H.R. 4682, The Open Internet Preservation Act, clearly states that legal content isn’t to be blocked. But I have to wonder about the claim that it prohibits ‘throttling,’ a term that isn’t used in the legislation. Instead, it reads “may not impair or degrade lawful internet traffic.” Is this the same as bandwidth management? I suspect that managing network degradation and managing bandwidth aren’t necessarily synonymous. After all, you can prioritize content with the use of data caps and zero rating. But could it also be done with bandwidth management, such as assigning less bandwidth to YouTube than one’s own steaming service? I wonder. And sawing away the FCC’s regulatory oversight would be just the thing to allow all sorts of inventive and quite reasonable network management strategies that ‘throttle’ startups and the competition. I’m skeptical that the legislation would prevent throttling, in the sense that it would prevent content from being shunted off to the slow lane.
Arcane that it is, my concern with the Email Privacy Act is that it specifically exempts congressional committee subpoenas. In the 114th Congress, six House committees adopted rules that authorized their chairs to unilaterally issue subpoenas, usually with a nod and notice given to the ranking minority representative. There is no judicial appeal of congressional subpoenas. This invites politically motivated fishing expeditions that can be abused by either party. Committees in the 115th Congress have been holding their organizational meetings and adopting their rules. The House default rule on subpoenas is approval by a committee’s majority, empowering the chair to issue subpoenas during any period in which the House has adjourned for a period of longer than three days, again with a nod to the ranking minority. Variously written, it would seem the number of committees in the 115th Congress that are empowering their chair to unilaterally issue subpoenas will be close to the number in the 114th. This looks like it'll includes the Committees on Energy and Commerce, Financial Service, Ways and Means, (which I understand has long provided their chair this power), Agriculture, Judiciary, and maybe Science, Space, and Science. Given the extreme and unhelpful partisanship in Congress, this is an issue more of us need to pay attention to.
I’m perhaps overstating the alarm over the loss of net neutrality by maybe giving the impression this will happen overnight. It likely won’t.
But consider Jeffrey Eisenach’s September 17, 2014 testimony before the Senate Judiciary Committee, where he lays out a very strong free-market argument against net neutrality. Specifically, he argues that in preventing paid agreements between ISPs and edge providers, edge providers are benefiting unfairly. This is “best understood,” he explained, “as an effort by one set of private interests to enrich itself by using the power of the state to obtain free services from another – a classic example of what economists term “rent seeking.” Need I add that Mr. Eisenach is one of president-elect Donald Trump's tech advisors?
And in the oral arguments of Verison v FCC you’ll find another strongly presented argument that in banning paid prioritization, the FCC is forcing a price of $0 on ISPs for the network access they provide edge providers. In response to a question by the court about what would happen if an edge provider refused to pay, the Verizon’s attorney said Verizon would want to reserve the right to refuse the edge provider access.
And in his dissent and objections to the current net neutrality rules, Commissioner Ajit Pai’s wrote (on page 2) that “For the first time, the FCC will regulate the rates that Internet service providers may charge and will set a price of zero for certain commercial agreements.” This is footnoted with the following:
“The Order bans paid prioritization, and as the Verizon court put it: “In requiring that all edge providers receive this minimum level of access for free, these rules would appear on their face to impose per se common carrier obligations with respect to that minimum level of service.” Verizon v. FCC, 740 F.3d 623, 658 (D.C. Cir. 2014). Setting a prospective rate of zero for a service is the very definition of ex ante rate regulation.”
Commissioner Ajit Pai will likely continue to serve on the FCC in 2017 and has been mentioned as its new chair.
Without the ban on throttling, blocking and paid prioritization, I believe the risk to the open Internet is real and not tin-foil folly; and that over time it can become something more akin to the original AOL, or an online, albeit commercial, library where selection, not censorship, shapes what’s available.
I agree, she's badly confused about the Internet and net neutrality. But her logic is in total congruence with the plans and preferences of ISPs given the likelihood net neutrality rules will be rolled back by the FCC under the Trump Administration.
First, the big-market ISPs will expand the prioritization of their own content, which they're already doing, in effect, with zero rating, data caps and the edge providers they've been buying up.
Second, they'll establish fee schedules for edge providers to access their networks. ISPs will operate their networks like cable providers and if major edge providers fail to pay up, they'll be blocked until they do.
And to the point of the article, consumer and politicians can be expected to pressure ISPs to block objectionable and extreme content and they will respond to these pressures. Because these 'last mile' networks will be owned and operated without net neutrality's level-playing-field rules, ISPs will claim that their First Amendment rights allow them to make editorial decisions.
The 'Fake News' sites of the day will get axed. And plenty of small businesses, non profits and personal blogs will wither on the vine as they get shunted to the slow lanes and face new sets of access fees from multiple ISPs.
The open internet is about to close unless a lot of us do something about it.
What is missed in this article, and what seems most important to me about this Notice of Proposed Rule Making, is how consumers would be given an opt-in right to control whether or not a broadband provider could share their network behavior with 3rd parties other than those providing broadband, telecom-related services, and for these, consumers would be given an opt-out right.
An interesting corollary to this, and to AT&T's practice of charging consumers to opt out of monetization their network behavior, is H.R. 2666, a vague and sweeping bit of legislation that prohibits the FCC from regulating broadband fees. If this were to become law, ISPs, would argue that they could charge consumers for opting out of their privacy rights and the FCC's hands would be tied. The legislation also threatens net neutrality because it would undercut the prohibition against fast lanes. Critics of net neutrality view this as ex ante fee regulation, forcing ISPs to set a price of $0 to connect edge providers to their customers. The House Energy and Commerce Committee votes on H.R. 2666 tomorrow, March 14, 2016.
That someone is paid to present a point of view that he or she is likely to agree with isn't terribly concerning, although their relevant association should absolutely be provided, and which in this case is Mr. Sununu role in supporting Broadband for America. But what caught my eye was the report that he's received $750K for serving as 'honorary co-chair.' Yikes!
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Is throttling, slow lanes, really prohibited?
A reservation with the Email Reform Act
Committees in the 115th Congress have been holding their organizational meetings and adopting their rules. The House default rule on subpoenas is approval by a committee’s majority, empowering the chair to issue subpoenas during any period in which the House has adjourned for a period of longer than three days, again with a nod to the ranking minority. Variously written, it would seem the number of committees in the 115th Congress that are empowering their chair to unilaterally issue subpoenas will be close to the number in the 114th. This looks like it'll includes the Committees on Energy and Commerce, Financial Service, Ways and Means, (which I understand has long provided their chair this power), Agriculture, Judiciary, and maybe Science, Space, and Science. Given the extreme and unhelpful partisanship in Congress, this is an issue more of us need to pay attention to.
(untitled comment)
But consider Jeffrey Eisenach’s September 17, 2014 testimony before the Senate Judiciary Committee, where he lays out a very strong free-market argument against net neutrality. Specifically, he argues that in preventing paid agreements between ISPs and edge providers, edge providers are benefiting unfairly. This is “best understood,” he explained, “as an effort by one set of private interests to enrich itself by using the power of the state to obtain free services from another – a classic example of what economists term “rent seeking.” Need I add that Mr. Eisenach is one of president-elect Donald Trump's tech advisors?
And in the oral arguments of Verison v FCC you’ll find another strongly presented argument that in banning paid prioritization, the FCC is forcing a price of $0 on ISPs for the network access they provide edge providers. In response to a question by the court about what would happen if an edge provider refused to pay, the Verizon’s attorney said Verizon would want to reserve the right to refuse the edge provider access.
And in his dissent and objections to the current net neutrality rules, Commissioner Ajit Pai’s wrote (on page 2) that “For the first time, the FCC will regulate the rates that Internet service providers may charge and will set a price of zero for certain commercial agreements.” This is footnoted with the following:
“The Order bans paid prioritization, and as the Verizon court put it: “In requiring that all edge providers receive this minimum level of access for free, these rules would appear on their face to impose per se common carrier obligations with respect to that minimum level of service.” Verizon v. FCC, 740 F.3d 623, 658 (D.C. Cir. 2014). Setting a prospective rate of zero for a service is the very definition of ex ante rate regulation.”
Commissioner Ajit Pai will likely continue to serve on the FCC in 2017 and has been mentioned as its new chair.
Without the ban on throttling, blocking and paid prioritization, I believe the risk to the open Internet is real and not tin-foil folly; and that over time it can become something more akin to the original AOL, or an online, albeit commercial, library where selection, not censorship, shapes what’s available.
The Congress Woman is more in tune with the times than you think
First, the big-market ISPs will expand the prioritization of their own content, which they're already doing, in effect, with zero rating, data caps and the edge providers they've been buying up.
Second, they'll establish fee schedules for edge providers to access their networks. ISPs will operate their networks like cable providers and if major edge providers fail to pay up, they'll be blocked until they do.
And to the point of the article, consumer and politicians can be expected to pressure ISPs to block objectionable and extreme content and they will respond to these pressures. Because these 'last mile' networks will be owned and operated without net neutrality's level-playing-field rules, ISPs will claim that their First Amendment rights allow them to make editorial decisions.
The 'Fake News' sites of the day will get axed. And plenty of small businesses, non profits and personal blogs will wither on the vine as they get shunted to the slow lanes and face new sets of access fees from multiple ISPs.
The open internet is about to close unless a lot of us do something about it.
Consumers would be given an opt-in (as MikeNyrgs)
An interesting corollary to this, and to AT&T's practice of charging consumers to opt out of monetization their network behavior, is H.R. 2666, a vague and sweeping bit of legislation that prohibits the FCC from regulating broadband fees. If this were to become law, ISPs, would argue that they could charge consumers for opting out of their privacy rights and the FCC's hands would be tied. The legislation also threatens net neutrality because it would undercut the prohibition against fast lanes. Critics of net neutrality view this as ex ante fee regulation, forcing ISPs to set a price of $0 to connect edge providers to their customers. The House Energy and Commerce Committee votes on H.R. 2666 tomorrow, March 14, 2016.
(untitled comment) (as MikeNyrgs)
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