Law in Plain English: Verizon v. FCC

This is one in a series of posts designed to describe court decisions in plain English. For similar posts, click here.

To see the full text of Preserving the Open Internet, click here. For a previous discussion of the net neutrality issue when Preserving the Open Internet was released in December 2010, see here. To see all of my posts tagged with net neutrality, click here.


Docket No.: 11-01355

Argument: September 9, 2013 (Audio)

Discussion: In Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010), the D.C. Circuit vacated the Federal Communication Commission’s first effort to effect regulation of broadband Internet service through a set of rules known collectively as "net neutrality." The Court ruled that the FCC, in promulgating the rules, exceeded its statutory authority. Later that year, the FCC passed Preserving the Open Internet, 25 F.C.C.R. 17905 (rel. Dec. 23, 2010), 76 Fed. Reg. 59192 (Sept. 23, 2011) (“Order”). Verizon alleges that the FCC again has exceeded its statutory authority. On the other hand, the FCC rested its authority in Sections 706(a) and 706(b) of the Telecommunications Act of 1996, which "encourage[s] the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans,” and allows the Commission to "take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market” if reasonable and timely” deployment is not occurring.

Issue: The questions before the DC Circuit are: (1) whether the Order imposes common-carriage requirements on services that are statutorily exempt from such requirements or otherwise exceeds the FCC's statutory authority; (2) whether the Order is unconstitutional; and (3) whether the Order is arbitrary and capricious.

Holding: TBD

Opposed to SOPA/PIPA? What about Net Neutrality?

Today's SOPA/PIPA (herein referred to simply as SOPA) blackouts are raising awareness of the issue. Most of the opposition to SOPA are what I call process arguments. What I mean by that is that most people don't necessarily object to the intent of the legislation, which is to prevent the spread of copyrighted works online. Rather, they object to the process and procedure: the proposed solution is too broad, it won't work, it will break DNS security, it will silence legitimate speech, it will cost businesses, etc. All of these are real and serious objections, but they're largely objections to unintended consequences, not to intent. Much of the opposition is also based upon the very real belief that many people in Congress don't know much about what they're legislating. In fact, some members of Congress seem to take pride in their technological knownothingness.

The real focus of the objection, from my perspective, is the inability of a technologically-inept Congress to translate intent into action without breaking everything else along the way. It is no wonder that this goes hand in hand with the level of trust people have in Congress. Your gut reaction is "get away from my Internets!"

How people can be so outraged over SOPA and at the same time, think net neutrality is just fine, is a mystery to me. Most of the arguments against SOPA, as I stated above, are process arguments, and they work equally well (or better) against net neutrality. Like SOPA, most people don't have any problem with the stated intent of net neutrality; in fact many believe it is an admirable goal. But those same people who fear the heavy-handed involvement of government in SOPA are perfectly OK with the involvement of government in net neutrality.

From a process perspective, people ought to be even more outraged about net neutrality. The FCC net neutrality rules were enacted without congressional authorization, in clear violation of a Court of Appeals ruling that gave them the smackdown. A bunch of political appointees and unelected bureaucrats at the FCC are making rules about the Internet without authorization from Congress. Even many of those in Congress who support net neutrality have warned the FCC to no avail. Imagine SOPA being enacted without a vote in Congress. That's precisely what happened with the FCC's net neutrality rules.

It is perhaps more difficult to clarify the unintended consequences arguments against net neutrality because both sides have already jumped the shark in painting ridiculous consequences. Additionally, those consequences will be felt primarily by businesses (the ISPs), not individuals, so the impact is certainly muted.

That being said, theoretically we're still entrusting net neutrality to Congress (even if the FCC doesn't want to play along). The technologically-inept Congress that will break the Internet with SOPA is the same Congress that wants to regulate the Internet via net neutrality. Why do you trust them on one hand and not on the other?

I know what you're thinking; SOPA and net neutrality are like apples and oranges, right? Sort of. The problem with this thinking is that people aren't arguing about the apple or the orange itself, only about the circumstances of how it got here. But they're both fruit, and for our purposes, that's all that matters.

In short: if your opposition to SOPA is based upon the process, procedure, and unintended consequences, you ought to reconsider why you're not also opposed to net neutrality. Why is your gut reaction to net neutrality not the same as it is to SOPA?

2011 predictions update

Everyone makes predictions for the upcoming year, but how many people go back and actually score themselves?

1. The Supreme Court will reverse the Ninth Circuit in Wal-Mart v. Dukes.
TRUE

2. Judge Roger Vinson of the U.S. District Court for the Northern District of Florida will find the health care reform law to be unconstitutional.
TRUE

3. The FCC will approve new net neutrality rules (that will probably happen in the next week or so), but the federal courts will find that this oversteps their authority (again).
PARTIALLY TRUE (case is still pending)

4. At least one politician (state legislator or above) will resign when a video of their misconduct goes viral.
Thankfully, we didn't get video of Weiner's weiner, but he did resign. PARTIALLY TRUE

5. North Korea's Kim Jong-il will die and his son, Kim Jong-un, will take over.
TRUE and TRUE

6. At least one Philadelphia sports team will make it to the Super Bowl, NHL Finals, or World Series.
FALSE (unfortunately)

7. Patriots' QB Tom Brady will win the NFL MVP and Eagles' QB Michael Vick will finish second.
TRUE (Note: Brady was unanimous; there was no second place)

8. Baltimore (BWI) will record less than 30 inches of snowfall this winter (please)
TRUE (I think the official number was 18-19 inches)

9. I will get accepted to law school (please) and actually go this time!
FALSE (long story)

10. Stuxnet's creator(s) will be revealed (total guess).
FALSE

And one more for the road that I am most certain of:

DEFCON19 will be canceled.
Always TRUE

Top ten update

With the news this morning that Wal-Mart succeeded at the Supreme Court in having the Dukes class action suit dismissed, it's time to update the top ten predictions for 2011. Here's a look back at the predictions with updates:


1. The Supreme Court will reverse the Ninth Circuit in Wal-Mart v. Dukes. YES

2. Judge Roger Vinson of the U.S. District Court for the Northern District of Florida will find the health care reform law to be unconstitutional. YES

3. The FCC will approve new net neutrality rules (that will probably happen in the next week or so), but the federal courts will find that this oversteps their authority (again). YES and NO

4. At least one politician (state legislator or above) will resign when a video of their misconduct goes viral.  YES and NO (Chris Lee and Anthony Weiner have both resigned, but over pictures and not video)

5. North Korea's Kim Jong-il will die and his son, Kim Jong-un, will take over. NO

6. At least one Philadelphia sports team will make it to the Super Bowl, NHL Finals, or World Series. NO (only the Phillies are left)

7. Patriots' QB Tom Brady will win the NFL MVP and Eagles' QB Michael Vick will finish second. YES (Brady was unanimous)

8. Baltimore (BWI) will record less than 30 inches of snowfall this winter (please) YES (14.4 inches)

9. I will get accepted to law school (please) and actually go this time! NO (wait-listed, blah!)

10. Stuxnet's creator(s) will be revealed (total guess). NO


And of course, the bonus prediction: DEFCON19 will be canceled. YES :-)

House Passes Amendment to Block Funds for Net Neutrality Order

From NationalJournal.com:

The House passed an amendment Thursday that would bar the Federal Communications Commission from using any funding to implement the network-neutrality order it approved in December.

The amendment, approved on a 244-181 vote, was offered by Energy and Commerce Communications and Technology Subcommittee Chairman Greg Walden, R-Ore., to legislation that would fund government agencies for the rest of fiscal year 2011.

Walden and other critics of the FCC's net-neutrality order argue it will stifle innovation and investment in broadband. The order aims to bar broadband providers from discriminating against Internet content, services, or applications.

Net neutrality and the Fairness Doctrine

While I came to this comparison independently, a quick search of Google finds that many others have come to similar conclusions.  I say similar conclusions, and not the same conclusions, because I don't consider net neutrality to be the Internet version of the Fairness Doctrine.  Rather, I think the concepts are similar and worth exploring.  Let's take a quick review before we get to the conceptual similarities.  From Wikipedia:

The Fairness Doctrine was a policy of the United States Federal Communications Commission (FCC), introduced in 1949, that required the holders of broadcast licenses to both present controversial issues of public importance and to do so in a manner that was, in the Commission's view, honest, equitable and balanced. The 1949 Commission Report served as the foundation for the Fairness Doctrine since it had previously established two more forms of regulation onto broadcasters. These two duties were to provide adequate coverage to public issues and that coverage must be fair in reflecting opposing views.

The Fairness Doctrine was subject to longstanding criticism, and was eventually repealed in the 1980s; yet attempts to legislate the doctrine have been introduced on numerous occasions since then.

And now, net neutrality:

Network neutrality is a principle proposed for users' access to networks participating in the Internet. The principle advocates no restrictions by Internet service providers and governments on content, sites, platforms, the kinds of equipment that may be attached, and the modes of communication...In the US particularly, but elsewhere as well, the possibility of regulations designed to mandate the neutrality of the Internet has been subject to fierce debate.

Before we go any further, let's acknowledge upfront that both the Fairness Doctrine and net neutrality are complex and controversial issues, and that it is impossible to properly define them in the space of a paragraph (despite the fact that it's precisely what I have tried to do!).  However, as a matter of concept, purpose, and intent, I think we can fairly characterize each:

• The Fairness Doctrine was government regulation, via the FCC, over radio to mandate a level of balance and/or equality in content.  
• Net neutrality is government regulation, via the FCC, over the Internet to mandate neutral treatment over content.

Both are government regulations written by, and enforced by the FCC.  In both cases, the policies were written and implemented by the FCC, not Congress. Both control mediums where the expression of free speech is central.  Both place the government (in the form of the FCC) as the arbiter of such speech by its view of what is equal or neutral.

Now, the differences: the radio spectrum is limited in nature, the Internet very much less so.  The Fairness Doctrine was about equality in content, about ensuring fairness in opposing views.  In other words, if you air a segment that is pro-life in nature, you should air something similar that is pro-choice.  As a policy, the Fairness Doctrine required the broadcasters to be an active participant in airing opposing views.  Net neutrality, on the other hand, is about ensuring that content is not treated differently.  Conceptually, net neutrality does not impose restrictions on types of content, or requirements that certain content must be presented in a fair or equitable manner.  As a policy, net neutrality requires ISPs to step back and refrain from participating in content discrimination.

Unfortunately, the comparison of these issues has been poisoned by both sides of the political spectrum.  U.S. Representative Marsha Blackburn (R-TN) said, "Net neutrality, as I see it, is the fairness doctrine for the Internet."  Rush Limbaugh said, "[t]he easiest way to understand [net neutrality] is to think of a Fairness Doctrine for the Internet."  And then of course, whatever Rush Limbaugh says becomes a sound bite his opponents.  Those opponents have adopted Doomsday scenarios, that the failure to pass net neutrality would be (and I use their quote): "the end of the Internet as we know it."  

The truth, of course, is probably somewhere in the middle of these two extremes.  My concern is that from my perspective, the weight of the similarities is heavier than the weight of the differences.  One branch of the government is using its regulatory powers to enforce its own notion of equality, neutrality or fairness.  Neither scheme was specifically authorized by legislation (although, in the case of the Fairness Doctrine, there was little doubt that the FCC had the authority; on the other hand, serious questions exist regarding the FCC's authority or lack thereof, to regulate the Internet).  I have argued that the process by which net neutrality is being enacted, is as important (or perhaps even more so) as whether or not it is enacted.  In the same vein, I have made the point that some of the supposed net neutrality violations are not really the case.

It seems to me that the nature of our short attention spans indicates that sound bite comparisons to the Fairness Doctrine are probably not fair (no pun intended) without explaining that there are legitimate differences between the two policies.  Nevertheless, these issues are not going away, and will only grow in importance.  News abroad in Egypt has revived the domestic "Internet kill switch" which will only serve to ripen the debate of these critical issues.

Net neutrality vs. the "Internet kill switch"

I have previously written at some length about net neutrality.  Without rehashing much of that, it should suffice to say that one of the main issues surrounding the issue of net neutrality is the authority of the FCC to regulate the Internet (the FCC classifies the Internet as a Title I information service and not a Title II common carrier).  Thus far, Congress has not acted; despite this, the FCC asserted authority to regulate the Internet and issued a net neutrality order (PDF) on December 21st.

Another issue which became newsworthy in the past year or so was the Protecting Cyberspace as a National Asset Act of 2010, introduced by Senator Lieberman (I-CT).  While this bill did not advance in the last Congress, it will undoubtedly be renewed.  By its own description, the bill

[c]reates the Office of Cyberspace Policy and National Center for Cybersecurity and Communications to set standards and coordinate cybersecurity efforts within the government. Gives the NCCC broad powers over "critical infrastructure" in the case of a "national cyber emergency" (as declared by the President).

The "broad powers" over "critical infrastructure" given to the President and the NCCC have been termed a supposed "Internet kill switch."

The bill and the kill switch rhetoric rose to new importance in the past week as events in Egypt have unfolded, amid news reports that the Egyptian government was blocking access to, or otherwise obstructing the Internet.  PC Magazine then raised the question: After Egypt, Will U.S. Get 'Internet Kill Switch'? which was cited by the Demand Progress campaign to fight the Internet kill switch.  This campaign is actively opposed to Senator Lieberman's bill.

Personally, I think it is interesting to see these two issues ripen at the same time.  On one hand, implementation of meaningful, enforceable net neutrality requires Congress to grant the FCC power to regulate the Internet.  On the other hand, in the case of Senator Lieberman's bill, handing the government "broad powers over 'critical infrastructure'" (the bill's words) is seen as "an affront to basic democratic principles, the First Amendment, and all that is great about America" (Demand Progress's words).

To be sure, I don't suggest that these two situations are equal, but there is a slippery slope there.  Handing regulatory control of the Internet to the FCC in one realm could encourage the government to grab hold in other realms.  And to be sure, Senator Lieberman's bill (as a separate grant of authority to the NCCC rather than the FCC) wouldn't even require any sort of net neutrality legislation to be in place; but it may certainly be emboldened by it.  It seems to me that even the FCC's current overreach, absent Congressional authorization, has to give other regulatory bodies the envious thoughts of control.

Organizations such as the EFF and ACLU support net neutrality, but oppose the kill switch legislation.  These organizations, and anyone who shares the same positions, are certainly entitled to them.  But I think it becomes important for them to distinguish why you support one, but oppose the other.  In discussing the issue with me on Twitter, @no_structure said "the kill switch is indiscriminately destructive but regulation is not, nor is regulation guaranteed to be destructive at all."  He argued that he was "concerned" about the potentially for a slippery slope, but not "deterred" by it.  I think this is a reasonable position, but these other organizations ought to distinguish the issues themselves, too.

My concern, even with this reasonable position, is the soft despotism that de Tocqueville wrote about:

It covers the surface of society with a net-work of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd. The will of man is not shattered, but softened, bent, and guided: men are seldom forced by it to act, but they are constantly restrained from acting: such a power does not destroy, but it prevents existence; it does not tyrannize, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to be nothing better than a flock of timid and industrious animals, of which the government is the shepherd. I have always thought that servitude of the regular, quiet, and gentle kind which I have just described, might be combined more easily than is commonly believed with some of the outward forms of freedom; and that it might even establish itself under the wing of the sovereignty of the people. Our contemporaries are constantly excited by two conflicting passions; they want to be led, and they wish to remain free: as they cannot destroy either one or the other of these contrary propensities, they strive to satisfy them both at once. They devise a sole, tutelary, and all-powerful form of government, but elected by the people. They combine the principle of centralization and that of popular sovereignty; this gives them a respite; they console themselves for being in tutelage by the reflection that they have chosen their own guardians. Every man allows himself to be put in leading-strings, because he sees that it is not a person or a class of persons, but the people at large that holds the end of his chain. By this system the people shake off their state of dependence just long enough to select their master, and then relapse into it again. A great many persons at the present day are quite contented with this sort of compromise between administrative despotism and the sovereignty of the people; and they think they have done enough for the protection of individual freedom when they have surrendered it to the power of the nation at large. This does not satisfy me: the nature of him I am to obey signifies less to me than the fact of extorted obedience.

de Tocqueville's slippery slope is so imperceptibly shallow that we may not notice the slope at all.  We may recognize the kill switch as far enough along that we can perceive the difference.  But regulation of the Internet via net neutrality seems clearly much closer to our current position.  It may be only slightly further down the slope, but down the slope it is.

Our important distinction will be where to draw the line such that we no longer push ourselves down the slope.  Let us hope that we can even recognize when we're there, and not simply be content to redraw the slope every time we take a step.

Perhaps a technicality, but MetroPCS plan is not a net neutrality violation

I wrote a few weeks ago about how MetroPCS offered a new wireless plan, and that net neutrality advocates had already complained about it to the FCC.  I wrote then that:

[i]t is unclear whether or not this is a violation, but it's certainly a bold move if MetroPCS is basing their decision on reasonable network management. This is especially so in light of the FCC's focus on technology in determining what is and isn't reasonable. The evolution to 4G, as the FCC notes (PDF, paragraph 95), "puts greater pressure on the concept of 'reasonable network management' for mobile providers..."

It turns out that the issue doesn't even go that far.  The only MetroPCS phone capable of working on these 4G plans is the Samsung Craft which isn't really even a smartphone.  It would be more accurately referred to as a feature phone.  Semantics?  Not really.  There is a difference.  According to the FCC's net neutrality order (paragraph 49), "[m]obile broadband Internet access includes services that use smartphones as the primary endpoints for connection to the Internet."  And the FCC recognizes the difference between smartphones and feature phones, as FCC Commissioner McDowell's dissenting statement acknowledges.

Feature phones have limited operating systems that support a more limited functionality than smartphones.  The Samsung Craft supports a YouTube widget (their terminology) and access to some social networking sites like Facebook.  And while I admit it is not all that clear, the manual seems to suggest that the MetroWEB browser is a rather limited functionality browser.  Some video is available via a MetroSTUDIO widget, but it's not capable of supporting Netflix, Skype, or a whole host of other services (although, again, I admit that this is not clear).

So it would be incorrect to say that MetroPCS is blocking access to certain websites or services; more realistically, the plans in question are coupled to a feature phone (not a smart phone) that is not capable of supporting these services.  It may be as simple as "there's no app for that" or it may be that the phone's limited operating system does not support some functionality that these applications require.  Either way, it's not a matter of blocking, but rather, not supporting.  This is an important distinction, because MetroPCS would not be explicitly blocking certain content; only providing a phone that has limited functionality.  You may argue that the result is the same, but would a net neutrality proponent argue that all phones must have a certain level of functionality? I would think not.

FCC challenges app makers to protect open Internet

From Reuters:

U.S. regulators are asking software developers in an 'Open Internet Challenge' to create apps that let Internet users know when their service provider -- fixed or mobile -- is interfering with content.

The U.S. Federal Communications Commission (FCC) is trying to get consumers to help police Internet service providers for network management abuses such as slowing bandwidth-hogging content from movies.

The wants to spur the deployment of innovative technologies to protect the openness of the Internet.

The FCC adopted Internet traffic rules last month that ban landline Internet providers such as Comcast Corp and Verizon Communications Inc from blocking lawful traffic or discriminating against bandwidth-heavy content.

If you want to follow the net neutrality money, follow all the money

This spreadsheet purports to show, as its title suggests, "The Money Behind Blackburn's Anti-Neutrality Bill." This is a reference to Rep. Marsha Blackburn's bill H.R.96 "To prohibit the Federal Communications Commission from further regulating the Internet."  The spreadsheet shows the bill's 59 co-sponsors along with a tally of donations from AT&T, Koch Industries, Comcast, Verizon, NCTA, Qwest, and the U.S. Chamber of Commerce. Obviously, AT&T, Comcast, Verizon, and Qwest are involved in the telecommunications industry. The National Cable and Telecommunications Association (NCTA)  is an industry group, and the U.S. Chamber of Commerce is a pro-business organization. Unless I am mistaken, Koch Industries is not directly involved in the telecommunications industry, but is associated with its founders, the Koch brothers, who are well-known contributors to a variety of conservative causes.  So, a small objection here: including this money as "telecom" money isn't really accurate.  It would be the equivalent of picking an unrelated union and including their contributions among the net neutrality supporters.  But that's a fight for another day, as it has little significance on the outcome.

This information on this spreadsheet comes from (and directly links to) Open Secrets, a website that tracks political contributions. It is important to note the disclaimer regarding these contributions:

The organizations themselves did not donate, rather the money came from the organization's PAC, its individual members or employees or owners, and those individuals' immediate families. Organization totals include subsidiaries and affiliates.

The spreadsheet does explicitly include this disclaimer, but curiously not the phrase, "[t]he organizations themselves did not donate..." which is bold, red, and italicized on Open Secrets.

It is also important to note that these contributions go back as far as 1989; these totals are not "new" contributions specifically related to this bill, but the cumulative amounts over (for most of the co-sponsors) multiple terms.  Also, all of this money is reported for 2010 and earlier, so no reporting of new money has yet taken place.  Yet Blackburn's bill was only introduced this month.

Still, it attempts to show that money from the telecommunications industry is funneled to (mostly) Republican candidates who are attempting to prevent the FCC from regulating net neutrality (the conservative Democrat Dan Boren is a co-sponsor).

But what about those in Congress who explicitly support net neutrality legislation? What does their money trail look like? Let's take our first example, Rep. Henry Waxman (D-CA), who introduced a strong pro-net neutrality bill last session.  Using the same Open Secrets data, we find among Rep. Waxman's top 20 contributors:

Time Warner $63,000
NCTA $47,000
AT&T $44,000

These $154,000 in contributions alone would place Waxman 6th on the list of Blackburn's co-sponsors.

The former Senator Ted Kennedy (D-MA), a strong supporter of net neutrality, amassed aover $150,000 solely from Time Warner and Verizon.

The largest recipient of money from the telecommunications industry in the 111th Congress? Rep. Rick Boucher (D-VA), a supporter of net neutrality, who received $98,400 in just one session (2009-10).

While net neutrality is not necessarily a purely partisan issue, you'll find that generally speaking, Democrats tend to support legislation to regulate net neutrality, while Republicans tend to oppose it.  But, when you look at the party breakdown of total contributions from the telecommunications industry during the 111th Congress, the money is nearly 50/50 to both parties.

I agree that it's important to follow the money in order to help establish connections.  But to suggest that years of contributions to just one side of an issue represents the money behind a bill only introduced this month is stretching this connection beyond all recognition.  This approach is also simplistic because it supposes that net neutrality is the only issue of importance to telecom donors.  Additionally, following the money on one side without regard for the other misuses the data.  Money from the telecoms is headed, more or less equally, to both sides of the net neutrality debate, and ignoring one side of the money trail to advance a position on the other side is disingenuous.

MetroPCS and Net Neutrality

From Ryan Singel at Wired.com's Epicenter blog:

MetroPCS, the nation’s fifth largest mobile carrier, announced earlier this week it was offering new pay-as-you-go mobile data plans for its 4G network that would block online video streaming — except for YouTube — for its lowest level plan, and for all plans, block the use of internet phone calling apps.

While the company says the plans are intended to give customers the choice of levels of service, the plans look to be in conflict with the FCC’s new net neutrality rules. Those controversial rules, passed just before Christmas, prohibit mobile carriers from blocking access to websites or “blocking applications that compete with the provider’s voice or video telephony services, subject to reasonable network management.”

It is unclear whether or not this is a violation, but it's certainly a bold move if MetroPCS is basing their decision on reasonable network management. This is especially so in light of the FCC's focus on technology in determining what is and isn't reasonable. The evolution to 4G, as the FCC notes (PDF, paragraph 95), "puts greater pressure on the concept of 'reasonable network management' for mobile providers..."

It seems to me that providers (especially mobile providers, who have a bigger loophole in the FCC's net neutrality rules) are going the route of being intentionally aggressive in order to push the limits of reasonable network management, to force the issue into the courts. As I said previously, much of this litigation will be centered around what is reasonable, which is "perhaps the most litigated word in American history."

Shmoocon Firetalks CFP submission

Title: Net Neutrality, the FCC, and the End of the Internet as We Know It (in 15 Minutes or Less)

Abstract: On December 21, 2010, the FCC adopted "net neutrality" rules by a closely-watched 3-2 vote.  But whether or not you support the idea of net neutrality, other questions remain: First, was the process transparent? And more importantly, why did the FCC act despite the warnings of Congress and despite the Comcast decision, both of which claimed that that FCC lacked such authority?  This lighting-fast discussion will cover the basics of net neutrality, the role of the FCC in regulating the Internet, and the future legal and policy implications of the FCC's neutrality rules. Is the future of the Internet really at risk?

Now that it matters, where is the EFF on net neutrality?

Update: Of course, just as I post this, the EFF posts an update.  Still, it is not nearly the statement I am hoping to hear from them.  They soon need to move on from a "wait and see" attitude to forceful opposition to the process.

The Electronic Frontier Foundation has long been a supporter of the concept of net neutrality.  Yet on May 3rd, Fred von Lohmann of the EFF wrote an article entitled "Net Neutrality: FCC Trojan Horse Redux." In the article, he argued that basing the FCC's proposed net neutrality rules on the FCC's "mandate from Congress to deploy broadband to all Americans in a timely manner" is "a bad idea, no matter what your views of the wisdom of the FCC's proposed net neutrality regulations."  He went on to say:

Whatever your views on net neutrality, this is a terrible idea. If you oppose the proposed FCC net neutrality regulations because you are worried about expansive federal regulation of the Internet, then you should oppose an expansive reading of "Title I ancillary authority," because that reading would be an invitation for even more federal regulations down the road.

The quote above about deploying broadband to all Americans in a timely manner is from Section 706 of the Telecommunications Act of 1996.  This is what the EFF called a "terrible idea," and this is precisely the authority the FCC is asserting (see paragraph 117 of the FCC net neutrality order).

To be fair, this article seems to mix Section 706 and "Title I ancillary authority" into the same bucket, and the FCC's new net neutrality rules seem to drop "Title I ancillary authority" in favor of Section 706 (and a hodgepodge of other supposed authority).  But the general idea is the same--the FCC is basing their claims of authority on terrible legal ground.

One would assume then that the EFF still thinks this is a terrible idea.  The problem is that they have been largely silent.  The EFF's "Deeplinks Blogs related to Net Neutrality" has been quiet since December 8th.  The only news is an article by Abigail Phillips entitled, "Genachowski Wins on Net Neutrality, Sort of" which spends precisely one paragraph on the "bad" and "terrible" idea, but this time simply calls the FCC's basis for regulation "disconcerting."

The EFF supports the concept of net neutrality, but the arguments made by Fred von Lohnmann are precisely the same procedural arguments that I have made against net neutrality.  Arguing the substance of the regulations is fine, as I have already done here, but when the entirety of that substance is based upon a "rotten legal foundation" (the EFF's words, not mine), you would think they would come out more forcefully against the process.

The EFF said back in May: "we don't think that the FCC has—or should have—broad powers to regulate the Internet for any reason..."  I agree. I know it's the holiday season and things are slow everywhere, but as the New Year begins I hope we can expect a strong and forceful statement from the EFF against the FCC's net neutrality rules.

Do we really even need net neutrality?

In my post responding to Michael Ciarlo's "A Guide to the Open Internet," my reply was primarily one of procedural objections to processs by which net neutrality regulations were being adopted; while this post is primarily one of substantive objections to the regulations themselves.

I mentioned that one of his motivations for arguing for net neutrality was his personal experiences.  He was unable to access ESPN3 on XBOX Live because ESPN didn't have a specific agreement with his ISP, Time Warner Cable.  He felt (perhaps justifiably so) that Time Warner shouldn't be blocking content between XBOX Live and his console just because he didn't subscribe to ESPN3.

As I stated in my reply, I was and am sympathetic to his circumstances.  But I also argued that these instances were few and far between, and largely solve themselves.  I cited, for example, Comcast's interference of p2p traffic.  Despite the Court of Appeals ruling in Comcast's favor, and as a result having no FCC regulations requiring them to do so, and despite having no other legal requirement to do so, Comcast agreed to stop interfering in such traffic.  Net neutrality did not solve this problem.

Mr. Ciarlo's cause célèbre will soon go the same way.  Back in September Time Warner agreed to bring ESPN3 to mobile devices and PCs, and it appears that this will soon extend to XBOX Live (perhaps even within the next few weeks).  Net neutrality did not solve this problem.

Perhaps the market forces are not as swift as we would like, but neither of these cases took the hammer of government regulations to solve.  Furthermore, there is no guarantee that a government-regulated net neutrality framework would solve these problems any quicker than the market.  The current net neutrality rules specify a complaint process involving the FCC, but that could easily spillover into the courts over the "reasonable" nature of an ISP's network management practices.  As FCC Commissioner McDowell said (pdf): "'Reasonable' is  a subjective term...[I]t is...perhaps the most litigated word in American history..."

The other case he cites is the  Fascinate phone locked to the Bing search engine.  But the current FCC net neutrality rules carve out exemptions for wireless carriers, so it is unlikely that even these rules could change this.  Paragraph 98 of the net neutrality order makes this clear (emphasis is mine):

Further, although we do not require mobile broadband providers to allow third-party devices or all third-party applications on their networks, we nonetheless require mobile broadband providers to disclose their third-party device and application certification procedures, if any; to clearly explain their criteria for any restrictions on use of their network; and to expeditiously inform device and application providers of any decisions to deny access to the network or of a failure to approve their particular devices or applications.

So you have a radical solution (government regulation without congressional authorization) that is either not truly required (because the few problems that do exist tend to solve themselves) or doesn't actually solve the problems that do exist (as in the case of exempting wireless ISPs); or worse, both not required and doesn't solve the problem.  Which, not surprisingly, turns out to be the case of many proposed government "solutions."

Returning to the question posed by the title of this blog post: "Do we really even need net neutrality?"  I have argued that substantively, we do not.  But many of you undoubtedly disagree with me.  I'll ask the same question that I did in my previous post: What are your examples that the Internet is broken, now?

A response to "A Guide to the Open Internet"

I've seen a number of people tweet the "A Guide to the Open Internet" (located at http://theopeninter.net/) argument for net neutrality by Michael Ciarlo.  His argument stems from his personal experiences (Time-Warner blocked his access to ESPN3) and I am clearly sympathetic to his circumstances.  While it's a nice site, I felt like there were some problems with the argument so I wanted to comment on them.

A few notes before I begin:

Just to be clear, I do not work for an ISP nor do I have no connection to any telecommunications companies or other companies that are impacted by net neutrality.  I am not shilling for anyone.  I am personally alarmed at the process by which the FCC has disregarded the will of Congress and the authority of the Circuit Court of Appeals for the DC Circuit.

Let me also state that I don't know Mr. Ciarlo nor is this intended to be any sort of attack on him personally.  I shouldn't even have to say this, but sometimes people perceive things differently so I wanted to be clear.  I am disputing claims in his argument, that is all.  When I refer to "you" I am not referring to Mr. Ciarlo personally or alone, I am referring to you, the reader.

Let's just start with the obvious--TheOpenInter.net is a simple-to-follow, and visually pleasing website which advocates for net neutrality in a graphical manner.  The site avoids complicated discussion and presents a pro-net neutrality argument in a way that not many could argue against.  But it is this avoidance of the complicated discussion where I have the problem.  Net neutrality is not as simple as Mr. Ciarlo would want it to be.  As TechCrunch said in their (otherwise-generally positive) article, "there’s a lot more complexity surrounding the issue..." Furthermore, I have problems with the content of his argument and it starts almost immediately:

Network neutrality is the idea that your cellular, cable, or phone internet connection should treat all websites and services the same. Big companies like AT&T, Verizon, and Comcast want to treat them differently so they can charge you more depending on what you use.

Big companies like AT&T, Verizon, and Comcast have a right to responsibly manage the traffic that traverses the portions of the Internet that they own (yes, that's right: most of the Internet is in fact privately owned).  For example, do you have FiOS?  Do you know who paid to run fiber to your house?  It wasn't the government--it was Verizon.  You're paying to use their service.  They have a right to reasonable management of traffic to ensure their customers are getting a good product.  If your use of some bandwidth-intensive product is preventing your neighbors from enjoying their Internet, don't you think your ISP has a right to do something about it?  Even better, if your neighbors are using some bandwidth-intensive product that is grinding your Internet experience to a halt, what do you think should be done?  Are you going to sit on your hands and be happy that your neighbors are blissfully protected by net neutrality?

And yes, big companies like AT&T, Verizon, and Comcast could in the future conceivably charge you more for different services, but this is already the case now.  If they want to do it, why haven't they?  Probably because when they do float these ideas (liked tiered pricing schemes for usage) they get shot down by consumers.  Sure, there are likely to be some continued ideas along these lines, but consumers tend to prevail.  And that amazing FCC net neutrality rule? It more or less exempted wireless carriers from the restrictions.

The Federal Communications Commission (FCC) is currently debating legislation to define limits for internet service providers (ISPs). The hope is that they will keep the internet open and prevent companies from discriminating against different kinds of websites and services.

The FCC is part of the Executive Branch of the government and therefore is charged with executing the laws, not writing them.  The FCC does not write or debate legislation, which is the sole role of Congress.  What the FCC does, though, is write rules and regulations that are properly authorized by Congressional legislation.  Likewise, the FCC cannot simply write rules or regulations that go beyond what has already been authorized by Congress.  I suspect that Mr. Ciarlo would willingly substitute the word "rule" or "regulation" in place of legislation, but in this case it is uniquely important because it makes a significant difference.  Simply writing that the FCC is debating a rule does not cure this paragraph from the huge omission that the FCC has no such authority.  If you truly support net neutrality, then you should oppose the FCC's current net neutrality rules and support legislation in Congress that actually authorizes the FCC to do so.  300+ member of Congress (many of whom actually do support net neutrality) have asked the FCC to forgo any action until Congress acts; yet the FCC forged ahead.

ISPs provide you internet access. You can use it as much as you want, for anything you want.

I won't get too far into technicalities here, but there are some limits on what you can do.  This is why you agree to Terms of Service and an Acceptable Use Policy, even if you don't read them (because seriously, who does?).  Regardless, I generally agree with this statement.

While they can limit your speeds, ISPs do it mostly to slow illegal downloads.

Comcast was accused of, and eventually admitted to slowing p2p traffic by sending RST packets.  They argued that this was an acceptable network management practice.  The FCC disagreed and tried to fine Comcast.  The Court of Appeals for the DC Circuit threw out the case because the FCC did not have the authority to regulate the Internet.  If you care at all about net neutrality, and regardless of what side of the debate you find yourself on, you owe it to yourself and those you are debating to read the Comcast decision because it is the foundation for everything else that has happened since.  But the larger point is that the Comcast incident is one of the very few such cases of where ISPs have been accused of interfering with traffic.

ISPs want to manage internet access and charge you depending on your usage.

Let's start with the obvious: if this is what ISPs want, why aren't they doing it already?  This is where the chart is just too good to be true.  Does anyone really think that an ISP is going to get away with charging separate package fees for sites like Netflix, Hulu, YouTube, etc.?  Yes?  You really believe that consumers won't be outraged?  Why aren't the ISPs doing it now?  Because right now they have every right to do it.

That means AT&T or Comcast could block a service like Google Maps and charge for their own.

Mr. Ciarlo has been spending too much time with Senator Al Franken, for this Google Maps example is right out of his alarmist playbook.  Again, does anyone really think that Comcast is going to say, "Sorry folks, no Google Maps...you'll have to use our brand new Comcast/NBC maps!"  Sure, right now they have the right to do this, but with most anything similar to this, it would be a terrible business decision.  It's doubly-funny because Senator Franken is now arguing that the rules the FCC passed on December 21 would still allow for this "discrimination" of traffic because it is riddled with exemptions.  So even Al Franken, one of the Senate's biggest proponents of net neutrality, is extremely unhappy with the FCC's net neutrality rule.

I recognize there is a sticky point.  I'm arguing for no regulation at all, while those who support net neutrality are arguing for government regulation.  But that's precisely my point; the Internet has evolved to the point today without government regulation, and I would prefer not to have the government deciding winners or losers.  If you want the government to regulate the Internet, and you have a well-founded argument, then so be it.  But the process by which this happens is even more important then the end result.  If Congress authorizes the FCC to regulate the Internet, and the FCC writes rules and regulations within that specific congressional authorization, then so be it.  But the current process is an end-run that ignores current law.

Get the word out and save the open internet.

Let's first define "the open Internet."  To save something, I presume we must know what it is exactly that we want to save, so what is "the open Internet?" Is that what the Internet is now?  Or what it was, five years ago? Ten?  Or what you want it to be?  I truly mean this in all sincerety.  If what we have now is "the open Internet" then net neutrality is changing the rules mid-game, not saving what we already have.  Decades of development without FCC regulation have given us what we have now.

Is the current Internet, as we have it right now, broken?  I would argue that it is not, and thus permitting government regulation is unnecessary.  If you are indeed arguing that it is broken, cite examples of how it is broken, not just ideas about what might happen in the future.  I've already cited Comcast's interference of p2p traffic on your behalf.  Even despite the Court of Appeals ruling in their favor, and as a result having no FCC regulations requiring them to do so, and despite having no other legal requirement to do so, Comcast agreed to stop interfering in such traffic.  On his "why I created this" page, Mr. Ciarlo cites the example of the Fascinate phone locked to the Bing search engine.  But the current FCC net neutrality rules largely exempt wireless carriers, so it is unlikely that even these rules could change this.  What are your other examples that the Internet is broken, now?  I recognize that Mr. Ciarlo's argument is to "depict a time in the future when ISPs control the Internet and all data is not downloaded equally" but don't the ISPs already control the Internet?  Shouldn't ceding government control of the Internet to the government be based upon factual data and not supposition about what might happen?

Does the FCC have the legal authority to do what they did on December 21st?  After reading Comcast, I think many people would agree that they do not.  The irony of net neutrality is that, to impose the so-called "open Internet", you must subject the Internet to government regulation.  Currently, as clarified by the Comcast case, the FCC does not currently have the authority to do so.  The net neutrality rules they passed on December 21st exceed their mandate and will be overturned by the courts.  If you truly want net neutrality, then you should support legislation in Congress that authorizes the FCC to regulate the Internet, because that's the proper way to do this.

FCC Net Neutrality rules (full text)

FCC Net Neutrality Rules

FCC Net Neutrality rules (press release excerpts)

FCC Net Neutrality Rules

Even if you support net neutrality, you should oppose what's happening tomorrow

The FCC is scheduled to vote Tuesday on Chairman Julius Genachowski's "net neutrality" proposal.  First problem? The proposal is confidential. The public hasn't even seen it, or had a chance to comment on it. Do you support it? How could you, without even knowing the details of what's in it.

Second problem?  The FCC has no legal authority to regulate the Internet.  When the FCC tried to fine Comcast for throttling bittorrent traffic, the U.S. Court of Appeals for the D.C. Circuit ruled that the FCC has no powers to regulate any Internet provider’s network, or the management of its practices: “[the FCC] ’has failed to tie its assertion’ of regulatory authority to an actual law enacted by Congress."

Compare these questions: "Do you support net neutrality?" or "Do you support the FCC regulating the Internet?" or even worse, "Do you support the FCC regulating the Internet without Congressional authorization?" I think you'd find very different answers to the last two questions.  Net neutrality as the FCC would have it tomorrow, is government-regulated neutrality without express Congressional authority.  It is an over-reach of executive authority through the back door, and bad public policy.  It is, as the Court of Appeals said, "untrammeled freedom to regulate activities over which the statute fails to confer..."

If you truly support net neutrality, you should oppose this executive agency power grab, and rather, support legislation in Congress that actually gives the FCC authority to regulate the Internet.

Some thoughts about 2011

I'm not big on predictions, mostly because people make ambiguous ones that are difficult to judge.  So here's my attempt at a handful of predictions for 2011 that should be easily distinguishable with a yes or no answer:

1. The Supreme Court will reverse the Ninth Circuit in Wal-Mart v. Dukes.

2. Judge Roger Vinson of the U.S. District Court for the Northern District of Florida will find the health care reform law to be unconstitutional.

3. The FCC will approve new net neutrality rules (that will probably happen in the next week or so), but the federal courts will find that this oversteps their authority (again).

4. At least one politician (state legislator or above) will resign when a video of their misconduct goes viral.

5. North Korea's Kim Jong-il will die and his son, Kim Jong-un, will take over.

6. At least one Philadelphia sports team will make it to the Super Bowl, NHL Finals, or World Series.

7. Patriots' QB Tom Brady will win the NFL MVP and Eagles' QB Michael Vick will finish second.

8. Baltimore (BWI) will record less than 30 inches of snowfall this winter (please)

9. I will get accepted to law school (please) and actually go this time!

10. Stuxnet's creator(s) will be revealed (total guess).

And one more for the road that I am most certain of:

DEFCON19 will be canceled.