Waste And Executive Director of CAGW’s Innovation & Technology Policy Center before Federal Communications Commissioner Anna Gomez
April 10, 2024
Thank you, Commissioner Gomez, for hosting this roundtable on the Safeguarding and Securing the Open Internet Rulemaking.
Citizens Against Government Waste (CAGW) is a 501(c)(3) nonprofit organization that was established in 1984 and has been dedicated to exposing and eliminating waste, fraud, abuse, and mismanagement in government. Our work includes telecommunications, and we have long been involved in the debate over the establishment of principles to guide internet policy.
In 1996, when he signed the Telecommunications Act of 1996, President Bill Clinton stated that the internet, “should be a place where government makes every effort … not to stand in the way, to do no harm.”[1]
On September 23, 2005, the FCC provided guiding principles to internet service providers that ensured consumers would be able to access the lawful internet content of their choice; run applications and use services of their choice, subject to the needs of law enforcement; connect their choice of legal devices that do no harm to the network; and have competition among network providers, application and service providers, and content providers.[2]
This guidance maintained the internet as an information service, governed under Title I of the 90-year-old Communications Act of 1934.[3]
The light touch regulation under Title I has been the standard for internet regulation, other than when it was regulated under Title II when the Open Internet Order (OIO) was in effect during the Obama-Biden administration. There does not seem to be a good reason to return to the same regulations that stifled innovation and investment that will be contrary to the Biden administration and Congress’s intent to bridge the digital divide and could end up wasting the tens of billions of taxpayer dollars being made available to achieve that goal.
Title II was written when telephone lines were still being constructed using copper wire, and treated telephone services like a sewage facility or water line that is intended to last for decades. It does not allow for innovation and investment in new technologies without strong forbearance from various provisions in the law and is ill-equipped to regulate the new technological advances that are being made daily.
Light touch regulation allowed innovation and investment in next generation technologies, leading to services that are now taken for granted, and allows everyone to access the internet on the device and service of their choice, in a technology neutral manner. Again, the effort to reclassify the internet is a solution to a problem that just doesn’t exist and in CAGW’s opinion, would be a waste of taxpayer resources.
Since 1996 Act, $2.1 trillion has been invested in broadband by the private sector.[4] This investment has led to more competition, innovation, and secure and resilient networks. There are now, according to BroadbandNow, 2,906 internet service providers in the U.S. that offer internet service through multiple means to customers across the country, including: 847 digital subscriber line providers (DSL); 209 copper providers (Business 51/T3 connections, etc.); 425 cable companies; 1,718 fiber internet providers; 1,744 fixed wireless broadband providers; and 47 mobile broadband and LTE providers.[5]
The impact of net neutrality on investment was shown in the Phoenix Center for Advanced Legal and Economic Policy Studies’ April 25, 2017, report, which stated that the threat of imposing Title II between 2010 and 2015 reduced telecommunications investment by between $20-$30 billion annually.[6] It also noted that there was no decline in investment following the establishment of the four principles for the internet in 2005.
After the Restoring Internet Freedom Order was adopted by the FCC, broadband investment grew to a record $102 billion in investments in 2022.[7] And, according to Statista, 97.1 percent of all Americans have access to the internet, compared to 87.27 percent in 2018.[8]
The unimpeded availability of broadband access during the pandemic proved that U.S. networks are resilient. In Europe, where networks built or owned by governments and strict mandates on service providers are prevalent, the impact on the internet was dramatically different.[9]
The European Union ordered internet edge providers like Netflix and YouTube and gaming programs like Twitch to pull back their high-definition services. Other providers, including Amazon Prime, Apple TV, Disney Plus, and Google were also forced to reduce their bandwidth in Europe to mitigate the increased strain on the networks.[10] If policies like net neutrality were in effect in the U.S. during the pandemic, the same limits on internet access would have occurred.
On April 6, 2021, FCC Commissioner Brendan Carr noted during a Facebook Live event with CAGW President Tom Schatz, that there is more than $800 billion available for broadband programs.[11] A May 31, 2022 Government Accountability Office report found 133 broadband programs administered by 15 federal agencies, including $42.45 billion for the Broadband Equity, Access, and Deployment (BEAD) program that was provided in the Infrastructure Investment and Job’s Act (IIJA).[12] The GAO reported that the duplication itself is an impediment to completely closing the digital divide, and communities that need access the most are the most negatively impacted by this fragmentation.
But the federal money available for broadband is not likely to be spent effectively due to regulatory impediments like the National Telecommunications and Information Administration’s (NTIA) BEAD guidance, which includes key provisions contrary to the IIJA.
Along with the problematic BEAD guidance and the FCC’s Prevention and Elimination of Digital Discrimination Order, which was adopted on November 15, 2023,[13] adopting the Securing and Safeguarding the Open Internet proposed rule will also hinder the efforts to bridge the digital divide and keep that divide open rather than closed.
The net neutrality rules will have a significant economic impact and create uncertainty over the future of broadband deployment and internet service. Connecting all Americans with broadband internet access services is far too important to be continually subjected to regulatory whiplash. This is the fifth effort over the last 20 years by the FCC to implement rules regarding how the internet should be regulated.[14] Proponents of net neutrality claimed that it would be the end of the internet when the OIO was repealed, but the opposite result occurred. The same claims for restoring net neutrality cannot be sustained.
CAGW suggests that the best solution for regulating the internet, and the telecommunications ecosystem, would be to update the 1934 and 1996 acts, instead of spending time and taxpayer resources on rules that will be challenged and according to experts from the Obama-Biden administration, likely overturned in court.[15] The federal government should be helping, rather than impeding, continued U.S. global leadership in telecommunications. Adopting net neutrality would be unhelpful to that objective.
[2] Federal Communications Commission, In the Matters of Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, CC Docket No. 02-33; Review of Regulatory Requirements for Incumbent LEC Broadband Telecommunications Services, CC Docket No. 01-337; Computer III Further Remand Proceedings: Bell Operating Company Provisions of Enhanced Services; 1998 Biennial Regulatory Review – Review of Computer III and ONA Safeguards and Requirements, CC Docket Nos. 95-20, 98-10; Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities, Internet Over Cable Declarative Ruling, GN Docket No. 00-185; Appropriate Regulatory Treatment for Broadband Access to the Internet Over Cable Facilities, CS Docket No. 02-52, Adopted August 5, 2005, Released September 23, 2005, https://docs.fcc.gov/public/attachments/FCC-05-151A1.pdf.
[11] Citizens Against Government Waste, Facebook Live, “CAGW President Tom Schatz discusses broadband and other issues with Federal Communications Commissioner Brendan Carr,” April 6, 2021, https://www.facebook.com/9364828262/videos/279920027031270.
[12] Government Accountability Office, “Broadband: National Strategy Needed to Guide Federal Efforts to Reduce Digital Divide,” GAO-22-104611, May 31, 2022, https://www.gao.gov/products/gao-22-104611.
[13] Federal Communications Commission, In the Matter of Implementing the Infrastructure Investment and Jobs Act: Prevention and Elimination of Digital Discrimination, GN Docket No. 22-69, Adopted November 15, 2023, Released November 20, 2023, https://docs.fcc.gov/public/attachments/FCC-23-100A1.pdf.
[15] Donald B. Verrilli, Jr. and Ian Heath Gershengorn, “Title II ‘Net Neutrality’ Broadband Rules Would Breach Major Questions Doctrine,” September 20, 2023, https://aboutblaw.com/baKo.
Statement of Deborah Collier
Vice President for Policy and Government Affairs
Citizens Against Government Waste
And Executive Director of
CAGW’s Innovation & Technology Policy Center
before
Federal Communications Commissioner Anna Gomez
April 10, 2024
Thank you, Commissioner Gomez, for hosting this roundtable on the Safeguarding and Securing the Open Internet Rulemaking.
Citizens Against Government Waste (CAGW) is a 501(c)(3) nonprofit organization that was established in 1984 and has been dedicated to exposing and eliminating waste, fraud, abuse, and mismanagement in government. Our work includes telecommunications, and we have long been involved in the debate over the establishment of principles to guide internet policy.
In 1996, when he signed the Telecommunications Act of 1996, President Bill Clinton stated that the internet, “should be a place where government makes every effort … not to stand in the way, to do no harm.”[1]
On September 23, 2005, the FCC provided guiding principles to internet service providers that ensured consumers would be able to access the lawful internet content of their choice; run applications and use services of their choice, subject to the needs of law enforcement; connect their choice of legal devices that do no harm to the network; and have competition among network providers, application and service providers, and content providers.[2]
This guidance maintained the internet as an information service, governed under Title I of the 90-year-old Communications Act of 1934.[3]
The light touch regulation under Title I has been the standard for internet regulation, other than when it was regulated under Title II when the Open Internet Order (OIO) was in effect during the Obama-Biden administration. There does not seem to be a good reason to return to the same regulations that stifled innovation and investment that will be contrary to the Biden administration and Congress’s intent to bridge the digital divide and could end up wasting the tens of billions of taxpayer dollars being made available to achieve that goal.
Title II was written when telephone lines were still being constructed using copper wire, and treated telephone services like a sewage facility or water line that is intended to last for decades. It does not allow for innovation and investment in new technologies without strong forbearance from various provisions in the law and is ill-equipped to regulate the new technological advances that are being made daily.
Light touch regulation allowed innovation and investment in next generation technologies, leading to services that are now taken for granted, and allows everyone to access the internet on the device and service of their choice, in a technology neutral manner. Again, the effort to reclassify the internet is a solution to a problem that just doesn’t exist and in CAGW’s opinion, would be a waste of taxpayer resources.
Since 1996 Act, $2.1 trillion has been invested in broadband by the private sector.[4] This investment has led to more competition, innovation, and secure and resilient networks. There are now, according to BroadbandNow, 2,906 internet service providers in the U.S. that offer internet service through multiple means to customers across the country, including: 847 digital subscriber line providers (DSL); 209 copper providers (Business 51/T3 connections, etc.); 425 cable companies; 1,718 fiber internet providers; 1,744 fixed wireless broadband providers; and 47 mobile broadband and LTE providers.[5]
The impact of net neutrality on investment was shown in the Phoenix Center for Advanced Legal and Economic Policy Studies’ April 25, 2017, report, which stated that the threat of imposing Title II between 2010 and 2015 reduced telecommunications investment by between $20-$30 billion annually.[6] It also noted that there was no decline in investment following the establishment of the four principles for the internet in 2005.
After the Restoring Internet Freedom Order was adopted by the FCC, broadband investment grew to a record $102 billion in investments in 2022.[7] And, according to Statista, 97.1 percent of all Americans have access to the internet, compared to 87.27 percent in 2018.[8]
The unimpeded availability of broadband access during the pandemic proved that U.S. networks are resilient. In Europe, where networks built or owned by governments and strict mandates on service providers are prevalent, the impact on the internet was dramatically different.[9]
The European Union ordered internet edge providers like Netflix and YouTube and gaming programs like Twitch to pull back their high-definition services. Other providers, including Amazon Prime, Apple TV, Disney Plus, and Google were also forced to reduce their bandwidth in Europe to mitigate the increased strain on the networks.[10] If policies like net neutrality were in effect in the U.S. during the pandemic, the same limits on internet access would have occurred.
On April 6, 2021, FCC Commissioner Brendan Carr noted during a Facebook Live event with CAGW President Tom Schatz, that there is more than $800 billion available for broadband programs.[11] A May 31, 2022 Government Accountability Office report found 133 broadband programs administered by 15 federal agencies, including $42.45 billion for the Broadband Equity, Access, and Deployment (BEAD) program that was provided in the Infrastructure Investment and Job’s Act (IIJA).[12] The GAO reported that the duplication itself is an impediment to completely closing the digital divide, and communities that need access the most are the most negatively impacted by this fragmentation.
But the federal money available for broadband is not likely to be spent effectively due to regulatory impediments like the National Telecommunications and Information Administration’s (NTIA) BEAD guidance, which includes key provisions contrary to the IIJA.
Along with the problematic BEAD guidance and the FCC’s Prevention and Elimination of Digital Discrimination Order, which was adopted on November 15, 2023,[13] adopting the Securing and Safeguarding the Open Internet proposed rule will also hinder the efforts to bridge the digital divide and keep that divide open rather than closed.
The net neutrality rules will have a significant economic impact and create uncertainty over the future of broadband deployment and internet service. Connecting all Americans with broadband internet access services is far too important to be continually subjected to regulatory whiplash. This is the fifth effort over the last 20 years by the FCC to implement rules regarding how the internet should be regulated.[14] Proponents of net neutrality claimed that it would be the end of the internet when the OIO was repealed, but the opposite result occurred. The same claims for restoring net neutrality cannot be sustained.
CAGW suggests that the best solution for regulating the internet, and the telecommunications ecosystem, would be to update the 1934 and 1996 acts, instead of spending time and taxpayer resources on rules that will be challenged and according to experts from the Obama-Biden administration, likely overturned in court.[15] The federal government should be helping, rather than impeding, continued U.S. global leadership in telecommunications. Adopting net neutrality would be unhelpful to that objective.
Again, thank you for hosting this roundtable.
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[1] Sandra Sobieraj, “Clinton Issues ‘Hands Off’ Policy on Internet Commerce,” The New York Times, July 2, 1997, https://archive.nytimes.com/www.nytimes.com/library/cyber/week/070297commerce.html.
[2] Federal Communications Commission, In the Matters of Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, CC Docket No. 02-33; Review of Regulatory Requirements for Incumbent LEC Broadband Telecommunications Services, CC Docket No. 01-337; Computer III Further Remand Proceedings: Bell Operating Company Provisions of Enhanced Services; 1998 Biennial Regulatory Review – Review of Computer III and ONA Safeguards and Requirements, CC Docket Nos. 95-20, 98-10; Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities, Internet Over Cable Declarative Ruling, GN Docket No. 00-185; Appropriate Regulatory Treatment for Broadband Access to the Internet Over Cable Facilities, CS Docket No. 02-52, Adopted August 5, 2005, Released September 23, 2005, https://docs.fcc.gov/public/attachments/FCC-05-151A1.pdf.
[3] Federal Communications Commission, The Communications Act of 1934, https://transition.fcc.gov/Reports/1934new.pdf.
[4] USTelecom, “Public-Private Partnerships: The Successful Path Forward for Connectivity,” September 23, 2023, https://www.ustelecom.org/public-private-partnerships/#:~:text=In%20fact%2C%20America's%20broadband%20providers,bolster%20the%20entire%20American%20economy.
[5] “Internet Providers in the United States of America,” BroadbandNow, April 8, 2024, https://broadbandnow.com/All-Providers#:~:text=There%20are%20currently%202906%20Internet,425%20Cable%20companies.
[6] George S. Ford, Ph.D., “Net Neutrality, Reclassification and Investment: A Counterfactual Analysis,” Perspectives, Phoenix Center for Advanced Legal & Economic Public Policy Studies, April 25, 2017, https://phoenix-center.org/perspectives/Perspective17-02Final.pdf.
[7] USTelecom, “USTelecom 2022 Broadband Capex Report,” September 8, 2023, https://www.ustelecom.org/research/2022-broadband-capex/#:~:text=America's%20broadband%20industry%20invested%20a,high%2Dspeed%20connectivity%20for%20all.
[8] Ani Petrosyan, “United States internet penetration 2000-2024,” Statista, March 4, 2024, https://www.statista.com/statistics/209117/us-internet-penetration/.
[9] “EU Warns of broadband strain as millions work from home,” Financial Times, March 19, 2020, https://www.ft.com/content/b4ab03db-de1f-4f98-bcc2-b09007427e1b.
[10] Wendy Lee, “Disney+ will reduce its impact on Europe’s internet, as streamers adjust to the coronavirus,” Los Angeles Times, March 21, 2020, https://www.latimes.com/entertainment-arts/business/story/2020-03-21/disney-plus-coronavirus-streaming-europe-internet.
[11] Citizens Against Government Waste, Facebook Live, “CAGW President Tom Schatz discusses broadband and other issues with Federal Communications Commissioner Brendan Carr,” April 6, 2021, https://www.facebook.com/9364828262/videos/279920027031270.
[12] Government Accountability Office, “Broadband: National Strategy Needed to Guide Federal Efforts to Reduce Digital Divide,” GAO-22-104611, May 31, 2022, https://www.gao.gov/products/gao-22-104611.
[13] Federal Communications Commission, In the Matter of Implementing the Infrastructure Investment and Jobs Act: Prevention and Elimination of Digital Discrimination, GN Docket No. 22-69, Adopted November 15, 2023, Released November 20, 2023, https://docs.fcc.gov/public/attachments/FCC-23-100A1.pdf.
[14] Kirk Arner, “A Fifth FCC Stab at ‘Net Neutrality’ Likely Won’t Survive the Supreme Court,” RealClear Markets, April 9, 2024, https://www.realclearmarkets.com/articles/2024/04/09/a_fifth_fcc_stab_at_net_neutrality_likely_wont_survive_the_supreme_court_1023352.html.
[15] Donald B. Verrilli, Jr. and Ian Heath Gershengorn, “Title II ‘Net Neutrality’ Broadband Rules Would Breach Major Questions Doctrine,” September 20, 2023, https://aboutblaw.com/baKo.