How The FCC Plans Neuter The Net, Even As The FCC Insists Everyone's Got It All Wrong
from the from-net-neutrality-to-a-neutered-net dept
So, we already wrote about why Tom Wheeler's "open internet" proposal is problematic, but Wheeler and the FCC are hitting back on everyone who's arguing that -- telling everyone to calm down, insisting that nothing has changed, and that they're actually trying to preserve the old "open internet" rules from 2010 that a court tossed out earlier this year.The problem is that this is absolutely misleading -- and either the FCC doesn't realize this or it's not being honest. And, I'm not sure which one is more bizarre. Wheeler is, indeed, correct in saying that under the court ruling from earlier this year, in order to be able to do anything under Section 706 of the Telecom Act, they had to shift from talking about "unreasonable discrimination" (which they can't regulate under 706) to "commercially reasonable" activities (which they can regulate). So, in effect, Wheeler is trying to argue that by basically shifting the basis for the rules and substituting in the "commercially reasonable" standard as opposed to blocking "unreasonable discrimination" (which can be done under common carrier rules, but since the FCC reclassified broadband service as not being a telco service, that's not available), they're now back in proper legal territory under the law.
Perhaps Wheeler and his friends at the FCC think that this subtle shift in phrases to abide by the blueprint the court set out really does leave the existing rules in place. But, it's not that simple. As Stacy Higginbotham points out, even if the FCC doesn't want to destroy net neutrality, this subtle shift will do so anyway. To understand why, the best article to read is the one by Marvin Ammori, who has been fighting this fight for years. He argues that, unlike the CNET article above that says to "calm down," we should actually be even more worried. Because even if the FCC thinks it can stop net neutrality violations, companies are still going to get screwed. Basically, the FCC can only act after the fact, and then it's going to come down to a fight between a big telcos' lawyers... and a tiny startups' lawyers. Guess who wins?
The FCC will propose an incredibly vague and complicated multifactor test, one that takes into account the market conditions, technology, alternatives available to each side, competitive dynamics. This is the kind of stuff that requires very expensive expert witnesses in very expensive legal proceedings. There may be up to 16 factors listed, plus a catch-all for "other factors."He's not basing this on some theoretical crystal ball. It's already happened -- and it's obvious from the Court's ruling earlier this year:
So, according to the FCC, when Verizon discriminates against a startup, we shouldn't be alarmed, because (while being discriminated against), this startup can hire a lot of expensive lawyers and expert witnesses and meet Verizon (a company worth more than $100 billion) at the FCC and litigate this issue out, with no certainty as to the rule. The startup will almost certainly lose either at the FCC or on appeal to a higher court, after bleeding money on lawyers.
Back in January, the D.C. Circuit struck down the FCC’s last attempt at net neutrality, saying that Section 706 does not permit the commission to stop nondiscrimination. It pointed to another legal decision, concerning data roaming, in which the FCC adopted a 16-factor test like the one I explained above. Based on an earlier case, the FCC can probably ban one or two specific practices, such as blocking certain websites or applications. That’s about it.So here's the issue: the old rules were incredibly weak and nearly pointless in the first place. They didn't apply to wireless (nor, apparently, will the new rules) and they didn't really protect net neutrality. They were crafted, in part by the telcos, through a long-drawn out process, in which the former FCC boss tried to keep everyone happy and ended up pleasing no one. That's why we were a little perplexed at the outrage over those rules being thrown out earlier this year in the first place. Those rules were nothing great.
The problem is that this new proposal isn't just "those same old rules" as the FCC would like you to believe. Instead, they're the same old rules, made weaker at the critical juncture by the necessary legalese change to "commercially reasonable" and by the clear nature of what the court says the FCC is able to do under Section 706. And while some think the answer is to shift broadband back under Title II and put them under common carrier rules, that's almost certainly a political impossibility -- which is why Wheeler is trying to thread this needle.
As we've said for a decade now, the underlying problem is a lack of competition. These kinds of rules, including things like transparency into the crap that the telcos are pulling only matter if you have options. When you don't, then they can be transparent as to how they're screwing you over, and there's really just not much you can do. And that's kind of the situation we're in today. Wheeler claims this is no change and people are overreacting, but what they're realizing is that the existing rules in 2010 were kind of a joke anyway, and what little power they had to keep the internet open and non-discriminatory back then is now pretty much gone with this new wording. So, Wheeler may not want to be killing off the open internet, but the end result may be exactly that.
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Filed Under: commercially reasonable, discrimination, fcc, net neutrality, open internet, tom wheeler
Reader Comments
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Sure, Calm Down, . .
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it's definitely going to mean tired speeds. fast for those who can afford to pay, and piss poor speeds for those who cant! this is the very thing that should not be allowed to happen! the problem, as stated, is not enough competition. and we all know why that is and who caused it. it's about time those in congress who are on the taker in one way or another were made to be accountable. lining their pockets just so companies can rip off customers and line pockets more has created and is still creating a whole lot of problems which are only getting worse!!
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So how does one apply for Citizenship in the UK?
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Seeing as Verison, AT&T, and Comcast have broadband customers backed up against a wall. Public utility classification seems to be the only option left.
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Simple rule of thumb:
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Re:
It was the only viable option from the beginning. There simply will never be a sufficient positive return from running competing infrastructure in parallel. This is why we have the concept of utilities in the first place.
Think of the internet as a series of roads, with different websites being package delivery services. O365 v Gmail is akin to FedX v UPS. Time Warner v Comcast to the same neighborhood would be akin to a highway with multiple wholly closed off lanes, each with a toll collected by a different company.
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Re:
The reason why there will never be enough competition are the following.
1) It would take billions of dollars to start up a serious competitor with the infrastructure to actually be a threat. Start ups don't have billions of dollars in capital.
2) Even if a new competitor had the money, it would take years to build the infrastructure.
3) It would take a very long time for a new competitor to become profitable and start paying back it's investors.
4) Start ups are risky, a majority of them fail and go bankrupt. So combine that with items 1, 2, and 3, and most investors will find something that needs less start up capital and will pay them back quicker.
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Re: Re:
Infrastructure needs to ruled as a public utility and the providers regulated as such.
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Oops
Your move, logic.
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Re: Re:
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Better deffinition
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In order for Netflix to reach their end-users/customers, they're forced to go through last mile landline ISPs to reach them.
This effectively allows last miles ISPs to have a monopoly on both ends. They have a monopoly on the own subscribers, and they also have a monopoly on access to Netflix's subscribers, too.
This makes it all the more important to classify last mile ISPs as public utilities, and to heavily regulate them as monopolies.
This has all been caused by a lack of competition in the landline broadband market, due to aggressive regional franchise regulations being pushed by last mile landline ISPs, in order to keep competition out of their marketplace.
In the end, landline broadband providers would have no one to blame but themselves, if they become heavily regulated as public utility monopolies.
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So maybe this is how net neutrality needs to be framed...
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Preimium Services Cost Money
It makes sense that companies offering premium services, which spend a lot of money producing professional content, should have their pages served up faster than some Mommy blogger hawking unsanitary cloth diapers or some 'natural' orange cleaner scam.
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Re: Preimium Services Cost Money
You're trolling, right?
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Re: Re: Preimium Services Cost Money
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Re: Re: Re: Preimium Services Cost Money
Yes, absolutely.
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Re: So how does one apply for Citizenship in the UK?
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Re: Preimium Services Cost Money
So, what you're saying is that it's ok for an ISP to advertise and sell a product or service and then not deliver what was promised? Or are you suggesting that customers are outrageously demanding more bandwidth / speed than they're paying for? Or are you saying that ISPs somehow cannot throttle speeds or set data caps?
That doesn't make sense, nor does your second statement. It does not make sense that companies which offer 'premium' services should have priority over anyone else whom you simply do not like.
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Re: Re: Re: Preimium Services Cost Money
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Have you actually SEEN the "proposed" rules?
Either you've seen them (and no one else has), or you're psychic. Do you know if the final rules will read like the (so far unseen) proposed rules?
How else to explain the fact that you can lay out the impact of the proposed rules, sight unseen?
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Net Neutrality over Wireless Licenses is nowhere yet Wheeler is rushing to auction these licenses
Why would Wheeler rush to auction these licenses until the Net Neutrality is in place. Wireless broadband is telecommunications.
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Re: Re: Re: Preimium Services Cost Money
I absolutely, categorically deny that.
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Re: Preimium Services Cost Money
Granting your assumption that this is a problem for the sake of argument, the existing system already deals with this. When you pay for internet service, you're paying for a certain amount of bandwidth. Those "high usage piracy seeking customers" are paying for all that bandwidth they're using. If they're underpaying, then the solution is to raise the rates, not to break network neutrality.
"It makes sense that companies offering premium services, which spend a lot of money producing professional content, should have their pages served up faster than some Mommy blogger hawking unsanitary cloth diapers or some 'natural' orange cleaner scam"
Why does this make sense? You're just stating this as if it were an obvious fact, but I don't think it's obvious at all. What is the argument?
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