Federal court strikes down FCC net neutrality rules

Smitty

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A federal appeals court has struck down important segments of the FCC's Open Internet rules, determining that the agency doesn't have the power to require internet service providers to treat all traffic equally. The DC circuit court has ruled on Verizon v. FCC, a challenge to the net neutrality rules put in place in 2010, vacating the FCC's anti-discrimination and anti-blocking policies, though it preserved disclosure requirements that Verizon opposed — in other words, carriers can make some traffic run faster or block other services, but they have to tell subscribers.

The problem isn't that the court opposed the FCC's goals, it's that unlike older telecommunications providers, ISPs aren't classified as "common carriers" that must pass information through their networks without preference. By enforcing net neutrality, the court found, the agency was imposing rules that didn't apply to carriers. It's an issue that net neutrality supporters have been worried about for years: "The FCC — under the leadership of former Chairman Julius Genachowski — made a grave mistake when it failed to ground its Open Internet rules on solid legal footing," says Free Press president Craig Aaron. "Internet users will pay dearly for the previous chairman's lack of political will."

Despite striking down parts of the rules, Judge David Tatel said that the FCC should have some authority to regulate service providers. The FCC justified its rules partly by saying that the Open Internet order promotes broadband development, an explicit agency goal. While opponents of net neutrality have said that there's little evidence these rules actually help, Tatel disagreed, saying that the idea was "both rational and supported by substantial evidence." Verizon also argued that Congress was responsible for passing regulations, but "although regulation of broadband Internet providers certainly involves decisions of great 'economic and political significance' ... we have little reason given this history to think that Congress could not have delegated some of these decisions to the Commission."

Notably, Tatel also agreed that striking down net neutrality could have negative effects on consumers. "The commission has adequately supported and explained its conclusion that absent rules such as those set forth in the Open Internet Order, broadband providers represent a threat to internet openness and could act in ways that would ultimately inhibit the speed and extent of future broadband deployment," he said, saying that broadband companies have "powerful incentives" to charge for prioritized access or to exclude services that competed with their own offerings.

Unfortunately for the commission, the particular rules it tried to make — anti-blocking and anti-discrimination measures — were expressly allowed only for common carriers. Despite the FCC's arguments, Tatel didn't think that the Open Internet rules were more permissive than common carrier standards, nor did he think that internet service providers could be counted as something besides carriers, an argument that could have opened the door to more regulations.

FCC chair Tom Wheeler said that the agency would continue the fight, though it's not clear exactly how. "I am committed to maintaining our networks as engines for economic growth, test beds for innovative services and products, and channels for all forms of speech protected by the First Amendment. We will consider all available options, including those for appeal, to ensure that these networks on which the Internet depends continue to provide a free and open platform for innovation and expression, and operate in the interest of all Americans."

Update: Verizon has responded to the decision, saying that the FCC could no longer "impose last century's common carriage requirements on the internet" and insisting that service will only get better.

From Verizon:

One thing is for sure: today's decision will not change consumers' ability to access and use the internet as they do now. The court's decision will allow more room for innovation, and consumers will have more choices to determine for themselves how they access and experience the internet. Verizon has been and remains committed to the open internet that provides consumers with competitive choices and unblocked access to lawful websites and content when, where, and how they want. This will not change in light of the court's decision.
 

Smitty

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I don't know if you guys have followed this thing at all but it sounds like this decision opens the door to some scary changes to the internet and how we use it.

However, I kind of agree that the FCC can't tell these companies what kind of service they have to provide us, that's their call. It's my understanding that this court decision says they can't be regulated that way because they aren't public utilities.

But on the flip side.... they do kind of have monopolies like public utilities. It seems to me that it's not a problem of whether the FCC should regulate these companies or not, but whether they should have pseudo-monopolies. Why don't I have more than one cable and internet provider option wherever I live?

That's the real problem here.
 

Smitty

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The Net Neutrality Battle Has Been Lost
... But now we can finally win the war.


By Marvin Ammori

The D.C. Circuit Court of Appeals just issued its long-awaited decision striking down the FCC’s network neutrality rule. This is the second time in four years that this court struck down the FCC’s attempt to adopt a network neutrality rule. It is now legal for AT&T or Verizon to block Slate, your blog, or any other site.

Even though the Internet touches every part of our lives, one person is to blame for potentially destroying its potential for innovation and freedom of expression: former FCC Chairman Julius Genachowski.

The court loss was even more emphatic and disastrous than anyone expected. But this defeat comes with a silver lining: It may force the new FCC chairman to act.

“Network neutrality” is sometimes called “Internet freedom” or “Internet openness” and is a legal principle that would forbid cable and phone companies like AT&T, Verizon, and Comcast from blocking some websites or providing special priority to others. It would forbid Comcast from blocking Facebook or Bing. It would forbid Verizon from, say, charging the Huffington Post for special service to load more quickly than Slate.

Without network neutrality, cable and phone companies could stifle innovation. Imagine if, years ago, MySpace or AltaVista had cut deals with cable companies to block Facebook and Google. Without network neutrality, telecom and cable companies could also stifle free expression. They’d have the legal right to block articles like this one.

The court today struck down the two most important net neutrality rules: one that prevented discrimination in favor of or against websites, and one against outright blocking. The only part left standing is the requirement that carriers disclose when they’re engaging in discrimination and blocking. But most users only have a choice between one cable company and one phone company, so the market alone can’t ensure network neutrality.



The war over network neutrality has raged for at least nine years and was even the centerpiece of Barack Obama’s technology agenda during the 2008 campaign. But it’s part of a broader history of fighting for freedom of expression for every new technology dating back to newspapers, telegraphs, radio, and television.

Everyone knew we were going to lose this case. In 2007 the American public discovered that Comcast, the nation’s largest cable provider, was blocking several basic, legal Internet technologies enabling peer-to-peer transactions. In response to complaints, the FCC ordered Comcast to stop. Comcast appealed to the D.C. Circuit, and that court ruled in 2010 that the FCC didn’t have the jurisdiction to act.

That decision, called Comcast v. FCC, made it clear what the FCC would need to do to have the jurisdiction to try again to enforce network neutrality. Congress gave the FCC the power to regulate “telecommunications services” (which many believe include the Internet services provided by cable and phone companies) but not “information services” (which everyone agrees includes Twitter, Google, and other services riding on top of the Internet lines). That is, the FCC can regulate cable and phone networks but not apps and websites. The deregulatory FCC of 2002, however, had a chairman who is now the head lobbyist for the cable industry, and he succeeded in removing regulations for the cable industry by classifying cable Internet as an “information service,” the category for Twitter and Slate. The court was unimpressed: If the FCC wanted to regulate cable companies but not Twitter and Slate, it had to put them in different categories, or else the FCC could start regulating Twitter and Slate.



On behalf of consumer groups and technology companies, I joined the FCC’s general counsel at the time in arguing that Comcast case back in 2010 before the D.C. Circuit. As with today’s ruling, it was disappointing when we lost that case, but at least we seemed to have a clear roadmap to fix the mess we were in. All the FCC had to do back in 2010 was clarify that Internet service offered by cable and phone companies is a “telecommunications service,” and to “reclassify” it as such. That would require reversing a few of the earlier orders but would have likely been upheld in court. And presto: Internet freedom preserved.

The FCC appeared poised to do just that. By the time the D.C. Circuit struck down the FCC’s Comcast order, however, the commission had a new chairman, a Democrat named Julius Genachowski. Genachowski was a former FCC lawyer who had been among the biggest fundraisers for his Harvard classmate Barack Obama. Even though there are five FCC commissioners, the chairman sets the agenda and largely controls the budget and staffing of the entire agency. So it was good news when Genachowski made a YouTube video explaining why he had to reclassify Internet services to ensure an open Internet and asked his general counsel to explain the legalities in a widely shared FCC blog post.

Even though he and his general counsel promised to reclassify Internet service, Genachowski essentially caved as the cable and phone companies unsurprisingly continued to oppose network neutrality. The do-nothing, gridlocked Congress failed to bail him out, so he cut a deal with AT&T a few months after the Comcast order back in 2010. The result of that deal: a network neutrality order issued in December 2010, which was struck down today, that was full of loopholes, including exemptions for the now-dominant way of accessing the Internet (mobile). Most importantly, he didn’t reclassify, so his order was essentially designed to collapse. (That is why AT&T has supported the order and never sued to oppose it.)

If this reminds you of the scene in the Harry Potter books when the coward Peter Pettigrew, who had immense power as James Potter’s secret-keeper, makes a deal with Voldemort and betrays the wizarding world, it should.

Those of us who had been involved with the net neutrality debate knew that, without reclassification, the flawed FCC order would never stand. But there were 100 ways it could have fallen. I thought that the court’s decision would be a baby-splitting half-loss that could enable the FCC to wipe its hands of network neutrality and pretend everything was A-OK.

I was wrong on that point. The loss was so definitive, the powers granted to cable and phone companies so outrageous, that the FCC has a live grenade in its lap.

Now, every side is settling on its narrative. AT&T, Verizon, and their allies will argue that the decision means network neutrality is illegal, full stop, and the FCC can never adopt an order. They will also argue that the FCC needs to go to Congress to get more authority. Both arguments are wrong, of course. The FCC has all the power it needs to clean up the mess, simply by doing what Genachowski—who, it must be said, is a very nice guy—knew he had to do but lacked the spine for.

The bigger question is what the FCC—and advocates of network neutrality—will do. The current FCC chairman, Tom Wheeler, is highly regarded, but some distrust him because he is the former head lobbyist of both the cable and wireless phone industries. He’s also made some statements suggesting he doesn’t understand or opposes network neutrality. Worse, there are those at the FCC who appear to see network neutrality as a brutal war that they would prefer to avoid if possible. Finally, Google, Netflix, Mozilla, eBay, IAC, and other tech companies that have long supported network neutrality seem to have lost a bit of their appetite for a fight. (I advise several technology companies but am not speaking for any of them here.)

The only people who remain completely committed to network neutrality and energized to defend it are consumer groups and average Americans who love the Internet. On Reddit, Facebook, and Twitter, people are asking how to reverse the decision and preserve Internet freedom. In Washington, though, having the American public on your side might not be enough to stare down the hundreds of telecom and cable lobbyists. That’s where the consumer groups come in. For many years, organizations like Free Press, the New America Foundation’s Open Technology Institute, Public Knowledge, and others have been active on this issue. (Disclosure: I’m affiliated with or have donated to all of them.) Now, they need to rebuild the coalition with tech companies serving millions of network neutrality supporters and organize the public for a fight—something that’s possible so long as Verizon and AT&T don’t exercise their newfound right to block any website they choose.

This article is part of Future Tense, a collaboration among Arizona State University, the New America Foundation, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture. To read more, visit the Future Tense blog and the Future Tense home page. You can also follow us on Twitter.
 

Smitty

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Net neutrality is dead. Bow to Comcast and Verizon, your overlords


By Michael Hiltzik

January 14, 2014, 3:05 p.m.

Advocates of a free and open Internet could see this coming, but today's ruling from a Washington appeals court striking down the FCC's rules protecting the open net was worse than the most dire forecasts. It was "even more emphatic and disastrous than anyone expected," in the words of one veteran advocate for network neutrality.

The Court of Appeals for the D.C. circuit thoroughly eviscerated the Federal Communications Commission's latest lame attempt to prevent Internet service providers from playing favorites among websites--awarding faster speeds to sites that pay a special fee, for example, or slowing or blocking sites and services that compete with favored affiliates.

Big cable operators like Comcast and telecommunications firms like Verizon, which brought the lawsuit on which the court ruled, will be free to pick winners and losers among websites and services. Their judgment will most likely be based on cold hard cash--Netflix wants to keep your Internet provider from slowing its data so its films look like hash? It will have to pay your provider the big bucks. But the governing factor need not be money. (Comcast remains committed to adhere to the net neutrality rules overturned today until January 2018, a condition placed on its 2011 merger with NBC Universal; after that, all bets are off.)

"AT&T, Verizon, and Comcast will be able to deliver some sites and services more quickly and reliably than others for any reason," telecommunications lawyer Marvin Ammori (he's the man quoted above) observed even before the ruling came down. "Whim. Envy. Ignorance. Competition. Vengeance. Whatever. Or, no reason at all."

The telecom companies claim their chief interest is in providing better service to all customers, but that's unadulterated flimflam. We know this because regulators already have had to make superhuman efforts to keep the big ISPs from degrading certain services for their own benefit--Comcast, for example, was caught in 2007 throttling traffic from BitTorrent, a video service that competed with its own on-demand video.

Amazingly, even after Comcast was found guilty of violating this basic standard of Internet transmission, the FCC greenlighted its acquisition of NBC, which could only give the firm greater incentive to discriminate among the content being pipelined to its customers.

ISPs like Comcast are only doing what comes naturally in an unregulated environment, the way a dog naturally scratches at fleas. "Cable and telephone companies are simply not competing for the right to provide unfettered, un-monetized internet access," wrote Susan Crawford, an expert on net neutrality, around the time of the Comcast case.

This wouldn't be as much of a threat to the open Internet if there were genuine competition among providers, so you could take your business elsewhere if your ISP was turning the public Web into its own private garden. In the U.S., there's no practical competition. The vast majority of households essentially have a single broadband option, their local cable provider. Verizon and AT&T provide Internet service, too, but for most customers they're slower than the cable service. Some neighborhoods get telephone fiber services, but Verizon and AT&T have ceased the rollout of their FiOs and U-verse services--if you don't have it now, you're not getting it.

Who deserves the blame for this wretched combination of monopolization and profiteering by ever-larger cable and phone companies? The FCC, that's who. The agency's dereliction dates back to 2002, when under Chairman Michael Powell it reclassified cable modem services as "information services" rather than "telecommunications services," eliminating its own authority to regulate them broadly. Powell, by the way, is now the chief lobbyist in Washington for the cable TV industry, so the payoff wasn't long in coming.

President Obama's FCC chairman, Julius Genachowski, moved to shore up the agency's regulatory defense of net neutrality in 2010. But faced with the implacable opposition of the cable and telecommunications industry, he stopped short of reclassifying cable modems as telecommunications services. The result was the tatterdemalion policy that the court killed today. It was so ineptly crafted that almost no one in the telecom bar seemed to think it would survive; the only question was how dead would it be? The answer, spelled out in the ruling, is: totally.

The court did leave it up to the FCC or Congress to refashion a net neutrality regime. The new FCC chairman, Tom Wheeler, has made noises favoring net neutrality, but he also sounds like someone who's not so committed to the principle.

In an important speech in December and a long essay released at the same time, he's seemed to play on both sides. But that won't work. The only way to defend net neutrality, which prioritizes the interests of the customer and user over the provider, is to do so uncompromisingly. Net neutrality can't be made subject to the "marketplace," as Wheeler suggests, because the cable and telephone firms control that marketplace and their interests will prevail. Congress? Don't make me laugh--it's owned by the industry even more than the FCC.

The only course is for public pressure to overcome industry pressure. That's a tough road, but there's no alternative. Do you want your Internet to look like your cable TV service, where you have no control over what comes into your house or what you pay for it? Then stay silent. If not, start writing letters and emails to your elected representatives and the FCC now. It's the only hope to save the free, open Internet.

http://www.latimes.com/business/hiltzik/la-fi-mh-net-neutrality-20140114,0,522106.story#ixzz2qThSTZSG
 

jsmith6919

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“Without broadband provider market power, consumers, of course, have options,” the court writes. “They can go to another broadband provider if they want to reach particular edge providers or if their connections to particular edge providers have been degraded.”
http://news.yahoo.com/u-appeals-court-kills-net-neutrality-152413671.html

This is such a load of crap, choices?? I can deal with TWC or get dsl which I don't consider a choice at all.
 

Smitty

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Yeah, that's the biggest problem, lack of competition in service providers.

That's a problem with cable too. I don't know why more effort isn't made to generate competition. Instead they'd rather make them public utilities that they can regulate the shit out of. Because that always works better than actual free market competition. :lol
 

dallen

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Yeah, that's the biggest problem, lack of competition in service providers.

That's a problem with cable too. I don't know why more effort isn't made to generate competition. Instead they'd rather make them public utilities that they can regulate the shit out of. Because that always works better than actual free market competition. :lol
Except now we get the best of both worlds: unregulated monopolies! WOO
 

jsmith6919

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One Frightening Chart Shows What You Might Pay For Internet Once Net Neutrality Is Gone
The Huffington Post | By Betsy Isaacson
Posted: 01/17/2014 7:33 am EST | Updated: 01/17/2014 10:50 am EST

A graphic making its rounds on the web this week offered a glimpse of what the Internet might look like if net neutrality disappears. The takeaway? Not good.

A federal appeals court on Tuesday struck down an Federal Communications Commission order that required Internet service providers to abide by the rules of “net neutrality.” ISPs had previously been forced to treat all types of web traffic equally -- meaning providers couldn’t block some sites or speed up loading times for others. Tuesday's decision means corporations can now block or slow down loading times for pages they don’t like, or could charge businesses a fee to have their pages load more quickly -- or at all.

Now, consumers looking to get Internet access might be met with something like this hypothetical set of pricing options like this, pointed out by Buzzfeed earlier this week:



This graphic was created by Reddit user quink, who wanted to illustrate what happens if net neutrality disappears. Originally created when Comcast tried to appeal the FCC's right to enforce net neutrality in 2009, the graphic is experiencing a renaissance in relevance after the ruling this week.

Though the FCC could try to rewrite its rule or appeal the decision, in the meantime ISPs like Comcast, Verizon, AT&T and Time Warner Cable are free to make deals with companies promising quicker content delivery in exchange for payment -- essentially creating Internet "fast lanes" for wealthy companies and making their websites easier to access than those of nonprofits, activist groups and smaller competitors.

Quink's graphic shows web-based service offerings (offered by the fictional TELCO ADSL) that look suspiciously like cable bundles. Very, very basic Internet is offered for a "starter" price of $29.95, while popular sites are bundled together and offered as optional add-ons for $5 to $10. As costs add up, people in quink's world are left with tough choices -- choosing, for instance, between access to online marketplaces and access to the news.

As for smaller sites? In quink's hypothetical world without net neutrality, they're out of luck. Any sites outside the bundles might count towards a data cap, while sites in the bundles wouldn't, or small sites might just load really, really slowly.

Presumably, websites that want to be included in "bundles" would have to pay providers like TELCO for the privilege. It may sound crazy, but it's the future envisioned by experts who talk about what the end of net neutrality might mean for small businesses.

The really remarkable thing about quink's graphic, though, is how very much it looks like the current state of cable television. For an example, we pulled a screenshot of the current Time Warner Cable options for customers in Manhattan. Each subscription option contains a bundle of channels, like so:



"Information shouldn't become a luxury," Todd O’Boyle, program director of the liberal advocacy organization Common Cause, told The Huffington Post earlier this week. And yet it's clear that at least as far as the purveyors of cable television are concerned, information is a luxury -- and one that should be paid for. Those who subscribe to Time Warner Cable's expensive "Preferred TV" bundle get access to all the TV news channels, while subscribers to Time Warner's relatively bare-bones "Starter TV" bundle must content themselves with C-SPAN and Time Warner Cable News NY1.

Will the end of net neutrality see ISPs imitating cable companies? It seems likely, given that many ISPs already are cable companies.

The more pressing question is whether the FCC and the federal government will allow this to happen. Some commentators, like the Atlantic's Kevin Werbach, believe the D.C. Circuit Court's ruling will simply pave the way for better enforcement of net neutrality in the future. We certainly hope he's right.

http://www.huffingtonpost.com/2014/01/17/net-neutrality-gone_n_4611477.html
 
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