I appreciate the opportunity to address this very distinguished
committee, and to participate in today's critical hearing
on net neutrality.
And I want to thank you, Chairwoman Creem and Vice
Chairman Tarr, for convening this discussion.
And I thank you, Senator Barrett and Eldridge
and L'Italien, Lesser and O'Connor, for all of your work
on behalf of the people of Massachusetts.
Net neutrality has been an essential element
for the healthy operation of the internet since its inception.
And with net neutrality protections in place,
the internet has thrived.
In Massachusetts, tech underpins 34% of all jobs.
These are jobs in the tech sector
specifically, but also tech occupations
in sectors from finance, to health care, to education.
You're going to hear that from Tom Hopcroft.
And we're seeing exciting growth--
70% of tech leaders in Massachusetts
plan to increase their workforce in the next year.
Our internet economy is thriving.
And we should not mess with it.
Nationwide, in 2016, almost half of the venture capital funds
invested in this country went to internet-specific and software
companies.
That's over $25 billion.
You're going to hear today from the New England Venture Capital
Association.
Their activity, combined with what
happens in the tech sector, is what drives our economy.
And with half of all venture capital going into this sector,
it's a job creation engine, a wealth creation engine.
And it also, because we're a center for this globally,
it's a way of attracting the most talented people
on the planet from our country to come here
to the Massachusetts economy.
But in December, FCC Chairman Ajit Pai
took a weedwacker to net neutrality.
He completely gutted the rules.
What does the repeal of net neutrality
mean for Massachusetts?
Well, quite a bit.
It means that now there is nothing
stopping broadband providers from blocking websites, slowing
down competitors' content, or charging
Bay State innovators and entrepreneurs more
to reach their customers.
It means that big broadband is in control,
and consumers and job creators are
left to fend for themselves.
That's why I plan to fight these actions
in the halls of Congress.
I will be introducing a Congressional Review Act,
or CRA resolution, that will undo the FCC's recent action
and restore the 2015 Open Internet Order.
According to the CRA rules, we can
force a vote on the Senate floor with just 30 senators signing
a discharge petition.
So once the order is published in the Federal Register,
there can be and there will be a vote
on the floor of the United States Senate
to restore net neutrality.
Now, I'm very pleased that my proposal now
has bipartisan support from 50 senators.
And we're only one vote away from securing a victory
in the Senate.
But the votes are not there, so far,
in the House of Representatives.
Donald Trump has basically taken the other side of this issue.
So to a very large extent, the people of Massachusetts,
and Americans across the country, have to be engaged.
Now, according to a recent poll, 83% of Americans
do not approve of the FCC's actions to gut net neutrality,
and they are raising their voices.
Momentum is building.
Millennials are energized.
Governors and state lawmakers across the country
are taking action.
So this committee is critical.
We're Massachusetts.
We're the Bay State, but we're also the brain state.
And net neutrality has helped us to become this state
that we are today, so that we draw all of this talent that
creates companies like Carbonite and Wayfair
and iRobot, TripAdvisor, and thousands of smaller
companies whose names no one knows, but are employing
hundreds of thousands of people in our state.
That's who we have become.
So I encourage this committee to continue its work in support
of a free and open internet.
The grassroots are energized.
Our constituents are speaking up.
I thank you for everything that you are doing.
Your actions, I think, will help to inform this nation of what
is at stake.
We did it on health care.
We did it on gay marriage.
And we can also do it here, because net neutrality
is as much a part of our identity as any other issue
that we have been considering over this past generation.
Thank you very much for everything that you are doing.
Hello, and thank you for this chance
to join you by video for this hearing
of the Special Committee on Net Neutrality and Consumer
Protection.
I'm sorry I can't be there in person,
but I really appreciate this chance to talk to you.
On May 26, 1961, President John F. Kennedy
declared that America would do something
that had never been done before-- put a man on the moon.
And back then, America was barreling into the space age,
pushing the bounds of human knowledge
to make the impossible possible.
And government was the driving force,
pouring resources and manpower into explorations
of science and engineering and medicine and technology.
And the Defense Advanced Research Projects Agency,
or DARPA, as we all call it, was a product of that commitment.
And it was there that civil servants
and government-funded researchers
invented the internet.
Now, Massachusetts has always been
a leader in the search for the next great discovery.
Our world-renowned universities, our educational institutions,
our technology sector, boast some of the world's greatest
minds, in everything from human genome sequencing
to aerospace engineering.
Fair, open access to the internet
has helped jet power those advances.
It has also become essential to the way we live our lives.
Every day, students go online to complete homework assignments.
Grandparents video chat with their grandkids
on Sunday afternoons.
Families gather on their couches to watch their favorite shows.
Entrepreneurs build businesses online to market
and sell their products.
Innovator's code and test new apps.
The government plays just as important a role
now as it did back when JFK told us
that we were going to the moon.
In particular, the Federal Communications Commission
is responsible for ensuring that the internet remains
fair and open to all Americans.
In 2015, the FCC adopted the Open Internet Order,
which established strong network neutrality rules that
stopped internet giants from blocking
or filtering or charging more for internet access.
And although these net neutrality rules have enjoyed
overwhelming support from Americans--
and that's both Republicans and Democrats--
big internet companies have worked for years
to destroy net neutrality.
After Donald Trump's presidential win,
they saw their golden opportunity
to finally bury net neutrality rules.
And now, the Republican-controlled FCC
has abandoned its commitment to protect fair and open internet
access.
And that means it's up to citizens,
federally elected officials, and state and local governments
to defend net neutrality.
Massachusetts is already leading in that fight.
Groups like Free Press, the Massachusetts chapter
of the ACLU, the Fight for the Future,
are all working to amplify the voices of citizens.
Last month, Massachusetts joined a legal challenge
to the FCC's decision to reverse net neutrality rules.
In the Senate, over half of all senators
joined an effort to reverse the rule.
The internet doesn't belong to giant internet companies.
It belongs to all of us.
And that's why all Americans should
fight to oppose the FCC's rollback of net neutrality
protections, and work to restore net neutrality rules.
And that's why I'm glad that the Massachusetts State Senate has
convened a Special Committee on Net Neutrality and Consumer
Protection to explore how Massachusetts
can continue to be at the forefront of this fight.
Thank you for all you're doing.
We need you out there.
The first person I have on the list is Dennis McDermott.
Yes.
I wanted to introduce Senator Barrett, too.
I'm sorry.
Senator Barrett, who just arrived.
Thank you.
Yes, Senator [INAUDIBLE].
Just a point of [INAUDIBLE].
I just wanted to--
Just say it.
Thank you.
[INAUDIBLE]
Thank you.
Thank you very much.
Yes.
Thank you.
You identify yourself for other people.
Certainly.
I will do so.
Chair Creem, members of the special committee,
good morning.
My name is Dennis McDermott, and I am the chief information
officer of the recently formed Executive Office of Technology
Services and Security.
Thank you for the opportunity to testify on this important issue
as it relates to internet use by the executive department.
I would like to begin, and I hope it will be useful to you,
and I think it will provide you with some frame
for the discussion, by giving some context
on the role of EOTSS, as well as an overview
of the commercial ISP usage in the executive department.
EOTSS is the office charged with--
You might have to move that mic closer.
Little bit closer?
Any better?
All right.
Of course--
Turning it on.
Of course, the computer guy is not sure
if the mic's actually on, right?
I did the same.
Not embarrassing at all.
I did the same thing.
Thank you.
But I'm not a computer guy.
Yeah, there you go.
Can you hear me now?
Yes, I do.
All right.
Thank you.
EOTSS is the office charged with centralizing and securing
IT services across the executive department.
[INAUDIBLE]
The Executive Office of Technology Services
and Security.
We were a new secretariat formed last August--
across the executive department, and updating policies
and procedures governing state cybersecurity,
digital platforms, and data management.
We maintain and monitor two fully-redundant,
path-independent connections to the public internet.
And the reason for the redundancy is, often, ISPs
and providers have fiber cuts or equipment failures.
And so we do that to maintain high availability.
These commercially purchased internet connections
provide service to all executive offices,
several of the Commonwealth's independent and constitutional
offices, and other branches of government.
In all, approximately 42,000 state employees
and 500 software applications send and receive
network traffic via these internet connections.
It should be noted that we are one of many state entities
that purchase internet services from a commercial ISP.
Prior to the establishment of our office,
most executive offices maintained one or more
internet connections to service their own data centers
and their remote sites throughout the state.
These connections have been historically obtained
from a range of ISPs.
Entities outside the executive department
also continue to purchase one or more connections,
depending on their needs.
Our focus has been to consolidate and secure
internet connections within the executive department,
and to ensure that internet services are cost effective
and of high quality.
Within the last 90 days, for example,
we have shut down the legacy internet connections,
so legacy contracts with three ISPs,
or three of the other executive offices.
So at this point, five of the nine secretariats
in the executive department are using
our primary and secondary internet connections
exclusively.
We expect the remainder of the executive department
to be consolidated by the end of the calendar year.
So in this context, EOTSS is very much
a consumer of commercial internet services,
as well as a provider of these services to other government
agencies, both within and outside
the executive department.
In this role, we carefully monitor
the security and privacy practices of ISPs
to protect our users and systems.
We also negotiate with ISPs in the open marketplace,
to ensure that the executive department receives
reliable internet connectivity at a fair price.
As the FCC's order takes effect, and
as additional legislative and policy changes
are contemplated, the effects on the market
for commercial services will be difficult to predict.
EOTSS will carefully analyze these changes
so that we can fulfill our dual role of improving
digital services and reducing cybersecurity risk
for the executive department.
Thank you for the opportunity to speak
on behalf of the executive department's technology
services organization.
I'm happy to take any questions you might have.
Do you have any--
I'm going to open it up, but do you
have any positions on net neutrality?
I mean, I'm just [INAUDIBLE] trying to get information--
appreciate your coming, but--
Understood.
I think within the scope of the net neutrality discussion,
EOTSS is not a regulatory agency.
And our policymaking mandate is fairly
limited to the executive department.
So it would be speculative for us to take positions
on the broader issue.
I think perhaps the most useful thing
I can do for you is to highlight how
we use commercial ISP services in the Commonwealth government.
And of course, we can follow up with details
on contracts and spending and things like that.
But I think that kind of background information
is the most germane to this discussion,
from our perspective.
Does anyone [INAUDIBLE]?
Thank you very much.
[INAUDIBLE]
Yes.
[INAUDIBLE]
Can you identify the [INAUDIBLE]??
Yeah.
So in some senses, it's difficult to speculate.
We have an environment that's changing.
We have a set of rules from the FCC that have changed.
But the truth is, what happens now is all potential.
So this could relate to pricing, competition, security
practices, what have you.
And yet there's no guarantee that any of those things
will change.
So as I said earlier, as a consumer of these services,
as an agency that's responsible for securing them and getting
them at a fair price, we're watching what's happening.
I think it would be--
I don't know that it would necessarily
be productive, from our perspective and scope,
to speculate on what's going to happen next.
I just want to follow up.
Sure.
Can you give us your perspective on what the business
case, advanced by [INAUDIBLE]?
What are they?
Again, I think that falls a bit beyond our scope and mandate.
We haven't discussed the business case with the ISPs.
We mainly deal with-- again, we deal with them
as an agency that's buying from them.
So we have not discussed the broader issues with them.
And we just continue to, of course,
monitor their practices to see what's going to happen next,
and how we can best serve the Commonwealth.
I just wanted to introduce the vice chair, Senator Tarr.
So I do have one question.
So what about the news--
are you aware of the Minnesota governor's executive order
on net neutrality and procurement money?
I am not aware of Minnesota's order, no.
OK.
So I would suggest maybe--
you know, we could talk about that another time.
I wanted to know if that was something
the governor has considered.
I would defer to my colleagues in the governor's office
in terms of what the administration might
be considering.
OK.
And would the administration discuss with me their feelings?
I suspect they would seek our input.
Again, we are primarily a technology
and services delivery agency.
Maybe put a little more informally,
we're the computer geeks of government.
And so I expect they would seek our input.
But I would in no way want to speak
for them on policy issues.
Thank you.
OK.
Thank you very much.
I'd like to ask the attorney general, [INAUDIBLE] Healey,
to come up and speak.
Good morning, Chairwoman Creem and Vice Chairman Tarr,
members of the committee.
I greatly appreciate the opportunity
to appear before you today.
Joining me is Assistant Attorney General Jared Reinheimer,
from our consumer protection division.
Thank you for the opportunity to speak to what
is a really important issue.
And I want to talk a little bit about why my office has been
so opposed to the Federal Communications Commission's
rollback of net neutrality, and why
this is important for people in Massachusetts--
for our residents, for our businesses, for our students.
Here's what I think this is about.
Net neutrality is about ensuring open and equal access
to the internet.
Ending net neutrality and changing how the internet works
will be bad for our students, bad for our businesses,
and bad for everyone who goes online.
Now, we all know that the internet
is so central to our lives, and increasingly so.
We use it for everything, from looking for a job,
to buying a home, finding a doctor,
shopping for groceries or clothes, banking,
and communicating with family and friends.
And here in Massachusetts in particular,
with our knowledge-based economy,
our high tech sector employs more than 300,000 people.
It's one of the largest in the nation.
I think it's clear to so many of us that with so much
of our lives and our economy online, the last thing
we need is a slower, more expensive, more restricted,
and more unequal internet.
But on January 4, that's what the FCC essentially
moved to do--
to end the internet as we know it,
by rescinding these net neutrality protections.
I think about net neutrality as a measure
necessary to prevent discrimination on the internet.
Now, I think about the fact that before this order even issued,
my office joined with attorneys generals across the country
in commenting to the FCC that there was simply no basis
to roll back net neutrality.
And within days of the FCC's order,
I joined 21 other AGs from around the nation
to stop the illegal and ill-conceived rollback
of net neutrality, because the FCC, through its order,
has opened the door for so-called blocking, throttling,
and paid prioritization of internet content.
In other words, the FCC is allowing internet service
providers to control what content our residents will see,
how they will see it, and what they will pay to see it.
They could even block critical speech they simply don't like.
And given how many consumers have only one broadband
internet service provider in the area,
they can't simply switch to a different provider who
doesn't use these practices.
And those who can't afford to pay a premium
may face slow downloads, delayed or blocked access
to vital services and innovative products,
and limited content options.
I also want to be clear--
this isn't just about how much you'll
pay for Netflix or Amazon Prime or access
to the hottest movies and new entertainment programming.
This is about much more than that.
This is about young people having a harder time
to do research or take online classes.
This is about small businesses having a harder time
to compete up against big corporations that
may be better able to pay more for faster access and services.
To me, this is a matter of fundamental fairness
and an equal playing field.
This FCC order isn't just a burden, though.
It's also illegal.
And that's why my office has taken action and sued
to stop this.
It's why so many other AGs from around the country
have joined in this action.
We're challenging the FCC's flawed rationale
for issuing this order.
And we're challenging the FCC's even more troubling attempt
to preempt all state and local laws reinstating
net neutrality.
I know you share these concerns, which is also
why we're challenging the FCC's claims that it can wholly
preempt state laws.
As this case progresses through the courts,
we'll keep fighting for net neutrality, and open and equal
access to the internet.
I look forward to, and my team looks forward to,
working with the special committee
to identify any legislative and policy
options to protect Massachusetts residents
and maintain the internet as we know it.
Thank you again for the opportunity
to testify here today.
And I'm happy to take any questions.
Thank you.
Any questions?
Yes.
Senator?
First of all, thank you very much
[INAUDIBLE] your office has already
rendered to the committee, as we try to navigate
this very complex situation.
In many instances, in conversations
that we've had with folks, they've
suggested that the federal preemption that's
claimed in this particular rule change
is different than standard preemption.
It's more ambiguous.
It's more verbose.
I'm wondering, to the extent without compromising
the legal action that you've undertaken,
if you can help us to understand the murkiness,
or the difference, in this preemption
as what we would generally see, and why
that may open some window to us to be able to act as a state
legislature.
Well, Vice Chairman Tarr, I really
appreciate that question.
This is a really important issue.
And I think as lawmakers, as legislators, any time you're
faced with this question, this important question
to be looking at--
look, the fact of the matter is that across any number
of subject areas and fields, there
are federal laws that apply and there
are state laws that also apply.
And a lot of those state laws are
in place for very good reason.
There has been, over the years, a contest about preemption
and when federal law essentially supersedes or takes over
for a state law.
But we take those arguments very seriously,
and we take the delineation of power very seriously.
One of the things, though, that we've
asserted in our litigation is not only
that the FCC acted in a way that was arbitrary,
that was capricious, that lacked the kinds of rationale
that you want in a rulemaking process,
we also have argued that their position on preemption
is wrong--
that it is wrong, and that they can't simply
wipe away important state laws that
are in place to protect our consumers and our businesses.
So unfortunately, that is the position
that the FCC has taken.
They, it seems, don't want the state
to be able to play at all in this area.
Now, as your attorney general, day in and day out,
so much of the work of our office
is focused on enforcing laws that are there
to protect consumers, to protect our residents,
to make sure there's an equal playing field when it comes
to businesses and our economy.
This is what we do.
So it's particularly troubling to see an attempt by the FCC
to eviscerate, to undermine, to obliterate
that important prerogative.
And I also think that's why you've seen so many state
AGs from around the country come together to say,
no, this can't be.
So again, that's something that I
imagine will be the subject of litigation in court.
But our position, I think, on this is clear.
And it is my view.
And I entirely support efforts here
to think about ways, through legislation,
through policymaking or other means,
to ensure that our businesses, that our residents
have access to the kind of open internet
that I think we need to support and grow our economy,
and to be able to conduct our lives that, as I say,
are increasingly lived on and through the internet.
So just following up on Senator Tarr,
it may be that there isn't a clear answer.
In order-- and for some of us who aren't as familiar with how
that works--
so in order to have a preemption, what happens?
Does the FTC have to make a statement?
Is there something in writing?
Is there a general law of preemption?
And again, does this fall, if we do know,
does this fall into how, generally, a preemption works?
So for some of us who may need a little help here, tutorial--
Well, it's a longer discussion, but suffice
to say there are a few rules that
need to apply when the federal government wants
to preempt a field.
And one of the things that will be
the subject of ongoing litigation, I'm sure,
is the extent to which they did that properly or improperly.
It's our view that they've done this improperly,
and that we have the prerogative and the ability
as a state to act and to enforce laws
that are necessary for the well-being of our residents.
So there are areas where the federal government has
been able to preempt state action,
including some that relate to internet service.
They have that ability.
That said, our position, my office's position,
is that the FCC, in this instance,
has overstepped its congressional mandate,
overstepped its authority through its preemption claims
and what it is claiming through preemption.
I am committed, as I say, to working with you and your teams
on this issue.
We have filed our action in court.
Briefs will be filed soon on this.
But part of the issue here is that, again,
if you look across the landscape in the many areas
that we operate in, whether it's on the regulation
of electricity rates, or whether it's with respect to issues
of Medicaid fraud, or banking, financial services, insurance,
there are any number of instances where
we have federal agencies taking action,
and we have state agencies taking action.
And we have both federal laws and state laws that apply.
So it is simply not the case that simply
because a federal agency says, we're
going to act and own this field, that they
are given exclusive control and jurisdiction over that.
And there have been many, many cases
litigated across subject areas, over decades,
on the issue of preemption.
But here, again, our position is clear
that not only did the FCC act in a way that
was flawed, arbitrary, capricious, lacking
the kind of rationale that we require for basic rulemaking
processes, but also that their assertions with respect
to preemption are simply flawed.
Yes, Senator Lesser.
Thank you, Attorney General.
We appreciate you coming, and for your leadership
on this and so many other issues.
I wanted to just drill into the preemption
analysis a little bit, because I think
it's at the heart of our role of what kind of a law
we put together.
I mean, putting aside the procedural issues that you
to alluded to, about whether they did the notice
and comment correctly, and the arbitrariness of rulemaking
itself, I mean, is this even substantively a close call?
It seems to me like there's a whole host of categories of law
that overlap, as you just said, between federal responsibility
and state responsibility.
There's federal environmental protections,
and there's state environmental protections.
There's federal consumer protection requirements,
and there's state consumer protection requirements.
We have a long history with Chapter 93A
of robust state enforcement of consumer protection.
We have a long history of state regulation of cable providers
and telecommunications providers.
So I guess I have a two-part question.
One, what is your sense at how close this actually
is, in terms of how broad the preemption would be?
Because to me, it doesn't seem remotely close.
It seems like we clearly have an avenue
to regulate on a state basis.
And number two, if we do take on the task of,
what I would say, from a consumer protection
point of view, protecting our citizens and their privacy
and their data security, what would that look like,
to survive that preemption challenge?
Well, I think that this bears, probably, further discussion
and more detailed discussion.
But let me just sort of provide a little bit of context.
Some of what you're speaking to, Senator,
are situations where Congress has acted,
actual members of Congress.
A lawmaking body, as opposed to a rulemaking body,
have taken action.
And one thing that's important to note here it
that this is simply an order, OK?
This wasn't an act by Congress.
This wasn't debated and voted on and signed into law.
This was simply an order issued by a federal agency that
overnight was going to change the way we
do business on the internet.
That's a big deal.
And for them to assert through an order
that they are going to preempt the field,
and they are going to undermine, eviscerate, or lessen
the import or consequence of basic state laws and consumer
protection laws that are in place,
is highly problematic, and in our view,
unjustified and illegal.
So I think that's an important distinction
to point out, sort of procedurally-- what
is it that's happened here?
A lot of times when it comes to preemption,
we're talking about a situation where the federal government,
through Congress, has passed a law,
and that bill's been signed into law.
We're not even talking about this.
We're talking about an order that came out one day,
on January 4-- happy new year-- that
changed forever, or purports to change forever,
the way business is conducted on the internet.
And I think it is an important issue.
It is an issue that I have heard so much about in my office.
And people are justifiably and rightly concerned
about what this means.
Do you want a situation where you
may be paying more for faster access, where
you may be blocked completely from certain content
or from accessing certain sites?
This is not good, I think, for a level playing
field for our economy.
And I don't think it's fair.
I think about the number of students
out there, those conducting research online.
It simply can't be that we have a scenario whereby
this could happen.
And so I think that the efforts and the look, right now,
that you're undertaking is very important.
I may not have addressed the second question you
posed to me, if you want to--
Yeah.
I mean, I guess, just, so on that, I
mean, I would agree that it seems
kind of obvious that the state has a role,
and has some authority to regulate this.
So what would that look like?
Would it be through Chapter 93A?
Would it be through--
would we do it through procurement?
What would be your advice to us for how
to craft a law that would get around
some of the predictable and legitimate preemption concerns,
but still well within the ambit of the state's role
as a watchdog of its citizens?
Well, I think that-- look, I intend
to continue to be there to enforce our state consumer
protection law, Chapter 93A, an important law that really
is there to protect consumers.
And we're going to continue to enforce that, particularly
around transparency and disclosure,
or against any instance that results in, basically,
unfairness to consumers out there.
I think that all options should be explored.
And we're certainly going to, in the first instance,
fight this in court, fight the premise of the FCC order,
which is basically to say that there's some role
for the states-- you can still deal with issues of billing--
but you can't touch anything else.
And you know, we just strongly disagree with that,
and recognize--
and I particularly recognize, having spent 10 years
in the Attorney General's Office, the importance of state
laws being on the books to make sure
that our businesses, our residents, consumers
are protected.
So I think that thinking about what else needs to be in place
is important.
I also think about the procurement process.
And I think that that's an interesting and additional
means by which we can better ensure, here,
within Massachusetts, particularly
for us, within our control and jurisdiction,
open and equal access to the internet.
And just a final question on the litigation from here.
Is there any concern, or any issue
with us operating and legislating and potentially
passing a law while the challenge to the FCC order
is still pending?
No.
Not at all.
And I think that--
and I applaud the committee's efforts
to take a serious look at this, and try
to figure out what can be done to deal with this issue.
I can't predict how long litigation will take.
So I suggest that there's not a need
to wait for the resolution of that.
That said, I will, and my team will,
continue to be available to work with members of the committee
and staff to identify, maybe, appropriate options
that you might consider when it comes to acting in this space.
And we'll certainly love to keep you apprised of litigation
and what is happening, and share with you,
of course, the briefs and materials that
are filed before the court.
I think you actually answered my question, but I, and perhaps
at a later time--
there had been actions taken by other states--
California and New York.
And those actions attempted to deal with this
not only by procurement, but with other means.
So perhaps it's not appropriate at this time
to have you weigh in.
But it would be helpful, as we go forward,
to weigh in with some of the other bills that are out there,
and kind of give us some guidance, because obviously,
if the legislature and the governor signs a bill,
you're going to have to be the one that's
going to have to support that bill and fight that bill.
So maybe going forward, after you've
had a chance to look at, maybe, some of what
other states have done, it would be great to get some feedback.
Well, we welcome that opportunity, Madam Chairwoman.
And I just want to stress that I think concerns
that have been raised-- and I know some in the industry
have said, this isn't going to happen,
that you're just spelling out a parade of horribles, that isn't
going to come to pass because this is not
how we're going to do business and grow our business.
But my question is, then, why, then,
should the specter of that even be on the table?
Why open ourselves up to that?
And as somebody who's very concerned about disclosure,
about transparency, about fairness,
about an equal playing field, I think
that this is a really, really important issue.
And so we'll continue to be available.
I also think, with respect to procurement and some
of the decisions taken in places like Montana and New York,
I think those are interesting and valuable considerations,
because again, what is it that we
can do within our jurisdiction to ensure
open access to the internet?
And so I think all the options should be on the table
under consideration.
And I'm happy for us to talk further as we move forward.
Because I did notice that Washington went pretty far
in what they were doing.
So maybe at another time, we can revisit that.
Terrific.
We welcome that.
Any other questions?
Oh yeah, Senator--
I don't know if you need the mic [INAUDIBLE]..
Thank you very much, Madam Attorney General,
for your comments today.
I'm interested in the committee figuring out
what a marketplace might look like if, perchance,
net neutrality is ended and the legal challenges don't prevent
that from happening.
And I just will observe now, this is just--
and I'm groping here--
that right now, I pay quite a bit for my monthly internet
access from Verizon.
And I'm talking somewhere between $50 or $60 a month,
if I separate it out from my cell phone
service, my landline service, and cable TV.
Here's the thought question.
Let's assume that because of public anger
and pushback from places like Massachusetts and your office,
the internet service providers, for a number of years,
take a revenue neutral approach.
They're going to increase charges
for some classes of consumers.
They're going to decrease them for others.
But they're going to make little new net revenue, or none
at all.
Because current internet service is
rather expensive for the household,
what's the possibility that we will
see lower rates for poor people and students,
but higher rates for upper middle class types like me?
I'm just trying to figure out whether every conceivable set
of scenarios is a negative one, or whether the state, if it has
to, could consider a number of scenarios
in which, for some, the service will be basic, you might say,
but also more affordable.
What, really, is the marketing thinking that these companies
are engaging in?
It can't be just a screw us transparently
with no prelude, just get more bucks
and do it as soon as possible.
That would be dumb.
That would really precipitate a consumer revolt.
So what is the subtle approach that we might likely see?
And is there a way of extracting any good out of it?
Well, I appreciate the thought behind that.
I can't tell you that I've given it enough consideration,
to your specific question or hypothesis.
But I'll tell you this.
My office receives a lot of consumer complaints.
And I think that judging from those complaints,
it's safe to say that people are fed up with what they're
paying in their cable bills.
They're already paying a lot.
I think they're also fed up with the way some of this
is structured, around bundling and around access
to basic services.
So I just say that because this is already
a point of heightened aggravation for many,
when you think about the--
I'm not talking tens of dollars, hundreds of dollars--
that residents around the state of Massachusetts
are paying every month in their bills.
Alongside that, you've got a situation
where the place of the internet has grown, in terms
of the primacy in our lives.
Everything is now moving online.
So I think we've got to hold the line here, and be really
clear that as we go forward, we need to make sure that there
is open and equal access.
And that is why I will fight hard for it,
work with all of you on it, and work
with others in other states around this country.
It's also why you've seen a lot of, frankly,
bipartisan angst about this, because this
is a bad, bad course for us to go,
when you think about the power and the ability
and what is controlled, simply through people's access
to the internet.
Think about a day without access to the internet,
for each of us, what that implicates for each of us.
And think about the stronghold that poses on our economy
and on our lives, and the ability
to control access and information.
So I guess, before engaging in sort of further scenarios
and thoughts about how this might play out,
with respect to, is there a way to devise a system that allows
for some sort of differential there, I guess,
without having giving this too much thought--
and my team will be probably troubled by comments unburdened
by too much thought or legal analysis--
I don't think that here, drawing a distinction
between rich and poor is the way to go.
I think that this is basically a service that's
got to be open and accessible to everybody.
And that's for the sake of our marketplace,
I think, for the sake of just in fairness to everybody
out there, because I know there are
some places within the state where we're still
working to get greater access to the internet.
We've got to do that.
But let's operate from a premise that everybody's
going to need to have access to the internet.
And that should be open and it should be equal.
And that's why I get very concerned about the specter
of what this FCC order enables--
the throttling, the blocking, the paid prioritization.
Who does that benefit?
At the end of the day, the question to me
that needs to be answered is, who is that benefiting?
And if the answer to that is the bottom line
of these internet service providers and nobody else,
how can we not do everything we can to stand up for people?
[INAUDIBLE]
Just, this is a backup only.
And I don't want to--
I don't want to have to--
I don't want to put you in the position of being unburdened,
again, with legal analysis.
But it would be helpful, I think,
as this discussion moves forward,
for you to give us any insight in the future
about the applicability of 93A as it is currently
written to this situation.
In other words, it does not seem to me
inconceivable that if someone tried to throttle or block,
it may be a violation of the statute
as it is presently construed or constructed.
So I'm hoping that maybe we can get some thoughts
on that in the future.
And as an extension of that, if we
were to take our consumer statute, our consumer
protection statute, which predates this net neutrality
decision and order, if we were to try to modify it to make
sure that it encompasses those practices,
maybe some thoughts on how best to do that would be helpful.
Again, not today, because I think
this needs to be the subject of a careful analysis.
I know you do, too.
But I'm hoping that you can give us some thoughts in the future
about, A, what is the applicability of the Chapter
93A statute as it is written to some of these practices, which
seem inherently unfair and/or deceptive?
And what might we do to build on that statute's existing
consumer protections to ensure that they're
applicable to this situation if we're not preempted?
We'll do that.
And important to note, 93A, a couple
of aspects-- one, this idea that you
need to prevent and be able to take action
against unfair or deceptive practices,
straight up consumer protection.
The other part, though, has to do
with anti-competitive conduct.
And that's also at play here, with respect
to others who want to provide content or want
to come into the market.
What are the potential anti-competitive consequences
of this FCC order?
And that's another reason why we have real concerns about what
this means for the marketplace, not
just for consumers, but for other entrants
into the marketplace.
So both exist, codified in state law.
I intend on enforcing both aspects,
with respect to practices here.
FCC order has said we're going to allow states,
in part, to continue to enforce laws around billing
and certain disclosures.
But they've also made clear that they've
signaled strong preemption for other state laws
that I think are really important.
And we need to hold the line.
So again, I really appreciate the opportunity to be here.
And we'll certainly look to continue the conversation
with the committee.
So I would just add that it's my understanding
that in some of the contracts that
are issued by some of our internet providers,
there actually are representations about failing
to engage in these activities.
So it just strikes me that it wouldn't be a far stretch
to suggest that if those conditions were violated,
someone would have a 93A action.
And again, trying to live in the space
that we could live in without being challenged successfully,
I think that's a productive area to look.
I completely appreciate that, and expect
that's what we'll see, enforcement
there, of those laws.
But again, I'm happy to talk further,
and think with you further, about what might make sense.
[INAUDIBLE]
Well, thank you, Attorney General.
And we hope that this dialogue will continue.
Thank you very much.
So the next person on the list is Professor Choffnes
from Northeastern University.
All right.
Can everyone hear me?
Great.
Good morning.
Thank you for the invitation to testify
in front of this committee.
For context, my name is David Choffnes.
I am a professor in the College of Computer
and Information Science at Northeastern University, where
I'm also a member of the Cybersecurity and Privacy
Institute.
I've conducted research on the internet measurement
for the past 14 years.
And my work focuses on security, privacy, and network policy
transparency.
For the past four years, I've been studying the practice
of traffic differentiation, which
is to say when an ISP gives different service
to different network traffic.
For example, differentiation occurs when an ISP throttles--
which is to say, slows down--
internet traffic for video streaming, but does not
do so for web browsing, email, instant messaging,
or social networking.
Such practices are colloquially referred to
as violating net neutrality, because the network is not
neutral with respect to the service offered
to different network traffic.
My research on traffic differentiation
has been funded by the US National Science
Foundation, Google, Verizon, and the French telecom
regulator, Arcep.
None of these relationships places any restriction
on our measurements of traffic differentiation or publication
of the results.
In fact, the contract with Arcep requires
that our anonymized data be made publicly available,
and our source code be made available as well.
Any opinions, findings, and conclusions or recommendations
are my own, and do not necessarily
reflect the views of my funding agencies or partners.
So I am here today to talk about how ISPs implement
network management practices, which
I refer to as policies, that violate net neutrality.
Namely, we have direct, empirical evidence
that they do so using special networking equipment called
middleboxes, that inspect the contents of our network traffic
to make guesses as to what application is being used,
and then potentially limit the bandwidth
available to the application in response.
Such middleboxes may be used for reasonable network management,
to limit the impact of bandwidth-intensive
applications-- for example, ensuring
that video streaming from certain users
does not use so much bandwidth that other users can't
check email or websites.
However, they may also be applied
to opaquely limit access to or degrade
services that compete with those offered by the network
provider.
Without regulation or accountability,
such practices could be used to raise
the barrier to entry for new technologies,
or block them entirely.
My research over the past four years
has produced peer-reviewed publications describing
our empirical evidence of deployed middlebox-enabled
policies that provide differential service to network
applications, almost exclusively to throttle audio and video
streaming.
We have also developed Wehe, an app for Android and iOS,
that allows any consumer to test their ISP for traffic
differentiation using their mobile device's
cellular or Wi-Fi connection.
We find that differentiation affects subscribers
of T-Mobile US, Verizon, AT&T, Boost Mobile, and many others.
We used rigorous, controlled experiments
and statistical analysis of the performance
of popular online services to identify this differentiation.
The observed policies include throttling bandwidth
available to video and audio streaming, transcoding video,
and selectively not charging subscribers
for traffic such as video and music streaming,
a practice called zero-rating.
Some of these policies were opt outs, not transparent
to consumers, and/or were presented in misleading ways--
for example, focusing on video streaming resolution,
instead of more accurately describing the throttle
bandwidth.
Instead of focusing on video resolution and video
streaming in general, we recommend
that providers concerned about traffic loads
use application agnostic techniques to throttle.
Such policies are also easy for consumers to understand,
thus providing better transparency.
We find that the observed policies are implemented
using deep packet inspection, or DPI for short, and simple text
matching on the contents of network traffic.
And this potentially leads to misclassification.
We validate that misclassification
occurs, causing unintentional zero-rating or throttling.
For example, video specific policies
can arbitrarily apply to non-video traffic.
Further, some video traffic may not
be throttled while others are.
In fact, we have shown that current approaches
to implementing network management policies
are fundamentally vulnerable to unintentional behavior.
That is, the DPI-based approach to network management cannot
guarantee 100% accuracy.
We recommend that the specific implementations
of DPI-based throttling be made public to improve transparency.
And further, we recommend that policymakers and network
operators adopt alternative rules and approaches
to network management that avoid such flaws and vulnerabilities.
Last, the legal framework concerning network management
currently lacks auditing provisions.
We argue that this hinders enforcement and compliance
with rules.
Further, network providers' policies evolve over time,
requiring constant vigilance.
So we recommend that regulators impose automated auditing
technologies, such as those designed by my research team,
as part of future policies.
So thank you.
And at this point, I'll take any questions that you may have.
So all of the issues that you mentioned here, many
of the issues that you brought up
seem to be, at least now, as problems
that you have seen, individually.
Is there any difference?
What will net neutrality do, with regard to these problems?
I'm trying to-- while I think they're relevant in themselves
as problems with the internet, how
does it change, and net neutrality coincide or effect
or change or make [INAUDIBLE]?
That's a great question.
So I'll try to answer it with a little bit
of a historical perspective.
So we've been measuring net neutrality violations
since before the Open Internet Order was passed,
so essentially before we had strong net neutrality
protections.
At the time, before those rules were passed,
there were net neutrality violations.
And when we measure them in the immediate aftermath
of those rules being passed, we saw
that those policies stopped.
So we did see a direct effect of net neutrality rules leading
to changed behavior in the marketplace.
For the better?
For the better.
However, what happens soon thereafter,
in November of 2015, was T-Mobile
launched their program called Binge-On, where they offered
zero-rated video, so that your video would not
count against your data plan.
But in addition to that, video would
be throttled to 1 and 1/2 megabits
per second, which, just to give an example,
for YouTube, meant that it would stream at 360p,
which is noticeably blurry on most screens.
There were problems with their initial disclosures,
that the FCC at the time worked with them at the time
to address, so that they were more transparent.
And we did extensive analysis of that approach.
In our view, it certainly seemed to violate
the no throttling provisions.
And I unfortunately can't comment
on what was happening at the FCC in light of that.
But what we've noticed is that other carriers
have started to go down that same path,
to the point now where every major US
carrier, with the exception of Sprint,
we've seen them throttling video.
And specifically, focusing on video,
and additionally, only video that they choose to detect.
So there are certain video providers
who are not affected by this.
So from a net neutrality perspective,
we already have an environment today,
even while the Open Internet Order took effect,
where certain video providers were getting
different service than others.
So we already had an unlevel playing field.
And were there actions taken previously
to stop that because it did not allow them net neutrality?
I'm not aware of any actions taken
by the FCC or other organizations.
Yes?
Senator Eldridge.
Thank you, Chairwoman Creem.
Following up on Senator Creem's question, and your answer,
Professor, about net neutrality violations,
the representatives of ISPs have insisted
that there haven't been any issues with violations
of net neutrality before the FCC ruling.
But you're saying that there were.
I'm wondering if you can give specific examples,
and specifically, those that are not
related to video throttling.
Are there other violations?
So in our measurements, we have only
focused on video streaming, video conferencing, VoIP,
and audio streaming, music streaming.
We have never found evidence of anything
impacting video conferencing or VoIP communication.
We have seen evidence, in some carriers, of throttling audio.
And of course, as I mentioned before,
we've seen video as well.
That is, unfortunately, all I can comment on
at this point, because we have not tested
every single application.
That said, I can say, based on my experience,
video is where we expect to see throttling,
because it imposes the largest loads on their networks.
So when the demand on their network,
in terms of streaming videos all at once,
exceeds their capacity, something has to give.
And so these carriers have, in many cases,
chosen to throttle video.
Although I should point out that they do it 24/7,
regardless of whether the network is overloaded or not.
Thank you very much.
Thank you.
And thank you for your work, Professor, in the area.
It sounds like you're doing important stuff.
Incidentally, have you encountered that,
as you've considered, safeguards or strictures
that can be imposed on these ISPs, the question
of whether they can be imposed under state as
opposed to federal law?
Is that something where you learned anything about,
in your work?
As a professor of computer science and not law,
I unfortunately can't really comment on any of that.
I will leave it to many of you who are much more educated
in that space.
Let me ask an additional question if I could,
that I'm struggling to educate myself,
and I think my colleagues are as well, as to whether we're
dealing here with unmitigated evil,
or whether there's any shade of gray whatsoever.
You've introduced the first suggestion
that there might be some shades of gray here,
and even a necessity to throttle, on occasion.
And that's when bandwidth-hogging video
is pouring down the cables simultaneously.
Could you talk a little bit about when, if ever,
throttling is a reasonable network management
technique, and when it's unmitigated evil,
which is kind of where we started this point?
Sure.
I'm happy to comment on that.
So reasonable network management is an excellent term.
It appeared in the Open Internet Order.
It's an exception that has existed
at the federal level for our net neutrality regulations
since 2015, and possibly before then.
So the question is what represents reasonable.
So I can give you my opinion on this,
as an expert in the field of networking,
and as someone who has not only done research on the topic,
but works at a telecom as well.
So it's absolutely the case that telecoms
need to be able to manage their networks
so that everybody gets fair access to their resources,
fair access to the internet.
An example of a case where you need to throttle
is if you think of the Mirai botnet, which at one point,
took down a large part of the internet
because large numbers of internet of things devices
had been compromised.
And then they sent loads of traffic at various websites
that the attackers wanted to take down.
So this is an example, in the context of security, where
an ISP is 100% within their rights to try
to block certain traffic.
It makes the whole internet work better if they do so.
And as I mentioned before, in cases
where the load on the network exceeds the available capacity,
that simply means you have to drop some traffic.
Something has to give.
So there's been many decades of research, predating even
my entry into this field, as to how to manage network
traffic under such scenarios.
And so the recommendation that I would make
is that in these situations, you can
ensure that every subscriber has fair access to their fair share
of the bandwidth that's available in the network.
And you can do that without singling out
video applications.
So for example, if there's one subscriber that's
consuming 90% of the bandwidth, and there's
another who can only get 10%, you can make it such
that each subscriber gets 50%, without having to say,
I am throttling video, specifically.
So I recommend policies like that.
And then make those policies in effect
only when demand exceeds capacity,
as opposed to what we see today, which is,
they're doing it all the time.
One more question if I might, and thank you very much.
I chair the Energy Committee.
On the Senate side, I mean.
And there, we're constantly presented
with the problem of managing peak demand
on the electric power system.
One of the policy innovations that's occurred there,
without a great deal--
I'm not saying there isn't room for debate--
but without a great deal of angst,
is the idea of demand management,
that you might make deals with certain users
of electric power, and they will agree to having their service
degrade at certain moments of overall stress
on the electric power system.
That requires the ability to differentiate.
And you might say, I guess it requires the ability
to throttle, although it's throttle subject
to my approval.
So if any system of this kind faces the possibility
of peak demand, with--
and a lot of unanticipated consequences
when you confront the demand--
how do we permit throttling, throttling according
to a business deal I might strike,
if you'll give me a break on my internet service?
How do we think about all that, if we should?
It's a great question, that I think
to answer in full detail probably would require a little
more time than we have today.
But I can sketch some ideas here.
So I guess one thing to keep in mind, on the internet, what
we're really talking about are three groups of stakeholders.
We have the subscribers.
We have the ISPs themselves.
And then we have all of the destinations
on the internet they may be trying to communicate with.
So one issue with the analogy with electricity
is that we really have many more--
if we're thinking about sources of bits,
we have a lot more sources.
And what we're talking about is potentially, at least as
implemented today, potentially giving different priority
to these different bits, these different destinations.
And so that has impact on that side,
on what we call the service--
Are you talking about electric power now,
or are you talking about the internet service?
Right.
So that's-- I mean, that's the question, right?
I'm talking about internet service,
in the sense that selective policies to-- it's not just
about consumers to decide--
it's not just about consumers deciding to throttle.
There's also who is being throttled on the other end.
And I believe-- and I am not an electrical engineer or really
in that field at all-- but I believe that these are not
direct analogies.
They would be-- it wouldn't be the best idea
to take that analogy too far.
So that said, I think the idea of consumer choice
is an interesting one.
I think that it is important for consumers
not only to have transparency, but to have choice.
Today, typically, the kinds of policies we see are opt out.
So the ISP decides that they want to throttle, say,
video traffic.
And in some cases, but not necessarily all of them,
the consumer is able to find a website where they
can go and opt out of that.
But they're defaulted in.
Those are really the only choices that consumers have.
So I think that it is possible, with both more transparency,
so consumers know what they're getting,
and more reasonable choices, that there could
be a model under which subscribers could get more
of what they want out of their network provider,
and in some cases, for example, say,
allow throttling of their own video traffic
because they want to save data against their data plan.
They have [INAUDIBLE].
Or pay less.
That would be the other element of choice.
But as presented right now, these aren't real choices
that consumers have.
I see that there's--
essentially all of the power is in the hand
of the telecom provider.
[INAUDIBLE]
--the ISP making the decision.
Isn't that what we're--
Right.
And I guess I should point out there's
still another stakeholder here, which
is the service provider, in the sense of services like YouTube,
or Netflix, or others, that we've been,
so far, talking about, really, ISPs and consumers,
as who's making the decisions.
But there is, as was pointed out by Senator Markey at the start,
there's a huge amount of money invested
in the marketplace on that third aspect of the market.
And so to remove them entirely from that
doesn't seem to me like the right thing to do as well.
So I think there's really--
there needs to be a choice that involves all three
parties, to really come to optimal decisions.
Senator Tarr?
[INAUDIBLE] find your presentation
quite illuminating.
Obviously you've done a lot of work on this.
I'd like to revisit, for a moment, the time
before the net neutrality order was adopted.
It lasted for about two years, I think, was in effect.
Prior to that, I think what you would
express to us is that there were violations of what we
would consider net neutrality.
And I'm curious, at that time, my understanding
is the Federal Trade Commission had responsibility
for this area of the law and this area of regulation.
Were there any complaints brought to the FTC
that you're aware of, as a result
of some of those practices?
So I'm unaware of any complaints brought to the FTC.
I can also say, particularly because we've
been focusing on wireless which is where this occurs,
at the time that we started doing the research,
there were really no tools available to even tell
that this was happening, and probably few disclosures,
or at least not ones that most consumers were aware of.
So I would be surprised if there were any complaints.
So that's been a large part of what
drives the research in my group, is to bring that transparency.
So even if today, these policies are completely within the rules
and there's disclosures in fine print
as they're typically are today, I
think most consumers aren't aware.
And so when they see those results, they get upset.
And I think that tells you something.
So while your research initially was
focused on wireless providers, you
have, in fact, looked at other ISPs, I'm hoping?
Yes.
That's correct.
So our software works on mobile devices,
just because that's what most people use to connect
to the internet today.
That works over a cell connection, as well as Wi-Fi.
And so if you're connected to your home Wi-Fi network,
you test your home network.
We don't yet have any evidence of any fixed line
provider in the US doing the kind of throttling that we've
seen in wireless providers.
And so, I say that with caution, because over the past two
weeks, our app has seen a lot more usage, in part because
of Apple rejecting it from the app store,
and then subsequently reinstating it.
So we have a mountain of data that we
will continue to pore through.
And definitely, if we find any cases
where fixed line providers are doing such practices,
we would make it very publicly known.
And we appreciate that.
So it seems like the practice has been fairly common
among wireless providers.
Right.
But to the best of your knowledge right
now, hasn't existed among fixed line providers.
Correct.
And I think a large part of that is because of the wireless
providers have more bandwidth constraints when it comes
to the available capacity on their cell towers,
versus fixed line providers, which tend to have more
capacity, which is not to say that there aren't times
of overloading in fixed line providers.
I'm sure we've all been watching Netflix or YouTube at night,
and gotten a rebuffering event, where we wait for it to load
or it gets blurry.
So these things do occur.
It just seems to be more of a prominent problem
in wireless networks than fixed line.
So thank you.
And then, in terms of what you looked at with regard
to the wireless providers, it would seem like a clear reason,
sometimes, to maybe use the network management
tool would be in the event of an emergency,
and everyone's trying to make, let's say,
a 911 call to report an emergency condition.
Have you seen that?
And could you just opine a little bit
about that particular situation?
Sure.
So having worked at AT&T as an intern
for a summer on their cell network,
unless something has substantially
changed in the telecom industry, voice traffic,
which was traditionally considered circuit switch
traffic, is isolated from internet traffic.
So if their networks are designed properly,
there should be no way for internet traffic
itself to prevent emergency service traffic from getting
where it needs to go.
And so increasingly, that abstraction of telephones
being circuits, wires plugged into a switchboard,
versus the way the internet works,
which is based on packets, that is melted away.
But at a virtual level, they are still providing that isolation,
in the sense that voice, and particularly
emergency communication, is always prioritized
over everything else.
Such that if I'm trying to make an emergency call,
I wouldn't be preempted from doing
that because Senator Barrett is watching the Star Wars trilogy?
I could always get through?
Is that--
100% correct.
The only issues that I've heard of recently
is when everybody tries to call at the same time.
And then that aspect of the network gets overloaded.
But it's independent from the internet communication part.
Thank you very much.
[INAUDIBLE]
I'll give you the mic.
[INAUDIBLE]
Is that legitimate, or were there throttling [INAUDIBLE]??
I have a feeling this is the part of the questioning
where I get to help you with your internet problems at home.
[LAUGHTER]
So it's common.
My parents do the same thing.
But unfortunately, I would prefer
not to comment, unless I were to see this specific scenario
in question.
I got to think that the degradation, even by itself,
[INAUDIBLE].
That's correct.
And in our analysis, in the case where,
let's say that your signal was so weak that the--
even if there was video throttling,
you had so little bandwidth available to you
that YouTube got equally bad performance as anything else,
even though YouTube is throttled.
Our tests would not indicate that that's
throttling, because from that perspective,
all applications are getting the same poor performance.
So we only identify cases of net neutrality violations
where it's clear that one application is able to get
more bandwidth than another.
So I have another question.
So how can we make sure any legislative action
we take will be adaptive to changing technology?
That's a great question.
So I guess, could you clarify a little more what you
mean by adaptive technology?
Well, if we do something legislatively,
will that work as the technology changes?
So if it were procurement, or it was preventing anything
throttling or prioritizing, do you have a suggestion
on the action we'd need to take that would change,
because obviously, technology is changing moment by moment?
Right.
OK.
That's a great question.
So the way I tend to think about this
is, although the way we use the internet has changed
substantially over the decades since it was introduced,
the technologies that underpin it,
the protocols that connect the internet together, have not.
So for example, the internet protocol,
which is the common language that the entire internet uses
to speak, it essentially has two versions--
version 4 and version 6.
And those do not change very often.
Those change on the order of decades.
And the hope is that once we have version 6,
there won't need to be any changes for many lifetimes.
So I think one way to think about this
is instead of focusing necessarily on technologies
that may come and go, like how the internet is used,
instead to focus on the network itself, which seems
to be what remains common.
So if there are laws, rules in effect that dictate how
internet traffic can or cannot be controlled,
that is something that will more likely withstand the test
of time, than if you focus on any one specific use of that
technology.
That's very helpful.
Any other questions?
Well, thank you very much for your time.
And we hope that as time goes on,
we may need to call upon you again.
I would be happy to come back.
Appreciate, thank you very much.
Thank you very much.
The next speaker is Professor Lyons, Boston College Law
School.
My neck will be next.
That's right.
So I'd like to thank the committee for inviting
me to testify today.
My name is Daniel Lyons.
I'm an associate professor with tenure at Boston College Law
School, where I teach and I write
in the areas of telecommunications and internet
law and federalism.
My sense is I'm probably the designated
buzzkill for the conversation.
I want to address two points today.
We want to be fair and have an open process, you understand.
So one of those two points today--
Net neutrality, you might say.
Yeah.
Fair enough.
My first point is that with all due respect to the attorney
general, I think it's unlikely that Massachusetts
can act on net neutrality, in light of the Federal
Communications recent order.
And secondly, I think there's good reasons why it might not
want to do so, even if it could.
So first, as the attorney general noted,
the commission has expressly preempted state net neutrality
efforts.
Like the 2015 Open Internet Order, which it replaced,
the recent Restoring Internet Freedom Order expressly
preempts any state or local measures that would effectively
impose rules or requirements that the order repeal,
or rules that would otherwise be inconsistent
with the federal deregulatory approach that
was taken in the order.
The purpose of the commission's order
was to repeal the agency's earlier
net neutrality provisions, and to restore the classification
of broadband providers as information services
under the Communications Act.
Now, for over 20 years, the commission
has consistently said that information services should not
be unregulated, but should be affirmatively deregulated.
And that approach has support in the Communications Act itself.
Now, if challenged, I suspect that this preemption provision
is likely to be upheld.
We saw a similar battle in 2007, when
Minnesota sought to regulate Voice over Internet Protocol
service, like Vonage, under state telephone laws.
The FCC preempted Minnesota's law, among other reasons,
because the state's effort to regulate Vonage
could interfere with the agency's
longstanding national policy of non-regulation
of information services.
The court upheld that decision, and it struck down the state
law, finding that deregulation is a valid interest
that the FCC may protect through preemption of state regulation.
And importantly, the recent order
relies on the very same finding--
that broadband is an information service
that should be deregulated.
And so I would expect the court to find a similar result.
Nor do I think the state can avoid preemption
by substituting the power of the purse instead
of the power of regulation.
And several states, including Montana,
recently enacted executive orders
refusing to enter contracts with broadband providers
unless they guarantee net neutral practices for consumers
within the state.
Massachusetts has previously learned the limits
on using procurement law to try to skirt federal practices
with which they disagree.
In the late 1990s, Massachusetts felt
that the federal government was not
going far enough to sanction human rights abuses in Burma.
And so we enacted a law that refused to contract
with companies that were doing business in Burma.
And like the recent Montana order,
the idea was to put pressure on companies
to do voluntarily what federal law was
refusing to impose directly.
But the Supreme Court ruled unanimously
that the state's action interfered
with the federal government's carefully crafted policy
toward Burma, and therefore struck down the law.
There are also, I think, questions
about whether orders like the one we see in Montana
violate the Dormant Commerce Clause, which
limits the ability of states to regulate in ways
that burden interstate commerce, and broadband access
is considered interstate commerce.
The market participant doctrine gives states
a little more leeway when they're
acting as purchasers, rather than as regulators.
And I think this is probably the exception
that Montana is leaning on.
But the Supreme Court has narrowed that exception
when states have tried to use their purchasing
power to affect contracts with third parties,
as opposed to the contract with the state itself.
And that's, of course, what Montana is trying to do, right?
It's using its leverage in order to insert terms into contracts
between ISPs and consumers.
Now, it's worth noting that the Court's Dormant Commerce Clause
jurisprudence is murky.
I tell my students, it's one of those things
that's in a category officially known as a mess.
And it turns in part on factual questions
I don't know the answer to, about how much
an in-state ban would actually affect interstate traffic.
But I think at a minimum, I would
suggest that it's not clear to me
that actions like what Montana has taken
would survive a Dormant Commerce Clause challenge.
Secondly, and briefly, even if Massachusetts
could enact state net neutrality requirements,
it's not clear to me that they should do so,
unless it's a carefully crafted provision.
For example, a prohibition on contracting with networks
that prioritize traffic might, for instance,
jeopardize Massachusetts' ability
to participate in FirstNet, which is AT&T's public safety
network that prioritizes first responder traffic ahead
of all other traffic on the network.
And I think that raises a larger concern, one
I think the previous conversation hinted at,
which is whether it's wise to enact
a ban on all prioritization.
And so net neutrality proponents, I think,
are correct, that prioritization can
be a tool that's misused for anti-competitive purposes.
But the reality is there are good and bad reasons
why a network might prioritize some traffic over others.
And I think this gets to your question, Senator Barrett.
For example, some applications, like streaming video
or teleconferencing, are more susceptible to congestion.
And so if congestion occurs on a network,
the network provider might want to prioritize
those applications ahead of web or email traffic,
where a slight delay in delivery is
imperceptible to the consumer.
That's the type of network engineering
that would be a net gain for consumers,
but arguably violates the old net neutrality rules.
And the idea behind the paid prioritization ban
is to prohibit this kind of good prioritization because
of the fear that companies might abuse that privilege.
So ultimately, I think the FCC's recent order simply
restored the law that was in place as of 2015,
the law under which the internet really
flourished-- no more, no less.
And my sense is that antitrust law protects consumers
from a lot of the harms that net neutrality advocates fear
most-- legitimate harms, but one that I think anti-trust law
is there to protect us against, in the same way
that it protects consumers everywhere else
in the American economy.
So I appreciate that.
And I'm happy to take any questions.
So I assume you filed an amicus brief.
No, I have not.
I had some questions, but go ahead.
Go ahead.
Thank you.
That was very interesting.
I want to go back to the preemption analysis,
because I think it's kind of at the root of what
we're trying to figure out.
And it also seems to directly contradict what the attorney
general was saying.
Is it your-- you're claiming that there
is field preemption over the entire field
of internet regulation, around net neutrality for the state.
Is that your analysis of what the FCC order does?
No, I don't think it does, right?
So in preemption doctrine, we distinguish
between field preemption and conflict preemption, right?
Field preemption is where the federal government
comes in and says, we're preempting this entire field.
You can't regulate at all.
Whereas with conflict preemption,
it's a little more narrow.
We're making rules and states can't
make any rules that conflict with our policies, right?
Right.
Field preemption argument is harder
for the federal government to make.
I read the FCC's order as engaging in conflict preemption
rather than field preemption.
What they're saying is we have a policy here of deregulation
with regard to network management practices.
And I think the preemption clause in the 2018 order
tries very hard to--
anything that interferes with that policy,
any way it conflicts with that policy is preempted.
But the order then goes on to say,
state efforts to regulate that don't conflict
with this policy are just fine.
We're not trying to preempt, for example, general state consumer
protection regulation or contract law or anything
along those lines.
Well, so wouldn't that--
I don't think anyone is arguing that we would
get into the specific federal, FCC-specific law
to regulate the issuance of the internet.
I think the question here is whether or not
we're allowing our role as consumer
protectors for our citizens in Massachusetts to pass
consumer-facing laws, whether it's
under Chapter 93A or a whole host of other statutes
that we regularly enforce in murky areas,
like energy regulation or transportation insurance, where
there is both a federal history of regulation in the field
and state history.
So I guess the question, to just drill into it a little bit
more, is if we craft a law that's based off the consumer
protection concern, whether it's around fraud, whether it's
around unfair business practices as the attorney
general mentioned, do you feel like that
would be preempted also?
So if the outcome of the law is to require broadband providers
to provide a no blocking, no throttling, no prioritization
promise, then yeah, it would conflict
with the FCC's deregulatory policy,
and therefore it would be preempted.
And this is actually not terribly unusual in this field.
You're right, that for 80 years we've
operated with tiers of federal and state authority
over the telecommunications network.
But for the last 20 years, there hasn't
been a whole lot of dispute over the fact
that the federal government reigns supreme with regard
to most broadband practices.
So part of the debate--
so part of it comes back to what the statute says, right?
The Communications Act divides the world in two,
for purposes of this discussion-- telecommunication
services and information services.
Telecommunication services, that's the law that used to--
the common carrier law that governed the old telephone
network, right?
Then makes very clear that state government regulates
intrastate communication.
Federal government regulates interstate, right?
So during the period from 2015 to 2017,
broadband was a telecommunication service.
It kind of fell into that category.
But even then, the Obama-era FCC said, because internet traffic
is hard to differentiate between intrastate and interstate
components, states can't regulate it [INAUDIBLE]..
So even when it was under this grant of statutory authority
to the states, it was a very limited amount of effort
that states could take.
One of the takeaways of the 2018 order
is to remove it from that bucket, the telecom bucket,
into the information services bucket, where, all the way back
to the Clinton administration, the FCC has said,
with the support from the Act, this
is largely an interstate thing, and is subject to deregulation.
So I think that's all understood.
But I guess the potential extrapolation of that comment
is really dramatic for states, because if the idea is
that if there's ever a topic where there's
overlapping federal and state interests, then
we have to just walk away, and have no role
to enforce Chapter 93A and enforce consumer protections.
And we're talking about a whole host of industries
that I would view as our obligation
to police and to regulate, with state interests
front and center, not discriminating
against other states or implicating
Dormant Commerce Clause at all.
I mean, under that kind of rationale,
we wouldn't be able to regulate insurance,
we wouldn't be able to make--
we wouldn't be able to make judgments
about coverage, [INAUDIBLE],, which we do all the time.
We wouldn't be able to enforce violations of cable bills,
because that would theoretically fall
under this federal umbrella, which, it just
seems much broader than what the attorney general has explained
to us, and what the half-dozen other states that
have challenged the order seem to be saying.
So let's click back a little bit, right?
What we're talking about is maybe
a little bit of a Venn diagram.
Either you have two circles [INAUDIBLE] that don't overlap.
You could have areas where they both overlap,
or areas where the federal swallows the state entirely.
We're not in that realm.
I think that's your concern.
We're not in that realm.
So I guess just to focus that, then,
so what would the realm of laws or potential policies
that we could pass be, that would be in the Venn diagram
side that's state, in your opinion, that
would be in the Venn diagram side of safe state action?
So my sense is, things like what we were describing in the cyber
security privacy sector, right?
Whatever terms of service you put into your contract,
you can hold you to those.
That's a consumer protection issue--
enforcement of those terms, consistent with what
the FCC has provided.
It doesn't conflict with anything
that's in the Open Internet Order, and so, fine.
So with regard to the conversation that
occurred earlier, right, to the extent that ISPs are
voluntarily adopting net neutral principles in their terms
of service, and I think every major ISP has done so,
it's perfectly fine for states to hold ISPs accountable
for the terms they put in those contracts.
Do you feel like--
is it your opinion that we could require a terms of service that
prevents blocking and throttling,
and those types of issues that were just brought up?
No.
I think the answer is no on that,
because I think the FCC has made very
clear that a mandatory blocking, throttling, paid
prioritization ban is something that
cuts against federal policy.
What about a mandatory notice?
So then I'd have to look more closely at what
the transparency rules are in the order.
My understanding is that the preemption language
leaves some room for additional transparency, but not a lot.
And I'm not prepared to comment too much on that.
And sorry, just to back up to the procedural analysis
of the challenge, because the attorney general
seemed to say two things.
She seemed to say that there is one potential question
of the arbitrariness and capriciousness
of the ruling, which is its own kind of procedural bucket.
And then the second issue was the substantive question of
whether or not the preemption is actually enforceable.
So I guess, what's your legal opinion, or your analysis,
of that first challenge to the FCC order,
whether it would survive an arbitrariness
and capriciousness review?
So you're right, that if the state attorneys general succeed
in getting the order vacated, then it doesn't matter,
because you're not conflicting with the order.
That having been said, I think they face an upward battle,
in the same way that the ISPs faced an upward battle
the last time around.
And the reason is because federal administrative law
puts a pretty heavy thumb on the scale of agency deference.
The FCC is our government's designated expert
on telecommunications issues.
And so when you go to court challenging
what the expert said on this, you
face the Chevron doctrine, and various other things
that make sure that there's a thumb on agency scale.
In this case, I think the challenges are twofold, right?
One, we haven't seen the litigation yet.
The case has only been filed.
I would anticipate two arguments.
One is a legal challenge, right?
You don't have the authority to classify broadband providers
as information services.
I think that probably is squarely
foreclosed by the Supreme Court's Brand X opinion.
The other challenge would be more procedural.
You do have the authority, but you
didn't jump through the right procedural hurdles to do so.
The order seems, I think, to go pretty far in making sure that
it crossed the T's and dotted the I's.
The primary argument that I've heard
floated around the blogosphere is
this notion that you didn't do enough
about the potential fraud that we see
and the millions of comments that were filed.
But ultimately, the legal standard
with regard to reviewing comments is pretty low.
And so the agency can't take them and throw them
in the dumpster, right?
But as long as it has read them and addressed them,
and incorporated the commenters' views into their analysis,
and showed they meaningfully engaged what the commenters had
to say, then they'd probably survive judicial review.
And then one last, final question.
Just, the AG seemed to indicate that because this
was an order, rather than a congressional act,
that the preemption analysis would be somewhat
different, because obviously, if Congress acts,
and there's an actual law on the books, that would supersede
an administrative order.
Does that impact the scope of the preemption analysis
at all, or how broadly the preemption would apply?
I don't think it does, for purposes of this conversation.
Whether the federal policy at issue
is coming from a statute from Congress
or from a regulation adopted pursuant to a statute
from Congress, either way, the Supremacy Clause
allows it to trump state regulation,
unless the federal government is interfering
with intrastate organization, like telling you
guys how to run a municipality or something like that,
which is what they got in trouble for in the [INAUDIBLE]
case.
That's a little different.
That's sort of off the table here.
But with regard to whether it's a statute or an order at issue,
it doesn't really matter.
If you win-- if the agency wins on the ground
that the order is a permissible interpretation of a statute,
then for these purposes, it's the same thing.
So it's interesting, because in Nebraska, they
have legislation which would allow
for exemption for a reasonable network business management.
Other states have done something which would allow
for exemptions for emergency.
So it seems as though some people, in what they've done,
have tried to allow the objections that you brought up,
and still be able to regulate the [INAUDIBLE]..
Are you aware of that?
Yeah, and I think that's wise, right?
So what I was looking at is something like the more
broad language that we see in the Montana order
or the New York order, that seems
to say all prioritization, or all paid prioritization,
is problematic.
Right, versus other states that have
tried to do exemptions for--
Right.
And my broader point is, so even independently
of the legality of it, assuming that whatever you all wind up
doing survives judicial challenge,
my advice is be very careful in how you craft it to make sure
there's no unintended consequences.
So in crafting it would be allowed and helpful
to some of the exemptions?
Yeah.
I think both highlighting exemptions
that you recognize are important prioritization requirements,
like FirstNet kind of emergency responder stuff,
and also standards that allow some flexibility,
reasonable network management being the phrase
that the FCC has historically relied upon,
I think is helpful.
Right.
I noticed that in other states.
OK.
Thank you.
Any other questions?
Yes, Senator [INAUDIBLE]?
This may go beyond your purview, but are there--
are you-- could the FCC [INAUDIBLE]
a number of findings by the FCC that had said [INAUDIBLE]..
Sure.
So-- how much time you got?
[LAUGHTER]
There's two layers of analysis going on in the 2015 order that
was repealed, right?
One was the question, do you or don't you
impose net neutrality rules--
the no blocking, no throttling, no paid prioritization
requirements.
The second was, what's the legal vehicle by which you do so?
My sense, and I don't want to speak for those who are not
here, but my sense in reading the case law and the comments
was that a big chunk of the impetus for supporting the 2018
repeal was avoiding that second category.
In other words, ISPs generally, because we
see a no blocking, no throttling, no paid
prioritization rules as part of their terms of service,
aren't objecting solely to that.
What they're objecting to was being reclassified
as a common carrier, being taken out
of the realm of a competitive marketplace,
and subject to the legal framework
that we originally designed to discipline the old Bell
Telephone monopoly, because that potentially puts a--
so their argument was, and the FCC found,
that put a damper on investment in the broadband sector.
Investors looking to allocate their capital
are more likely to invest in places of regulatory certainty,
and not places where there might be
the potential for heavy regulation going forward.
In addition to that, I think the other strong argument
is a concern about innovation.
So when you think about net neutrality,
the effective takeaway of net neutrality
is this idea that the way the internet is now
is the way it always ought to be,
so a homogenization of the internet product.
All ISPs should carry all traffic
and treat them all the same without differentiating.
And that worked really well for a world
where what we were doing online was email and web
browsing, where all traffic was relatively the same.
Not so much, I think, now that we see a huge growth
in differentiation of the amount of things
that we do online, some of which are bandwidth-intensive,
some of which are not.
Netflix is responsible for one in three
packets on the internet at peak time, according to [INAUDIBLE]..
So think about it.
everything we do on the internet,
one in three packets during peak hours is Netflix,
and another 17% is YouTube.
So half of all internet traffic is
video, which is why I think video winds up playing
a huge impetus in giving challenges to networks
and how they're going to manage their traffic going forward,
because it's sort of like this 600-pound gorilla gets pushed
onto them.
So when disruptive innovations like that occur,
companies want ability to manage their practices in a way that's
going to adjust to that.
And mandating a particular network management practice
eliminates the freedom to innovate and respond
to those changes.
One of the big net neutrality complaints prior,
of 10 years ago, was the Comcast BitTorrent dispute.
So in 2008, Comcast got caught throttling BitTorrent traffic
on the network.
The reason that Comcast gave for this
was that BitTorrent was one of these revolutionary changes
that really upset their internet architecture.
So at the time, the internet was a client server model, right?
Most of what I did as a consumer was download a bunch of stuff.
When I uploaded things, it was only to request stuff
to be downloaded, right?
So it's like, hey, give me some package,
and then you send me a whole bunch of packages.
So Comcast had designed their network
so there were many more lanes going from the internet to me
than from me to the internet.
Now, peer-to-peer networking came along
and changed that traffic pattern.
With peer-to-peer networking, everybody
is both a sender and a receiver.
And in addition to that, the way Comcast
had designed their network was that you had shared networking
within the neighborhood.
So those massive download little upload lanes
were shared in your neighborhood.
So what that meant was if you had one bit
torrenter in your neighborhood that
was sending massive amounts of material up,
it would clog the upload lane for everybody
in the neighborhood, and make it so
that they couldn't do anything.
So in the long run, the answer is, create symmetrical lanes.
In the short run, Comcast thought
the answer was throttling back the BitTorrent guy,
so that everybody else can get their stuff through.
Unfortunately, they weren't as transparent
as they should have been, I think,
in disclosing what they were doing.
And so the FCC brought a complaint against them.
Now, that's the Comcast side of the story, right?
The other side of the story might be,
Comcast didn't like that what was going on
in peer-to-peer networking was-- most
of what people were doing for peer-to-peer networking
at the time was trading in pirated movies.
And when you're trading in movies,
you're not renting movies from the Comcast OnDemand service,
right?
So there's an anti-competitive story you can tell as well.
But the point is that that network management, ISPs
would like the ability to respond with network management
to changes in what we're doing upstream with internet content.
And net neutral rules prohibit them from doing that,
or at least interfere with their ability to do so.
Sorry.
That was a really long-winded answer.
I apologize.
So a network management isn't a lot different
than trying to prevent your competitors,
or trying to influence the consumer
to use your product versus a different private product?
That's right.
Yeah, there is--
And so-- I'm sorry.
I do want it.
So with the changes in net neutrality, that could be,
there's certainly some sentiment for the neighbor
to manage the internet for your own business purposes,
versus blocking the kind of free trade that could be retarded.
And now that might--
we may not be able to prevent that.
You're absolutely right.
Broadband providers certainly have some incentives
to exercise their tools in ways that are going
to be anti-competitive, right?
It's not that there isn't a solution to that.
It's that the solution, I think, lies elsewhere.
So antitrust law in the Federal Trade Commission
and the Department of Justice has always had the ability
to stop networks from engaging in practices that
harm consumers, so exploiting market power in ways that
create actual consumer harm.
One of the downsides of this reclassification,
from information services to telecommunication services,
is that it stripped the Federal Trade
Commission of its authority to enforce antitrust law,
because as it turns out, the FTC can't enforce laws
against common carriers.
So we took our primary antitrust cop off the beat,
so to speak, during the period of net neutrality.
One of the side effects of repealing that
is to bring the FTC back into the conversation.
So I'm hearing you say there is an avenue, but not the avenue
of [INAUDIBLE],, of saying you need to have net neutrality.
Yeah.
I don't think that the prophylactic rule
of net neutrality is necessary, because I
think that antitrust law is already doing most of the work
to guard against the anti-competitive abuses
that we most fear.
Any other questions?
All right.
Thank you very much, Professor.
Thank you.
It's been very helpful.
So the next speaker is Ari Glantz and Jody
Rose, who run Venture Capital Association.
That's OK.
We are trying, as somebody--
oh, that's a microphone.
We are running a little slow.
And it has nothing to do with your speaking.
I just wanted to kind of move us along a little bit.
That's welcome news.
Fewer questions for me at the end.
[LAUGHTER]
My name is Ari Glantz.
I'm the associate director of the New England Venture Capital
Association.
Some brief background context, we
view ourselves as a group that invests
in the entrepreneurial ecosystem on behalf of our membership,
because it's really the strength, vitality
of that ecosystem upon which our members' success is predicated.
We have about 80-plus members, manage about $86 billion
in capital among them.
Our organization has had the opportunity
to weigh in on this issue in various formats.
Who--
Sorry?
Without asking you to divulge something
you couldn't, is it possible to like,
give us an idea of who your members might be?
And if not, that's fine.
Absolutely.
Names that are probably more household--
Highland Capital, CRV, Charles River Ventures,
Polaris Partners, Third Rock Ventures, Long River Health.
OK.
A few.
We represent both technology and biotechnology,
large and small firms.
As I said, we've had the opportunity
to weigh in on this issue alongside of some
of the principals who've spoken today.
So I'll just note that my comments will
be both high-level and also repeat
some of the tropes and themes that we've heard thus far.
So as Senator Markey noted in the open,
Massachusetts has a thriving innovation ecosystem.
And it is built on the free and open internet.
We're home to satellite offices of the big three of Facebook,
Amazon, Google, and thousands of startups and scale ups,
among them the more than 3,500 active companies
within the NEVCA membership's collective portfolio.
And these are the drivers of job growth and innovation.
Each and every one of them is built
on a foundation of equal access to the internet, a level
playing field on which to leverage the backbone
of our modern economy.
The FCC's decision to dismantle that foundation, we believe
will have extreme negative effects on that technology
economy, stifling that innovation
and slowing that job growth.
But as the AG noted, net neutrality
is more than just an economic issue.
In an era where societal divisions are increasing
and increasingly concerning, there's more at
stake than just dollars.
Unregulated, telecoms and their backers
have the ability not only to limit consumer choice
for their own economic gain, but to pick and choose
the ideology behind the content that they make available.
So at the end of the day, whether it's
the risk of millions of jobs and billions
in economic contribution, concern
for the voices of dissent that face censorship, or worry
about the specter of ballooning corporate influence on media
and public opinion, we feel it's imperative
that net neutrality remain, or once again become,
a reality in modern society.
To this end, our foremost focus at present
is supporting the aforementioned efforts
of [INAUDIBLE] at the federal level,
and failing that, to support new federal legislation
to protect the open internet.
That said, and adapting a little off the attorney general's
advice, that there's no reason to wait
and no time like the present, if the Commonwealth
has an opportunity to provide an open internet for its citizens,
it absolutely should.
And I think we recognize that to do
that well will require a kind of deep exploration of the issue.
And we are happy to assist as best we can in that process.
I assume you don't have an opinion
on whether we can legally do this, or [INAUDIBLE]??
Not my ballpark.
Any questions?
[INAUDIBLE]
I expect my comment that one of our legal [INAUDIBLE]
some expenses toward [INAUDIBLE]??
Yeah.
I think that's kind of undeniable.
That being said, Massachusetts did miss out a little bit
on the web 1.0 boom.
But I've been up here talking to other committees
about some of the reasons why that might have happened.
I wouldn't-- I think the best way that I would respond
to that question is to say that as has been noted earlier,
the speed at which technology is changing and the platforms
on which new companies are being built,
a lot has happened between 2015 and now.
And I think another thing that was noted is that--
by the Northeastern professor--
there was a change after they instituted the net neutrality
regulations.
But I think that the--
again, I'll go back to the fact that the platforms
and the technology upon which that was built
was very different than what we have today.
And therefore, the ability of the broadband companies
to influence and change what is available
is magnified in today's environment.
So what impact do you predict that the new order will
have on businesses like yours?
Generally speaking-- well, not businesses
like mine, to be fair.
But generally speaking, we feel that when the power
to decide what companies can get to market
is in the hands of the companies who are also producing
competitive products, it would not
be in the broadband companies' best interests to let startups
and scale ups have equal access and access
to the same customers.
And therefore, companies that rely on access to everyone
will fail.
And the capital invested into those companies will be lost.
And you might not know, but do you
have a suggestion for actions that this committee
might take to promote growth and competition?
As it pertains directly to net neutrality?
No.
I think at this point, I don't have the expertise
to make a recommendation about what kind of state
level action should be taken.
But that's a place where I think that we
would be happy to tap into our membership
and provide access to people who have more expertise.
That's great.
We're happy to take, in the future, information
or other submissions.
I don't have any other questions.
Thank you.
So the next person is Matt Wood from the Free Press.
And I would thank you very much.
I know you traveled here yourself from Washington,
to testify today.
I appreciate very much your willingness to come.
I did, thank you.
I hope you'll forgive my reading from my well-branded computer
that's typed up on webcast, instead of a piece of paper.
But in the traveling, I didn't print something out
this morning.
Well, you could just talk to us.
I could, but I want to make sure I stick to five minutes
and cover some points that I hope you'll take in the written
testimony we also submitted.
Is the mic on?
Yes.
Senator Creem and esteemed members
of the special committee, thank you
for inviting me to testify today on the FCC's
recent and wrong-headed repeal of its net neutrality rules.
I'm the policy director for Free Press, a nonpartisan nonprofit
with 1.4 million members.
And 35,000 of those are here in Massachusetts.
It's an honor for me to be here.
Though I work in our DC office, as you noted,
Free Press has a headquarters in Florence,
and was founded in Northampton some 15 years ago.
And in the legal battle stretching
for the past decade-plus now on this topic,
we've been a leading advocate for net neutrality.
At this point in the hearing, you don't want or need me
providing a lengthy definition of the term net neutrality.
But as attorney general Healey said so well,
it protects internet users' rights to choose what they see
and what they say online, without interference
by ISPs like Verizon, Comcast, or Charter.
I'll just focus on two essential truths concerning
the spurious claims and dubious data
the FCC relied upon to repeal those rules back in December.
First, neither the repealed rules
nor the law on which they were based were new or untested.
Net neutrality is a time-honored yet still vital
iteration of nondiscrimination laws that
protect communication networks.
Second, ISPs say that these rules and laws
are bad for their business and dampen broadband investment.
Those claims are simply not true.
Massachusetts-specific data, included
in my written and submitted testimony,
shows that the now-repealed rules did not materially
change deployment in urban or rural areas.
The FCC's repeal abdicates the agency's congressional mandate
to prevent unreasonable ISP practices.
It also reverses the prior FCC's correct decision,
to treat broadband internet access
service as a telecommunication service,
under Title II of the Communications Act.
That repeal clears the way for blocking, throttling,
and discrimination by phone and cable companies, some of which
circulated here on Beacon Hill, a sheet
about so-called net neutrality myths and facts.
And we've answered and provided a response
to those claims in our written testimony as well.
The 2017 repeal did not restore a pre-2015 light touch
framework for internet access.
And we were just discussing this with the last witness.
In fact, it repealed all rules preventing ISP discrimination,
and tossed out the only legal foundation upheld
in court for such rules, once the FCC had clarified
that broadband transmission is different from the speech it
transmits.
Before 2015, the FCC twice tried to enact such rules
without treating ISPs as telecom carriers.
Those rules did discipline ISP abuses in some respects,
but they lost in court twice--
first to Verizon in 2010, and then to--
I'm sorry, first to Comcast in 2010,
and then to Verizon in 2014.
The Comcast suit tossed out the principle
that remedied its video throttling in 2008,
and then Verizon argued in its winning appeal
that broadband providers, quote, "possess editorial discretion,
just as a newspaper does, to decide
which content to publish."
The FCC's 2017 reversal has left internet users
without sufficient protections against such
ISP blocking and editing.
They also removed protections against ISP privacy violations,
too.
As we've discussed today, the FCC
has tried to preempt states' attempts to fill this vacuum,
all in exchange for, as Professor Lyon mentioned,
voluntary promises that the ISPs won't do these things.
But tens of millions of people aren't satisfied with that,
and they're organizing to restore these rights.
They're immensely popular across party lines.
83% support them.
And that figure includes 88% of Democrats
and 75% of Republicans.
That's why Senator Markey is leading the resolution
of this approval.
That's why Attorney General Healey joins states
from New York to California, Minnesota
to Mississippi, in an appeal.
And Free Press will also join in that legal appeal,
because the FCC's decision was substantively and procedurally
flawed in ways I'd be happy to discuss.
Some 20 states are considering varied responses
to the loss of these rights, with Senator Creem's privacy
bill, S-2062, on broadband privacy among those in response
to earlier reversals, and now Senator L'Italien's
net neutrality bill on that important list, too.
Despite this legal pedigree and popular outcry,
ISPs still say that the rules and the Title II
legal framework for them decreased broadband deployment
and investment.
Again, that claim just isn't true.
We know that broadband deployment is not
satisfactory in every area in the nation,
nor every part of Massachusetts.
And even when fast broadband is available,
not every person can afford it.
Kimberly Longey, one of Free Press' founders
and still our chief operating officer,
has been organizing in Plainfield for almost 13 years
now to overcome the digital divide and deployment
gaps facing residents of the hill towns
and other rural areas of Massachusetts.
The story of their progress is well-known to many
in the statehouse.
But the economic and topographic challenges
of building networks in rural, rugged, and relatively sparsely
populated terrain did not spring into existence
with net neutrality's 2015 restoration of these rules.
ISPs often fail to meet these challenges
when bottom line considerations do not dictate deployment
to these locales.
For example, Verizon announced in 2010 an end
to its new Fios deployments.
Yet, the ISPs own data shows that the 2015 rules did not
slow deployment.
Just a few facts and figures on that before I close.
Massachusetts is relatively densely populated.
Some 98% of its inhabitants are served by at least one
wired ISP.
Yet just 94% of its rural inhabitants
have a wired ISP at 10 megabits per second.
Choices are also few.
Just 82% of rural Massachusetts residents
have two or more wired ISPs.
And only 25 of those have two ISPs
offering a 25 megabits per second service, which
is basically what the FCC defines as a modern definition
of broadband.
So there is work to be done, for sure.
But that work did continue while the FCC's strong rules were
in place from 2015 to 2017.
Both urban and rural Massachusetts residents
saw substantial increases in broadband speeds and capacities
during those two years.
And while the dollar amounts that ISPs invest matter less
than those deployment metrics, publicly traded ISPs
did increase their aggregate investment in that time period
by 5.3%.
By a 2 to 1 margin, these ISPs reported
increasing investments.
And so, for example, Comcast's total spending
during the time period when the strong rules were in place
went up by 26%, Verizon's by 3%, and Charter's by 15%.
And those are nationwide figures,
not specific to the state.
So in sum, the repealed rules were good,
and they were working for everyone.
And I thank you for your attention
to this matter in this hearing.
I'll be happy to take any questions if you have any.
So these are statistics that during the time
of net neutrality, how much the spending of the ISP providers?
That's right.
One of the main arguments made by the internet service
providers-- and you've asked, Senator,
about the reasons the ISPs gave for opposing these rules-- they
said that the mere presence of the nondiscrimination
laws or other aspects of the communications laws
that were not in effect used to adopt these rules
would somehow inhibit their deployment,
dampen their investment, decrease their fortunes.
We just don't see that as the case.
And these are the company's own numbers
that they report to places like the SEC
and to their own investors.
So using their own numbers and the statements
they made to their investors, their deployments
and their investments continued to be basically
what they were before the order took place.
In fact, if anything, there seemed
to be a slight jump in their deployment,
because it's based on demand and not strictly driven by things
like regulatory decisions.
Any questions?
So I just have one.
I think we're alluding to that.
What consumer privacy protections
do you think are important?
Well, basically, the rules that were struck down last year
were a part of this current FCC's assault
on consumer protections on communications networks.
And the rules that were in place before Congress repealed those
in early 2017 prevented ISPs from making
unauthorized and unpermitted use of their customers'
personal information without asking.
We thought that was a commonsense rule
to have in place.
It was based-- and the reason I mention it here--
it was based on the same part of the Communications
Act, which is called Title II of the Communications Act.
So the repeal of the net neutrality rules
is really just part of this broader effort
to remove protections and to rely, instead,
on ISPs' promises to behave.
And frankly, we don't think those
are good enough, because there aren't really other ways
to enforce those promises.
FTC and antitrust routes and state routes are all welcome,
but we think the expert agency at the federal government level
is the FCC, and should have those kind of protections
in place for users.
So could we consider that an unintended consequence, as we
speak today, of the change in the net neutrality rules?
Unfortunately, I think it was an intended
consequence for some people.
But it was a part of this, again,
of really massive rollback of internet users' rights,
based on the claim that somehow this
will harm innovation or harm the internet development.
And we think just the opposite, that they're
essential for the continued operation and the free use
of the internet by people that they've come to expect.
So do you have an opinion official
of whether the preemption clause precludes us
from dealing with that issue as well?
I think, as others have testified,
it's a very complicated issue.
I think it's worth noting that not only is the policy choice
a bad one, and that the legal questions are murky,
the FCC's attempt to adopt that preemption was also
procedurally flawed.
In fact, the FCC did not provide notice of its intent
to do that when it first set out this notice of proposed
rulemaking, which resulted in the order in December.
So I think there are challenges to the order
on substantive grounds, but also on just the FCC's generally
sloppy execution of that plan.
And that is why we're very happy to be part of the lawsuit that
will challenge the FCC decision, and glad to see State Attorney
General Healey and others taking such an active role in it.
So just to give us a little bit of a sense moving forward,
what, ideally, would you like to see in a state--
I know you touched on this a little bit,
but I guess what specifically would you recommend to us
be put in a state-level net neutrality bill?
Well, to be clear, I mean, we do favor the reinstatement
of strong federal protections.
We welcome the energy and the attention
this issue has gotten at the state level.
I think that speaks to the popular support,
and frankly, people's surprise and outrage over the fact
that the FCC has abdicated.
Professor Lyons talked about the difficulties of--
let's assume that the preemption order does stand up in court.
Replicating the existing FCC rules would be difficult.
I've heard discussion this morning of Chapter 93A,
and sort of an unfair and deceptive acts approach
to this problem.
And contrary to the opinions I've
heard expressed by some up here, at least at the federal level,
antitrust and Federal Trade Commission style actions
have been few and far between.
They're expensive.
They're usually after the fact.
Sometimes the company or the party
whose rights were violated doesn't even
exist anymore, because it takes so many years to grind
through these kinds of cases and antitrust lawsuits.
So we haven't seen those as really
effective at the federal level.
At the state level, I'm glad to hear
you're exploring those options.
But they could be set aside by the preemption efforts
that the FCC undertook.
I just believe that the FCC's preemption attempts were not
only problematic from a substantive standpoint,
but also poorly done in the order
that they adopted last year.
So I guess you have a degree of confidence, it sounds like,
that the FCC order is going to get thrown out in court?
I mean, I wouldn't want to place bets on it.
I was once told that I'm a lawyer,
and that it's malpractice to give odds.
But we think we have a strong case.
There is deference to the agency,
as others have noted for you.
But they have to do things right.
They have to provide notice of what they're going to do,
and they failed to do that in several respects.
You know, the fraudulent comments
that several attorneys general have weighed in on,
those are problematic.
I agree that the FCC doesn't necessarily
have to tote up every single comment it receives
as if it's a ballot box.
But that is a very big problem, for them
to have several million comments and really
have no idea whether they were legitimately
submitted by people with an interest in this proceeding.
And then they have problems with their legal theories
and with their notice they provided
for different decisions they made.
So I think we have several challenges,
both on the substance and on the way the FCC went about this.
So again, I want to thank you very much for helping me today,
and for being helpful with my office [INAUDIBLE]..
Thank you.
Yes.
It was a pleasure.
Yeah.
Thank you.
So the next person is Gerry Keegan.
Madam Chair, members of the committee,
I'm Gerry Keegan with CTIA.
CTIA is the trade association that
represents the wireless communications industry.
Our members include companies such as AT&T, Sprint, T-Mobile,
and Verizon Wireless.
Let me say from the outset that the wireless industry supports
an open and free internet.
Major wireless providers have agreed
not to block or throttle legal content
in a discriminatory manner.
What the FCC did in its recent order
is to restore authority, broad authority, to the FTC,
to police broadband providers and prosecute
those providers who may be acting
in an unfair or deceptive manner.
The FCC has noted in its recent order
that the FTC can bring action against those broadband
providers that it alleges are acting
in an anti-competitive way, with regard
to their network management practices.
The FCC, for example, has noted that providers cannot
anti-competitively block or throttle content from third
parties.
They cannot enter into agreements with one another
to discriminate against lawful content.
In addition, the state attorney general here in Massachusetts
can enforce consumer protection laws of general applicability
against those providers who she feels
have acted in an anti-competitive, unfair,
or deceptive manner, or are not living up
to the terms and conditions of services
that they have published.
Finally, you've heard a lot about preemption today.
The FCC reaffirmed its 25th [INAUDIBLE] finding,
that broadband is an interstate service--
in fact, a global offering--
and preempted state and localities
from regulating in this area.
State-by-state regulation, especially of mobile broadband,
would be untenable.
Just think about this in the mobile broadband
context, which I represent.
Would a law be applicable to where the user signed up
for service, where the antenna that transmits the data
is located, or where the user is currently located?
That type of patchwork of state regulation
would just be unbearable and confusing for consumers.
So in closing, I would say that state legislation in this area
is unnecessary, because of the strong consumer
protections that are already in place,
because the state attorney general has authority
to enforce consumer protection laws of general applicability.
I would also say that federal legislation,
a bipartisan solution, is necessary in this area,
so that we have one set of rules for all providers
across the country.
Thank you for your time, and I'll take any questions.
So, if I might.
So it seems like you would be at least willing to work with it.
But perhaps it could fit into your pattern if we did do--
if some legislation came out of this committee that
had some of the protections like Nebraska
did, which would add an exemption for ISP sharing
information with emergency personnel,
or allow for exemption of reasonable network business
management?
Because I think I hear you saying that,
at least your [INAUDIBLE] relation
supports an open internet, but wants
to be able to manage [INAUDIBLE]..
So if those intentions were there,
would that fit more into something
that would be [INAUDIBLE] we'd feel more comfortable with?
We don't believe state legislation is necessary.
And we believe that there is regulatory risk here,
with regards to states regulating a truly
interstate service.
So we believe that our current agreements
not to block or throttle traffic can
be enforced by both the FTC and the state attorney general.
The state attorney general can also
enforce consumer protection laws of general applicability,
such as your state [INAUDIBLE] statute,
against any provider that is acting deceptively
or is not abiding by its terms and conditions of service.
So we don't see a need for state legislation in this area.
We do feel that a federal legislative solution is
necessary, so that we don't have, when administrations
change at the federal level, this regulatory back and forth.
We need one final federal legislative solution,
and that's what we are advocating for.
Senator Lesser?
Thank you.
And I certainly-- it makes intuitive sense, obviously,
the inherent interstate components of Wi-Fi
and wireless internet and cellular service.
But I guess just a few questions.
First, did any members of your industry,
before the Obama-era net neutrality rules,
block content, throttle content, or otherwise
distinguish between content on their networks?
Before the 2015 order, there have
been virtually no instances where mobile providers have
done that.
There are stories that are reported in the press
about claiming that net neutrality violations occurred.
Those stories were never brought up by the FCC.
And did your terms of service spell out for your customers
that you wouldn't block or throttle content, again,
before the Obama-era rule?
I would have to go back.
I'm not sure what the terms and conditions of service
said at that point.
So then the Obama-era rule came in, and issued net neutrality,
and obviously, then, you complied
with the Obama-era regulation, right?
Correct.
So was there any adverse impact on your business?
Did it impact your ability to grow or serve your customers
in any way, over the multi--
I guess it was 2015 to 2018, that that rule was in effect.
Did it cost you money?
Did it-- what was the problem?
So there are two aspects there.
From 2014 to 2016, in the mobile industry itself,
mobile providers invested $6 billion
less in capital expenditures in the United States.
That's $6 billion.
Is that because of the net neutrality rule?
It would be--
Or is that because of broader business--
We don't collect that level of data.
What I can tell you is that we've
been collecting that type of data
for approximately 25 years.
And even during the Great Recession,
we never saw a decline such as that.
So the industry before the Obama-era rule, you're saying,
followed net neutrality even though it wasn't the law.
While the rule was under effect from the Obama-era FCC,
you followed the rules.
So there was, effectively, no change before the rule
and after the rule in how you did business, right?
Well, I think on the part of, when you talk about the rule,
it's beyond just net neutrality.
We're talking about--
I know, but we're concerned with the net neutrality rule.
Yeah.
I think it would be hard to differentiate
the net neutrality piece versus the Title II piece.
So then practically speaking, if there was no change
before the rule was issued for you, in 2015,
and there was no change after the rule was issued in 2015,
now it's 2018, and the federal rule has been removed,
if we want to put the same rule back in,
you're already following it.
Why does it matter?
Well, I think before the 2015 order,
the industry were following principles
that guided net neutrality.
You then had a very heavy-handed regulation
adopted in 2015 by the FCC.
So you had broader regulatory burdens placed on providers.
And this especially hits small wireless providers the hardest,
the rural providers.
So then just because, for our--
it's a question how much authority we even
have over this topic at all.
But assuming that we keep it a narrowly tailored
net neutrality rule of a blocking and throttling content
and protecting consumers' access to the internet,
putting aside for a moment the broader regulatory issues
from the Obama-era decision, is there any problem
with us basically codifying what it sounds like is already
in your terms of service, and creating a mechanism
to enforce those terms of service on a state level?
Yes.
We would see a problem with that.
The regulatory risk would be great.
Massachusetts may propose one bill, one law,
and Vermont is doing it another way.
And then we have another state that
really ticks implementation of the law
to their state public utility or public service commission.
So now we have the possibility that we--
I wouldn't say 50 different state laws,
because I don't see that many states acting in this area,
but say even a dozen.
That regulatory risk is great, especially
in the context of mobile broadband providers.
So then just, last question on this.
There is a lot of examples of this,
though, with state auto insurance regulation,
the California rule on emissions standards for automobiles.
And generally what ends up happening
is the industry adopts the most progressive, or let's say,
most protectionist policy, and makes that their policy
for the country.
So I guess the question would be,
if you're worried about regulatory risk,
if Massachusetts passes this net neutrality provision,
is it such a big deal for you to just follow the Massachusetts
rule which would maybe be more aggressive than all
the other states?
And then just all the other states
end up getting protected as a result
of Massachusetts' leadership?
Yeah.
I would say it would be.
We're talking about a competitive and dynamic
industry that is innovating, day in and day out, in the core,
with providers.
We are about to deploy fifth generation wireless
service in this country, to realize
the true benefits of things like connected cars and autonomous
vehicles.
When we have regulatory policies that
are put in place that can potentially
harm that innovation, harm that progress,
that's an issue that we take seriously.
And that is a risk that we think is too great.
That's why we're calling on the federal government, Congress,
to act in a bipartisan fashion to finally settle
this dispute once and for all.
Bring all the stakeholders together
and allow both the industry, consumer groups,
the federal agencies to come together
and get a solution once and for all.
When we have the risk of state-by-state regulation,
for truly an interstate service like mobile broadband,
that risk is too great to have one state dictate
what every other state is going to do,
because that state may have the most stringent requirements
at that point.
And I think when we have other states that, for example, are
kicking it to their public service
commissions or their utility commissions
to implement the laws, and proposing that, they could
be more stringent tomorrow than what Massachusetts
may be today.
And now, we have this patchwork of differing state laws
that we are going to have to try to comply with,
that could really harm the innovation
that occurs in this sector.
Thank you.
So [INAUDIBLE] that Congress could
bring all these parties together,
and come up with something.
But in the interim, some states feel
like they need to do something.
So how does your organization feel
if there was a law that said everything
you said, that your providers were going
to believe in net neutrality and provide us
equal access, and no throttling, and no blocking,
unless you opted out from that requirement?
How would that fare?
If the consumer wants to opt out, and let
you do whatever you want, then that would be different.
Our position on state legislation is that--
No, we know that.
As I was saying to the senator, the risk
is too great, especially for our industry, where consumers
cross state lines daily.
And they commute to New Hampshire, Vermont, et
cetera, Connecticut.
So that type of state-by-state regulation
really runs a regulatory risk for us that's too great.
I think that-- I'm sorry, Senator [INAUDIBLE]..
I couldn't resist [INAUDIBLE].
Thank you very much.
[INAUDIBLE]
I appreciate the general aspect of progress, innovation,
[INAUDIBLE].
But I'm losing my sense of exactly what innovations
are we able to make, in an environment
where we've accepted varied access to [INAUDIBLE]..
What part of differentiation advantages
are you realizing [INAUDIBLE]?
What [INAUDIBLE]?
Good, bad, or indifferent, what are you [INAUDIBLE]??
I'm unsatisfied with your very [INAUDIBLE]..
What are you talking about when [INAUDIBLE]??
It would be difficult to pinpoint that at this point.
If you told me two years ago that the industry would
continue to grow to over 135% penetration rate,
you told me that the innovation that's occurring in this sector
with regards to what we're going to be deploying,
and fifth generation was going to occur,
I would probably say it would not happen
as quickly as it is happening.
So it's very difficult for me to pinpoint exactly for you.
[INAUDIBLE] ballpark [INAUDIBLE] example of how
the environment might change?
Feel free to make a pitch for [INAUDIBLE]..
I just want to know what's going to make
a difference [INAUDIBLE].
From the net neutrality order being reversed?
Again, it would be hard.
I would say if you're talking about de-prioritization,
and there's no plans at this point,
that I know of, with my companies on this issue,
but I could imagine--
I mentioned--
When you say your companies, what do you mean?
My companies, the member companies.
As I talked about with Senator Lesser,
5G is welcoming in real connectivity with regards
to automobiles.
What does that mean?
What does that [INAUDIBLE]?
So if you had an autonomous vehicle, for example,
those cars may be using wireless sensors that
run on our networks to avoid, for example, traffic accidents,
or to ensure that traffic flow was most efficient possible.
In those instances, that traffic may
be prioritized over the traffic of the person
watching the video on the internet, or a web search.
This is paid prioritization?
[INAUDIBLE]
I don't know that for sure.
But that's something that if you want me to give you
an example of how the landscape may change,
that's an example that just comes into my head.
[INAUDIBLE] you write that [INAUDIBLE] including
broadband providers opt in one level
of [INAUDIBLE] differentiated [INAUDIBLE]..
So what are you [INAUDIBLE]?
So when you're talking about the next generation of services,
or even enhanced fourth generation of services,
mobile health care is one area that we
have seen great development and great progress in.
So for example, when you had the inflexible ban
on paid prioritization, if a hospital wanted
to connect more quickly with its patient,
and that service would be an additional charge,
the ban on paid prioritization prohibited that.
So for example, a patient who may have a heart condition
wants their traffic quicker.
We would not have been able to charge additional money
for that prioritization.
So you imagine [INAUDIBLE] if paid prioritization [INAUDIBLE]
differentiation, and if I could be allowed--
No, no, no, no.
Go ahead.
Please.
I'm enjoying the very--
[INAUDIBLE]
And there are these [INAUDIBLE] for [INAUDIBLE]..
You're not talking about your [INAUDIBLE]..
But I'm never going back [INAUDIBLE],,
how am I going to know that the reason [INAUDIBLE]??
So if there was a complaint on behalf of the consumer,
or I would see, probably, more of a corporation,
the FTC would review that complaint.
And they can enforce their authority against the provider,
if it's found to be acting in a discriminatory manner,
or in an anti-competitive manner.
And couldn't that happen before?
Couldn't that happen when--
under the Obama regulations?
Couldn't that have happened?
No, it couldn't have.
The FTC lost jurisdiction when the FCC adopted the Title II
order.
Theoretically, the consumer or the company
could file a similar complaint with the FCC.
Right.
So there was an avenue.
Yes.
[INAUDIBLE]
Not for the association.
Oh, I'm sorry.
Being trained--
No.
Yes, I am trained as an attorney,
but I do state government affairs
work for the association.
The reason I ask is because the FTC [INAUDIBLE]..
No, not necessarily.
I think the FTC has acted, for example, in the privacy space,
very quickly, when they have seen
violations or violations have been brought to them,
or allegations of violations have been brought to them.
So I do not see that they have--
especially, I'm thinking now, in the privacy space--
that they sit on complaints, or that they sit on allegations.
I'm more worried about the [INAUDIBLE]..
When, in the experiences of a complaint
or an allegation that I have seen, especially more
recently, against companies with regard to alleged privacy
violations, as I said, the FTC has
been quick to settle those claims
and to figure out a change in business practice,
and if necessary, extract a financial penalty
from the company.
So I don't see them sitting on allegations.
They want to quickly resolve, in the consumer's favor,
these allegations.
And I think also, companies want the quick resolution
of these allegations.
Thank you very much.
Thank you.
Sarah Morris?
Again, I also want to thank you very much for coming here
from out of state.
Appreciate your willingness, both of you, and your time.
Thank you so much, senators, for convening
this special committee, and the hearing today,
to examine solutions for protecting the open internet.
And thank you to Senator Creem, in particular,
for the invitation to testify before the committee.
As senior counsel and director of open internet policy
for New America's Open Technology Institute,
I work to protect consumers and encourage equitable, affordable
access to the internet.
I was one of the leading public interest advocates in support
of the net neutrality rules at the FCC,
rules that were adopted in 2015 and met with resoundingly
positive public response.
The DC Circuit Court of Appeals subsequently upheld the rules
in full.
Unfortunately, the FCC repealed those rules,
and undermined the strong legal authority
under which they were enacted.
FCC Chairman Pai took these actions
over the outcry of advocates, internet companies, members
of Congress from both parties in both chambers, and the public.
The FCC's effective repeal of the net neutrality rules,
and indeed, its utter abdication of responsibility
to oversee the internet access market more generally,
will affect the internet and the vibrant online marketplace
it has created for the immediate and foreseeable future.
Virtually every company has some online presence,
whether or not you immediately recognize
the company as a tech company.
Realtors use the internet to provide potential buyers
with videos tours and high definition photos of home.
Traditional brick and mortar retail stores
now allow customers to shop from the comfort of their couches.
And payment systems platforms have developed an entire market
for online transactions.
Massachusetts companies, like Wayfair, Carbonite, iRobot,
TripAdvisor, and Rapid7, all thrive because of the success
of an open internet.
Indeed, the internet has, for essentially the entirety
of its existence, been subject to the principle
of net neutrality, allowing those online marketplaces
to flourish.
But the internet is more than an economic platform.
It is a vital, digital, public square,
where voices, even those who don't find space
in traditional outlets, can speak, share, and create.
The internet has supported the dramatic rise
in award-winning video content created by new producers
and featuring new artists.
And the internet has facilitated unprecedented political
organizing and engagement in our democratic process.
I was wondering if you could--
I know you're reading, but that's what we have already,
right?
Yeah.
Well, this is a much shorter version.
But--
OK.
I'm not going to read all 14 pages.
No, sorry.
I wanted to apologize.
[INAUDIBLE]
Oh, sure.
I'm happy to-- so I'll then just pivot to push back on a few
things, maybe, that the previous testifier--
That would be helpful, because--
I apologize.
I was--
No, no, no, no, no.
And I apologize.
I just feel at some point you're all
going to be testifying just before me, and I--
and that's fine.
I'm happy to stay all night.
But you wanted other people here.
Well, so one thing I will point out
is that this notion that there were
no violations of net neutrality-- well, first
of all, the notion that there was no net neutrality,
or that something dramatically changed in 2015,
is absolutely wrong.
The only thing that changed in 2015
was the FCC's correct use of Title II authority
to ground those rules.
The rules existed prior to 2015.
It has been a matter of FCC policy since 2005,
and even before that, was baked into the architecture
of how the internet worked.
Second, I'll push back on this notion
that there were no harms, particularly that the wireless
industry did not do anything that
would be violative of the principles of net neutrality.
AT&T, for example, in a well-publicized case and one
that Free Press and the Open Technology Institute
were engaged in with the FCC, blocked the FaceTime video
conferencing application in 2011 on some of its network plans,
in an apparent attempt to convince
customers to change to new plans that
did allow the FaceTime use.
These were more data-restrictive plans.
They were trying to get customers off
of their unlimited plans.
Verizon has blocked access to third-party tethering
applications, and later, along with T-Mobile,
blocked access to Google's mobile payment application.
But the most important harms that I'd like to discuss today
occurred in 2013 and 2014.
And they're harms we have not even
yet touched on in this hearing.
And these were related to the handoff between ISPs
and their last mile networks, and the traffic
that transit providers distribute to those networks
and drop off at their front door.
So essentially, what was happening from 2013 to 2014,
you have--
we'll use an analogy.
Imperfect, but it will help.
So imagine ISPs are sort of the neighborhood drivers.
They represent the streets in your neighborhood
and up to your front home.
Transit providers represent the interstates and highways
over which traffic is carried from one point to another.
And they are very common.
If you have a lot of traffic, you'll
pay a transit provider to make sure that that traffic is
routed correctly and gets to the users who are requesting it.
So if you're Netflix or Vimeo, you
might pay a transit provider to make sure that when
a customer in Nebraska requests access to a Vimeo movie,
that that traffic is correctly routed.
The problem is that ISPs, as gatekeepers,
have the ability to leverage their capacity as gatekeepers
and charge money, at non-market-based rates,
to those transit providers.
The reason they were able to do this,
as we discovered in 2013 and 2014,
is that they were simply allowing those handoff
points, the ports where traffic was handed off
from transit providers to last mile providers,
to artificially congest.
They weren't doing the proper maintenance.
If this was pipes, the valve fitting
was too small, even though the pipes were sufficiently
large to carry the traffic.
And as a result, millions of Americans, for months on end,
had service that for high bandwidth
intensive service was essentially unusable.
This impacted millions of Americans.
Those Americans had no recourse.
And it wasn't until the FCC ultimately asserted
jurisdiction over the interconnection disputes
that there was any sort of public policy in that.
I mention that because there is a tendency
to talk about the three bright line prohibitions of blocking,
paid prioritization, and no throttling,
but interconnection is, from my organization's perspective,
the biggest threat to net neutrality going forward.
And it is one that has absolutely no recourse,
in addition to the bright line rules, in this current space
where the commission has abdicated all authority
over broadband internet access.
So I can stop there and pause for questions.
No.
I think that--
I know you submitted something, but it
seems that you might have more that you want to submit,
after having heard from you.
And I want to offer you to be able to do that,
because whatever you submit, the rest of that committee
is going to see, even though I'm just sitting here.
So just--
Sure.
There's so much to learn, and for us to hear.
And so I just want to offer that.
I'm happy for you to continue.
But for all of you, points have come up
that you might not have anticipated.
You can help us with those.
So I'm hoping that when you go back, there's--
Sure.
We're not voting tomorrow.
We are happy to continue to work with this committee,
with your office specifically, with the office
of any senators who are looking to engage on this issue.
I think that there were a number of things
that were sort of conflated or misstated
in the course of testimony today--
the difference between prioritization
of traffic, which I think no one opposes,
as a matter of public policy, versus the prioritization
of traffic for a fee, which is something
that had an extensive amount of discussion
in the record leading up to the FCC's 2015 adoption of rules.
And so I would just urge the committee
to parse those definitions carefully, and to not presume
that any prioritization is viewed
as inherently bad by net neutrality advocates.
So do you have an opinion as to why the FCC changed the rules
for the [INAUDIBLE] or what happened [INAUDIBLE]
that this all fell apart?
So I think Matt Wood alluded to the fact
that there was, when the current FCC chairman took office,
sort of a extensively, not just deregulatory approach,
because certainly the commission could have adopted a less
regulatory approach in the context of net neutrality,
rather than a completely unregulatory approach.
But there was this inherent deregulatory approach
in response to anything that has happened, quote, unquote,
"under the Obama era."
And so that's where you saw the threats
to the broadband privacy rules, the extreme repeal
of net neutrality, as well as ongoing threats to things
like the federal programs that provide
subsidies for low-income broadband access.
All of these things are sort of part and parcel
of a larger agenda that we've seen play out.
So you heard some testimony with regard to investments
not being made that were made prior
to the net neutrality rules.
Do you have any comments on that?
So I think it's easy to get caught up
in quibbling between what the ISPs have invested in
or haven't invested in over the course of whether it's
the last three years or the last 15 years.
But I think that that approach and assessment overlooks
the vibrant and unprecedented investment that has occurred
on the top of the network.
The startups that would not have existed
but for the existence of the internet
as an open platform for innovation, that depends--
I told the commission over and over and over again
that their entire business model depended on certainty
that net neutrality would remain law of the land.
Now that that is not true, and that there
is incredible void of jurisdiction
over these disputes and these harms,
those same companies are saying they're
struggling to figure out--
those internet companies, the companies
that are developing services on top of the network--
have communicated that they're struggling to figure out
what their next models are.
And if you're a startup who is relying on venture capital
to get your company off the ground,
and you're moving in a matter of days and weeks,
not months, years, and even multiple years, a lack
of certainty about whether or not
you are going to have to pay some unknown fee
to an internet service provider down the road,
whether it's next month or six months from now,
can be devastating to your business model.
Your venture capitalists are going to say,
I like your company, but unless I
can manifest account for what types of payments
you might have to make or risks that you might have
to take to get this company off the ground,
I can't invest in it.
Thank you.
All right.
Thank you very much.
And Tim Wilkerson?
Sorry.
You just have me.
If you want to submit anything, let's [INAUDIBLE]..
[INAUDIBLE] submitted my testimony.
And I was wondering if I could invite our counsel, who's
appearing on our behalf as well, just to streamline our--
We scheduled so much you've got your counsel here?
[LAUGHING]
And he's going to help us draft a bill?
Oh, no.
He's going to impart his wisdom about preemption.
OK.
That would be good.
So I think the way I can be most helpful without repeating
things you've already heard--
Right, because I don't think that you
need to read [INAUDIBLE].
Can you give me some more helpful information?
Yes.
I know, particularly, I think you represent the same thought
process that Mr. Keenan represents.
Yes.
You may have different people, but you're-- so if you want
to add something to that that might help, that would be good.
And just to be clear, [INAUDIBLE]
represents Comcast, Charter Communications,
Cox Communications, and Atlantic Broadband,
who's headquartered here in Braintree.
OK.
So I would say that the most important top line
message that we'd like to put in today
is that our companies have, in the past, they do today,
and will continue to adhere to and support
the principles of net neutrality.
And we believe that it is clear that in order
to establish a lasting consumer protection
process and procedures, and to spur innovation and investment
in this country, you need bipartisan federal action,
to assure that there's a lasting and clear federal solution
to these problems.
What were the exact [INAUDIBLE]?
Not just any.
Well, and I think when you mentioned privacy,
these are very similar in their privacy, very similar arguments
from our position that if states, when they're
thinking about stepping into these roles,
it's a very tricky and complicated policy
question that has a number of unintended consequences.
I think when you look at the existing frameworks that
are in place-- and real briefly, you
heard from the attorney general.
You heard about the FTC.
The FTC has been a nonpartisan investigatory enforcement
agency that, in 2012, the Obama administration
upheld as the pinnacle, basically, privacy agency.
And in their 2012 Consumer Bill of Rights,
they said that the FTC would be the institution
and should be the agency that is the chief cop on the beat,
in terms of all internet-related investigations.
I think it's also important to point out to you that you've
been here for a number of terms, and you've
seen throughout your time and your leadership working,
that you and your colleagues have built an information
ecosystem that is unparalleled.
Clean energy to life sciences and beyond,
Massachusetts ranks number one in innovation economy.
And furthermore, if you look to what
actions we've taken place, particularly with Comcast
and Charter, and the public-private partnerships
that we've entered into with a mass broadband institute,
you can see that we've delivered broadband services,
and we will in the coming months,
to 18 communities that did not have broadband service.
I point this out because you have worked hard
with your leadership, and your colleagues' leadership
to create, to foster the right environment for investment,
and to step out and to be a one-off,
and to lead or be a part of a patchwork of 50
states to establish rules for net neutrality.
It would send a mixed message, and send a cross message, when
we, the private sector, come and said,
we want to be your partners.
We want to help provide innovations.
So give us a comfort level.
Yes.
Because we're just joining a whole bunch of other states
that are answering to our consumers.
So when I suggest that we put in legislation, giving you
the business ability to make decisions,
or to exempt for emergency personnel, [INAUDIBLE]..
I hear your argument about what should
happen at the federal level.
We don't disagree with that.
But in the pressure for us to try and protect our consumers,
I'm looking into if you have any ideas of something
you guys could suggest to us, absent don't do anything.
I understand, but I would say that the principles--
no throttling, no blocking, nor discrimination
of lawful material-- are bedrock principles for us.
So what's the trade off?
Well, I would-- something that hasn't been mentioned today is
that by our public disclosure of those principles in the terms
and conditions that we enter into with our customers,
those are binding, legal contracts,
that if we breach by doing any of those acts that are those--
any of that conduct that's illegal--
we're going to have the barrel of the attorney general,
and/or [INAUDIBLE] federal agencies come down on us.
So if we required you to keep that in,
you wouldn't like that, either.
No, because-- and the reason why is because when you think about
Massachusetts having that approach,
and maybe Rhode Island having another approach--
I hear that.
But I'm trying to think of something,
and I'm just trying to speak for those that aren't here today.
Absolutely.
We're trying to think of what we could say to our consumers.
Why is Massachusetts different than California, Nebraska?
Why?
I mean, state after state, New York, we're trying to respond,
just as you are, to our constituents.
So if, in fact, you have some ideas that are,
if today or tomorrow, I would love
to hear them, because I think I've moved, in some ways,
from a blanket back to legislation,
to thinking about, maybe, some exemptions,
so you can do the kind of work you
need to do, legitimately, but not have [INAUDIBLE]..
So I'm thinking-- so, in a way, trying
to think of things that don't make [INAUDIBLE] that allow us
to give comfort level to our constituents,
just like they are doing in other states.
You don't have to answer that, but it's a response
to the don't do anything.
And I just want to make two comments.
One, and I know I speak for everyone in the private sector,
we appreciate how thoughtful you're being about this,
and how thoughtful your fellow committee
members are about this.
You're not rushing to judgment.
You're really using the time to think about--
as you said, you were, at one point, a blanket regulation,
and now you're stepping back from that.
You've mentioned twice the relationship with customers.
And I think that is paramount here.
The interaction between our customers and our products
and services is [INAUDIBLE].
And that, in an age of cord-cutting and hyper
competition, we hear you loudly and clearly.
And I will take that back to our membership and think about it.
And I don't expect [INAUDIBLE].
Right, thank you.
I'm certainly [INAUDIBLE].
But we've been sitting here all these hours, and all
[INAUDIBLE],, something other than nothing.
And I think that the answer is federal legislation, which
I know you said, don't say that back to me,
and I understand, and I appreciate that.
I don't have comfort [INAUDIBLE]..
So let's-- if counsel wants to add something that hasn't been
said.
Sure.
Sorry.
I certainly don't want to repeat.
I'm happy to answer questions about the exemption framework.
My name is Matthew Brill.
I represent a lot of the NECTA members
in the FCC proceedings, related court appeals,
and I'd likely be counsel for the cable industry
in any preemption challenges.
Did you file an amicus brief?
Well, I'm probably a party to this, actually.
I have taken a very close look at the law governing
the preemption standards, and happy to answer
questions of what the state AG may or may not do under 93A.
And we do think there's an effective backstop there,
provided it's exercised consistent with federal law.
So I, on my own, I feel like I've heard both sides.
And unless you have something different
than the professor from Boston College Law School,
I thought his testimony was very helpful and balanced.
And is your organization [INAUDIBLE] members
that had [INAUDIBLE] to us, that you have, too,
a balanced approach here.
So I don't have anything [INAUDIBLE] to ask.
I feel comfortable if we do communicate maybe again,
if you have something to add that he didn't, I'd
be happy to get that information.
I think he was very clear and concise,
at least to me, in his arguments, [INAUDIBLE]..
Yeah.
I agree with Professor Lyons' analysis,
and I won't belabor the point by repeating it.
So I'm not-- I'm in no way am heading you off.
It's just that I'm the only one sitting here,
and I'm thinking to myself, unless you're
something different, I thought that his testimony [INAUDIBLE]
how you must feel [INAUDIBLE].
Yes.
I might not agree, but [INAUDIBLE]..
Could I-- I recall multiple conversations
about investment, how investment dropped off and, is there
a real correlation between Title II
regulation and investment dropping off.
Well, I will say this.
On the day that the FCC acted in December, Charter
issued a press release to say because of this action,
and they also said because we believe
there will be congressional action coming,
they pledged to commit $25 billion
in additional new investment because of this action.
And in a earnings call last month, the CEO of Comcast
said that within the next five years,
Comcast pledged to spend an additional $50 billion
in investment and in innovation.
So for just those two companies alone,
they're saying the actions of the FCC
have resulted in $75 billion of new investment.
And on another question--
Well, with all due respect, is that because they're going
to make so much more money?
No.
I believe it's the regulatory predictability, which
would not occur if 50 states were to pass different laws.
I understand [INAUDIBLE].
But I'm also [INAUDIBLE]
I mean, the effects of Title II have been debated today.
We do think the answer to the debate
lies at the federal level.
But for what it's worth, the FCC did examine economic evidence
in its order that the submissions
of both sides, and it was incorrectly
found that although investment, of course,
has continued-- this is an incredibly capital-intensive
business-- it's belated investment that's
[INAUDIBLE],, investment that would have occurred.
Absent the constraints of an overbroad common carrier
framework from the 1930s, the FCC
concluded there would have been additional investment.
And we think that's the issue here.
The companies we're representing are committed to net
neutrality, welcome prophylactic rules enacted by Congress,
but cannot support Title II, where chairman Tom Wheeler
said--
So would they [INAUDIBLE] into an opt-out provision?
I'm not sure what you mean by an opt-out provision.
So they would agree that they would continue to provide,
in their contract, a prohibition on blocking and throttling,
unless the consumer is allowed that.
At the federal level--
Well, at the federal level, those principles,
all the industry have supported, yeah.
I'm charging by the state.
Well, and I think that the difficulty with the Title II
claim was that the FCC never said what was permitted
and what wasn't.
We've heard about the Northeastern professor's view
about certain network management practices
constitute throttling, and zero-rating arrangements.
The FCC never said what's legal and what's not.
And companies lived in fear of being hit with massive fines
and judgments after the fact, and having their rate
setting [INAUDIBLE],, which was a key component the FCC did not
forebear from bringing [INAUDIBLE]..
The one thing, though, that Chairman Wheeler and Chairman
Pai agreed on is both the 2015 order and 2017 order
expressed the view that this is an inherently interstate
service, as you heard, and can only
be regulated in that perspective.
OK.
Thank you.
So the next person is [INAUDIBLE]..
Last and last.
If you need [INAUDIBLE]--
Saving the best for last.
Thank you.
Thank you, Chairwoman, for this hearing.
We at the ACLU believe that a free flow of information
is vital in a democratic society.
And absent strong net neutrality regulations,
we cannot be guaranteed that such a free flow of information
will exist in the 21st century.
So we actually believe that the absence of strong laws
or regulations requiring net neutrality threatens democracy.
I just want to step back for a second
and acknowledge the political climate that
has produced this outcome.
Elections matter.
Donald Trump won the presidency.
He appointed a former Verizon lawyer
as the chairman of the FCC.
So you know, what happened at the FCC
is really a fox guarding the henhouse situation.
So I appreciate very much this committee's interest
in addressing that problem, because the hens, the chickens,
so to speak, are really at risk here.
We've obviously heard, frankly, totally different facts,
like night and day representations of reality,
from folks in the nonprofit sector, who I would argue
are representing the will of the people here,
and from the private sector, who are
representing their bottom line.
We obviously agree with the folks at OTI and Free Press
and with the attorney general, folks who say that, as we do,
net neutrality is a requirement for a free and open internet
in the 21st century, which as I said before, we believe
is important not only for protecting
Massachusetts' vibrant tech economy,
but also for protecting democracy.
And I want to address a couple of things.
I don't want to restate any things that my comrades here
have said.
I do, however, want to address some misstatements
that I've heard today.
One of those is that there have been no violations
of net neutrality principles.
Another is that before the 2015 Open Internet Order,
no net neutrality regulations existed at the federal level.
That's just false.
In 2010, the FCC promulgated an open internet order
and was promptly sued by Verizon,
who said that they couldn't do so under Title I,
and they won that challenge in federal court.
So then the FCC, under Tom Wheeler,
promulgated rules under Title II,
and of course, they don't like that either.
So we find ourselves in sort of a situation where,
I like the analogy of, you know, it's like,
when the ISPs and their lobbyists
complain about a patchwork of state regulation--
and of course they've said this on the ISP privacy front, too.
It's a little bit like saying to a judge
after having been convicted of killing your parents,
please, your honor, go easy on me, because I'm an orphan.
They were responsible for killing these regulations
at the federal level, to a large degree,
and now they're coming to the states and saying,
don't you dare.
This would be too complicated for us.
This really is an issue that should
be settled at the federal level, which, frankly, it was,
until they exploded it.
So all right, just a few examples of ISPs
violating net neutrality principles.
AT&T censored a live Pearl Jam concert,
strictly, we believe, because Eddie Vedder,
the lead singer of Pearl Jam, was criticizing
George W. Bush on air.
They just cut the feed.
Verizon blocked advocacy messages
from the women's reproductive rights organization, NARAL,
deeming the speech, quote, "controversial."
These are really serious issues that
threaten not only free speech, but also other core rights
and liberties that we, I think, in Massachusetts,
sometimes take for granted.
AT&T compelled Apple to block Skype and other Voice
over Internet Protocol services on the iPhone.
A Canadian telecom company blocked the website
of a union with which it was engaged in a labor dispute.
I mean, that sounds sort of dystopian,
but just imagine your website getting
blocked because you're here holding holding this hearing,
and--
I've been checking.
Yeah, right, exactly.
And then, of course, we've already
heard the example about FaceTime,
so I won't repeat that.
So having stated, sort of, my disagreements, the ACLU's
disagreements with some of the things
that have been said today, I want
to move towards possible solutions.
Obviously, we've heard a lot about preemption.
You know, the attorney general has one view.
They're litigating that at the federal level
with a bunch of other AGs representing
the people of 22 states.
We've heard from a law professor at BU and from the ISP lobby
that we shouldn't even bother, because we'll fail.
Those preemption challenges will succeed,
and state legislation will be struck down in this area.
You know, that said, it does send a strong message
to Congress for a bunch of states
to pass laws that reinstate the net neutrality provisions just
flat out.
So I think that's something that you all
should consider doing as a political statement,
if nothing else.
There are other options, too.
Another is transparency, right?
So we heard the professor from Northeastern
talking about an auditing system.
Well, what if we didn't rely on professors from Northeastern
to conduct those sorts of audits,
and we, in fact, mandated through state law,
that the Office of Technology in the executive office
would perform those audits themselves,
using public dollars, and would then tell the public
the results of those audits?
It's really, really difficult for us
as consumers to know what's happening
on our internet networks.
Is the YouTube buffering when I'm
trying to watch a hearing on city council
because my ISP is messing with the traffic?
Or is it simply an issue that has nothing to do with that?
It's really complicated.
Technology users aren't going to understand those things.
And so it would be great, from our perspective,
to have the state actually intervene there, and say,
you know what?
We will inform consumers about what we can see
is going on on these networks.
And then there's one final option
that I'm really struck that no one has talked
about yet today, which is simply to get private ISPs out
of the way and to invest in real municipal or public broadband.
If we did that in a serious way as the state of Massachusetts,
we can impose whatever laws we want to control publicly
funded, publicly owned internet, which is, frankly,
the ideal situation, but obviously would
require a great deal of public expenditure,
so may not be the best idea from the perspective--
I think Ways and Means is having a hearing as we speak.
Fantastic.
So that, I think, would be the ideal way
for the state legislature to address this problem.
And then I just want to say, briefly, Senator Creem,
thank you for introducing Senate Bill
2062, which addresses the privacy side of this.
We at the ACLU believe very strongly
that the FCC privacy regulations that
were repealed by an act of Congress
using Newt Gingrich's Congressional Review
Act last spring was a colossal mistake,
and that the state really does have power
to act in this space.
So we would urge Senator Lesser's committee, Emerging
Technologies, to give that bill a favorable report.
And I would urge Senate leadership
to bring it to the floor for a vote.
That's a good idea.
Yeah.
Thank you.
Thank you everybody.
Sorry that my-- there were a lot of hearings
being held in the building.
So I thank you all for coming today.
Thank you all that came from out of state.
We're still happy to take any written submissions, this week,
next week.
So please feel free, if something came up,
if you have something more to say.
Thank you.
Oh, thank you.
Thank you.