ISPs Are Trampling Net Neutrality While The FCC Sits Boxed In By Lawsuits, Upcoming Election
from the rock-and-a-hard-place dept
While the public successfully forced the FCC to adopt net neutrality rules last year, one glaring omission may be coming back to haunt consumers and the commission alike. The FCC's open Internet rules contain three "bright-line" restrictions: no blocking, no throttling apps or traffic, and no "paid prioritization" of apps or content. Unlike neutrality rules in Japan, The Netherlands, Slovenia, and Chile however, the FCC refused to outright ban zero rating (exempting content from usage caps), instead opting to determine on a "case-by-case basis" if a carrier is violating the "general conduct" portion of the rules.As we worried last year, this opened the door to ISPs trampling all over net neutrality -- just so long as they were marginally clever about it. And that's exactly what has happened, with AT&T, Verizon, Comcast and T-Mobile all running rough shod over net neutrality with varying degrees of obnoxiousness and success.
T-Mobile is now zero rating all the major music and video services, while throttling every video service that touches its network to 1.5 Mbps by default (and lying about it). AT&T has been charging companies for cap-exempt status for a few years now under its controversial "Sponsored Data" program, which tilts the playing field against smaller competitors and startups that may not be able to afford AT&T's toll. Verizon recently followed suit with "Free Bee" sponsored data, which lets companies pay Verizon to have their app, video, or entire website or service tagged with premiere, cap-exempt status.
In each example, carriers have injected themselves into the middle of the content stream for marketing or direct financial benefit, in the process completely dismantling the level playing field enjoyed by smaller companies, startups and non-profits. These smaller operators may not be able to pay to play, and in some instances won't even realize they're being discriminated against. And because these services are pitched as "free shipping" or "a 1-800 number for data," some consumers are applauding as the open Internet gets dismantled piecemeal, oblivious to the fact that usage caps are arbitrary constructs to begin with.
And while AT&T, Verizon and T-Mobile are at least being marginally subtle about it, Comcast simply declared "fuck it" -- first imposing completely unnecessary usage caps on millions of its broadband customers to hinder Netflix, then making its own streaming video service cap exempt. When pressed, Comcast's bullshit department proudly declared it wasn't violating net neutrality -- because its streaming video service runs entirely over "Comcast's managed network to the home." So yes, as predicted, net neutrality is crumbling under the weight of rule loopholes and immaculately-crafted bullshit.
So what is the FCC doing about it? Two years ago, FCC boss Tom Wheeler said the agency would watch AT&T's Sponsored Data carefully, but did nothing. More recently, Wheeler applauded T-Mobile's zero rating practices for being "highly innovative" and "pro-competition." Once complaints mounted, the FCC was forced to "act" in the form of a letter sent to companies late last year, asking for more detail on these programs. The FCC has been quick to repeatedly make clear this is just an "information exercise" and not a formal investigation:
Wheeler pointed out that the meetings the FCC has been holding with those companies--Comcast, AT&T, T-Mobile and likely Verizon--were at the bureau level, which he said was significant. "I am not at these meetings," he said. "Nobody from the office of the chairman is in these meetings. They're gathering information and we'll see what happens from there."It's not really clear just how much data the FCC needs to collect. AT&T's Sponsored Data and Comcast's (ab)use of usage caps are obviously problematic, and have been in play for several years. The real problem for the FCC isn't information, it's limited time and shaky legal footing. One, the upcoming elections could result in a President that has no idea what net neutrality is, who immediately sets forth replacing Wheeler and dismantling the net neutrality rules. Two, the FCC is still waiting for the outcome of the mass-industry lawsuits against the rules, which could leave the FCC without a leg to stand on.
I asked Public Knowledge lawyer Harold Feld, who probably spends more time submerged in FCC policy than anyone, what he thought the next course of action would be at an FCC boxed in by the courts and politics. He suggested that the agency might follow the course it set on the interconnection front, which began with a few pointed inquiries and ended with incumbent providers magically ceasing shenanigans for fear of FCC enforcement. Feld posits that something similar could be applied to zero rating, finally letting companies know what is or what isn't acceptable:
The FCC has already gotten 12,000+ complaints about Comcast. It would not be hard to bump them to the top of the list. But Wheeler may not want to start an investigation when he only has a limited time left in office and a future FCC might drop the matter. Instead, Wheeler may push for some kind of Policy Statement or Enforcement Guidance. Something that would provide notice industry wide about what the FCC would consider "red lines" on data caps.In other words? If you're expecting any hard enforcement from the FCC when it comes to caps or zero rating, you shouldn't hold your breath. The agency is currently boxed in by both lawsuits and the upcoming election, but had already made it clear it thinks zero rating and usage caps are just "creative pricing." Should the rules remain fully intact post lawsuit and election, political pressure might force the FCC to take action against Comcast's less-than-subtle abuse of usage caps, but things aren't looking good if you're part of the vast minority that realizes the horrible precedent zero rating represents.
But Wheeler has been very clear that he is not promising to do anything but check under the hood. I certainly would not expect the FCC to do anything until the D.C. Circuit decides -- especially in light of the possibility that the FCC could win on wireline and lose on wireless. If the D.C. Circuit decides in the late spring or early summer, that will not leave much time for the FCC to take any kind of official action.
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Filed Under: bingeon, data caps, fcc, loophole, net neutrality, zero rating
Companies: at&t, comcast, t-mobile, verizon
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Show of hands - how many did not think this would happen.
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Told you So
The FCC caused this... so why are we expecting them to resolve it, Regulation is typically constructed of corrupt rules that create winners and losers at government behest.
Most people have failed to recognize that regulation more often then not only serves to prevent competition by making it much more difficult to "start up" and consolidating the hold of power the current players have on the market.
Sure we need some regulation, but ONLY from the angle of anti-monopoly and anti-trust. Any more than that only results in pure fucking corruption.
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"Binge On" puts lie to the need for Data Caps
I know that an adult isn't supposed to believe anything in a commercial, but if I am to believe the crapaganda, I could leave particular Tee Vee shows running on my phone 24 hours a day, and not have an impact on my bill.
How does this reconcile with the "because congestion" nominal reason for having data caps? Are some bytes "slippery" or "smaller" than others, and therefore don't cause congestion? Someone smart help me out here.
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Re: Told you So
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Re: "Binge On" puts lie to the need for Data Caps
The ISP's needed an excuse to turn themselves into middlemen with control over the consumers experience, so that they can turn themselves into the Elsevier of the Internet, that is make a huge amount of money off of the work of other people..
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Elections on a fixed schedule pretty much garantee..
Give me quick, 30-45 day election campaigns any day.
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And your proposed solution is...?
Actually the pebble that started this little avalanche was the FCC attempted to slap down I believe AT&T for violating rules that for all intents and purposes they wrote, AT&T objected, took it to court, and the court said that as things were written the FCC couldn't do it's own freakin' job of keeping the cable companies in check.
Greed caused this mess, the greed of companies that couldn't even act within the lines that they had drawn because they had more greed than self-control. You want to blame someone, blame them for their complete and utter lack of restraint.
Also, if you're going to argue that the FCC causing the mess means they can't be responsible for trying to clean it up, good luck finding a government or even private agency that hasn't screwed up at some point. If they caused this mess it's largely because they were too hands-off, and now that Wheeler at least is showing some semblance of standing up for the public, the spoiled cable companies are throwing fits.
With regards to regulations, the FCC caused this particular mess primarily because they didn't go far enough in banning zero-rating entirely, and they're either too spineless to enforce the rules that they actually passed, too hedged in by cable companies and their bought politicians to be able to risk doing so, or both.
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State Actors
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Sure they may have their hands tied now with Lawsuits and the upcoming election, but they aren't without options.
They should glare sternly at the misbehavers, call them by their full name and threaten to take away their toys.
"You had better HOPE these lawsuits turn out favorably for you and you get the president you want, because so help me if you don't, you're going to WISH you had played nicely with the consumers. I will break you up so fast you won't know what hit you."
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Re: Re: Told you So
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All of these large decried agencies have seen their power stripped way in moves funded by those who might be forced to play fairly.
We have people dying because we can't check the drug trial data to protect people.
We have people dying because we can't check food processing plants.
Yet we have all of these industries complaining about regulations (that they ignore, then pay small fines after the bodycount gets high enough) yet no one ever asks them about the multiple cases where people were harmed by these 'benevolent' corporations who cut corners to make a buck while gambling with peoples lives.
We know these things are a problem but the system is so jacked that there isn't enough political will to put citizens ahead of campagin warchests.
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Re: And your proposed solution is...?
And NO the FCC should not be cleaning it up... well not on their own with their own cocked up rules! Congress should be writing the rules... the FCC is only supposed to be an Agency enforcing law not fucking creating them.
Like everything else, the problem started with Congress abdicating their responsibilities and it needs to end. Shit has gotten so out of hand and people have so forgotten how the government is supposed to operate to the point we are not able to even recognize the proper path back any more.
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Re:
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Solution
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Re: Re: Told you So
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Re: Elections on a fixed schedule pretty much garantee..
..that nothing of any substance happens in the year and a half preceding an elections.
Whereas elections on an irregular but limited schedule (as in the UK before 2010 - and as I guess we will have again once a goverment loses its majority after 3 years) pretty much guarantees a permanent version of that paralysis - apart maybe from the first 9 months or so after the previous election.
The limited term of US presidents combined with the mid term elections in the US creates a unique "super-paralysis".
The alternative is of course the possibility of one party becoming entrenched and enacting lots of legislation against the public's will. This happened in the UK under Thatcher. I think that I prefer paralysis!
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Re: And your proposed solution is...?
Problem is: the only meaningful penalty would be to revoke their license/charter to do business. Fines or other financial penalties mean nothing to these companies. And last time I checked the FCC had zero authority to regulate rates; that authority rests with the states and localities.
Now what?
With no (or very limited) competition there's very few available to take over were such a thing to happen.
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Re: Re: Elections on a fixed schedule pretty much garantee..
Of course, you need to throw the bums out every once in a while (like was done to the Mulroney government in 1993, right down to two seats).
https://en.wikipedia.org/wiki/Canadian_federal_election,_1993
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Re: Re: And your proposed solution is...?
The problem is the structure of Government.
The problem is our Government.
But I forgot the American Dream is still a thing. Greed never ends.
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Re: Re: And your proposed solution is...?
You want congress to wade in and 'fix' the problem? Please tell me you're kidding, because the cable companies 'donate' extensively to those in that 'illustrious' body, and the only 'fixes' they'd propose, like the ones they did propose, would be blatantly pro-cable company ones. This is not theoretical.
If the matter was left up to congress to 'fix', the only 'rules' that would be put in place could be summed up in a single line: 'Cable companies can do whatever they want'.
The FCC may generally(and to a good extent rightfully so) be seen as anything but an unbiased party, given the revolving door that seems to exist between it and the very companies it's supposed to keep in check, but at least in this instance it's doing worlds better at serving the public than congress would.
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True colors bleeding through?
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Re: Re: And your proposed solution is...?
Fines could work, they'd just have to be drastically scaled up, rather than the pathetic slaps on the wrist they currently are.
If a company violates the rules and gets one billion from it, a fine of one-hundred or even five-hundred million still has them coming out ahead, which means they have no incentive not to do it again. Make the fine at a minimum equal to 100% of what they gained from the rule breaking however and suddenly it's not so profitable, which means they actually have a reason to follow the rules.
With no (or very limited) competition there's very few available to take over were such a thing to happen.
That's where another of the FCC's actions comes into play, as they try and have the bought and paid for anti-competition laws in multiple states thrown out, so that it's possible for others to move in and start offering service, and competition, to the current companies in those areas.
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Re: Re: Re: And your proposed solution is...?
Congress was never granted the power in the Constitution to forfeit the power of making law by handing it over to any agency. This vacuum is what has expedited corruption and facilitated our fall to an oligarchy.
People LIKE YOU that fail to understand why ARE part of the problem. We will NEVER solve this problem as long you sit there and continue to allow Congress to shit all over the Constitution, abdicate their responsibilities, and hoodwink you into thinking they are powerless to do things.
This runs so damn deep I don't even have time to fully explain to you why this is a fundamentally huge problem.
These problems must be solved to recover.
1. Congress FORCED to take responsibility
2. ALL regulations NOT signed into law by Congress become immediately NULL & VOID!
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Re: Re: Re: And your proposed solution is...?
Fines only create frameworks where people or organizations with money can purchase a special class of citizenship that others may not be able to financially enjoy.
The ONLY punishment the government needs to be handing out is JAIL TIME! The government should have never ever had the power to summarily administer a fine for failure to comply with any law.
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Re: Re: Re: Re: And your proposed solution is...?
You apparently assume that corruption would be eliminated by removal of these agencies, I laugh in your general direction.
Also, try decaf - it may help in your case.
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Re: Re:
They should be allowed to run their business, not everyone else's business. Corporations are allowed to exist by government, when they misbehave the government should dissolve their charter.
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Net Neutrality is a question of peering and perferential / paid peering arrangements that would allow one company or another to have better access to consumers. There is nothing in any of these 3rd party services that indicates they are paying cable companies more for faster peering or exclusive network peering connectivity to offer their services.
I think Zero Rated services (for an additional price) are similar to paying extra for more bandwidth or a cap-free connection. Those are choices consumers make.
I do have a problem if other services are having their connection speed (not volume) reduced unfairly. That is one of the places where I think the FCC could and should step in.
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Re: Re: Re: Re: Re: And your proposed solution is...?
#1. Congress NEVER had the power to give agencies law writing power. You are clearly indicating that you are JUST FUCKING FINE WITH CONGRESS SHITTING ON THE CONSTITUTION! Yay for you cause... you are not alone, a part of the problem for sure but not alone.
2. Optimism has NOTHING to do with anything. Any person ever optimistic about government is a fool waiting to be had. The price of liberty is eternal vigilance. Another lesson you like most citizens NEVER LEARNED!
3. No where did I say corrupt would be or could be eliminated... I did say it would reduce its ability to fester which IS true. Mathematics alone proves that is much easier to corrupt a system with multiple entry points (Agencies) than one with fewer entry points (Congress).
4. Go ahead laugh, you only laugh at yourself.
5. Decaf would not save me or any of the other enlightened citizens from your willful ignorance and support for congresses disregard for the constitution. You simply outnumber us by a degree that is likely to prevent us from peacefully resolving this in the political arena requiring another civil war to stop, which you are seemly willing to facilitate and subsequently welcome with reckless abandon.
You, like so many others, do not even fundamentally recognize what is wrong and therefore will never be able to formulate a successful solution.
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Re:
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Re: Re:
If I didn't make more than the minimum number of calls each month (which is pretty high number) then I wouldn't give a crap one way or another. If I did meet the minimum and one or more of the numbers I called was in the "zero rated calls" package, I might choose to buy it. Otherwise, I might pay for my over calls if I was making that many calls each month - or pay for a bigger package of calls.
Hint: Many VoIP services (including Vonage) have soft or hard caps.
So, if zero rated calls are (a) optional, and (b) my existing service doesn't change without them then I have no problem with it.
As for monopoly positions, lack of competition is a good indication that it's not cheap to offer services. Google Fiber is a perfect example, cherry picking it's installations it's still a giant black hole for Google's cash, and still listed with it's moonshot investments in no small part because of it's low returns.
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Re: Re: Re: Re: Re: Re: And your proposed solution is...?
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Re:
What?!? Oh. Yeah. This is so unexpected based on their prior behavior, I'm shocked. Shocked I say.
Am I doin' this right? Hope so.
It's so transparent what's going on, it's embarrassing to watch. Struth!
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Re: Re: Re: Re: And your proposed solution is...?
Fines only create frameworks where people or organizations with money can purchase a special class of citizenship that others may not be able to financially enjoy.
Not if it's percentage based. A set amount doesn't work because it will almost always cost a company less than they got from the violation, meaning at best it's just making it so that they make slightly less from it. If it's a percentage however, and it starts at 100%, then at best they break even, which means there's absolutely no financial motivation to violate the law/rule.
As an added perk, by using a percentage based system it scales well from small person/company to large. Rather than having a case where the fine would ruin someone without sufficient funds, but barely effect someone with enough money, it affects them both based upon the gain they acquired from the illegal action, whether that amount be tiny or significant.
The ONLY punishment the government needs to be handing out is JAIL TIME! The government should have never ever had the power to summarily administer a fine for failure to comply with any law.
So the government shouldn't be able to fine someone for non-compliance with the law, but they should be able to throw them in jail. Hate to break it to you but even that favors the rich over the poor, as someone with enough money can cope just fine without a job for a while, whereas someone without enough money saved up is likely to be in a real rough spot not being able to work for a while.
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Re: Re: Re: Re: Re: Re: Re: And your proposed solution is...?
*As the last one I argued with told me.
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Re: Re: Re:
Surely if it was just a matter of money they'd let the municipalities get on with it instead of actively blocking them.
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Re: "Binge On" puts lie to the need for Data Caps
It means that that reason is a lie, which they've admitted.
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Re: Re: "Binge On" puts lie to the need for Data Caps
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Re: State Actors
you can use VPNs, Proxys and Tor to stop all this!
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Re: Re: Re: Re: And your proposed solution is...?
That One Guy: If Congress wrote the rules they'd be even more pro-cable company.
You: You don't get it! Congress has abdicated its responsibility and tries to claim it's powerless to write the rules!
Way to miss the point.
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