Surprise! European Union Adopts Net Neutrality Guidelines That Don't Suck

from the actually-listening-to-the-people dept

As we noted last October, the European Union passed net neutrality rules that not only don't really protect net neutrality, but actually give ISPs across the EU member countries the green light to violate net neutrality consistently -- just as long as ISPs are relatively clever about it. Just like the original, overturned 2010 net neutrality rules in the States, Europe's new rules (which took effect April 30) are packed with all manner of loopholes giving exemption for "specialized services" and "class-based discrimination," as well as giving the green light for zero rating.

Fortunately, the European Union's Body of European Regulators of Electronic Communications (BEREC) has been cooking up new guidelines to help European countries interpret and adopt the new rules. Under heavy pressure from net neutrality advocates overseas, the BEREC's final guidelines have been published and they're notably better than many people predicted. Much of the worst-offending loophole language has been trimmed back, despite earlier threats by European wireless providers that they'd withhold fifth-generation (5G) upgrades if the guidelines toughened up the rules (a common, empty bluff in telecom).

Much of the worrying language carving out tractor-trailer-sized loopholes for "specialized services," or "class-based discrimination," has been either pared back or clarified. The guidelines also strongly encourage EU member state governments to avoid letting ISPs block users looking to use their wireless phones as modems (aka "tethering"). BEREC also comes down harder on exempting some content from usage caps (aka "zero rating"), because as we're seeing in the states (where regulators are actively encouraging the practice) it can be very easily used to try and hinder services that compete with an ISPs own offerings:

"...The zero price applied to the data traffic of the zero-rated music application creates an economic incentive to use that music application instead of competing ones. The effects of such a practice applied to a specific application are more likely to “undermine the essence of the endusers' rights” or lead to circumstances where “end-users’ choice is materially reduced in practice” (Recital 7) than when it is applied to an entire category of applications.

While an indisputably big win for net neutrality advocates (this item saw the biggest public feedback in the history of BEREC consultations), these are still guidelines, and actual rules and enforcement may still vary significantly among EU member states. Upon initial read there's still numerous instances where bad behavior is still allowed if it's justified (often flimsily) by the ISP as necessary for network health and security, a concept we've seen consistently abused here in the States. The phantom congestion bogeyman has long been useful to justify anti-competitive behavior in telecom markets worldwide.

In short this is a promising step forward for European net neutrality advocates, but just as in the States, net neutrality advocates need to be wary of thinking the fight is over. These are just cornerstone victories in a battle that will never truly end thanks to incumbent ISPs that will never stop looking for new, creative ways to abuse the lack of competition the broadband last mile. The less broadband competition in a market, the more intense the fight.

Filed Under: broadband, eu, europe, net neutrality

T-Mobile Declares It's On 'The Right Side Of History' As It Laughs At Net Neutrality

from the words-no-longer-have-any-meaning dept

While T-Mobile has certainly done some good things for the wireless industry, the company's ongoing tone deafness on net neutrality isn't doing the carrier any favors. T-Mobile fought against real net neutrality rules, then, once passed anyway, got right to work trying to find creative ways around the rules using zero rating (exempting only some content from usage caps). When net neutrality advocates and scholars repeatedly pointed out T-Mobile was violating net neutrality and being a bit hypocritical ("we're edgy and love consumers but not real net neutrality!"), the company dug a deeper hole by attacking groups like the EFF.

Last week T-Mobile upped the ante with new plans that promise "unlimited" data, but are not only more expensive, they throttle tethering, throttle overall consumption at 26 GB, and throttle all video to 1.5 Mbps or 480p. Users who want HD video to actually work correctly can apparently pony up $25 more per month. Emboldened by T-Mobile and a (so far) apathetic FCC, Sprint revealed similar "unlimited" data plans of its own, which throttle all video, games and music to 1.5 Mbps, 2 Mbps, and 500 kbps respectively, unless you pony up another $25 per month.

Groups like the EFF were quick to point out that installing ISPs as middlemen who get to determine how well your services work based on how much you pay in a marginally-competitive broadband market sets a horrible precedent. If regulators allow T-Mobile to charge more money for HD video to work, what stops Comcast from charging you more if you want 4K Netflix streams to work? Or AT&T deciding it can charge you more if you want your Steam games to download at full bitrate? This is a door that, once opened, won't be easily closed. And once this practice is a standard, it will be abused.

T-Mobile, for whatever it's worth, continues to be annoyingly tone deaf about the slippery slope it's dragging the entire industry toward. However bad zero rating was, the act of throttling entire classes of traffic unless you pay your ISP more money is notably worse. Highlighting how video conferencing isn't throttled but YouTube is, The Verge tried to get T-Mobile to define "video" and "data" but came away stymied:

"I asked T-Mobile for the company’s definition of "data" and a spokesperson said "that’s not something I could give you," but suggested that the company was on "the right side of history," and that the goal was to make "unlimited sustainable for the mass market." That’s an admirable goal! But let’s not dance around the fundamentals of the situation. Net neutrality is the law of the land, and T-Mobile has aggressively pushed the boundaries of net neutrality by manipulating the traffic on its network."

But again, violating net neutrality principles isn't the same as violating net neutrality rules, and the FCC's rules were carved out with numerous exeptions that allow all manner of throttling -- provided ISPs claim it's for the health of the network. That's why T-Mobile frames this as a matter of "sustainability," even though it's really about adhering to basic dictionary definitions and not selling an "unlimited" service if you're not actually willing to offer it. For a company that markets itself as a pro-consumer alternative to traditional wireless carriers, T-Mobile seems increasingly hell bent on continuing some of the industry's worst habits.

Filed Under: bingeon, fcc, net neutrality, throttling, video, wireless
Companies: t-mobile

How Is This Not A Net Neutrality Violation, Sprint?

from the so-much-for-net-neutrality dept

While the United States' net neutrality rules are certainly better than nothing, we've noted a few times how they contain enough loopholes (and ignore enough hot button topics) as to be more than a little problematic. More specifically, they contain so much wiggle room they let ISPs of all stripes violate net neutrality -- just so long as they're a bit more creative about it. Verizon and Comcast were quick to highlight this when they began cap-exempting their own content, while still penalizing their competitors (without so much as a real peep from the FCC).

T-Mobile pushed these creative barriers further with Binge On, which exempts only the biggest and most popular video services from the company's usage caps (aka "zero rating"). This automatically puts thousands of smaller video providers, non-profits, educational institutions and startups at a notable market disadvantage, but by and large nobody outside of the EFF and academia seems to give much of a damn because a: ill-informed consumers are happy laboring under the illusion that they're getting something for free and b: the public (and by proxy media) is lazy and tired of debating net neutrality.

But the door being opened here leads to a monumental, potentially dangerous shift not only in how broadband service is purchased and sold, but in just how open the internet of the future is going to be.

Last week T-Mobile moved the bar even further with its new T-Mobile One plan, which provides 'unlimited' data, voice and text messaging for $70 per month. Users generally don't like the plan because it's technically more expensive than T-Mobile's previous plans. But it's also saddled with caveats, such as the fact that tethering (using your phone as a modem or hotspot) is throttled to 128 kbps, 'unlimited' technically means 26 GB, and by default all user video is throttled to 480p or 1.5 Mbps by default. Unless users pay T-Mobile a $20 monthly surcharge for HD quality.

Emboldened by T-Mobile and an utterly comatose FCC, Sprint has taken this idea even further, last week unveiling its own not-really-unlimited "Unlimited Freedom" plan with its own set of annoying caveats. Tethering is forbidden, "unlimited" actually means about 23 GB before your full connection is throttled, and by default all video is throttled to 1.5 Mbps, all games are throttled to "up to 2mbps" and all music streams are throttled at "up to 500kbps." That's a god-damned generous definition of unlimited by any measure.

But rejoice, this week Sprint came up with a "solution" for customers who, you know, would like all the services they use to actually work. The company has announced a new "Unlimited Freedom Premium" plan that raises all these arguably arbitrary limits -- if you're willing to shell out an additional $25 per month:

"This plan provides a premium quality mobile streaming experience with HD streaming videos at up to 1080p+, HD music streaming at up to 1.5 Mbps and streaming gaming at up to 8 Mbps."

Again, so we're clear: this is an ISP forcing users to pay more money if they want the services they consume to actually work properly. That's the exact sort of thing net neutrality rules were supposed to prevent. Yet here we are, dancing on a slippery slope, staring down an incredibly fractured, confusing, and potentially exploitable new paradigm for the already uncompetitive broadband sector. And frankly, nobody seems to give all that much of a shit. Either because they're bored of paying attention, or they can't see a few plays ahead on the chess match between net neutrality advocates and large ISPs.

If Sprint and T-Mobile can charge users premium to avoid video, game and music throttling, what prevents Comcast from charging users a premium if they want 4K video streaming to actually work? What stops AT&T from charging users a premium if they want their Steam games to download at full speed? The answer? Nobody, apparently, since the FCC has made it abundantly clear it believes that usage caps, zero rating, and pay-to-avoid-throttling schemes are just creative market experimentation. Except the only creativity on display here involves marketers convincing consumers to root against their own best, self interest.

As noted above, net neutrality violations are still perfectly legal here in the States, you just need a little creative showmanship when shafting the consumer. The FCC's Open Internet Order (pdf) is chock-full of "rules" that don't apply if you provide a bullshit-laden technical justification about how you're only throttling "for the health and security of the network." But congestion has always been used by the telecom industry to justify all manner of bad behavior, including unnecessary usage caps on captive customers. And regulators and the press can rarely be bothered to fact check these congestion claims (remember the exaflood?).

And while spectrum constraints on wireless networks are certainly real, that's no justification for the sea change. If your network can't actually handle unlimited data? Either raise prices transparently to pay for the necessary upgrades, or stop marketing "unlimited" services. What we don't want is the telecom sector with a generation of documented anti-competitive behavior under its belt dictating just how well services perform based on how much users are willing to pay. Because make no mistake, without vibrant, organic market competition (which is only marginally better in wireless) they will abuse the concept like an insatiable swarm of termites.

Initially, I assume both T-Mobile and Sprint will try to argue that this isn't that big of a deal, because users can always switch to metered plans that don't involve charging you more money for un-throttled services. At least until those other plans quietly disappear over a period of months, and paying a premium to actually use content the way it was intended is all the consumer has to choose from. And given that the majority of the public has no idea what a gigabyte even is, these new caveats and the horrible precedent they set will fly (and are clearly flying) right over their collective heads.

I understand that net neutrality is a convoluted and hyperbole-heavy debate that has gone on for more than a decade. As such there's clearly plenty of people happy to labor under the illusion that last June's FCC net neutrality win was the end of the conversation and they can take a nap. It's not, and they can't. We'll be fighting for an open internet for as long as ISPs keep trying creative ways to abuse the lack of last-mile broadband competition. In other words, forever.

Filed Under: fcc, net neutrality, streaming, throttling, video, video gaming, wireless
Companies: sprint, t-mobile

One More Time With Feeling: Net Neutrality Didn't Hurt Broadband Investment In The Slightest

from the dollar-a-holler-science dept

You'll recall that ISPs (and the lobbyists, think tanks, politicians, and consultants paid to love them) argued incessantly that if we passed net neutrality rules, investment in broadband infrastructure would grind to a halt, leaving us all weeping gently over our clogged tubes. ISPs like Verizon proudly proclaimed that net neutrality rules would "jeopardize our investment and the development of innovation in Broadband Internet and related services." ISP-tied think tanks released study after statistically-massaged study claiming that net neutrality (and the reclassification of ISPs as common carriers under Title II) would be utterly catastrophic for the broadband industry and its consumers alike.

But as time wore on it became abundantly clear that these warnings were the empty prattle of a broken industry, using a thick veneer of bunk science to defend its monopoly over the uncompetitive broadband last mile.

Since net neutrality was passed there has been absolutely no evidence that a single one of these claims had anything even remotely resembling merit, with broadband expansion pushing forward at full speed, constrained only by the ongoing lack of competition in many markets. We've watched as outfits like Google Fiber continue to expand its footprint. We've watched as Verizon suddenly promised to deploy fiber to cities long neglected. We've watched as Comcast and AT&T rushed to try and keep pace with gigabit investments of their own. In short, nothing changed, and things may have even improved.

And now companies like Comcast, AT&T and Verizon are doling out what could be as much as $86.4 billion in what may be the most expensive spectrum auction ever:

"The FCC’s forward auction headed into Round 8 on Monday with a total of more than $11.5 billion in bids, according to the auction dashboard. The figure was up from just $8.5 billion in auction proceeds from the first round of bidding last week. Demand appeared to be holding strong...Forward auction bidders are striving to hit an $86.4 billion price target set by broadcasters in the reverse auction. If demand does not reach supply, then a second reverse auction will be held with a lower clearing target of 90 MHz, the FCC has said.

You'd think that carriers tripping over themselves to pursue fifth-gen (5G) wireless alone would be enough to put onerous claims about the negative impact of net neutrality rules to bed. But you'd be wrong. Revolving door regulators like Verizon lawyer turned FCC Commissioner Ajit Pai have consistently tried to claim that net neutrality somehow stifled investment, we just apparently didn't notice. Other sector chicken littles have turned to citing unrelated business downturns to try and obfuscate how full of crap the lion's share of these organizations and consultants were on the subject of net neutrality.

Tech Freedom, for example, spent some time last week rewteeting claims that Cisco's decision to lay off an estimated 5,500 employees was somehow thanks to net neutrality:Except Cisco's global layoffs have nothing to do with some relatively simple net neutrality rules passed in the States. Cisco is downsizing because of the rise in virtualization and the company's shift from its hardware roots into a software-centric organization, something the company itself admits, and something you'd think an economist would understand. This conflation attempt isn't unique. Industry-tied think tanker Hal Singer has done yeoman's work the last year or two trying to claim networking investment is down despite all evidence pointing to the contrary.

Singer, whose study played the starring role in the industry's manufactured denial, continued to beat the same drum beat on Twitter last week:But as noted previously Singer's 8% stat comes from his own study. A study repeatedly criticized for cherry-picking unrelated data to intentionally indicate a network investment downturn that doesn't exist. In many instances he included companies whose CAPEX was dropping because they'd just finished major deployments (Charter's finished deployment of new digital set top boxes, for example). Elsewhere, Singer and other think tankers have tried to claim that CAPEX reductions and cost savings due to the rise in software-defined networking (SDN) and network function virtualization (NFV) were actually caused by net neutrality.

Ironic, then, that Singer took to The Hill to pen an op-ed accusing the FCC of playing fast and loose with empirical evidence when it comes to efforts like net neutrality or cable box reform:

"It is simply irresponsible for regulators to rely on gut feelings – or political pressure or public opinion polls. Rather they should be guided by empirical evidence, rigorous analysis of regulatory costs and benefits and basic economic principles taught on every college campus across the country together. What matters most is not the sheer number of docketed public comments or the enthusiasm of those blockading of the Chairman’s driveway, but instead a sober analysis of the need for regulation in light of proven market failures."

Again, that's an ISP-funded think tanker, freshly proven incredibly, repeatedly, and quite-possible intentionally wrong across numerous fronts, blasting the FCC for ignoring actual economic data. Gosh, it's almost as if these folks are paid to be as intellectually rigid as possible, utterly immune to any attempts at honest discourse when presented with conflicting evidence. Do you get to give people lectures on economics and integrity when your bunk studies are used repeatedly to smear net neutrality rules designed to aid consumers, startups and small businesses nationwide? Apparently.

In short, ISPs and their "dollar-a-holler" think tankers used crap science and economics to intentionally mislead the public on net neutrality, but their predictions have been proven repeatedly and painfully wrong. But instead of acknowledging error and moving on to the next misleading argument, they've decided to double down and promote a broadband investment cataclysm that never actually happened.

Filed Under: fcc, investment, net neutrality, spectrum, title ii, wireless
Companies: at&t, comcast, verizon

T-Mobile, Sprint Tap Dance Over, Under, And Around Net Neutrality

from the bad-precedent dept

For some time now T-Mobile has been accused of violating net neutrality by exempting the nation's biggest video services from its usage caps, and throttling all video on the network by default to 1.5 Mbps or 480p. Net neutrality advocates have repeatedly warned that giving some content or companies a leg up and fiddling with service quality sets a horrible precedent, and research has shown T-Mobile's system to be unreliable and exploitable. Still, T-Mobile has so far received applause from many regulators, media outlets and customers operating under the belief consumers are getting something for free.

As such, however bad the precedent being set here, there's no real political pressure on the FCC to act since consumers are effectively applauding what many believe to be a net neutrality violation. The FCC's net neutrality rules don't specifically prohibit zero rating, something we've long argued opens the door to creative abuses of net neutrality to thunderous applause, which is effectively what's happening here. The rules do require the FCC to explore whether zero rating is anti-competitive on a "case by case" basis, but so far, outside of a few letters, the FCC doesn't seem particularly pressed to take action.

Last week, T-Mobile introduced a new wrinkle to the entire saga by unveiling a new plan named T-Mobile One. Under T-Mobile One, users get "unlimited" data (technicaly 26 GB, after which you're throttled to 128 kbps), text and voice for $70 per month. But under this new plan, users find all video services throttled by default to 1.5 Mbps or 480p. If you want to stream video at any higher rate, you'll need to pony up an additional $25 per month. Groups like the EFF were quick to argue that the new plans still violate net neutrality:

"From what we’ve read thus far, it seems like T-Mobile’s new plan to charge its customers extra to not throttle video runs directly afoul of the principle of net neutrality," said EFF senior staff technologist Jeremy Gillula.

Right, but violating net neutrality principles and net neutrality rules is not the same thing. It's generally believed the FCC didn't crack down on T-Mobile's original plans because the FCC's Open Internet Order (pdf) not only didn't ban zero rating, but it stated that some throttling is ok if it's "a choice made by the end user." Because users could opt out of T-Mobile programs Binge On and Music Freedom, T-Mobile had creatively managed to inhabit an area not really outlawed by the agency's net neutrality rules.

But the EFF argues elsewhere that T-Mobile's decision to specifically discriminate against a particular type of traffic (in this case video) could ultimately violate the FCC's net neutrality rules:

...Gillula argues that the throttling of all video might violate the rule, despite the option to pay for high-speed video. He pointed to a sentence later in the same paragraph that says, "if a broadband provider degraded the delivery of a particular application (e.g., a disfavored VoIP service) or class of application (e.g., all VoIP applications), it would violate the bright-line no-throttling rule."

"If you just substitute 'video' in for 'VoIP,' it's pretty clear that the FCC's intent was to prevent discriminatory throttling, even if the user could pay to avoid it," Gillula told Ars. "In other words, the FCC (and EFF) are just fine with ISPs offering different tiers of service, as long as the tiers don't discriminate against different types of content. But that's precisely what T-Mobile is doing here—discriminating against data based on its content."

Given past statements one gets the sense that the FCC isn't all too worried about the obvious, problematic impact usage caps and zero rating may have on the open Internet. But we're quickly getting to the point where the FCC needs to at least help detail where the line is drawn, one way or another. T-Mobile's experiments last week resulted in Sprint unveiling similar "unlimited" data plans of their own, which also throttle all video to 480p by default unless you pay a premium for higher resolution. But you'll note Sprint goes even further:

Unlimited Freedom utilizes optimization for streaming video, gaming and music, delivering a high-quality viewing experience for mobile devices with video streams of up to 480p resolution, gaming up to 2mbps and music streams at extreme quality of up to 500kbps.

If you'll pause with me at the very top of this long and slippery slope and look down, folks with even the faintest tea leaf reading ability should be able to envision one possible future where all broadband access is fragmented and fractured in just this fashion, users paying more or less for varying qualities of different content and services. This was, if you'll recall, the sort of thing net neutrality rules were designed to help us avoid. T-Mobile opposed Title II and real net neutrality rules for obvious reasons, and groups like the EFF (quite correctly) worry T-Mobile is now happily chipping away at the very foundation of an open internet...to thunderous public applause.

Filed Under: fcc, net neutrality, streaming video, throttling, unlimited, zero rating
Companies: sprint, t-mobile

Broadband Industry Formally Tries, Once Again, To Kill Net Neutrality

from the when-at-first-you-don't-succeed,-cry-some-more dept

If at first you don't succeed, try to waste everybody's time in perpetuity. That's apparently the plan of the broadband industry, which has formally unveiled its latest attempt to kill U.S. net neutrality rules and the FCC's reclassification of ISPs as common carriers under Title II of the Telecom Act. As leaks had suggested, multiple broadband providers and trade organizations have requested an en banc review from the full 9-member DC Circuit Court of Appeals in the hopes of overturning last June's massive FCC legal win.

Given the en banc request process limits the core argument to fifteen pages, the National Cable & Telecommunications Association (NCTA, pdf), the American Cable Association (ACA), the CTIA—The Wireless Association (pdf), and the United States Telecom Association (USTelecom, pdf) all filed slightly different, predominately flimsy legal arguments. Cable providers argued the FCC didn't properly justify the need for new rules; wireless providers tried to argue the FCC can't technically apply such rules to wireless; the telcos tried to argue Congress never intended to give the FCC Title II authority over broadband.

All of these claims have been thoroughly debunked in some fashion over the last ten years. For example, Alamo Broadband, filed its own request (pdf) trying to claim that net neutrality rules violate an ISPs' free speech rights, a claim that has all but been laughed out of court previously. In a new blog post, the cable industry tries to argue they had no choice but to keep wasting everybody's time:

"We don’t celebrate this petition, but we believe this action is necessary to correct unlawful action by the FCC. We aren’t challenging the specific net neutrality protections – as we’ve explained repeatedly, we have long supported the net neutrality principles embodied in the FCC’s 2010 order that could be enforceable under the Commission’s traditional light touch approach to internet regulation.

Those would be the same 2010 rules that had so many loopholes as to be useless, and didn't cover wireless. The NCTA then trots out the old, stale canard that the rules are hurting network investment, something the facts (at least those outside the halls of conflicted, for-hire think tanks) have never supported:

"Because the FCC Order was such a monumental departure from the FCC’s successful tenure of overseeing broadband internet networks that have seen tremendous investment, expansion and innovation, we seek rehearing of these critical issues."

In other words, we liked it a lot better when the FCC only pretended to do its job, leaving us alone to take predatory advantage of the near total market failure in countless broadband markets. The real concern for cable, phone and wireless companies now is the FCC's plan to use its restored Title II authority to pass some relatively basic privacy protections for broadband service. While the industry and some press outlets will tell you these rules are an incredible over-reach by the FCC, all they really require is that ISPs are transparent about what's collected, and provide consumers with working opt out tools.

As we noted last week, the chance of an expanded appeal being granted is slim, but the en banc approach is seen as slightly less futile than an appeal to the under-staffed Supreme Court. Still, the best option for ISPs looking to gut net neutrality? Elect a President that will stock the FCC with the kind of revolving door regulators who simply won't bother to enforce the rules. That's more likely under Trump, but with AT&T's top lobbyist supporting Clinton, real net neutrality protection shouldn't be seen as a given under her watch, either. Especially if dingo-esque Tom Wheeler gets replaced.

Filed Under: appeal, broadband, dc circuit, en banc, net neutrality
Companies: aca, ctia, ncta, us telecom

Wireless Industry To Request En Banc Appeal Hearing On Net Neutrality Rules

from the never-ending-fisticuffs dept

After months of anticipation, last June the U.S. Court of Appeals for the D.C. Circuit upheld the FCC's Open Internet Order, an indisputably-massive win for net neutrality advocates. Not too surprisingly, net neutrality opponents have been engaged in histrionics ever since, with ISP loyal allies in Congress doing their best to punish the FCC with a series of senseless, taxpayer funded "accountability hearings" designed specifically to shame the agency for daring to stand up to large, incumbent ISPs. That's when they're not busy trying to gut FCC funding and authority via a rotating crop of sneaky bill riders.

As Mike and I noted in a recent Techdirt podcast on net neutrality, most of these efforts are just lawmakers barking for their campaign contributions. There are really only a few ways for ISPs to effectively kill the rules, one of which being the election of a President who'll restock the FCC with revolving door regulators who'll either try to roll back the rules, or (more likely) will just refuse to enforce them whatsoever.

On the legal front, options are more limited; ISPs like AT&T have stated they'll appeal to the Supreme Court, but with the FCC's legal win relatively solid, the court itself not fully stocked, and the high court just not hearing all that many cases, most telecom lawyers think a win via this path is extremely unlikely. The other option is for carriers to request an en banc review from the full 9-member DC Circuit Court of Appeals. Even though these requests are commonly rejected, it's that latter path that the wireless industry's biggest lobbying and trade association, the CTIA, has started signaling it will take:

"CTIA: The Wireless Association, which represents wireless ISPs, will seek en banc (full court) rehearing of the three-judge panel decision upholding the FCC's Open Internet order reclassifying fixed and mobile broadband as telecommunications services subject to Title II common carrier regs. That is according to a source familiar with the association's thinking. The deadline for seeking that hearing from the U.S. Court of Appeals for the District of Columbia is Friday (July 29), 45 days after the initial decision June 14."

It's likely we'll see appeal requests by numerous incumbent ISP organizations, each using their fifteen-page appeal request to roll the dice on different arguments. But again, telecom lawyers I've spoken to over the last few months don't think the en banc victory is likely, assuming the request for a hearing is even granted.

"I honestly don’t see success," Free Press Research Director S. Derek Turner tells me. "The dissent’s main argument is that the FCC didn’t explain why it was changing its mind, and spent quite a bit of ink on the issue of the market’s competitiveness. But how competitive a market is or is not has no bearing on the classification issue, only the nature of the service itself. The majority opinion does a good job of explaining why the dissenting opinion is off base, noting that the FCC had satisfied the standard in Fox for reversing a prior opinion."

ISPs and their policy wonk allies will obviously try to claim the contrary.

Regardless of the outcome, it remains important for people to understand that net neutrality isn't magically "over" just because of June's court victory. Net neutrality and the quest to keep the Internet relatively open is a fight that will never actually end, because incumbent ISPs will never stop probing for creative new ways to take advantage of their last-mile broadband monopoly. However fatiguing and hyperbole-soaked the net neutrality debate may be, consumers, startups, and small businesses can't afford to tune out now -- or ever.

Filed Under: appeals, dc circuit, en banc, net neutrality
Companies: ctia

With 4 Days Left, Sir Tim Berners-Lee, Larry Lessig, And Barbara Van Schewick Beg Europe To Close Net Neutrality Loopholes

from the loopholes-and-hula-hoops dept

Europe only has a few days left to ensure that its member countries are actually protected by real net neutrality rules. As we've been discussing, back in October the European Union passed net neutrality rules, but they were so packed with loopholes to not only be useful, but actively harmful in that they effectively legalize net neutrality violations by large telecom operators. The rules carve out tractor-trailer-sized loopholes for "specialized services" and "class-based discrimination," as well as giving the green light for zero rating, letting European ISPs trample net neutrality -- just so long as they're clever enough about it.

In short, the EU's net neutrality rules are in many ways worse than no rules at all. But there's still a change to make things right.

While the rules technically took effect April 30 (after much self-congratulatory back patting), the European Union's Body of European Regulators of Electronic Communications (BEREC) has been cooking up new guidelines to help European countries interpret and adopt the new rules, potentially providing them with significantly more teeth than they have now. With four days left for the public to comment (as of the writing of this post), Europe's net neutrality advocates have banded together to urge EU citizens to contact their representatives and demand they close these ISP-lobbyist crafted loopholes.

Hoping to galvanize public support, Sir Tim Berners-Lee, Barbara van Schewick, and Larry Lessig have penned a collective letter to European citizens urging them to pressure their constituents. The letter mirrors previous concerns that the rules won't be worth much unless they're changed to prohibit exceptions allowing "fast lanes," discrimination against specific classes of traffic (like BitTorrent), and the potential paid prioritization of select “specialized” services. These loopholes let ISPs give preferential treatment to select types of content or services, providing they offer a rotating crop of faux-technical justifications that sound convincing.

The letter also urges the EU to follow India, Chile, The Netherlands, and Japan in banning "zero rating," or the exemption of select content from usage caps:

"Like fast lanes, zero-rating lets carriers pick winners and losers by making certain apps more attractive than others. And like fast lanes, zero-rating hurts users, innovation, competition, and creative expression. In advanced economies like those in the European Union, there is no argument for zero-rating as a potential onramp to the Internet for first-time users.

The draft guidelines acknowledge that zero-rating can be harmful, but they leave it to national regulators to evaluate zero-rating plans on a case-by-case basis. Letting national regulators address zero-rating case-by-case disadvantages Internet users, start-ups, and small businesses that do not have the time or resources to defend themselves against discriminatory zero-rating before 28 different regulators."

Here in the States the FCC decided to not ban zero rating and follow this "case by case" enforcement, which so far has simply resulted in no serious enforcement whatsoever, opening the door ever wider to the kind of pay-to-play lopsided business arrangements net neutrality rules are supposed to prevet. Of course European ISPs have been busy too, last week falling back on the old, bunk industry argument that if regulators actually do their job and protect consumers and small businesses from entrenched telecom monopolies, wireless carriers won't be able to invest in next-generation networks.

Those that care about net neutrality have just four days left to make their voices heard.

Filed Under: barbara van schewick, eu, europe, larry lessig, net neutrality, tim berners-lee

European Telcos Threaten To Withhold Next Gen Wireless Upgrades If Net Neutrality Rules Passed

from the chicken-little's-manifesto dept

Tell me if you've heard this one before: broadband carriers are once again claiming that if regulators pass net neutrality rules, their ability to invest in next-generation networks will somehow be severely hindered, causing no limit of damage to consumers, puppies, and the time-space continuum. That's basically the line U.S. broadband providers tried to feed the FCC in the States. But no matter how many industry-tried, cherry picking think tank studies have tried to claim that net neutrality hurts broadband investment, real world data and ongoing deployment show that just isn't true.

As we noted last October, Europe passed net neutrality rules that not only don't really protect net neutrality, but actually give ISPs across the EU's 28 member countries the green light to violate net neutrality consistently -- just as long as ISPs provide a few flimsy, faux-technical justifications. The rules are so filled with loopholes as to be useless, and while they technically took effect on April 30, the European Union's Body of European Regulators of Electronic Communications (BEREC) has been cooking up new guidelines to help European countries interpret and adopt the new rules.

With BEREC's public comment period set to end on July 18, European net neutrality advocates are giving it one last shot to toughen up the shoddy rules. Fearing they might succeed, a coalition of twenty European telcos (and the hardware vendors that feed at their collective trough) have taped together something they're calling their "5G Manifesto," (pdf) which trots out some pretty familiar fear mongering for those who've remotely followed the last fifteen years of net neutrality debate.

Among them is the continued, not so veiled threat that technological progress will stop dead in its tracks if these companies don't get the kind of consumer net neutrality protections they want (namely, none):

"The EU and Member States must reconcile the need for Open Internet with pragmatic rules that foster innovation. The telecom Industry warns that the current Net Neutrality guidelines, as put forward by BEREC, create significant uncertainties around 5G return on investment. Investments are therefore likely to be delayed unless regulators take a positive stance on innovation and stick to it."

And the threat doesn't just involve next-gen wireless. The carriers also proceed to effectively argue that unless they're allowed to include huge gaping loopholes (like the existing exemption of "specialized services"), other technologies like VR, smart cars and smart cities will all be hurt (much like ISPs here in the States tried to argue that net neutrality rules would somehow hurt medical technology unless ISPs were allowed to discriminate):

"In this context we must highlight the danger of restrictive Net Neutrality rules, in the context of 5G technologies, business applications and beyond. 5G introduces the concept of “Network Slicing” to accommodate a wide-variety of industry verticals’ business models on a common platform, at scale and with services guarantees. Automated driving, smart grid control, virtual reality and public safety services are examples of usecases with distinguished characteristics which call for a flexible and elastic configuration of resources in networks and platforms, on a continuous basis, depending on demand, context and the nature of the service."

This is all, for lack of a more scientific term, unequivocal and total crap. The argument that "net neutrality rules will stop us from keeping your pace maker from working" is fear-based prattle with no foundation in reality. If anything, the EU's rules go well out of their way to ensure traffic can be treated differently (to an extreme fault). As for 5G, these upgrades are a necessary part of doing business, and carriers will invest in networks whether or not there's some flimsy net neutrality rules governing their behavior. Realize too that the "manifesto" is talking about rules as currently written that effectively say it's ok to violate net neutrality provided you support your anti-competitive behavior in veiled, faux technical justifications (see comments made by Sir Tim Berners-Lee).

In short, people should understand these European companies' lawyers and lobbyists directly wrote net neutrality rules pretty much ensuring they can do whatever they like -- about as "certain" as things are going to get -- yet they're still god-damned complaining.

When it isn't busy making empty threats, the manifesto trots out some similarly-meaningless promises, such as claims that the "right" net neutrality rules will result in scheduled large-scale 5G demonstrations by 2018, and the launch of 5G commercially in at least one city in every EU country by 2020. Again though, this was already happening with or without net neutrality rules. Tying the success or failure of network investment to net neutrality is a hollow bogeyman, one we've seen used repeatedly in countries where carrier executives twitch at the faintest specter of a regulator actually doing its job and protecting consumers from the aggressive abuse of uncompetitive telecom markets.

Filed Under: broadband, eu, europe, net neutrality, telcos, upgrades, wireless