Last Week Was A Victory, But The Fight For The Open Internet Is Nowhere Close To Being Done

from the lots-of-pitfalls-ahead dept

Wed, Mar 4th 2015 1:10pm — Mike Masnick

As you know, last week the FCC made a somewhat historic move, to vote to reclassify broadband internet access as a "Title II" telecommunications service, which allows the FCC to implement specific open internet rules that disallow things such as paid prioritization and blocking. This move has been rightly celebrated by many people. However, it is also being attacked by many others. Some of that is nothing more than spewing big broadband companies' talking points. Some of it is merely partisan bickering, as the "net neutrality" fight became ridiculously partisan, even though a vast majority of voters in both parties support net neutrality.

That said, there are some legitimate concerns. They're not the ones that you're likely to hear about (other than on the margin), but rather fall under the fact that this is just one battle in a war that is far from over. So, let's take a look at some of the reasons to still remain quite vigilant in protecting a free and open internet:

The details: Yes, as you may have heard, the fully detailed rules are not yet public. This is ridiculous and stupid, but it's the way the FCC operates. If it had released the detailed rules prior to the vote, it would have delayed the entire process. And, while dissenting commissioners Ajit Pai and Michael O'Rielly have been screaming about the travesty that the rules haven't yet been released publicly, what they conveniently leave out is that currently they are the sole reason for the delay. The FCC can't publish the final rules until the FCC has incorporated their dissents, and neither Pai nor O'Rielly have handed in their dissents.

And, yes, there may be some devils in the details. One particular concern is the "general conduct rule." As the folks at EFF have warned, a vague "general conduct" rule allows the FCC to more or less reserve the right to examine practices of ISPs to see if they're "harmful to consumers." While that may sound good in practice, the vagueness of the rule could subject all sorts of perfectly reasonable practices to long and drawn out legal fights with the FCC. It's good that the FCC wants to be able to stop practices that are harmful to consumers, but if it's going to do that it should lay out directly what it believes to be harmful, rather than leaving things open to interpretation.

There are some other unclear details as well: exactly how will the fight play out over "interconnection" which isn't directly a "net neutrality" issue (which is just focused on the last mile from the broadband provider to your home), but rather a way that the big ISPs accept traffic from service providers. The big broadband providers deliberately allowed those interconnection points to clog up in order to pressure service providers like Netflix to pay up. The new rules are likely to try to address that issue somewhat, but it's not entirely clear how. Another area of concern is how it deals with "zero rating" plans, whereby broadband providers let some traffic not count against a data cap. While the broadband providers argue that this is a consumer benefit, that ignores that they put the data cap on in the first place. Exempting users from your own anti-consumer practices isn't really consumer friendly. It sounds like the new rules will deal with these situations on a "case by case" basis as well, and that can be problematic.

How worried should you be? Moderately worried, though the details still very much matter. While anti-net neutrality types are blathering on about tariffs and rate regulations that aren't happening, this is a legitimate concern that could tie up perfectly reasonable practices in uncertainty.

Should you blame the new rules? Yup. This one is on the FCC. It sounds like the rules got a lot of stuff right, but this may be a push too far. It could have been much worse, but we should still be concerned about some possible problems with the rules and be vigilant about how they are interpreted and applied.
The lawsuits: As you may have heard, pretty much everyone knows that someone is going to sue about the new rules. Last time around, Verizon sued (which was silly because it helped create the incredibly weak rules it sued over, and its "victory" in that case has resulted in these new stronger rules), and either it will sue again or AT&T or Comcast or some combination will sue this time. This will at least create some uncertainty over whether or not the rules will stick, and if the courts toss out these rules too, then we're back to square one -- and in a situation where it may be even tougher to protect net neutrality.

How worried should you be? Moderately worried. While some anti-net neutrality folks insist that because the FCC lost lawsuits concerning its last two attempts to craft net neutrality rules, this time is pretty different. The court ruling in the last one more or less laid out this path. The reason it rejected the last rules was because it said the FCC was trying to introduce "common carrier" rules without classifying broadband as a common carrier. The new rules classify it as a common carrier, so it appears to be following the court's instructions. And, if it goes up to the Supreme Court, you can't tell for sure, but the court's earlier rulings have suggested that on this particular question it gives the FCC wide leverage in classifying broadband. And, in what may not make many Republican anti-net neutrality folks happy, Antonin Scalia was the most vehement in an earlier case arguing (in dissent) that broadband was obviously a Title II common carrier service. But... nothing is ever certain in the judicial process, and cases can come out with strange and surprising rulings. So it's entirely possible that we'll be back for another sort of battle three or four years from now.

Should you blame the new rules? No. Verizon had indicated early on that it was likely to sue over any rules. While it backed down from that position after other broadband providers started stage whispering "shut up, Verizon..." it's still likely that some broadband provider somewhere would have sued over the new rules no matter what. So the legal uncertainty would have lingered. And, again, last year's ruling in the Verizon case more or less said that if you're going to issue these kinds of rules, you need to reclassify. It's likely that some of the legal challenges will argue that the FCC didn't follow the proper procedures in reclassifying, but that's a long shot given earlier rulings.
Congress: Again, it's not at all clear why this has become a partisan issue when the public is all for net neutrality, but it is, in fact, now a partisan issue. And the party that is against net neutrality, the Republicans, has a majority in both houses of Congress. There is already an effort underway by Congress to modify the Telecommunications Act to put in place different "net neutrality" rules that are really just a smokescreen to simply strip the FCC of pretty much all authority to protect consumers against questionable broadband provider practices. Separately, Republicans in Congress have already started to make moves to delay the implementation of the new rules, including demanding that FCC boss Tom Wheeler show up for a hearing to explain himself (seriously).

In theory, it would be better to have a clearer law drafted by Congress, rather than having the FCC make the final decision on this thing, but that theory relies on a competent Congress that obeys the will of the people, rather than special interests. Stop laughing. And, of course, you never know how everything will get twisted around later. As Tim Lee at Vox recently noted, it was the Republicans who rewrote the Telecommunications Act in 1996 that pretty clearly intended for broadband to be classified as a Title II service, which they're now freaking out about.

How worried should you be? Moderately worried. The new rules have certainly shifted the baseline in one direction such that it would be difficult for Congress to completely undermine an open internet in new rules without setting off massive public backlash. But it can still do some damage. That's perhaps more difficult with an open internet supporter in the White House, but it could flip.

Should you blame the new rules? No. The new rules have actually been helpful here. Even if the current proposed change to the Telecommunications Act is a joke, it's much, much, much more friendly towards an open internet than what was being talked about just a few months ago. Furthermore, Congress can change as well and can pass new laws at another time also. There's always the risk that Congress will propose a rewrite to the Telecommunications Act, with or without these rules. But with these new rules in place, it actually may be more difficult to get Congress to completely shift things away from a more open internet.
The next FCC: One of the key talking points among anti-net neutrality types is that if this FCC can just make this decision to reclassify, the next one (especially under a Republican president, in which the balance of the FCC would shift to 3 to 2 Republicans to Democrats as commissioners) could just flip it back. Current Republican commissioner Ajit Pai's big filibuster of a speech at the open meeting last week appeared to be his pitch to become the next head of the FCC. And, of course, there's the argument in the other direction, which is that a new FCC with a Democratic majority might go even further with the new rules, and bring back all the "bad stuff" in Title II like rate regulations and tariffs.

How worried should you be? Not that worried. Despite what some say, it's not that easy to just flip this switch. Note that this process alone has taken basically a year. The FCC has to propose the rules and allow for the slew of comments and then go through this entire process again before it can switch the rules again. It could happen, but by the time it does we'd already be under the existing rules for some time, and when the predicted "harms" of the new rules don't come to pass, the scare stories from anti-net neutrality types won't be even remotely believable. As for the idea that a new FCC might bring back rate regulations and tariffs, that seems ridiculously unlikely. At this point you have basically no one who supports such an idea -- either on the FCC or in the public. The FCC would have to go through a whole new proposal/comment period on such an idea, and it would be so astoundingly unpopular that it's difficult to see it getting anywhere at all.

Should you blame the new rules? Nope. The FCC is going to flip flop back and forth based on the party in the White House anyway, and all the talk claiming the FCC has become "more partisan" is a lot of bunk. There have long been fights along party grounds on certain issues, and that won't change.
The lack of competition: This probably remains the largest ongoing issue in the fight for an open internet. For years we've been arguing that the attack on net neutrality is really just a symptom of the lack of competition in the market, and that's still true today. Beyond the new rules, if we want to really protect an open internet, we need much more competition. It's notable that the new rules do not (as some wanted) include unbundling requirements, which would have made infrastructure providers let other service providers buy access wholesale to resell, creating competition at the service level (rather than at the network level). Many other countries have this type of unbundling, and it's resulted in a much more competitive broadband market in those places.

This is also why the FCC's other vote last week may turn out to be the bigger deal. This was the FCC's decision to preempt state laws (generally written by the broadband providers themselves) that blocked municipalities from offering up municipal broadband. Municipal broadband is not a panacea, and there have been some notable failures. However, there are plenty of success stories as well, including some impressive ones in which communities join together to create a strong broadband offering where the giant legacy players have failed to keep up.

Separately, we're finally starting to see third parties jump into the market. Lots of people point to Google Fiber, but that's just one of a few new and growing entrants. And many of those smaller providers have both embraced the FCC's new rules and pointed out that with those new rules, they may be able to deploy their services more widely, since it will help them get access to things like telephone poles that were blocked in the past. On top of that, while in the past, alternative means of broadband were more hype than reality, the technology for air-based broadband (from wireless systems, satellites, drones, balloons and blimps) is getting rapidly better and may offer a legitimate third-party option. Those technologies are all getting a lot cheaper as well, so it's entirely possible that we could get more significant competition in the future -- especially if there's more open spectrum available.

How worried should you be? Absolutely worried. The lack of competition is the real travesty in all of this, and while you can be hopeful about some of the things coming down the road that should add to the competitive market, for many of us, there are almost no competitive choices for broadband.

Should you blame the new rules? Nope. Some anti-net neutrality types are trying to argue that the new rules will reduce competition, but it's hard to find any evidence to support that. Enough small, independent and third-party broadband providers have come out in support of the new rules that it's difficult to take seriously the complaint that it will discourage those competitors from entering the market. They seem to be arguing exactly the opposite.
The games Comcast/Verizon/AT&T will play: When it became clear that there were going to be open internet rules of some sort on the last mile, all of the big broadband providers played the interconnection trick, letting their interconnection points with Netflix clog up in order to get the same result it wanted in the first place: get the internet companies to pay extra to reach its users, even as everyone is already paying for their own bandwidth. And, lately, there have been various games around "zero rating" in which the broadband players (mainly on the wireless side) pretend that they're offering a "consumer benefit" by exempting certain traffic from the unnecessary data caps that the broadband providers themselves set up.

It seems quite likely that even with the new rules, the big broadband providers will look for loopholes and other tricks to try to chip away at an open internet, allowing it to put toll booths into the internet stream. That's been their focus for a decade now, and it's unlikely that they're going to give up now. The big broadband providers simply hate the idea of just being "dumb pipes" and feel like they need to extract extra money for all of the activity happening on those pipes. It's not clear how they'll plant to get around the rules, but it seems inevitable.

How worried should you be? Somewhat worried. The big broadband players are incredibly crafty at trying to figure out loopholes and ways through the rules. The interconnection and zero rating cases are just two examples, and both were pretty clever. The zero rating one was particularly clever in that they could pretend to be "consumer friendly" by protecting you from the anti-consumer rules that they themselves set up. It's kind of brilliant in how evil it is. The problem here is that we just don't know what form this attack is likely to take, but it's definitely going to happen.

Should you blame the new rules?: No. The big broadband players have been playing these games for ages, and the new rules actually do make it much more difficult for them to play at least some of these games. That's why last week was a victory for the open internet.

It should be noted that some net neutrality critics are running around and claiming that these new rules mean the death of the internet, and will lead to the government deciding what content and services are allowed on the internet. If true, that would be an attack on the open internet, but it's simply not true. Don't worry too much about it. That's just FUD.

The reality is that last week was a victory, but it's hardly the end of the fight to protect the open internet. There are some legitimate concerns about both the rules that were passed, as well as the actions that others (including Congress, the FCC and broadband players) may take in the future. And we need to be vigilant about all of this in order to make sure that the internet remains open and free.

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Filed Under: ajit pai, congress, courts, fcc, general conduct, net neutrality, open internet, threats, title ii, tom wheeler
Companies: at&t, comcast, time warner cable, verizon

26 Comments

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That One Guy (profile), 4 Mar 2015 @ 1:11pm

No, it really is
Again, it's not at all clear why this has become a partisan issue when the public is all for net neutrality, but it is, in fact, now a partisan issue.

It's a partisan issue because the cable companies know that turning it into one is the best way to keep the two sides bickering, making it all but impossible for them to come to a clear agreement about any new laws or rules regarding the issue.

Side A will introduce something, and B will automatically oppose it because they weren't the ones who proposed it. Then Side B will suggest something, and A will shoot it down because they weren't the ones who brought it forward. So on and so forth, and all the while the cable companies do whatever they want, making 'donations' and 'suggestions' as needed to keep the fight going.
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Anonymous Coward, 4 Mar 2015 @ 1:31pm

Re: No, it really is
In other words, those with the gold (donations) get to make the rules (suggestions).
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Anonymous Coward, 4 Mar 2015 @ 1:37pm

Re: Re: No, it really is
Not quite, those with monopoly power get the gold, and this allows them to buy those who make the rules.
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Lord Binky, 4 Mar 2015 @ 1:58pm

I wonder if the lobbyists ever forget which party they are talking to and say net neutrality is good/bad to the wrong party.

And of course the Open Internet fight isn't done. Last week was the announcement and name-calling for the fight.
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Anonymous Coward, 4 Mar 2015 @ 2:09pm

I tend to be against this "net neutrality" implementation because it's a half-assed appeasement that makes it harder to lay down the kinds of rules that foster true competition, like forcing cable companies to open their lines to competitors the same way that Bell Telephone was forced to do several decades ago.

Breaking up the broadband monopolies needs to be the ultimate goal, rather than allowing them to continue as-is but with a few rules attached in the hope of placating a few critics.
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Agonistes, 4 Mar 2015 @ 2:10pm

Between Scylla and Charybdis
I know being against NN isn't a popular view here, and I realize that competition run wild like it was Thunderdome isn't the answer like I came off sounding in a story about it yesterday I got railed on for, which I get. The word "regulation" isn't what worries me, its "government". I hope that clears up where I'm coming from. The choice of the Internet being overseen by the Mafia or an insular tribe of paranoid narcissists with vast numbers of mercenaries at their command isn't a great choice to be forced into.
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Mike Masnick (profile), 4 Mar 2015 @ 2:12pm

Re: Between Scylla and Charybdis
The word "regulation" isn't what worries me, its "government".

Sure. That's understandable.

The choice of the Internet being overseen by the Mafia or an insular tribe of paranoid narcissists with vast numbers of mercenaries at their command isn't a great choice to be forced into.

No, it's not. But it's also not accurate. This is not about overseeing "the internet." It's about setting rules for a small part of the internet (internet access providers) to make sure that they're not unfairly diminishing the internet itself.
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Agonistes, 4 Mar 2015 @ 2:22pm

Re: Re: Between Scylla and Charybdis
Why anyone would have that amount of trust in their restraint perplexes me, pattern recognition alone should set off every alarm bell in all the minds' of this page's readers.
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That One Guy (profile), 4 Mar 2015 @ 2:46pm

Re: Re: Re: Between Scylla and Charybdis
It's less 'trust', and more 'we've seen the alternative, and it's not pretty'.

We've had a good look at the 'restraint' shown by the cable companies, and they've shown themselves to have very little when it comes to squeezing as much money out of their customers as they can get. Now it's time to try something else. Maybe it'll work better, maybe it won't, but leaving things as they were wouldn't have helped anyone other than the cable companies.
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Capt ICE Enforcer, 4 Mar 2015 @ 2:47pm

Damn man
Tell me you typed all of that on your smartphone. Cause a normal keyboard would have broke with all that typing
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ken (profile), 4 Mar 2015 @ 5:09pm

FCC Rules go far beyond Net Neutrality
Information coming out that new FCC rules are far reaching and goes way beyond Net Neutrality to FCC micromanaging the net infrastructure.

http://watchdog.org/203631/fcc-commissioners-regulations/
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Agonistes, 4 Mar 2015 @ 5:12pm

Re: Re: Re: Re: Between Scylla and Charybdis
What unrestrained cable companies can do and what unrestrained government can do with their influence are vastly different in magnitude and reach - but we all know that cable companies influence government with money and perks and vice versa with intimidation and de facto immunity from law. NN just enshrines this practice more as a matter of course but with more sinister consequences for the public than expensive or slow Internet connectivity.
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ken (profile), 4 Mar 2015 @ 5:20pm

Netflix now having second thoughts
One of the main backers of FCC takeover was Netflix and they are now realizing that a non-regulatory solution would have been better.

http://thehill.com/policy/technology/234628-netflix-seems-to-change-tune-on-web-rules
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ken (profile), 4 Mar 2015 @ 5:25pm

Re: Netflix now having second thoughts
The thing is we could have gotten Net Neutrality without using the nuclear option. We could have used the threat of FCC regulations as leverage to get ISPs to voluntarily agree to Net Neutrality.
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That One Guy (profile), 4 Mar 2015 @ 5:29pm

Re: FCC Rules go far beyond Net Neutrality
Not even two paragraphs in and it falls flat.

'TechFreedom held a fireside chat on Feb. 27th with two FCC commissioners, Ajit Pai and Mike O’Rielly, and the two of them concurred that the new regulations are far-reaching, largely unchecked and pose a threat to consumer bills and to innovation in the industry.'

Hmm, now where have I seen those names before...

'And, while dissenting commissioners Ajit Pai and Michael O'Rielly have been screaming about the travesty that the rules haven't yet been released publicly, what they conveniently leave out is that currently they are the sole reason for the delay. The FCC can't publish the final rules until the FCC has incorporated their dissents, and neither Pai nor O'Rielly have handed in their dissents. '

They can go on and on about how 'terrible' the rules are, and spin apocalyptic scenarios to their little heart's content, but if they really believe what they are saying, then the absolute best thing they can do is push to make the rules public as soon as possible, so everyone else can judge for themselves.

As long as they refuse to do so, I'd say it's safe to assume that they're just spreading crap as far as the eye can see, throwing a fit over the fact that it wasn't enough to stall, change or eliminate the vote, and acting like petulant children in refusing to do their jobs by turning in their dissents.
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That One Guy (profile), 4 Mar 2015 @ 5:37pm

Read entire article, /then/ post as supporting evidence
Did you even read the article you linked to, or did you just see the title and assume it supported your position?

Seriously, two minutes, at most, and you would have run across this half-way in, which rather undercuts the claim that they 'changed their mind':

Company spokeswoman Anne Marie Squeo denied that the online video provider was reversing itself.

“Netflix supports the FCC's action last week to adopt Title II in ensuring consumers get the Internet they paid for without interference by [Internet service providers],” she said in an email to The Hill. “There has been zero change in our very well-documented position in support of strong net neutrality rules."

The article claims that certain groups are accusing Netflix of changing their mind, based upon a statement they made, but the comment by the Netflix spokeswoman makes it pretty clear that that is not the case.
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That One Guy (profile), 4 Mar 2015 @ 5:44pm

Re: Re: Netflix now having second thoughts
The FCC tried that before, and do you know what it got them? Sued by Verizon, with the judge ruling against the FCC, and telling them that if they wanted to apply the rules that they were trying to, it had to be under Title II, not the framework they were using at the time.

You want to blame someone for the 'nuclear option' being used, blame the ISP's, who couldn't even be bothered to follow the previous, pathetic 'regulations' that they had all but written before.
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Rudyard Hombast, 4 Mar 2015 @ 8:23pm

Wow, how nice of you to finally admit there are legitimate concerns regarding the FCC's overreach, you arrogant, condescending prick.
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Open internet?, 5 Mar 2015 @ 4:25am

The Pirate Bay will be censored in Portugal.
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Mike Masnick (profile), 5 Mar 2015 @ 4:52am

Re: FCC Rules go far beyond Net Neutrality
Information coming out that new FCC rules are far reaching and goes way beyond Net Neutrality to FCC micromanaging the net infrastructure.

Yeah, that's not true. That's FUD from the telco shill side of things. But nice try.
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Mike Masnick (profile), 5 Mar 2015 @ 4:54am

Re: Netflix now having second thoughts
One of the main backers of FCC takeover was Netflix and they are now realizing that a non-regulatory solution would have been better.

You look incredibly intellectually dishonest when you say something like that which is directly contrasted by the details of the story. Lots of people -- including us -- have said that it would have been better if there didn't need to be a change, but given the actions of the telcos themselves, these rules were the second best and necessary option.

That's not "having second thoughts" that's admitting reality -- that the world isn't perfect and that the broadband companies are looking to abuse their position.
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Mike Masnick (profile), 5 Mar 2015 @ 4:55am

Re:
Wow, how nice of you to finally admit there are legitimate concerns regarding the FCC's overreach, you arrogant, condescending prick.

If that's what you got from the article, then you should go back to reading fundamentals.

First, we've always admitted that there was some risk. Months ago, we pointed out that the FCC solution was simply the best of a bunch of bad options. Our position has not changed at all.

Also, when you end your comment with "you arrogant, condescending prick" it at least hints at the fact that you don't have anything rational and reasonable to say, but you're merely overrun with an emotional response.

Is that the case?
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Anonymous Coward, 5 Mar 2015 @ 6:18am

Re:
You copyright fanboys are hilarious.

The NSA, GCHB scooping up data doesn't bother you, but suddenly net neutrality and Title II are the fucking e-apocalypse? So you'll let the government spy on you but not force ISPs to behave?

Jackass.
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Pragmatic, 5 Mar 2015 @ 6:52am

Re: Re: Between Scylla and Charybdis
That's why I railed on him. Sometimes government gets it right, it's when they forget they're our servants, not our masters, that the trouble starts.

And yes, I get that we're in that situation now but we still have enough of a say that we can get the government to implement a form of net neutrality that provides a pathway for more competitors to enter the market by stopping incumbents from keeping them out.

I'm not nuts about government either, believe it or not, but we do need someone to protect the weak from the strong and when you're not a 1%er, that is how it's done. If there's another way to do it without bringing along a huge crowd armed with pitchforks, torches, tar and feathers, I'd be interested in finding out more about it.

Point to ponder: what are we calling "government" anyway? Rule by the people, for the people? It seems to me that if corporations are writing our laws, that's a form of government, too, except that, unless we can afford to go elsewhere to do business, we don't even get a pretense at a say in which laws are enacted and enforced. It goes without saying that I prefer government by the people, however dysfunctional, to corporate government for that reason.
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Pragmatic, 5 Mar 2015 @ 6:54am

Re: Re: Re: Re: Re: Between Scylla and Charybdis
NN just enshrines this practice more as a matter of course but with more sinister consequences for the public than expensive or slow Internet connectivity.

How? It forbids discrimination between one packet and another. It's not even positive discrimination, it's non-discrimination. Treat all packets the same.
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Anonymous Coward, 5 Mar 2015 @ 7:42am

How the major telcos will win either way...
Note that the telcos have been warning of draconian style regulation that they were placed under in past with phone service if broadband was reclassified under Title II. This could very easily happen but not because the government up and decides it needs to do this. The telcos might just push likely lobby FOR this type of legislation secretly all the while they are publicly decrying it. The reason they might just do this is more than being able to politically say "I told you so" to the public. The major telcos are all big enough to weather these types of regulations, however they will create a new barrier to entry for competitors to enter the market allowing them to just raise prices to whatever they want and blame government regulation on the price increases.
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