NET NEUTRALITY RULEMAKING

Van Schewick has been prolific in the rule making process. She is reported to have had 150 meetings⁷⁶ with US government officials in support of Open Internet rulemaking. She also has the record for ex parte disclosures for the FCC’s rulemaking process for the 2015 Open Internet order,⁷⁷ some 18 disclosures, one of which notes 10 separate

75 Ibid

76 Ammori, Marvin. ”The Women Who Won Net Neutrality.” Slate. September 22, 2015.http://www.slate.com/blogs/future_tense/2015/09/22/barbara_van_schewick_s usan_crawford_and_other_women_who_won_net_neutrality.html

77 Trujillo. Mario. “FCC hit with net neutrality lobbying blitz.” The Hill. Feb 25, 2015. http://thehill.com/policy/technology/233750-fcc-hit-with-net-neutrality-lobbying-blitz

meetings in a single week. Van Schewick’s comments are referenced at least 9 times in the FCC’s 2010 Open Internet Report and Order (related to 4 of her submissions⁷⁸) and 6 times in the 2015 rules (based on 4 supplemental submissions.⁷⁹ In the 2010 rules, the FCC cites van Schewick’s comment, “gatekeeper control and pay-for-prioritization would have prevented Skype and YouTube from surviving because of the threats they presented to the legacy business of telephone-based network providers and Google Video, respectively)”⁸⁰ — to support its view that its rules are necessary to ensure Internet openness norms.

The FCC also references Van Schewick to support the statement,

“Broadband providers would be expected to set inefficiently high fees to edge providers because they receive the benefits of those fees but are unlikely to fully account for the detrimental impact on edge providers’ ability and incentive to innovate and invest, including the possibility that some edge providers might exit or decline to enter the

78 The four submissions include Letter from Barbara van Schewick to Marlene Dortch, Secretary, FCC, GN Docket No. 09-191 (filed Jan. 19, 2010); Barbara van Schewick, Towards an Economic Framework for Network Neutrality Regulation, 5 J. ON TELECOMM. & HIGH TECH. L. 329, 378–80 (2007); Barbara van

Schewick, Network Neutrality: What a Non-Discrimination Rule Should Look Like at 22 (Dec. 14, 2010) and attached to Letter from Barbara van Schewick, to Marlene Dortch, Secretary, FCC, GN Docket No. 09-191 at Attach. A (filed Dec. 14, 2010);

Letter from Prof. Barbara van Schewick, Professor, Stanford Law School, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 09-191, WC Docket No. 07-52, Attach. at 4 (filed Aug. 2, 2010) (van Schewick Aug. 2, 2010 Ex Parte Letter)

79 See generally Letter from Barbara van Schewick to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 09-191, 14-28, Attach. at 7 (filed Sept. 19, 2014) (van Schewick Sept. 19, 2014 Ex Parte Letter) ; Letter from Barbara van Schewick, Professor of Law and (by courtesy) Electrical Engineering, Stanford Law School, et al., to Marlene Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127 Attach. at 4 (filed Feb. 18, 2015) (van Schewick Feb. 18, 2015 Ex Parte Letter);Van Schewick April 17 Ex Parte Letter; and Letter from Barbara van Schewick, Professor of Law and (by courtesy) Electrical Engineering, Stanford Law School, et al., to Hon. Tom Wheeler, Chairman, FCC, et al., GN Docket No. 14-28, Attach. at 7 (filed Feb. 2, 2015)

80 See footnote 61. FCC Open Internet Report & Order, December 21, 2010.

https://apps.fcc.gov/edocs_public/attachmatch/FCC-10-201A1_Rcd.pdf

market.”⁸¹ She is referenced as well on the assertion that prioritized access fees would “could further raise the costs of introducing new products and might chill entry and expansion.”⁸²

The FCC references van Schewick further in their rules of taking a more light touch approach, for example. “The record does not convince us that a transparency requirement by itself will adequately constrain problematic conduct.”⁸³ In paragraph 71 of the rules, the FCC quotes van Schewick directly as justification for rules, “. . . letting users choose how they want to use the network enables them to use the Internet in a way that creates more value for them (and for society) than if network providers made this choice.”⁸⁴ Her submission is the sole justification for a provision on “Use Agnostic Discrimination”⁸⁵ and for the need of the FCC to act in the “public interest”⁸⁶ on net neutrality. The 2015 rules make reference to van

81 Ibid. See paragraph 25 and the referenced footnote 67 in which van Schewick’s

“Towards an Economic Framework for Network Neutrality Regulation”, 5 J. ON TELECOMM. & HIGH TECH. L. 329, 378–80 (2007 is noted.

82 Ibid. Paragraph 26 and footnote 74. Letter from Barbara van Schewick to Marlene Dortch, Secretary, FCC, GN Docket No. 09-191 (filed Jan. 19, 2010) (van Schewick Jan. 19, 2010 Ex Parte Letter.

83 Ibid. Paragraph 61, footnote 194. Barbara van Schewick, “Network Neutrality:

What a Non-Discrimination Rule Should Look Like” at 22 (Dec. 14, 2010) (“In order for disclosure to have a disciplining effect, customers need to be able to switch to another provider that does not impose a similar restriction, and they need to be able to do so at low costs.”)

84Ibid. See footnote 216. van Schewick Jan. 19, 2010 Ex Parte Letter. See also id. at 4 n.6 observing that: (1) the Internet “does not create value through its existence alone. It creates value by enabling users to do the things they want or need to do;”

(2) “[e]nabling widespread experimentation at the application-level and enabling users to choose the applications they prefer is at the heart of the mechanism that enables innovation under uncertainty to be successful;” and (3) “[c]onsumers, not network providers, should continue to choose winners and losers on the Internet”.

85 Ibid. Paragraph 73, footnote 221.

86 Ibid. Paragraph 78, footnote 242 and 243. See, e.g., Letter from Barbara van Schewick, Stanford Law School, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 09-191, at 1–2 (filed Dec. 10, 2010) (noting that concerns about discrimination go beyond “anticompetitive” behavior or harms to competition, as those terms are

Schewick in 6 footnotes: on no blocking rules;⁸⁷ the no throttling rule and ban on discrimination against applications and classes of applications;⁸⁸ the claim that that users, not network providers, make the right choices for innovation,⁸⁹ on application agnostic traffic management;⁹⁰ and the need for forbearance under Title II.⁹¹

understood in antitrust law); United States v. FCC, 652 F.2d 72, (D.C. Cir. 1980) (“The agency’s determination about the proper role of competitive forces in an industry must therefore be based, not exclusively on the letter of the antitrust laws, but also on the ‘special considerations’ of the particular industry. As the Supreme Court has said, resolution of the sometimes-conflicting public interest considerations

‘is a complex task which requires extensive facilities, expert judgment and considerable knowledge of the . . . industry. Congress left that task to the

Commission . . . .” (quoting McLean Trucking Co. v. United States, 321 U.S. 67, 87 (1944)) Letter from Prof. Barbara van Schewick, Professor, Stanford Law School, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 09-191, WC Docket No. 07-52, Attach. at 4 (filed Aug. 2, 2010) (van Schewick Aug. 2, 2010 Ex Parte Letter) (observing that such a rule would “make[] it impossible to consider the potential impact of discriminatory conduct on the Internet’s ability to realize its social, cultural and political potential—important aspects that the open Internet rules are intended to protect”).

87 Federal Communications Commission. “Open Internet Order”, February 25, 2015.

https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-24A1.pdf Footnote 247 Letter from Barbara van Schewick to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 09-191, 14-28, Attach. at 7 (filed Sept. 19, 2014) (van Schewick Sept.

19, 2014 Ex Parte Letter) (stating a rule to protect against blocking “is part of all network neutrality proposals; this is the one rule on which all network neutrality proponents agree”).

88 Ibid. Footnote 272. See, e.g., Letter from Barbara van Schewick, Professor of Law and (by courtesy) Electrical Engineering, Stanford Law School, et al., to Marlene Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127 Attach. at 4 (filed Feb. 18, 2015) (van Schewick Feb. 18, 2015 Ex Parte Letter) (“[T]he no-throttling rule should explicitly ban discrimination against applications AND classes of applications (so-called ‘application-specific’ discrimination).”).

89 Ibid. Footnote 335. van Schewick Feb. 18, 2015 Ex Parte Letter, Attach. at 14

“Letting users, not network providers, choose which applications will be successful is an important part of the mechanism that produces innovation under uncertainty.

At the same time, letting users choose how they want to use the network enables them to use the Internet in a way that creates more value for them (and for society) than if network providers made this choice for them.”

90 Ibid. Footnote 344 See van Schewick Sept. 19, 2014 Ex Parte Letter, Attach. at 24

Curiously, a cursory review of the FCC footnotes suggests that the agency fulsomely restates and quotes the pro net neutrality arguments in text and footnotes and while submissions that run counter to the rules are not explicated. A more thorough analysis of this observation see Hurwitz⁹² and Lyons.⁹³

Van Schewick’s influence is also felt in the European net neutrality rules. Frode Sørensen, Senior Advisor at the Norwegian Telecom Authority (Nkom) describes van Schewick’s “deep analysis”⁹⁴ of her concept of “user-controlled”, “application-agnostic” QoS architecture with is compatible with net neutrality. Her suggestions were subsequently adopted in the BEREC’s Net Neutrality QoS Guidelines in 2012.⁹⁵

Van Schewick criticized the EU net neutrality law passed in October 2015 and suggested a number of amendments. “The future of the Internet in Europe is on the line. It’s up to all of us to save it,” she writes and calls for amendments that ban “fast lanes”, “zero rating”

91 Ibid. Footnote 1483 See Letter from Barbara van Schewick, Professor of Law and (by courtesy) Electrical Engineering, Stanford Law School, et al., to Hon. Tom Wheeler, Chairman, FCC, et al., GN Docket No. 14-28, Attach. at 7 (filed Feb. 2, 2015) (“[W]e would expect and encourage the FCC to regulate with a light touch under Title II through application of its forbearance authority.”);

92 Hurwitz, Gus. “Chairman Wheeler and the terrible, horrible, no good, very bad Open Internet Order.” TechPolicyDaily.com, March 27, 2015.

http://www.techpolicydaily.com/communications/terrible-horrible-no-good-open-internet-order/

93 Lyons, Dan. “Commissioner O’Reilly’s Crusade for FCC Process Reform.”

TechPolicyDaily.com. July 30, 2015. http://www.techpolicydaily.com/internet/fcc-process-reform/

94 Van Schewick, Barbara. “Net Neutrality and Quality of Service: What a Non-Discrimination Rules Should Look Like.” What June 11, 2012.

http://cyberlaw.stanford.edu/publications/network-neutrality-and-quality-service-what-non-discrimination-rule-should-look.

95Sørensen, Frode. “How Can the Open Internet Coexist with New IP Services?,”

Nkom.no, June 4, 2015, http://eng.nkom.no/topical-issues/news/how-can-the-open-internet-coexist-with-new-ip-services.

“application-based discrimination” and congestion management.⁹⁶ However he European Parliament rejected the amendments,⁹⁷ but variations reappeared in the 2016 draft BEREC guidelines⁹⁸ for implementation of the EU net neutrality law. These included significant restrictions on zero rating (a term not mentioned in the EU law); traffic management, and specialised services.

During the question and answer period of the June 2016 launch of the consultation of the guidelines, Henk Don of the Authority on Consumers and Markets (the Dutch telecom regulator) explained that he and Frode Sorensen invited van Schewick and 3 other proponents to inform the guidelines.⁹⁹ The session,¹⁰⁰ which was attended by over 100 BEREC representatives, was closed to the public. BEREC denied a request to provide notes of the meeting.

Together with Lessig and Tim Berners-Lee, van Schewick penned an open letter¹⁰¹ on July 14, 2016 to “European citizens, lawmakers and

96 Barbara van Schewick, “Europe Is About to Adopt Bad Net Neutrality Rules.

Here’s How to Fix Them,” Medium, October 22, 2015,

https://medium.com/@schewick/europe-is-about-to-adopt-bad-net-neutrality-rules-here-s-how-to-fix-them-bbfa4d5df0c8#.d73pcpodz.

97 Chris Baraniuk, Chris. European Parliament votes against net neutrality amendments. BBC.com October 27, 2015. http://www.bbc.com/news/technology-34649067

98 “Draft BEREC Guidelines on Implementation by National Regulators of European Net Neutrality Rules,” BEREC, June 6, 2016,

http://berec.europa.eu/eng/document_register/subject_matter/berec/public_consultati ons/6075-draft-berec-guidelines-on-implementation-by-national-regulators-of-european-net-neutrality-rules.

99 Launch of Public Consultation on BEREC Net Neutrality Guidelines, BEREC.

June 6, 2016, https://www.youtube.com/watch?v=RpjXFeBSifo&feature=youtu.be.

100 “Update on BEREC Work to Produce Guidelines for the Implementation of Net Neutrality Provisions of the TSM Regulation,” BEREC, February 24, 2016, http://berec.europa.eu/eng/document_register/subject_matter/berec/press_releases/5 740-update-on-berec-work-to-produce-guidelines-for-the-implementation-of-net-neutrality-provisions-of-the-tsm-regulation.

101 “Four Days to Save the Open Internet in Europe: An Open Letter,” World Wide Web Foundation, July 14, 2016, http://webfoundation.org/2016/07/four-days-to-save-the-open-internet-in-europe-an-open-letter/.

regulators” to ban “fast lanes”, “zero rating”, “discrimination”, and

“specialised services.” The letter included calls to action with Save the Internet, a global net neutrality coalition, and was syndicated to the press and a number of related coalitions. BEREC released the final guidelines in a press conference on August 30, noting the unprecedented level of comments. BEREC Administrative Manager Laszlo Igneczi explained the various IT and technical investments that were needed to facilitate receiving an avalanche of emails. He presented a chart¹⁰² showing the explosion of comments from 132,956 to 481,547 in the last week of the consultation, 640 per minute on July 17, 2016, 3 days after van Schewick’s letter was released. He observed that the lion’s share of the submissions came from the net neutrality coalitions Save The Internet, Avaaz, OpenMedia and AccessNow.¹⁰³

As part of the consultation on net neutrality guidelines, van Schewick penned another open letter¹⁰⁴ which was signed by 126 academics “led by the belief that neutral access to the Internet in its entirety is a necessary precondition for the full enjoyment of human rights.” In introducing the letter, van Schewick warns of the “negative impact that fast lanes would have on our ability to research, collaborate, and educate”¹⁰⁵ and urges strict BEREC guidelines. Apart from van Schewick’s papers, of the publications by the 126 academics, only 7

102 See BEREC presentation p. 5: “Update on BEREC Work to Produce Guidelines for the Implementation of Net Neutrality Provisions of the TSM Regulation,”

February 24, 2016.

103 Press Debriefing on Launch of BEREC Guidelines on Net Neutrality BEREC.

August 8, 2016 , https://www.youtube.com/watch?v=SBnA5nLxdgA.

104 “Academics in Support of Sound Net Neutrality in Europe,” Cis-Static Law, July 18, 2016,

https://cis-static.law.stanford.edu/cis/downloads/AcademicsLettertoBEREC20160719final.pdf.

105 Barbara van Schewick, “126 Leading Academics to Europe’s Telecom

Regulators: Protect the Open Internet in Europe,” July 21, 2016, /blog/2016/07/126- leading-academics-europe%E2%80%99s-telecom-regulators-protect-open-internet-europe.

papers on net neutrality could be identified, none of which appeared in peer-reviewed journals.¹⁰⁶

There is no doubt that van Schewick’s work is instrumental in the study, if not the rulemaking, of net neutrality. This is also a reason why critical appraisals are necessary. Bauer in his review of van Schewick’s book observes, “To make researchers and policy-makers keenly aware of the effects of architectures on economic decisions and innovation in the Internet ecosystem is an outstanding contribution of the book.” However notes a shortcoming of the book being a lack of empirical evidence, which leaves room for improvement and an opportunity for more research. Therefore he concludes that van

106 The six papers that could be identified include

Luca Belli and Primavera De Filippi, “The Value of Network Neutrality for the Internet of Tomorrow,” SSRN Electronic Journal, 2013, doi:10.2139/ssrn.2468534.

Angela Daly, “Regulatory Approaches to Net Neutrality in Europe and Beyond,”

SSRN Electronic Journal, 2010, doi:10.2139/ssrn.1675744.

Nico Grove and Damir Agic, “Network Neutrality and Consumer Discrimination: A

Cross-Provider Analysis”,

http://www.ptc.org/ptc12/images/papers/upload/PTC12_M4_Nico%20Grove%20(P aper).PDF

Arthur Gwaga, Facebook Internet.org: “A strategic project bridging the African

digital divide?”,

http://www.academia.edu/12834821/Facebook_Internet.org_A_strategic_project_bri dging_the_African_digital_divide

Milton Mueller et al., “Net Neutrality as Global Principle for Internet Governance,”

SSRN Scholarly Paper (Rochester, NY: Social Science Research Network, November 5, 2007), https://papers.ssrn.com/abstract=2798314.

James Losey , Internet freedom, nuanced digital divides, and the Internet craftsman, https://www.academia.edu/4774280/Internet_freedom_nuanced_digital_divides_and _the_Internet_craftsman

Eduardo Bertoni, Net Neutrality and Intermediary Liability in Argentina,

https://medium.com/internet-monitor-2014-platforms-and-policy/net-neutrality-and-intermediary-liability-in-argentina-e007f6ff8794#.sa3760c6n

Schewick’s findings “while relevant to the continuing policy discourse, should be applied with caution.”¹⁰⁷

In document Aalborg Universitet Which Open Internet Framework is Best for Mobile App innovation? An empirical inquiry of net neutrality rules around the world Layton, Roslyn (Sider 58-66)