Net Neutrality Fight Not Over

The federal appeals court ruling today that struck down the FCC's Net Neutrality rules is the latest chapter in a long saga, and it leaves the next move uncertain as new FCC Chairman Tom Wheeler and crew decide whether to file an appeal.

What's interesting about the ruling is that it actually upheld the Federal Communications Commission (FCC) 's right to impose such rules. The court effectively said the agency can regulate the Internet, but it said the rules as they currently exist in the FCC's Open Internet Order couldn't be applied to broadband Internet service providers. The FCC had already indicated that these companies are not common carriers and thus not subject to regulation. (See Bye Bye Net Neutrality?)

That sets up the possibility of the FCC reclassifying the broadband ISPs as common carriers -- a process that would be lengthy and hard-fought on all sides -- or appealing the ruling and arguing that Net Neutrality regulations aren't common carrier rules.

The Washington Post reported that Judge David Tatel of the US Court of Appeals for the District of Columbia, who wrote the opinion, noted that the Communications Act prohibits the FCC from regulating companies that it says are not common carriers.

Wheeler responded to the ruling almost immediately by saying the FCC is keeping its options open and could appeal. "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." (See Wheeler Walks Line on Net Neutrality.)

The reactions of the two Republican commissioners seemed to indicate little interest in more court action. Commissioner Ajit Pai said the latest ruling was a sign that the agency should "take no for an answer." Commissioner Mike O'Reilly said the FCC should stop looking to impose "prophylactic regulations" and focus on removing obstacles to broadband investment and innovation.

Other reactions went along the expected lines. Verizon Communications Inc. (NYSE: VZ), which brought the court challenge, applauded the decision but said it will not impact consumers' ability to access content via the Internet. In its reaction, the National Cable & Telecommunications Association (NCTA) also pledged its commitment to an open Internet.

Consumer groups such as Public Knowledge expressed alarm at the ruling and its potential for allowing large ISPs to control access to the Internet and harm innovation. Harold Feld, senior vice president for Public Knowledge, said in a press release that the ruling could impair the FCC's ability to manage regulations in the transition to an all-IP network. However, he also said the court left the door open for the FCC to "craft open Internet protection [regulations] that are not full fledged common carrier rules. Alternatively, if the FCC needs broader authority it can classify broadband as a title 2 common carrier service."

— Carol Wilson, Editor-at-Large, Light Reading

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geekhole 1/15/2014 | 1:52:32 PM
Best Effort vs. Differentiated Services... To build wider highways where all drivers share the same experience or to add toll roads next to the highways for the tractor trailers who don't want to wait in traffic, that is the question. 
brookseven 1/15/2014 | 10:54:47 AM
Re: Might be Over Carol,

I am a dreamer....don't harsh my buzz! :)


PS - I have lobbied and testified at the FCC so I know better.
Carol Wilson 1/15/2014 | 10:53:36 AM
Re: Might be Over Very well said, Seven. 

I agree with what you are saying about structural separation - and the Pronto reference made me nostalgic. 

But can you see today's FCC creating this regime, because I can't. The lobbying power of the big carriers is too strong and they would never let this happen. 
brookseven 1/15/2014 | 10:50:36 AM
Re: Might be Over Carol,

Yes, I believe SS is impossible.  That is why I advocate for making Broadband Access a Universal Service.  I would not change the rules around IP transit but make sure that people understood that if things get unfair I am going common carrier on them.

So once I got folks Universal Broadband Service,  I would do it with escalating minimum data rate capability.  Essentially I would force people to deploy fiber.

It is one reason I think language is important.  ISP service is NOT Access Service.  Even today you can get (for regular DSL) UNE-L.  I would make the ongoing waiver of UNE-L supported by this Universal Service investment.

The one thing that I would go for if I was the FCC is that the Access Network is a MOST a Layer 2 network.  The reason for this is that you could then do Pronto style unbundling to replace UNE-L as we get there.

So, what do I get as carrier?  You get to own your pipe...you get to deliver service.  If you invest in your network, you will get more business.  I think this notion that OTT players are taking money out of the carrier hands is a nice lobbying position.  So let's go back to static web pages and email.  People drop the size of their BB Access pipes and the carriers/MSOs lose a huge chunk of revenue.  Essentially, all the Access Providers should bend at the knee of Netflix and Youtube and thank them for all the revenue they bring.


KBode 1/15/2014 | 10:16:22 AM
Re: Might be Over Yes, I think the discussion has gotten so incredibly convoluted over the last few years that perhaps what is needed most is a pure example of just what happens if these rules don't exist or there's no regulators with the authority to police anti-competitive behavior against content and services.

Though I worry that you could elininate ALL regulators and regulations from the market, see prices skyrocket 300%, see non-ISP services blocked and hindered, and you'd still see rhetoric claiming that we were living in a telecom Utopia from many corners.
Carol Wilson 1/15/2014 | 10:13:20 AM
Re: Might be Over Two responses:

Seven, structural separation has been the most intruiguing option for some time now. Real implementations have been rare and not successful and I doubt it will ever happen on a large scale, as do you, I suspect. 

KBode, it will be interesting to see how long the companies who battled NN for so long can go without confirming the worst fears of those who sought NN. I share your honest curiousity for how this plays out. 
KBode 1/15/2014 | 10:02:18 AM
Might be Over Lost is the fact that these rules never really did all that much to begin with. They were based largely on proposed rules created by Verizon and Google, didn't really cover the anti-competitive implementation of usage caps, and certainly didn't protect consumers from abuses on wireless networks.

As I see it Wheeler can either buck his lobbyist history and reclassify carriers under Title II, or we can look forward to seeing ISPs unleash their version of "innovation" on the market under layers of new concepts solely focused on jacking up quarterly revenues with new and expensive pricing layers.

Neutrality opponents have long argued nothing would go wrong with no rules or a strong regulatory presence in place, and I'm honestly now quite curious to see them get to test their theory.
spc_isdnip 1/15/2014 | 7:32:01 AM
Re: Impact on IP network rules and regs Well, Seven, I certainly think structural separation would be a good idea, and have advocated for it consistently.  But I do think that ISPs generally still ban spamming, even if it technically complies.  Remember Spamford Wallace?  He never got to set up his spam-friendly ISP because it would have been denied transit.  There are acceptable bulk emails, the type sent to existin cusotmer relationships by companies like Constant Contact.  But then there is pure spam, which is legal if it has a PO Box footer which techically removes the recipient from *that* specific mailing six weeks after the fact (making it useless) if the recipient sends postal mail to that box.  Its a joke.

But more importantly, bulk video uploading can cause real harm too, since there is highly constrained upsteram capacity on cable networks, and that's what Comcast was trying to solve in 2005 (a bit ham-handedly, perhaps) when Vuze, a pR0n distributor building a rogue CDN out of its clients running on home PCs, got Kevin Martin on their side to attack Comcast and start the NN fight at the FCC.
brookseven 1/15/2014 | 12:04:41 AM
Re: Impact on IP network rules and regs I ran the Message Security (read Spam Filtering) service for Edgewave.  We had about 200 Internet Service Providers as customers.  So, I think you are all using words so loosely we are bound to argue.

If you are on an running Gmail over an Sonic.net service you actually have 3 service providers:

1 - AT&T (via UNE-L) is you local access line owner

2 - Sonic is both your Broadband Access Provider (or Access Service Provider) as well as your Internet Service Provider.

3 - Google is your Mail Service Provider.

In this case, Google will do Spam filtering via its former Postini Mail filter.  By the way, they do inbound mail filtering only and do NOT filter outbound mail.  Neither Sonic in either of its roles nor AT&T is doing any filtering.

On top of that, we are always talking past each other about the word SPAM.  I do not know of any ISPs that block the transmission of CAN-SPAM compliant emails that do not have any malicious components.  I will add that we allowed users (if the ISP wanted to allow them to do this) to block what we classified as "BULK" emails. We did block emails that had malicious components within them either by putting them in the Spam Folder or by actually blocking them

Let me also say that Outbound Filtering is not the norm for SPAM filters.  Only some filters actually work on the Outbound Stream.  ISPs do need to monitor their reputation and deploy Outbound filters (and Edgewave had them).

I agree with some few exceptions that pure blacklisting is a poor way to block SPAM and will become OBE with IPv6.

To recap - Mail Service Providers (MSP) provide Spam Filtering.  It is essentially a feature that is expected by users.  Some MSPs allow end users to configure their Spam Filtering actions based on mail classification.  The Internet Part of this does no filtering.  

I also think this language confusion exists in the lower conversation about network investment.  Nobody cares about ISP investment.  Everybody cares about ASP investment.  Maybe we should talk about structural separation again.


spc_isdnip 1/14/2014 | 10:24:10 PM
Re: Impact on IP network rules and regs I'm talking about blacklisting and "mutually assured destrution", not mail-conntet filtering, which should generally be an end user task.  An ISP will block another one that permits spam or sells "pink contracts" to spammers, and an ISP will block an ISP who provides transit to such an ISP.  They don't just block the spam but the whole ISP, which is why spammers rely on pwned machines and don't just put servers in carrier hotels.  Since this policy has been around for a long time, people don't even know it exists, since no ISP wants the equivalent of capital punishment for permiting spam.  But strict neutrality rules would overturn that, since the yes-you-CAN SPAM act makes spam legal.
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