Yes, Net Neutrality Is A Solution To An Existing Problem

from the plenty-of-examples dept

While AT&T, Comcast, and Verizon have argued -- with incredible message discipline -- that network neutrality is "a solution in search of a problem," that's simply not true.

There are many concrete examples of network neutrality violations around the world. These network neutrality violations include ISPs blocking websites and applications, ISPs discriminating in favor of some applications and against others, and ISPs charging arbitrary tolls on technology companies.

We have seen network neutrality violations all over the world.

Even in the U.S., there have been some major violations by small and large ISPs. These include:

• The largest ISP, Comcast, secretly interfering with peer-to-peer technologies, including some of the most popular basic technologies used to distribute online TV and music (2005-2008);
• A small telephone ISP called Madison River blocking Vonage, a company providing competing telephone service online (2005);
• Apple blocking Skype on the iPhone, subject to a secret contract with AT&T, a company that competes with Skype in providing telephone service (2008-2009);
• Verizon, AT&T, and T-Mobile blocking the functionality of Google Wallet on Nexus devices, while all three of those ISPs are part of a competing mobile payments joint venture called Isis (late 2011- +today);
• and Comcast's disputes with Level 3 and Netflix over termination fees, and the appearance that Comcast is deliberately congesting its network connections to force Netflix to pay Comcast for an acceptable connection (2010- +today).

In other countries, including democracies, there are numerous violations. In Canada, rather than seeking a judicial injunction, a telephone ISP used its control of the wires to block the website of a union member during a strike against that very company in July 2005. In the Netherlands, in 2011, the dominant ISP expressed interest in blocking against U.S.-based Whatsapp and Skype.

In the European Union, widespread violations affect at least 1 in 5 users. That is the conclusion of a report issued in June of 2012 by the Body of European Regulators for Electronic Communications (BEREC), a body composed of the regulatory agencies of each EU country. Most of these restrictions were on online phone services, peer-to-peer technologies (which are used not only by copyright pirates, but also in a variety of well-known technologies, including Skype and several Amazon cloud services), as well as other specific applications "such as gaming, streaming, e-mail or instant messaging service."

ISPs block and discriminate against applications and websites even in countries that require disclosure of the violations and even in countries with far more competition among ISPs than the U.S. A recent Oxford dissertation on the topic explores the wide-scale blocking and discrimination in the United Kingdom, a market with both considerable competition among ISPs and robust disclosure laws.

Essentially, a specific rule that would be upheld in court is necessary protect network neutrality and address a major, global problem.

* Footnote: Thanks to Stanford professor Barbara van Schewick, whose recent letter to the FCC inspired my thinking in this post.

Filed Under: broadband, competition, net neutrality, problems

FCC Is Sorry, But OpenInternet.gov Cannot Be Found

from the what-open-internet? dept

Update: Well, look at that. A few hours after this post went live, OpenInternet.gov magically got redirected to some actual content...

Want to know what the current FCC thinks of an open internet? The FCC used to run a website at OpenInternet.gov, in which it talked up the importance of an open internet. Here's what the page used to look like: In that blank blue spot, I believe there was this video of former FCC chair Julius Genachowski highlighting the importance of an open internet. Of course, as pointed out by Ryan Singel, if you visit OpenInternet.gov right now, it looks like this: Yes, that's right: the FCC is sorry, but OpenInternet.gov cannot be found. To be fair, it's not as if Genachowski ever really did that much to preserve an open internet, preferring to work out a bogus "deal" on open internet principles with Verizon and AT&T, with loopholes large enough to drive much of the internet through -- and which were put together so poorly that Verizon (yes, the same Verzion that helped create them in the first place) successfully sued to get the rules thrown out as the FCC going too far. Similarly, new FCC boss Tom Wheeler has a blog post insisting that he too is really committed to an open internet, but we've heard that song and dance before.

In the end, it's more symbolic than anything else. The fact that the FCC has basically shuttered OpenInternet.gov with no forwarding address just kind of highlights how seriously the FCC really seems to take these issues.

Filed Under: fcc, julius genachowski, net neutrality, open internet, openinternet.gov, tom wheeler

Rep. Mary Bono Freaks Out Both About 'Gov't Takeover' AND 'Gov't Handover' Of The Internet

from the hypocrite-much? dept

On Friday afternoon, we wrote about the basic non-story about how NTIA (a part of the Commerce Department) will be relinquishing what little "control" it had over ICANN's IANA function. The US government already had little to no actual say over anything that ICANN was doing. The organization has been almost entirely independent from the beginning, and this move really just helps to clarify things, while actually taking some pressure off of ICANN so that other countries can't whine and complain (incorrectly) that the internet is "under US control."

Still, with headlines everywhere screaming about how the US is "giving up control" over the internet, you had to know that it was going to become some sort of political issue. And, indeed, a bunch of politicians are up in arms about this, with the most vocal (by far) critic of this move being Rep. Mary Bono, who tweeted angrily on Friday about how we should all be concerned about this and how we need to "keep the internet!"

Of course, since some of us have memories that go back more than a month or so, it's not that difficult to remember Rep. Mary Bono was also one of the most vehement politicians against net neutrality. In fact, just three years ago, in launching an attack on net neutrality, this very same Rep. Mary Bono was screaming about stopping the "government takeover of the internet." Sadly, that tweet is now deleted (gee... wonder why?).

Still, we're curious about all of this, and are hoping that Rep. Bono can answer this basic question. If we needed to "stop the government takeover of the internet" a few years ago... and yet, today, it's an incredibly important job for the government to "keep the internet," what, exactly, is Rep. Bono's position on US government control over the internet? Or is it just whatever bogus talking point she can use to fire up constituents into believing the government is about to do something bad?

Filed Under: government takeover, iana, internet, internet governance, mary bono, net neutrality, ntia
Companies: icann

Verizon Thinks 'The Most Important Concept Of Net Neutrality' Is Giving Verizon More Money

from the feel-healthy-yet? dept

It's pretty clear at this point that after nearly a decade of histrionics and hyperbole on all sides that the definition of net neutrality has been somewhat warped. That's in no small part thanks to the larger carriers like AT&T and Verizon, who have consistently done their best to argue that they need to be allowed to engage in "creative" and "innovative" new pricing (read predatory price gouging) or they simply won't invest in the networks of tomorrow. Between the recent peering debates and Verizon's defeat of FCC neutrality rules things are as murky as ever.

Verizon's defeat of the FCC's neutrality rules was a double-edged sword for the company. On the one hand, they killed the rules (which they helped craft with Google and AT&T, and as a result did little), but on the other end, their real goal was to kill FCC authority to regulate broadband for good. Instead, the court re-enforced that the FCC does in fact have some (albeit shaky) authority to regulate broadband providers and impose neutrality rules, they just have to argue their case differently. All in all, things are murky as hell on the net neutrality front, but apparently not for Verizon CEO Lowell McAdam:

"McAdam addressed the U.S. Federal Communications Commission's proposed net neutrality rules during a conference call about the company's acquisition of Vodafone's 45 percent stake in Verizon Wireless. The FCC's move this month to resurrect net neutrality rules should provide "clarity" for the broadband industry, said McAdam, whose company successfully challenged an old version of the regulations in court."

So McAdam apparently believes by throwing a stick in the spokes and killing the existing neutrality rules (which again, most ISPs liked because they did little to nothing, and didn't touch wireless), his company has brought "clarity." But what McAdam thinks is the most important thing for people to take away from the neutrality discussion is that paying Verizon increasingly more money is the truly important part:

"McAdam dismissed concerns that his company would selectively block or slow some Web content. "We make our money by carrying traffic," he said. "That's how we make dollars. So to view that we're going to be advantaging one over the other really is a lot of histrionics, I think, at this point." But McAdam suggested that broadband power users should pay extra. "It's only natural that the heavy users help contribute to the investment to keep the Web healthy," he said. "That is the most important concept of net neutrality."

That people already paying an arm and a leg for bandwidth never somehow pay their "fair share" has long been the cornerstone of the industry's effort to impose usage caps and overage on wireless and wired networks alike. In reality, it has never been about heavy users paying more, it has always been about all users paying more. And more. And more. One thing I believe Verizon can take comfort in is that while there's some uncertainty about what the new FCC rules will be, I think they'll largely be superficial in nature and will go to great lengths to avoid tramping Verizon's right to make the Internet "healthier" through abusive pricing practices.

Filed Under: bandwidth, broadband, fcc, net neutrality
Companies: at&t, google, verizon

Rep. Blackburn Introduces Bill To Thwart Vile FCC Attempt To Do....Little To Nothing Of Substance On Net Neutrality

from the protectin'-freedom dept

As I recently noted, all the net neutrality opponents freaking out about the FCC's new neutrality promises really shouldn't be.

The announcement effectively boiled down to the agency saying "we might think about some stuff after a very long conversation that will potentially go nowhere." Yes, there are a few promises in there about pushing for greater competition and transparency, but the FCC has spent a decade making similar promises they've failed to follow through on. Still, that didn't stop Rep. Marsha Blackburn of Tennessee from declaring that the FCC's ambiguous non-announcement was the very worst sort of attack on Internet freedom -- a "socialistic" proposal that will have Americans re-living the "horrors" recently experienced during visits to Healthcare.gov.

Blackburn appears to have followed up her failure to understand how little the FCC will actually be doing (right alongside much of the press, apparently) with a bill aimed at thwarting the FCC's entirely non-existent assault on Internet freedom. H.R. 4070, or the "Internet Freedom Act," would protect us all from the FCC goin' crazy and regulatin' the hell outta them there Internets. From a statement on her new bill:

"Net Neutrality is the Fairness Doctrine of the Internet. Once the FCC has a foothold into managing how internet service providers run their networks they will essentially be deciding which content goes first, second, third, or not at all. It’s time for Congress to slam the FCC’s regulatory back-door shut, lock it, and return the keys to the free market. My legislation will put the brakes on net neutrality and protect our innovators from these job-killing regulations."

Blackburn is simply throwing some chum in the partisan water to excite her base. Pretending the horribly ill-conceived Fairness Doctrine is making its menacing return (it died in 1987) is one that gets trotted out every few months or so for just that purpose. The amusing part is that Blackburn doesn't appear to have noticed that her campaign contributors AT&T and Comcast actually really like the FCC's new proposal. Why? Because they know the very most it's going to result in is a list of voluntary, non-binding measures "prohibiting" ISPs from doing things they never wanted to (like stone-cold outright blocking of entirely legal websites or services for no sane reason) while not prohibiting them from "creative" pricing (usage caps).

The FCC has spent much of the last 20 years deregulating the broadband cable, and phone industries and doing everything in their power to support things like usage caps and limited competition through total inaction. The broadband industry in turn has spent much of that time working endlessly to weaken the FCC's authority to regulate, just in case the agency wakes up one day and decides to do its job. This entirely-hallucinated idea that the agency is suddenly going to go mad, unshackle its trademark apathy on consumer issues, abuse non-existent authority, and start creating tough new regulations is all part of one elaborate stage play. The FCC's moves are theater, the political response is theater, and the quality of all the players is abysmal.

Filed Under: broadband, fcc, internet freedom act, marsha blackburn, net neutrality, regulation
Companies: at&t, comcast

Politicians Freak Out Over New FCC Neutrality Moves, Not Realizing They Probably Won't Do Anything

from the I-have-absolutely-no-idea-what-I'm-upset-about dept

Now that I've had some additional time with the FCC boss Tom Wheeler's new net neutrality proposal and have talked to a few lawyers and consumer advocates, I'm starting to think the agency's announcement was almost entirely political theater. All the FCC really said is that it wouldn't appeal the Verizon case, and would begin a meandering public conversation about how to vaguely protect the Internet under shaky Section 706 authority the FCC knows it doesn't have. Layered on top were empty promises about improving competition and some empty threats about reclassifying ISPs as common carriers if they don't behave (which is supposed to be a threat, but every ISP lobbyist on K Street knows they won't do this if they weren't willing to do it already).

In short, the FCC vaguely promised to maybe think about some stuff after a glacial, year long conversation. Cue the absolute, unbridled, partisan hyperbole shitstorm:

"Ranking Republicans called the FCC's efforts to revive net-neutrality rules "a solution in search of a problem," and plan to fight any new rules. Rep. Marsha Blackburn of Tennessee will introduce legislation in the coming weeks to block what she calls the "socialistic" proposal. "Federal control of the Internet will restrict our online freedom and leave Americans facing the same horrors that they have experienced with HealthCare.gov," Blackburn said in a statement."

You apparently don't understand that the FCC's proposal won't actually do anything, but you do know it's certainly socialist and freedom killing? The sad part is that issues like a healthy, functioning Internet with competitive balance really shouldn't be partisan at all. It's in the interest or everyone that networks work well and that honest, healthy competition improves service and drives down costs, while limiting the bad behavior of large network gatekeepers.

Well ok, not everyone. If you actually want to understand whether a policy will be good or bad for consumers, ignore all the think tanks and politicians and watch the ISP response. Specifically watch AT&T, which has the biggest lobbyist operations and the biggest mouth when truly consumer-friendly policy gets passed. AT&T supported the original rules because they had oodles of loopholes and didn't cover wireless (Verizon only sued in the hopes of killing off FCC authority entirely). Note how AT&T thinks all this socialist freedom killin' is just a splendid idea:

"AT&T, the second-largest wired broadband provider in the U.S., said it believes the FCC has the authority under Section 706 to preserve Internet openness...."AT&T has built its broadband business, both wired and wireless, on the principal of Internet openness," AT&T said in a statement. "That is what our customers rightly expect, and it is what our company will continue to deliver. That is also why we endorsed the FCC's original rule on Net neutrality, and is why we pledged to adhere to openness principles even after the recent court decision."

Knowing the FCC pretty well after more than a decade of watching them, what I think you'll ultimately see at the end of this new "conversation" is a cross-industry set of self-regulatory voluntary guidelines "prohibiting" ISPs from doing the kinds of things they never intended to do anyway -- like blocking your access to entirely legal websites. There might be particular cases where the FCC pushes for greater transparency in peering debates (especially if the ongoing Netflix standoff doesn't improve), but nothing that will truly rattle any slats. The primary goal here is making sure incumbent ISPs maximize revenues and keep the campaign contributions coming. Consumer protection is just pillow talk. For both parties.

What you won't see in any way (and probably wouldn't be enforceable under 706 anyway) is hard rules governing the more subtle sort of things network neutrality folks should actually be worried about, such as predatory pricing and the use of broadband usage caps as a weapon (like AT&T's "sponsored data"). This, unfortunately for consumers, is considered "creative pricing innovation" by both the current FCC and industry alike, and the only ones who should be freaking out at the moment are the people who are going to foot the bill for all this supposed creativity.

Filed Under: fcc, net neutrality, section 706
Companies: at&t, verizon

Apparently We Are All Confused And Killing Net Neutrality Will Be Just GREAT For Startups

from the Godzilla-was-simply-misunderstood dept

What if I told you that the ham-fisted attempts by giant telecom corporations to abuse their gatekeeper positions anti-competitively are actually great for startups and consumers? Yes, I'd slap me too. Still, this appears to be the central thesis of a new Wired editorial by TechFreedom's Berin Szoka and George Mason University’s Mercatus Center's Brent Skorup, who insist that killing off net neutrality is just what Internet underdogs need. According to Szoka and Skorup, what you think of as entrenched legacy bullies taking every opportunity to play dirty is really just a "two-sided market" at play (like adorable puppies in a meadow!):

"Everyone assumes that cable companies have all the market power, and so of course a bigger cable company means disaster. But content owners may be the real heavyweights here: It was Netflix that withheld high-quality streaming from Time Warner Cable customers last year, not vice versa. As WIRED recently noted, “Netflix is hardly without leverage” (Time Warner lost over 300,000 subscribers). Similarly, it was ESPN that first proposed to subsidize its mobile viewers’ data usage last year."

There's some half-truths and falsehoods in that statement used for effect. One, Netflix's Open Connect Content Delivery Network is free for any ISP to join, and will speed up Netflix streaming by hosting Netflix caching servers on the ISP network. Netflix ranks ISPs by streaming performance, and while Netflix does "name and shame" ISPs in the hopes they'll join their CDN, joining is free and it benefits all parties involved.

Time Warner Cable (who chose not to join, like Comcast and Verizon) did try to feebly argue this was a neutrality violation, but Netflix responded by making Super HD streams (previously only available for CDN partners) available for all ISPs. It's also worth noting Time Warner Cable lost 300,000 subscribers because of their retransmission feud with broadcasting giant CBS and the resulting blackout, not because of imaginary Netflix "leverage."

As for ESPN being the one who came up with sponsored data, they're simply wrong; AT&T was the first to propose the idea of charging content companies in order to bypass user bandwidth caps (first pitched as "1-800 data" or "free shipping" a few years back). Verizon liked the idea, and ESPN being ESPN, was the first company with enough cash and cold ambition to think this was a good idea. The biggest problem with AT&T's Sponsored Data is that while ESPN might be able to pay to play, smaller startups and businesses can't -- creating an unlevel playing field where one didn't exist formerly. The editorial somehow forgets to discuss that angle of AT&T's awful idea.

By artificially inflating content company leverage and intentionally under-selling incumbent ISP power, Szoka and Skorup try to pretend that what we're actually seeing at play here isn't an entrenched TV and broadband industry (with a long history of anti-competitive behavior) fighting a disruptive new streaming Internet video industry, it's a healthy "two-sided" market relationship where incumbents are just doing an awesome job innovating:

"ISPs and carriers like AT&T, Comcast, and Verizon face what economists call a “two-sided market.” In this case, they — and other tech firms — can receive revenue from two major sources: content providers (through sponsorship or ads), and consumers (through subscription fees). While TV broadcasters traditionally relied almost entirely on the former, cable programmers like HBO and Showtime rely almost entirely on the latter. But most technology firms use a combination of both ad support and subscription fees. So it makes sense for AT&T, Comcast, Verizon, and others to do what most media firms (and that includes app creators) do: develop a balanced revenue stream from both the content side and the customer side to ensure profitability while making the service affordable."

That's a leap. Consumers pay for bandwidth. Content companies pay for bandwidth. Wireless carriers already profit handsomely on both ends and across the middle. What sponsored data and arbitrary usage caps do is allow the wireless carriers to charge yet another "troll toll" for wireless bandwidth already paid for. They get away with this double dipping because they enjoy regulatory capture and abuse their market position while regulators nap, not because of healthy markets. But in Szoka and Skorup's world, you're asking for trouble if you dare question telecom companies' motives for double dipping:

"...we also need to ensure content providers don’t undermine incentives to invest in the capacity they themselves need — or block the business model experimentation that may be needed to drive that capacity."

This idea that if you don't let telecom companies experiment with predatory pricing we'll face capacity and investment problems has been a cornerstone of sloppy telco logic for a decade. It's at the heart of the repeatedly debunked exaflood argument, and while Szoka and Skorup do yeoman's work trying to sell it as sound new theory, all they've really done is put some lipstick on a dead horse and given it a swift kick. It's a manufactured and frankly odd defense of predatory incumbent pricing practices that the pair claim will "bring down the cost of services for consumers" (protip: that hasn't happened, doesn't happen, and will not happen).

I'm all for honest debate on competitive markets, but a recent bout of painfully un-nuanced Wired editorials featuring Szoka seem more like Colbert-esque satire than honest discussion. Whether it's pretending that an FCC with a history of apathy, incompetence and deregulatory tendencies is a bigger threat than predatory monopolies or the insistence that incumbent ISPs are faultless for any part of the country's broadband competition problems, you'll notice one common refrain: the nation's giant telecom companies can do no wrong and it's always somebody else that's to blame. If Wired's recent editorial selections really are intended to be satire making fun of the nation's phone and cable companies, then I must say it's excellent, amazing work on Wired's part.

Filed Under: berin szoka, brent skorup, broadband, net neutrality, startup

Wall Street Journal Manages To Make The Netflix, ISP Streaming Kerfuffle Even Muddier

from the yes-I-said-kerfuffle dept

Major ISPs have slowly seen their Netflix streaming experience deteriorate over the last six months, major carriers like Comcast, Verizon and AT&T all dropping like a stone in the Netflix ISP streaming ranking index. We've discussed how, despite a bevy of well-intentioned claims, these ISPs are intentionally throttling connections for their own gains, there's still not really enough evidence to conclusively prove ISPs are up to no good here. Much of the network data just isn't publicly available, and there's an ocean of peering and CDN relationships between you, Netflix and your ISP that muddy the waters further.

That said, the Wall Street Journal this week complicated things somewhat with a report on the streaming shenanigans that offers this curious, anonymously-sourced paragraph, which suggests big ISPs are letting peering links saturate intentionally:

"Until the standoff gets resolved, the bulk of Netflix's traffic continues to flow across Internet intermediaries, including low-cost carrier Cogent Communications Group. People familiar with Cogent's and Netflix's thinking say the cable and telephone companies are delaying upgrading existing connections. Executives at major broadband providers, meanwhile, privately blame the traffic jam on Netflix's refusal to distribute its traffic more efficiently."

Again though, nobody can prove any of this because the network and peering data needed to do so is held tightly by all parties involved. Peering disputes generally involve core Internet companies agreeing to exchange equal amounts of data at hand-off points, often without compensation under confidential agreements. Historically, there have always been occasional skirmishes between companies as that balance gets out of whack. In recent years, those battles have intensified as last mile ISPs like Comcast have pushed for significantly more money to carry traffic, as we saw with the Comcast Level 3 peering fight from a few years ago.

In these disputes it has always been a goal to make the other guy look like the greedy one for leverage, though the Netflix problems have reached a new level. Netflix offers ISPs free access to their own Open Connect Content Delivery Network, which improves streaming performance. Larger ISPs have refused to join, not wanting to give what they see as a competitor to their own services (like Verizon RedBox streaming) any leg up, instead relying on their own CDNs that, theoretically, should offer equally decent performance. That those ISPs are suddenly seeing such dismal streaming performance suggests someone along the chain is being either cheap, incompetent, or is up to no good. Potentially all three.

Incumbent ISPs don't exactly have what you would call a stellar reputation for playing nice with disruptive companies or competitors, thus the theory that AT&T, Verizon and Comcast are intentionally letting these peering points saturate then pointing the finger at Netflix in the hopes of making them look bad. If that's the goal it's not working: data released this week suggests that Netflix just reached a three year high in customer satisfaction -- despite the price hike and Qwikster nonsense of a few years back. If the goal is to make Netflix look stupid, it doesn't appear to be working so far, and as the lowest rated industry in these kinds of rankings, it's probably futile for pay TV companies to try.

The whole mess is a good example of how net neutrality violations, should they occur, might not knock you over the head with their obviousness as traditional discourse has suggested. In fact, they might not even be provable. ISPs are too smart, and too wary of getting socked with new regulations. Instead, what you'll see is gatekeeper abuses dressed up under the guise of legitimate technical issues. Verizon Wireless, for example, blocked activation of Google's Nexus 7 tablet on their LTE network for six months, blaming Google and obscure technical certification issues (while selling users their own, inferior tablet in the interim). Wireless carriers also blocked Google Wallet from devices for proclaimed security reasons, while at the same time pitching their own, Isis mobile payment platform.

People were quick to cry foul in both instances. Do incumbents have a history of this sort of thing? Yes. Can you prove carriers were up to no good in either instance? No. It all makes the point that you probably could get away with net neutrality violations without regulators batting an eyelash. You just need to be a little bit clever about it -- with a dash or two of believable technical jargon for good measure. It also makes the point that with real neutrality violations inhabiting such murky territory, we're going to see a lot more people crying net neutrality wolf -- which only helps those engaged in anti-competitive shenanigans.

Filed Under: isp, net neutrality, streaming
Companies: at&t, comcast, netflix, verizon, wall street journal

Cue The Hyperbole And Hysteria: FCC Outlines Timid, Murky Plan To (Maybe) Defend Net Neutrality

from the hysterical-and-useless dept

The dysfunctional hyperbolic screaming match known as the net neutrality debate is about to be doused in napalm. The neutrality discussion has been in a holding pattern since Verizon managed to defeat the FCC's net neutrality rules in court. Despite some press commentary, the loss wasn't quite the killing blow many imagined, since the rules themselves quite intentionally didn't do all that much (no protection for wireless, plenty of loopholes allowing ISPs to blame anti-competitive behavior on network security issues or congestion), and the court ruling did state the FCC still has some authority to regulate broadband ISPs.

That left the door open to a number of FCC options. Would they appeal? Would they reclassify ISPs as common carriers to solidify and broaden FCC authority? Would they give lovely speeches substituting theatrics and show ponies for policy while doing as little as possible? Would they try to draft different rules claiming new-but-still-shaky authority under Section 706 of the Telecommunications Act? Based on what I can see, it's going to be a combination of the last two.

According to an FCC announcement today, the agency is not going to appeal the Verizon loss. Instead, they're going to slowly contemplate new rules governing broadband carriers, using shaky Section 706 authority over net neutrality issues (which many argue don't exist) to fight "improper blocking of and discrimination" of content on a "case by case" basis. The FCC has launched a public proceeding (pdf) and request for comment to determine the structure of the rules. A statement from FCC boss Tom Wheeler makes a numeric list of somewhat-ambiguous promises, then insists the FCC will keep ISP common carrier reclassification on the table:

"2. Keep Title II authority on the table. As the Court of Appeals noted, as long as Title II – with the ability to reclassify Internet access service as a telecommunications service – remains a part of the Communications Act, the Commission has the ability to utilize it if warranted. Accordingly, the Commission’s docket on Title II authority remains open."

In other words, the FCC is warning ISPs that if they don't stay on their best behavior, the FCC will take what in telecom circles is affectionately called "the nuclear option" and broaden its regulatory authority by reclassifying ISPs as common carriers. The problem is that most ISPs and analysts know the traditionally timid and politically-sensitive FCC won't do that, but the FCC apparently hopes somebody somewhere will believe the agency has the spine for such a fight. Most consumer advocates had hoped for common carrier reclassification, arguing that anything else was just uphill legal fisticuffs.

While a good portion of the FCC's announcement is political theater (we'll think about doing some stuff, someday, after lobbyists and partisans water it down to the point of uselessness), there are a few marginally-promising portions, like this bit tacked on to the end:

"6. Enhance competition. The Commission will look for opportunities to enhance Internet access competition. One obvious candidate for close examination was raised in Judge Silberman’s separate opinion, namely legal restrictions on the ability of cities and towns to offer broadband services to consumers in their communities."

Wheeler's talking about protectionist legislation that has been written by broadband ISP lobbyists, and passed in more than 20 states. Such bills generally prohibit a town or city from even voting to improve their own broadband infrastructure -- even in cases where no private ISP will. They're usually awful measures that strip away community rights to protect lumbering, uncompetitive duopolies, and many go so far as to even clamp down on public-private partnerships like Google Fiber. Granted "looking" at a problem isn't the same as fixing it, but even commenting on these awful bills is more than the FCC has done historically.

As this site as long argued, the FCC could protect neutrality by focusing on reasonable, balanced policies that increase broadband competition. What we've gotten instead is empty lip service, with a heavy focus on "digital equality," or shoring up broadband coverage gaps (safe ideas that play well politically and ISPs tolerate because it involves unaccountable subsidies and lazy government auditing). Competition and high prices are subjects the FCC refuses to seriously address (they even refuse to publicize broadband pricing data).

As for the FCC's dubious authority under Section 706 under the Telecommunications Act, it should be noted that there's a push afoot to begin "modernizing" the Act starting this year, potentially making the FCC's shaky footing even shakier. That process is expected to take several years, during which more than a little lobbying time and money will be spent on ensuring the revision erodes regulatory authority over broadband even further. As for any new FCC's new rules, they'll take a long time to craft (again), and you can expect ISP lobbyists to have a better view of the rule-making procedures than consumers or objective experts. The end result will be rules that look good but are hollow and theatrical in nature.

With the neutrality debate so toxic, a better route for the FCC would be to instead focus almost entirely on improving broadband competition to drive prices down and quality up. Unfortunately, while the FCC says all the right things about valuing competition, the agency doesn't want to rattle the slats of deep-pocketed campaign contributors like Comcast, AT&T and Verizon. As a result we get timid, murky policy that perpetuates the status quo, ultimately resulting in mediocre and expensive broadband. On the plus side, if you enjoy large numbers of people yelling at one another with few if any of them actually understanding what they're fighting about -- you're in luck!

Filed Under: fcc, isp, net neutrality, regulation
Companies: verizon

Rep. Eshoo Admits Her Net Neutrality Bill Nobody Thought Would Pass -- Won't Pass

from the spinnin'-wheel dept

Earlier this month we noted how a group of representatives responded to the death of the FCC's net-neutrality rules by introducing the Open Internet Preservation Act of 2014, a bill that aimed to simply bring back the FCC's net neutrality rules (and all of the problems within). The bill, backed by Anna Eshoo was apparently introduced solely as a public relation stunt, given that it had absolutely no chance of passing. After years of distortion, noise and confusion, net neutrality is such an immensely toxic topic in Congress that nobody wants to touch it, assuming Congress was functional enough to pass a bill in the first place.

Speaking with C-Span, Eshoo admitted the bill has no chance of passing. So why bother? According to Eshoo it was the principle of the thing:

"She suggested it was to make a point. "I think that setting a bill down in the Congress of the United States in the form that it is in really reflects millions and millions and millions of people in our country, and most frankly around the world, that want the Internet to remain accessible and open and free to them." She called that an important principle.

Except Eshoo's making the wrong statement on the wrong principles. The rules' dubious legal underpinnings aside, most of the people who recently lamented the death of network neutrality rules forgot, or never knew, that the rules didn't do much of anything useful to begin with. They were based on framework language from the likes of AT&T, Verizon and Google (from Eshoo's district), didn't meaningfully cover wireless networks, and contained a lot of loophole language that allowed for any number of discriminatory network behaviors -- just as long as the network operator proclaimed it was being done for the health and security of the network. The rules did ban outright blocking of content, but that's something no ISP is dumb enough to do anyway for fear of incurring real consumer protections.

It was effectively the industry's way of enshrining rules that had no real teeth but would prevent the introduction of tougher rules. That was, until Verizon decided to have their cake and eat it too -- suing the FCC in an attempted killing blow to erode FCC regulatory authority over broadband. That didn't work, and the resulting loss killed neutrality rules but in some ways left the FCC's ability to regulate broadband ISPs intact. All eyes are now on precisely what track new FCC boss (and former cable lobbyist) Tom Wheeler wants to take this train of dysfunction.

Eshoo might think she's helping by trying to resuscitate the carcass of busted, legally unsupportable and intentionally wimpy neutrality rules "on principle," but the only PR statement that was made was that nobody on either side of the net neutrality debate in Congress actually seems to be entirely aware of what they're fighting over.

Filed Under: anna eshoo, congress, fcc, net neutrality, regulation