New Jersey The Latest State To Protect Net Neutrality By Executive Order
from the Not-so-Comcastic dept
The Trump FCC is currently in the process of trying to eliminate all meaningful oversight of some of the least competitive companies in America. Not only are broadband providers and the Trump administration trying to gut FTC and FCC oversight of companies like Comcast, they're also trying to ban states from protecting net neutrality or broadband consumer privacy at ISP lobbyist behest. This is all based on the belief that letting Comcast run amok somehow magically forges telecom Utopia. It's the kind of thinking that created Comcast and the market's problems in the first place.
And while the Trump FCC is trying to ban states from protecting consumers in the wake of federal apathy (you know, states rights and all that), the individual states don't appear to be listening. Numerous states are pushing new legislation that effectively codifies the FCC's 2015 net neutrality rules on the state level, efforts that will be contested in the courts over the next few years. ISPs have been quick to complain about the threat of multiple, discordant and shitty state laws, ignoring the fact that they created this problem by lobbying to kill reasonable (and popular) federal protections.
Other states, like Montana and New York have gotten more creative, signing executive orders that ban ISPs from winning state contracts if they violate net neutrality. Montana Governor Steve Bullock went so far as to suggest that other states use his order as a template, something New Jersey appears to have taken him up on. The state this week issued its own executive order (pdf) protecting net neutrality, modifying the state procurement process to prohibit state contracts with ISPs that routinely engage in anti-competitive blocking, throttling, or paid prioritization.
In a press release, state leaders say the new rules will take effect in July:
"We may not agree with everything we see online, but that does not give us a justifiable reason to block the free, uninterrupted, and indiscriminate flow of information,” Governor Murphy said. “And, it certainly doesn’t give certain companies or individuals a right to pay their way to the front of the line. While New Jersey cannot unilaterally regulate net neutrality back into law or cement it as a state regulation, we can exercise our power as a consumer to make our preferences known."
Governor Murphy’s Executive Order will make New Jersey the third state –along with New York and Montana—to mandate that ISPs adhere to net neutrality rules or lose the ability to contract in state. The Executive Order will apply to all contracts between state entities and ISPs that are executed on or after July 1, 2018. The Attorney General’s Division of Consumer Affairs will work with the Division of Purchase and Property to carry out the Executive Order and monitor its enforcement.
One problem that could arise from these executive orders is the fact that ISPs can avoid violating the rules if they say they're simply engaging in "reasonable network management."
Defining what "reasonable" is has long been problematic in the net neutrality conversation, and ISP lobbyists have had a lot of luck weakening said definition after the fact to erode the importance of such protections. Hiding anti-competitive behavior behind "reasonable network management", artificial network congestion, or other faux technical justifications is a game ISPs have been playing for about as long as the net neutrality debate has existed, and since lawmakers often have no idea how any of this works it's often easy to mislead them.
Regulators and lawmakers also often like to talk tough on this subject, then avoid any meaningful enforcement down the road for fear of alienating deep-pocketed campaign contributors. So while it's great New Jersey, New York and Montana are doing something about federal regulatory capture, it's going to require an attentive press and public to ensure these state-level promises actually mean something.
The FCC has also stated it plans to take aim at these state executive orders as well state legislation, but it's going to be up to the courts to decide whether the agency's "pre-emption" efforts extend that far. The FCC has had its wrist slapped by the courts in the past for trying to stop states from passing protectionist state laws ("states rights" appears to have a ever-shifting meaning for many of these ISPs and politicians depending on what they're after).
The legal fight between the states and the FCC will be joining the countless looming billable hours as the FCC's unpopular decision gets bogged down in legal chaos for what's likely to be years to come. All so Comcast, AT&T, and Verizon can further abuse a lack of broadband competition for additional anti-competitive gain -- without the pesky threat of anybody actually doing anything about it.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: ajit pai, executive order, fcc, net neutrality, new jersey, states rights
Reader Comments
Subscribe: RSS
View by: Time | Thread
If New Jersey can get this right, what the hell is the excuse for everyone else?
[ link to this | view in thread ]
Except it's not a "line", it's a broad highway, and like on highways, heavy trucks SHOULD pay more.
As minion is forced to point out, this will zero effect, is easily evaded by both actual complexities and saying that there are. Any similar politician you'd call it "grandstanding".
[ link to this | view in thread ]
Re: But New Jersey hasn't "got it right"!
I'd guess most will look at actualities that the FCC gets to regulate this area, and simply spare taxpayers the expense of court, besides the embarrassment of empty threats like this.
Next "story", please. This one is DEAD.
[ link to this | view in thread ]
Re: Except it's not a "line", it's a broad highway, and like on highways, heavy trucks SHOULD pay more.
[ link to this | view in thread ]
Re: Except it's not a "line", it's a broad highway, and like on highways, heavy trucks SHOULD pay more.
All traffic on the internet is paid for, both by the providers of that traffic and again by the consumer. ISPs pay for the traffic that transits their infrastructure to and from the "backbone" but those costs are borne by their subscribers. There is no material difference between a subscriber using their connection to watch netflix 24/7 and one who consumes the same bandwidth but spreads their usage out across 1000 providers. That bandwidth is still already paid for and the ISP has no business charging any of them. If there are costs to be borne by someone then those should be passed to their subscribers as always.
Now please, learn a little about the subject before you go spilling more FUD around the net.
[ link to this | view in thread ]
Re: Re: Except it's not a "line", it's a broad highway, and like on highways, heavy trucks SHOULD pay more.
Now there is a significant difference between a family watching Netflix 24/7, and say Wall Street or NSA collection centers. And when we are talking high volume traffic, the former comes up a lot more than the latter, Even though I am about 80% sure that the latter generates more traffic overall.
[ link to this | view in thread ]
That'll make for some fun arguments
With the states framing it as 'If they do X, we won't do business with them', Comcast and company will be basically forced into the position of arguing that they are owed state contracts, and that the state governments should not be allowed to choose who they do business with.
While I certainly wouldn't say it's impossible that some judge would buy that argument, it strikes me as a tough sell, and one that would be trivial to turn into a PR nightmare for the ISP's making it.
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Except it's not a "line", it's a broad highway, and like on highways, heavy trucks SHOULD pay more.
[ link to this | view in thread ]
Re: That'll make for some fun arguments
Which raises the question many of their citizens face: are there actually competing ISPs to choose from?
[ link to this | view in thread ]
Re: Re: Re: Except it's not a "line", it's a broad highway, and like on highways, heavy trucks SHOULD pay more.
[ link to this | view in thread ]
Re: Except it's not a "line", it's a broad highway, and like on highways, heavy trucks SHOULD pay more.
Except it's not a "line", it's a broad highway, and like on highways, heavy trucks SHOULD pay more.
And should they also pay more to drive 55mph versus being limited to 40mph? I mean, since you brought up the highway analogy and all...
[ link to this | view in thread ]
Re: Re: But New Jersey hasn't "got it right"!
[ link to this | view in thread ]
Re: Re: Re: Except it's not a "line", it's a broad highway, and like on highways, heavy trucks SHOULD pay more.
[ link to this | view in thread ]
Re: Re: Re: Re: Except it's not a "line", it's a broad highway, and like on highways, heavy trucks SHOULD pay more.
So you can think of it not like a roadway but like a river. That water's going to flow whether or not it's being used; the costs are river maintenance, lock operation, and management of peak traffic.
It doesn't really matter whether the traffic on the river is 90% NetFlix or a whole bunch of little boats from all over the world; they use up the same space.
So if people pay for access to goods from the river and content providers pay for access to ship the goods on the river, what we don't want is the river authorities claiming the river can hold 100 boats downstream and 10 boats upstream, and then charging BOTH parties more when they send a continual stream of 99 boats downstream, or 5 boats upstream, because they've also sold thost 100/10 rights to 10 other companies and are starting to experience congestion at peak times.
The issue with NetFlix is that they actually USE the advertised bandwidth for extended periods of time, which impacts things like oversubscription and high QoS over switches that aren't designed for the type/volume of traffic they're supposed to be carrying.
[ link to this | view in thread ]
Re: Re: Except it's not a "line", it's a broad highway, and like on highways, heavy trucks SHOULD pay more.
I'm not saying his analogy holds water (it doesn't), but as far as the metaphor expansion inside the analogy, it has been tried, and has even been successful.
So if the internet WERE like highways, his argument would make perfect sense.
[ link to this | view in thread ]
Re: Re: That'll make for some fun arguments
[ link to this | view in thread ]
Re: Re: Re: Re: Except it's not a "line", it's a broad highway to hell! No stop signs, speed limit, nobody's gonna slow me down, like a wheel, gonna spin it, nobody's gonna mess me around
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Except it's not a "line", it's a broad highway, and like on highways, heavy trucks SHOULD pay more.
You're trying very hard to dance around the issue and twist my words to suit your purpose. Let me rephrase:
The issue is NOT that Netflix uses anything. End users, consumers, use the bandwidth by pulling data from Netflix and other sources. Both the source and the drain for that consumed bandwidth was already paid for.
[ link to this | view in thread ]
Re: Re: Re: That'll make for some fun arguments
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Except it's not a "line", it's a broad highway, and like on highways, heavy trucks SHOULD pay more.
THat's an over simplification. They do pay for the lines and bandwidth, however what a lot of people don't know is that the expense of network management also depends on how much data is moving through at any single moment. No ISP can support 100% bandwidth use for long. NONE of them.
That said, it should already be part of the contract for surge rates and normal rates rather than "oh you've used XX amount, we're charging you extra". See there's a difference here, companies need "surge resources" available, but they don't need them all the time. It's the same with the old POTS. There's a reason the old phone companies offered dedicated phone lines for modem access for those corporations that needed such. It garunteed that a switch will always be available for that connection/call. Was never designed for all telephones on its switch office to be used at once. It was prohibitively expensive. Much of the internet backbone works the same way.
That's not to say I'm against network neutrality, I'm not. I think people should get what they pay for without hidden fees and ISPs shouldn't use consumer hostile policies to make up for their own greediness and/or incompetent planning.
What I am saying is that most people don't realize that it's not only the bandwidth, it's the length of time that bandwidth stays in use. Hence I don't always see a *reasonable* bandwidth cap on home service as a bad thing. It keeps kids from torrenting 24/7 which isn't what any network is designed to handle. If everyone was using 100% of their bandwidth 24/7 that you wouldn't be able to watch your Netflix and ISP infrastructure costs would be astronomical.
But as I said, for corporations like Netflix, which is generally what the destruction of network neutrality is aimed at, surge pricing should be built in. Net neutrality would ideally force the monopolistic cable/telecom industry to keep their infrastructure properly maintained rather than lining major stockholder, executive, and board member pockets as well and prevent shenanegans like throttling services that compete with their own offerings unless people pay extra for non-sense services like 'prioritization' and 'boosted for X-service'.
[ link to this | view in thread ]
So, $STATE passes a law requiring 'net neutrality' for all traffic in their state. But the 'net isn't divided up along state lines. To properly comply with such an order, every backhaul carrier would have to set up demarcation points, separating traffic among in-state traffic and out-of-state traffic. Which is going to slow things down, and the cost is going to be passed on to the poor suckers living in that state... and ISPs that cross state lines are going to have to either bill those people separately, or pass the cost on to their other customers.
The state's proper tools for this sort of thing are their senators and congressmen, and perhaps to hire some lobbyists. Instead, they're going to shaft their own constituents.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Except it's not a "line", it's a broad highway, and like on highways, heavy trucks SHOULD pay more.
Why, is it because Netflix competes with cable TV.
If the surge can be provided for there is no need for data caps, and sure pricing becomes another way of extracting money from cord cutters.
It is also worth noting that Netflix with install and manage local to the ISP nodes to reduce traffic over the backbone. While that may need more switch capacity, that is cheap to provide.
Data caps are a poor way of trying to manage peak demands on a network, as the do not push usage to quieter periods, but they do help to keep people subscribing to the cable TV cash cow.
Also note that all the streaming services provide their own, or use a common content delivery network to keep backbone traffic to a minimum.
Modern practice solves the network problems raised by streaming services except for one, and that is cord curing. The fact that the net neutrality fight started up for real as the cord cutting became a significant problem for companies that supply cable TV, and who also provide ISP services.
Explain then why here in the UK, where regulation ensures a choice of ISP even over DSL, there are no data caps, and streaming YouTube all day every day is easily possible.
[ link to this | view in thread ]
Re:
... what? The law isn't aimed at the data, it's looking at how the company treats it, so if they give preferential treatment to company X and detrimental treatment to company Y for example then they aren't doing business in that state.
They can still do that in other states, but when it comes to those living in NJ they are prohibited from engaging in such tactics. The only ones getting hit here are the ISP's if they try to engage in business as usual. They want to keep a contract with the state, they need to obey some simple rules.
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
[ link to this | view in thread ]