Our Shiny New Net Neutrality Rules Won't Be Worth Squat If The FCC Isn't Willing To Act

from the we've-only-just-begun dept

While the FCC's new net neutrality rules are certainly a step in the right direction for consumers, it's aggressively premature to uncork the champagne. There are still ISP lawsuits waiting in the wings, not to mention the fact that a 2016 party shift (and subsequent FCC leadership change) could very quickly dismantle ten years of grassroots activism in the blink of an eye. And then there are the rules themselves and the FCC's dedication to them; as noted last week, it's difficult to know just how useful the new Title II-based rules are going to be until we see precisely what the FCC defines as actionable behavior.

For example, while the rules prohibit blocking, throttling, anti-competitive paid prioritization and require network management transparency -- there's a wide range of ISP behavior that will fall outside of the traditional definition of net neutrality, like Comcast refusing to authenticate HBO Go on Playstation 4 to protect its set top box empire, or carriers blocking Google Wallet for "security reasons" to (unsuccessfully) give their own mobile payment platforms a leg up. And while the FCC says it's going to use its new Title II authority to "keep an eye on" issues like interconnection, nobody actually knows what this means.

AT&T of course has been at the forefront of trying to test the FCC's boundaries for anti-competitive behavior for years, most recently with its Sponsored Data effort, which tries to pass off charging companies for cap-exemption as a great boon to consumers. AT&T's also been at the forefront of blocking access to services or throttling its grandfathered "unlimited" data plan users to shove them toward pricier metered options. So far, the FCC seems perfectly fine with Sponsored Data and T-Mobile's Music Freedom, even though both set incredibly bad precedents (albeit in notably different ways).

In fact, there's a myriad of anti-competitive behaviors carriers may still be able to engage in, provided they argue it's for the safety and the health of the network, or bury it under a cacophony of technical jargon. The term "reasonable network management" has long been a bane to the crafting of sensible net neutrality rules, given that carriers by their nature will always declare their network practices reasonable, even while they're happily abusing gatekeeper power to make an extra buck. The FCC's rules again trot out this definition in stating that network management is obviously fine if it's honestly about the health of the network:

"The record broadly supports maintaining an exception for reasonable network management. We agree that a network management exception to the no-blocking rule, the no-throttling rule, and the no-unreasonable interference/disadvantage standard is necessary for broadband providers to optimize overall network performance and maintain a consistent quality experience for consumers while carrying a variety of traffic over their networks."

The FCC's rules take things one step further in clarifying that "reasonable network management" can't be used as an excuse to make an extra buck:

"For a practice to even be considered under this exception, a broadband Internet access service provider must first show that the practice is primarily motivated by a technical network management justification rather than other business justifications."

Yet as it stands, AT&T's pretty clearly using network management to make an extra buck. For years, the company has been throttling its grandfathered unlimited customers once they reach 5 GB, a practice intended to drive them to more expensive metered plans. And as Ars Technica notes, it's entirely unclear if the FCC's going to act. AT&T, meanwhile, has been circulating this presentation arguing its behavior is perfectly above board. By the time the rules solidify and the FCC does act (should it act), who knows how many unlimited AT&T customers will be left:

"Given the 60-day waiting period before rules go into effect, the time it will take the FCC to evaluate complaints, and uncertainty over how rules will apply, AT&T can keep throttling unlimited data without fear for a good while. By the time AT&T is forced to stop, if indeed that happens, many customers will have already given up their old unlimited data plans and switched to subscriptions that charge them extra every time they exceed their cap. That's what AT&T was after all along, and for now it's still getting what it wants."

Between that and the FCC's refusal to identify zero rated apps as a threat to net neutrality (the practice is outright banned in Chile, Canada, The Netherlands, Norway and Slovenia), you might start to wonder how serious the FCC is really going to be when it comes to policing the murkier (but just as important) edges of anti-competitive behavior. Is the FCC going to be a tough, flexible watchdog on the beat? Or is it going to be so afraid of the hand-wringing over "onerous regulations" -- and so eager to have the debate settled -- that it's intentionally apathetic to more subtle abuses?

And that's the rub: it's great to have rules that give the FCC the flexibility to act against anti-competitive behavior, but they're only useful if the FCC actually successfully uses them. There are more than a few worrying indications that ISPs will be able to engage in net neutrality violations under our new paradigm -- just as long as there's a layer of semi-believable, faux-technical pretense justifying it. Yes, probably gone are the days where carriers could simply block services they don't like, but we've entered a more dangerous, subtle era in the fight for net neutrality.

Moving forward, each time consumers believe their ISP is engaged in anti-competitive behavior that exists in these nebulous grey areas (alongside zero rated apps and interconnection), they'll need to file a complaint with the FCC -- a process the EFF notes benefits deep-pocketed ISPs. ISP lawyers will then go to great lengths to explain how everything they're doing is simply for the health and security of the network and great benefit to the consumer, and it will be up to the FCC and consumers to consistently see through this obfuscation and do the right thing. Similarly, with net neutrality abuses being intentionally more difficult to clearly define, we'll likely start seeing more Chicken Little complaints than ever before, only adding to the uncertainty.

In other words, if you thought the net neutrality debate just got remotely settled by the creation of new Title II rules, you're probably going to be gravely disappointed. While the rules are a good start, we've likely only just finished chapter seven of what promises to be an epic, forty-five chapter novel -- one that's going to require the undivided, persistent attention of those hoping to protect a healthy, open Internet.

Filed Under: broadband, fcc, interconnection, net neutrality, open internet, zero rating
Companies: at&t, comcast, verizon

FCC Outlines Plan To Crush Awful State Protectionist Broadband Laws

from the it's-about-time dept

On the same day the FCC voted to approve new net neutrality rules, we noted that the agency took steps on an issue that might actually be more important: municipal broadband. While net neutrality rules are designed to protect consumers from a lack of last-mile competition, the agency's moves on municipal broadband are intended to actually strike at the issue of limited competition at the root. As we've noted a few times, ISPs (with ALEC's help) have passed laws in twenty states preventing those towns and cities from deciding their own infrastructure needs for themselves.

It's pure, unabashed protectionism: the bills do little more than protect regional duopolies from change while hamstringing local communities desperate for better service. Usually the laws are passed under the auspices of protecting taxpayers from themselves, ignoring that the bills' sole purpose is to protect duopoly revenues. Petitioned by muni-networks in Tennessee and North Carolina that have been blocked from expanding, the FCC plans to use its authority to preempt the protectionist portions of these awful laws.

In much the same way the municipal broadband issue was overlooked on vote day, so too was the actual plan when it was released alongside the agency's new net neutrality rules last week. The full Memorandum Opinion and Order (pdf) clarifies that the FCC intends to use Section 706 of the Telecommunications Act of 1996 to preempt state laws that conflict with federal regulation of interstate commerce for the good of local communities. The agency lists five legal principles it claims give it the right to put these protectionist laws out to pasture:

Article I, section 8 of the Constitution gives Congress the power to regulate interstate commerce.

Internet access unquestionably involves interstate communications, and thus interstate commerce. Broadband subscribers pay for the right to go to any lawful destination on the Internet, wherever located.

Congress has given the Federal Communications Commission the authority to regulate interstate communications. Indeed, section 1 of the Communications Act of 1934, as amended (Act), specifically gives the Commission jurisdiction over “interstate and foreign commerce in communication by wire and radio."

The Commission has previously exercised its authority to preempt state laws that conflict with federal regulation of interstate commerce, for example with respect to state regulation of VoIP, the deployment of wireless facilities, and its order prohibiting local franchising authorities from unreasonably refusing to grant competitive cable franchises. These preemption decisions all further competition.

Finally, section 706 of the 1996 Act directs the Commission to take action to remove barriers to broadband investment, deployment and competition. There is no question that provisions of the state laws in question do limit broadband deployment — they expressly prohibit Wilson and Chattanooga from providing broadband services to more people in more places, even places where there is no broadband currently available

Unsurprisingly, the broadband industry isn't particularly happy that the FCC has woken up from a decade-long coma on this issue and is finally addressing these ISP-constructed obstructions. Marsha Blackburn, flush with broadband industry campaign cash, has been busy fighting the FCC's push under the pretense that she's just ultra worried about states' rights (that protectionist law written by corporations crushes local rights en masse isn't, apparently, a worry). As such she's introduced a law (that has no chance of passing) aimed at gutting FCC authority.

ISPs have also threatened to sue, but given AT&T and Comcast's interests in getting their mergers approved -- and Verizon busy trying to kill the net neutrality rules -- they may find it a bridge too far to open up an entirely new legal fight. Then again, one of the benefits of duopoly power is the extra income necessary to help pay to keep things that way.

The best way for the broadband industry to stop towns and cities from getting into the broadband business? Provide better service. These towns and cities aren't getting into the business because it's fun or because they're mean and want to make Comcast's CEO cry. They're doing so because they've spent a decade in the firm grasp of utterly apathetic monopolies and duopolies, and they're refusing to take it anymore. And while there are certainly plenty of examples of federal overreach, in this instance the FCC finally helping them is a good thing.

Filed Under: broadband, competition, fcc, muni broadband, municipal broadband, rules