Open Internet Order Research Articles

Stepping Back onto the Escalator: Answering the D.C. Circuit’s Remand of the Pole Attachment Question

In the recent case of Mozilla v. FCC, the D.C. Circuit evaluated the legal legitimacy of the Federal Communications Commission’s 2018 Restoring Internet Freedom Order (“RIFO”). The question at bar was the agency’s decision to reverse the imposition of Title II common carrier regulation on the Internet dictated by the Obama-era 2015 Open Internet Order and to return the classification of broadband Internet access services back to a Title I “information” service. After review, the D.C. Circuit agreed. But while the court upheld the Commission’s decision to place broadband back under the umbrella of Title I, the court also held that by deliberately placing “broadband outside of its Title II jurisdiction” the Commission had essentially abdicated all legal authority — express and ancillary — over information services. The D.C. Circuit’s “statutory abdication” logic created a ripple effect across a wide variety of legal action items the Commission sought to resolve in its RIFO. One of these issues was the question of who is eligible to take advantage of the pole attachment regime contained in Section 224 of the Communications Act, ultimately remanding the issue to the FCC for further consideration. This paper reviews the court’s reasoning and sets forth some suggestions about how the Commission should address the court’s concerns on remand. In particular, the paper explains that conspicuously absent from the Majority’s pole attachment discussion is the recognition that that prior to the 2015 Open Internet Rules broadband-only carriers were foreclosed from the statutory regime under Section 224. Thus, the correct legal question on remand is not whether the RIFO deprived broadband-only carriers of inalienable “statutory rights” as the court suggests, but rather whether these carriers had valid reliance interests that were harmed by the Commission’s choice to reverse the 2015 Open Internet Order two years later? According to the D.C. Circuit’s own opinion in Mozilla, the answer to that question is a resounding “No.”

Testing the economics of the net neutrality debate

This paper examines the impacts of net neutrality rule changes in the United States in 2010, 2015, and 2017 on telecommunication industry investment levels. The paper tackles the issue with a comprehensive dataset with full time series coverage for all SEC-registered telecommunications firms from 2009 to 2018. The author tracks new capital expenditures incurred, which reflects new investment decisions made rather than old investment decisions materialized, with quarterly data and exact issuance dates. The paper uses a standard difference-in-difference model and a variety of robustness checks to examine causal impact effects of net neutrality rule changes. The paper finds net neutrality rule changes in the United States had no impact on telecommunication industry investment levels based on the data, outcome variable, and limiting assumptions used. This empirical question featured heavily as the key economic question in the 2015 Open Internet Order issuance and 2017 repeal process. However, research has failed to adequately address the question due to a short timeframe for research and methodological issues. The paper offers the only analysis with a full dataset and a sufficient time period of observation to properly examine effects. As such, it offers an incremental step forward in research assessing network neutrality empirically.

A Practical Assessment of Competition Regulation as a Viable Option for Protecting Net Neutrality in Nigeria

A Practical Assessment of Competition Regulation as a Viable Option for Protecting Net Neutrality in Nigeria

Examining Mobile Broadband Transparency

The 2018 Restoring Internet Freedom Order eliminated a number of transparency requirements regarding broadband performance that were introduced in the 2015 Open Internet Order. It also eliminated guidance that had been provided in 2016 to assist broadband providers in complying with the transparency rule. In this paper, we examine a number of policy issues that arose in the two Orders and associated guidance, as applied to disclosure of performance of mobile broadband service. We ground this analysis in two datasets of mobile broadband performance. We examine policy issues about the methodology used to measure mobile broadband performance, the performance statistics that should be measured and disclosed, and the time of day over which broadband performance is measured. We compare the download and upload speed ranges advertised by the largest four mobile broadband service providers in the United States with the distribution of actual measured download and upload speeds. We also analyze the variation of mobile broadband performance over different geographical regions.

An Internet for Some threatens health for All: What effects could the repeal of net neutrality in the USA have on individual and population health?

In the United States of America, the Federal Communications Commission's repeal of the popular Open Internet Order (a.k.a 'net neutrality') has yielded pointed criticism from many different sectors, but it has yet to be examined for its potential effect on the public's health. In this commentary, we focus on the health implications of this policy change, considering expert opinion on the subject, past history, and global perspectives. We argue that the repeal of net neutrality has the potential to compromise health education and promotion efforts by widening the 'digital divide', thereby impairing health literacy and exacerbating health inequities. By negatively affecting people's ability to access, understand, and use unbiased, evidence-based health information to improve and maintain their health, the repeal of net neutrality may hinder the World Health Organization's vision of 'Health for All' by dismantling public protections in the name of corporate profit.

Federal Preemption, the Dormant Commerce Clause, and State Regulation of Broadband: Why State Attempts to Impose Net Neutrality Obligations on Internet Service Providers Will Likely Fail

Federal Preemption, the Dormant Commerce Clause, and State Regulation of Broadband: Why State Attempts to Impose Net Neutrality Obligations on Internet Service Providers Will Likely Fail

Workshop on internet economics (WIE2015) report

On December 16--17 2015, we hosted the 5th interdisciplinary Workshop on Internet Economics (WIE) at the UC San Diego's Supercomputer Center. This workshop series provides a forum for researchers, Internet facilities and service providers, technologists, economists, theorists, policy makers, and other stakeholders to inform current and emerging regulatory and policy debates. The FCC's latest open Internet order ostensibly changes the landscape of regulation by using Title II as its basis. This year we discussed the implications of Title II (common-carrier-based) regulation for issues we have looked at in the past, or those shaping current policy conversations. Discussion topics included differentiated services on the public Internet, evolving approaches to interconnection across different segments of the ecosystem (e.g., content to access), QoE and QoS measurement techniques and their limitations, interconnection measurement and modeling challenges and opportunities, and transparency. The format was a series of focused sessions, where presenters prepared 10-minute talks on relevant issues, followed by in-depth discussions. This report highlights the discussions and presents relevant open research questions identified by participants. 1

Enhancing Transparency: Internet Video Quality Inference from Network Traffic

The 2017 FCC Restoring Internet Freedom Order removes the enhanced transparency obligations introduced by the 2015 Open Internet Order and aims to return net neutrality policy to transparency rules based on the 2010 Open Internet Order. The ruling states that the burden of additional network performance disclosures exceed the benefits, and that the most salient metrics to report are those that involve consumer quality of experience (QoE) for the applications that they commonly use. Unfortunately, however, internet service providers (ISPs) will typically have difficulty reporting on application performance and QoE metrics, both of which are notoriously difficult to estimate from network traffic. To address this shortcomings, we present the initial development of Network Microscope, a tool that estimates QoE for Internet video streaming from passively collected network traffic. Our system sits inline, on path, and analyzes traffic in real time as it traverses the network to (1) identify which traffic flows belong to a specific video streaming service; (2) estimate critical quality-of-experience metrics for streaming video such as: bitrate, changes in bitrate, startup delay, and rebuffering. When deployed on a commodity embedded device, the tools is suitable for deployment in consumer home networks, as well as near various network endpoints. Because Internet video traffic accounts for majority of the global internet traffic, this approach of passively observing traffic has two significant policy implications: - It reduces the administrative and operational burden on ISPs, because traffic collection and analysis is passive, in-line, and in homes, and does not introduce additional test traffic. - The approach offers application QoE metrics that are complementary to the lower-level network performance metrics that ISPs already collect. We discuss the capabilities of Network Microscope, its initial deployment to over 50 consumer homes, our initial findings concerning the reporting of application QoE metrics, and broader implications for policy surrounding ISP transparency reporting requirements. Network Microscope can provide a deeper understanding of several concepts often discussed both in the context of net neutrality and encouraging competitive forces in the market. First, such a tool can shed more light on the nature of streaming traffic from consumers, including which video streaming services are most popular with consumers, and how those popular services perform on different networks. Measurements based on service-specific usage is particularly meaningful to consumers because consumers often understand their network needs better when it is tied to the applications they use often. More specific information about the performance of popular video services can help consumers make more informed choices about the network services that they purchase. Second, the tool facilitates the analysis of application performance for network traffic at multiple locations along a single end-to-end path, enabling both consumers and regulators to independently verify ISP reports about application performance. Ultimately, the type of information about application performance that our tool exposes can affect consumer decision-making; we explore and discuss these effects, and how they may ultimately interact with switching costs, market competition, and other commercial considerations.

Net Neutrality and its Implications to Online Learning

<p class="3">In this article, we studied net neutrality as a complex sociocultural phenomenon that can affect the works of distance education scholars and online learners. We decided to take part in this research because many distance education scholars and learners take net neutrality for granted. We engaged in a qualitative investigation of US public documents and explored the effects of net neutrality and public digital access, which can influence learner engagement with online educational materials. We focused on identifying tensions in the discourse about net neutrality, especially surrounding the Federal Communication Commission’s (FCC) 2015 Open Internet Order. Our research question was: How do the complexities involved in the net neutrality debate in the United States affect public access to online information and services, and what implications does this hold for online learning? We relied on activity systems as an analytical framework for making sense of net neutrality.</p>

A critical survey of the literature on broadband data caps

Proponents and opponents of data caps make conflicting claims about the effect of data caps on prices, network capacity and speeds, subscription, congestion, and consumer surplus. In this paper, we survey the academic literature on data caps and analyze the relationship between the characteristics of each paper's model or data and the paper's results. We find that model or data assumptions about service differentiation, purpose of the data cap, and amount of competition strongly influence each paper's results. Consequently, conclusions about the effect of data caps are often limited to certain types of service providers (fixed or mobile) and/or to certain types of data caps (heavy-users or profit-maximizing). We find that most proponents' claims about data caps in fixed broadband service are incorrect, and that most proponents' claims about data caps in mobile broadband service are likely to be correct if and only if data caps increase competition. We also discuss how data caps may be evaluated under the FCC's 2015 Open Internet Order. We find that heavy-users caps on mobile broadband service are likely to satisfy the Order's rules, that profit-maximizing caps on mobile broadband service may or may not satisfy the rules, and that caps on fixed broadband service are unlikely to satisfy the rules.

USTelecom and Its Aftermath

In 2015, the Federal Communications Commission made the controversial decision to reclassify broadband Internet access as a common carrier “telecommunications” service under Title II of the Communications Act. While much of the debate has focused on the legality of reclassification, little attention has been paid to actual implementation. As detailed in this Bulletin, a proper implementation of Title II precluded the Commission’s approach, forcing the Agency to ignore the “vast majority of rules adopted under Title II” and “tailor[] [Title II] for the 21st Century.” Surprisingly, the D.C. Circuit found in United States Telecom Association v. FCC that the agency had wide latitude to interpret the Communications Act and not only upheld the agency’s decision to reclassify but also its gross distortion of Title II. In so doing, the D.C. Circuit has extended Chevron deference beyond any reasonable limit, greatly expanding the Commission’s authority well beyond its statutory mandate. This Bulletin first presents several examples of how the 2015 Open Internet Order ignores both the plain language of Title II and the extensive case law to achieve select political objectives, followed by a discussion of the D.C. Circuit’s acceptance of such legal perversions. Next, this Bulletin discusses how the FCC attempted to use the same theory of the case found in USTelecom to regulate the prices of Business Data Services. Conclusions and policy recommendations are at the end.

Comment: In the Matter of Restoring Internet Freedom

In comments filed with the Federal Communications Commissions, this filing argues that the agency's 2015 Open Internet Order: 1. Violated “The Law of Disruption”. 2. Imposed utility treatment for broadband in a way that was fundamentally at odds with disruptive innovation. 3. Dangerously and needlessly skews critical future innovations. 4. Replaced “permissionless” innovation with pre-emptive regulation.

Evaluating Zero-Rating and Associated Throttling Practices Under the Open Internet Order

Abstract Zero-rating practices and associated throttling practices have been an issue of intense public policy debate. This article evaluates such practices under the Open Internet Order's transparency, no-throttling, and general conduct rules. The evaluation separately considers application-agnostic zero-rating, class-based zero-rating, edge provider-based zero-rating, and affiliated zero-rating. The article evaluates sponsored data programs (AT&T Sponsored Data, Verizon FreeBee Data), zero-rating and throttling of video streaming (T-Mobile Binge On), free mobile Internet access to specific edge providers (T-Mobile Music Freedom), and zero-rated or unlimited access to affiliated content (AT&T Data Free TV, Verizon go90, Comcast XFINITY Stream TV).

Evaluating Zero-Rating and Associated Throttling Practices Under the Open Internet Order

Abstract Zero-rating practices and associated throttling practices have been an issue of intense public policy debate. This article evaluates such practices under the Open Internet Order's transparency, no-throttling, and general conduct rules. The evaluation separately considers application-agnostic zero-rating, class-based zero-rating, edge provider-based zero-rating, and affiliated zero-rating. The article evaluates sponsored data programs (AT&T Sponsored Data, Verizon FreeBee Data), zero-rating and throttling of video streaming (T-Mobile Binge On), free mobile Internet access to specific edge providers (T-Mobile Music Freedom), and zero-rated or unlimited access to affiliated content (AT&T Data Free TV, Verizon go90, Comcast XFINITY Stream TV).

The Digital Divide and Other Economic Considerations for Network Neutrality

In its 2016 Broadband Report, the Federal Communications Commission (FCC) recognizes that a rural/urban digital divide remains prevalent—especially with respect to broadband adoption. It also highlights several policies that the FCC has undertaken purportedly to reduce the divide, including the 2015 Open Internet Order (OIO)—in which the stated intent is to enforce “network neutrality.” However, long before the OIO, studies have raised concerns that network neutrality policies will discourage investment by internet service providers (ISPs) in broadband infrastructure, to the detriment of broadband accessibility, and may increase average consumer costs—both of which would only further exacerbate the digital divide. In this paper, we provide a holistic analysis of the effects of net neutrality on the digital divide; in doing so, we draw from recent economic research on this issue. Our goal is to present a range of economic considerations that should be taken into account when evaluating the overall impact of the OIO, with particular attention to its impact on the digital divide.

The Post-Internet Order Broadband Sector: Lessons from the Pre-Open Internet Order Experience

A significant component of the contentious debate over the Federal Communications Commission’s (FCC) 2015 Open Internet Order (OI 2015) has been its effects on future broadband investment and the development of Internet content and other applications. Although such debate can advance understanding of the potential consequences of the OI 2015, much of it, albeit informed by economics, is of necessity speculative. It may be useful to see how experience up to OI 2015 might be informative. That experience is notably thin, with the FCC’s citing two to four instances in ten years that would have violated OI 2015. After explaining why the OI 2015 order and its predecessor may be largely non-binding, we look at the four examples for lessons in what kinds of behavior OI 2015 might prevent. This experience suggests that non-economic concerns should have been more explicit in OI 2015.

Net Neutrality and the FCC’s 2015 Open Internet Order

This note analyzes the 2015 Open Internet Order by contextualizing the development of network neutrality jurisprudence and predicts that the Open Internet Order would withstand judicial scrutiny if challenged under the Administrative Procedure Act, specifically with respect to its conformance to the Chevron Doctrine and the arbitrary and capricious standard.

Regulating the Open Internet: Past Developments and Emerging Challenges

On June 14, 2016, in perhaps one of the most important rulings supporting Federal Communications Commission (FCC) policy, the D.C. Circuit Court of Appeals upheld the FCC's 2015 Open Internet Order laying out network neutrality rules that govern how Internet service providers may price to edge platform users at the point of termination. In this manuscript, we provide a concise historical perspective of the FCC policies, proceedings and court decisions that led to this point and characterize emerging economic policy challenges that the current rules leave unresolved. In particular, we show that by refraining from regulating interconnection agreements and by allowing Internet service providers to engage in novel forms of price discrimination, the FCC has left the door open for certain anti-competitive practices to arise.

Evaluating the Consequences of Zero-Rating: Guidance for Regulators and Adjudicators

In February 2015, the Federal Communications Commission’s Open Internet Order reclassified broadband Internet access service (BIAS) under Title II of the Communications Act. The Order calls for case-by-case analysis by the Commission of alleged breaches of a general conduct standard in respect of usage-based pricing and “zero-rating” in agreements between BIAS operators and end consumers. These provisions enable to Commission to investigate cases such as T-Mobile’s zero-rating of traffic to and from its Binge On video streaming platform. The granting of discretionary powers of inquiry on a case-by-case basis raises the question of what evidence of real or potential harm would be sufficient to justify the commitment of scarce regulatory or judicial resources to the investigation of any specific example? The question is not limited to the US context. Similar provisions in exist in the European Commission’s Net Neutrality Regulation. Furthermore, the answers are potentially important for competition law authorities in assessing cases of alleged harm and potential future abuses that might become more relevant as merger activity between BIAS operators and applications providers, specifically Content Distribution Networks (CDNs), increases. This paper contributes towards the formulation of a principled economics-based approach under which to assess the potential harms and enhancements to be considered in evaluating the economic effects of any given example of zero-rating. Its primary contribution is five questions, derived from a combined economic and strategic analysis of the potential trade-offs that emerge from theoretical modelling of interactions in a complex internet ecosystem characterised by multiple two-sided platforms. Asking these questions will assist regulators and adjudicators to identify key elements in the case facts that indicate the need for different trade-offs and strategic motivations to be taken into account when making decisions. The questions posed here augment existing guidelines, such as BEREC’s (2016) advice to regulators, which focus predominantly upon compliance with legal provisions rather than facilitating analysis if the economic trade-offs involved in any individual case of zero-rating.

Network Neutrality Impact on Human Bond Communications

The Network Neutrality (as commonly known) or Net Neutrality (as in Europe) (NN) gained attention, when Federal Communication Committee enacted the Open Internet Order. This paper reviews the development of NN debate process, and the opinions from different sides, including network providers, service providers, other relevant companies, governments and researchers. This paper also discusses the emphasis of NN's impact on future innovation. Human Bond Communication (HBC) is a future conception that involves all the five human senses for modelling the physical subject into information domain, so as to allow more expressive and holistic sensory information exchange for more human sentiment centric communications. Being a communication concept, HBC may involve a paradigm of conventional communication involving prioritization, differentiation and, etc. NN outcomes therefore can contribute significantly in modeling HBC platform. This paper extends NN discussion to a future communication concept of HBC.