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back to article FCC boss: I get knocked down, but I get up again. You're never gonna keep net neutrality down

In the wake of a ruling stripping America's Federal Communications Commission of much of its net neutrality enforcement power, its chairman Tom Wheeler suggested that the watchdog will find other ways to maintain open access. Speaking at a Washington DC gathering of the Minority Media and Telecommunications Council, Wheeler said …

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Holmes

I remember that Yes song

In her white lace, you could clearly see the lady sadly looking

Saying that she'd take the blame

For the crucifixion of her own domain

I get up, I get down

I get up, I get down

Two million people barely satisfy

Two hundred women watch one woman cry, too late

The eyes of honesty can achieve

How many millions do we deceive each day?

I get up, I get down

I get up, I get down

In charge of who is there in charge of me

Do I look on blindly and say I see the way?

The truth is written all along the page

How old will I be before I come of age for you?

I get up, I get down

I get up, I get down

I get up, I get down

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Re: I remember that Yes song

It wasn't a YES reference (thank the gods!), it was Chumbawamba :D

http://www.youtube.com/watch?v=kS-zK1S5Dws

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Re: I remember that Yes song

I knew that - but the Yes song was so much better.

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Appealing.

"Following the decision, the FCC left the door open for an appeal."

Why wouldn't they appeal?

"He vowed to maintain a structure of network regulations which would help to prevent the need for more sweeping antitrust regulations down the line."

Maybe anti-trust regulations would be a good idea, not "down the line" but "now".

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Re: Appealing.

"Following the decision, the FCC left the door open for an appeal."

Why wouldn't they appeal?

Well, I haven't read the court's decision, but since the chairman said "the court invited the FCC to act", I would guess that there is clarification in the ruling which might pave the way for a regulation which would be more resilient to legal challenges.

Failing that, it simply may not be affordable for the FCC to appeal. Even government agencies have to pay their lawyers.

Failing that, Wheeler may be looking at more persuasive (appealing, if you will) arguments from telecoms companies like AT&T.

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Re: Appealing.

One reason is that the court's line of argument looks pretty solid. The FCC has different powers depending on if something is a "common carrier" or a "telecommunications service" and the issue was they were trying to have their cake and eat it. So the court had good reason to say that the rules, as written, weren't legally enforceable.

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Re: Appealing.

The FCC is not Congress. They don't have the authority to legislate. Congress has explicitly decided ISP =/= common carrier. The FCC was out of bounds, which is exactly what the court rule regardless of what it's decidedly disconnected head said.

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Re: I haven't read the court's decision

Skip the decision, and ignore the court decision. Go back to the 1934 and 1996 Acts. Amazingly they are pretty clear for politi-speak. The court made no such invitation because the Acts do not authorize any such action.

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Re: Appealing.

@Tom 13 - "Congress has explicitly decided ISP =/= common carrier."

Please read my more detailed post below but so far as I understand it, that is exactly the opposite - congress (through the Act) has not made an explicit ruling. That, when coupled with the Chevron doctrine applied by the courts, gives the FCC the power to make just such a decision (to classify ISPs as common carriers).

So, while you are correct to say that the FCC does not have the authority change the legislation, they do have the authority to interpret it and (as the supreme court put it) "fill the statutory gap":

The Commission has historically not subjected non-facilities-based information-service providers to common carrier regulation. That history suggests, in turn, that the Act does not unambiguously classify nonfacilities based ISPs as “offerors” of telecommunications. If the Act does not unambiguously classify such providers as “offering telecommunications,” it also does not unambiguously so classify facilities-based information-service providers such as cable companies; the relevant definitions do not distinguish the two types of carriers. The Act’s silence suggests, instead, that the Commission has the discretion to fill the statutory gap.

Reading through the Act, we see (p7):

  • Telecommunications service = the offering of telecommunications, for a fee, to the public.
  • Telecommunications carrier = provider of telecommunication services.
  • Telecommunications carriers are subject to common carrier regulations.

Obviously, then, this all hinges on the definition of 'telecommunications', which is given as:

The term "telecommunications" means the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.

Quite simply, if cable broadband suppliers are ruled to be offering "telecommunications", then that will be subject to common carrier regulations.

It seems that the FCC approached the original decision (of how to classify cable broadband providers) from the desired end result, which was to promote growth and competition by not making the providers subject to common carrier regulations and, thus, they had to decide that such providers did not "[offer] telecommunications".

Personally, I think a fairly strong case can be made for classifying Internet traffic as 'telecommunications' but the fact, as noted by the Supreme Court, is that the Act does not do so explicitly and unambiguously and so that responsibility rests with the FCC.

The ruling by the Supreme Court in Brand X implies that if the FCC were to classify broadband providers as 'Telecommunications Carriers', that would also be a 'permissible' interpretation of the Act. This is seen most clearly in 1b, where they discuss the ruling made by the Court of Appeals for the Ninth Circuit, which found that classifiying a 'cable modem service' as a 'telecommunications service' was the best reading of the statute. This says that both readings are 'permissible' and thus, pass the test of Chevron.

To clarify, it is important to note that the Supreme Court did NOT rule that classifying ISPs as 'telecommunications carriers' was an un-permissible reading under the Chevron framework, but that, as more than one permissible reading exists, the FCC are free to choose whichever they deem suitable.

Granted, the nature of the case might make it hard to re-classify cable broadband providers, but it's not correct to imply that the FCC doesn't have the authority to do this.

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Pissing the night away.

The whole of the internet infrastructure in the United States belongs to private industry.

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Re: Pissing the night away.

Last I checked, so do the telephone networks. Just because a resource is private doesn't meant the owner gets carte blanche, especially when the resource is providing a service rather than is directly a good.

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Re: so do the telephone networks

The rules for the telephone networks were written in light of the fact that from 1934 to the 1990s the government granted AT&T a monopoly in the telephone market. Sprint challenged it in court and won. The 1996 law was written to take into account the changing environment and to try to re-balance the mess the government made through its bad and unconstitutional legislation in the first place. Quite frankly, at some point the common carrier rules will need to be re-written as well.

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Meh

Re: so do the telephone networks

and yet I must have an ATT phone line to access DSL. I could of course pay for cable , but then they want to sell me TV services I neither want nor need. So heads they win, tails I lose?

This may seem out of place, but the size of corporations may need to be limited or perhaps their scope?

And in the world of the internet we see the changes play out on a much faster time scale than , say, house building....

P.

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Re: so do the telephone networks

Cable companies at least in the US have a geographical monopoly as well. The reason for these monopoly rules originally was to keep many competing companies from laying intrusive infrastructure all over the place. Sadly like everything else in US culture it has been perverted to simply funnel money to the %1ers who can't get enough.

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Re: Pissing the night away.

RE:Last I checked, so do the telephone networks. Just because a resource is private doesn't meant the owner gets carte blanche, especially when the resource is providing a service rather than is directly a good.

But, they shoud have carrte blanche. It is their network; their hardware; often it was their inventions. What we did in the past was just as inexcusable as what we are doing today. Your need is not a claim check on anyone else's blood, sweat and tears.

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Re: Pissing the night away.

"But, they shoud have carrte blanche. It is their network; their hardware; often it was their inventions. What we did in the past was just as inexcusable as what we are doing today. Your need is not a claim check on anyone else's blood, sweat and tears."

Tell that to the bus companies and restaurant and shop owners of the 1950's US South. The way they put it, it was "Our business, our rules," but when just about everyone in an area discriminates openly in what is essentially cartel behaviour, it's obvious they don't care about a certain percentage of clientele, profits be damned.

As I've said, when said business is a service open to the public, then some would say there comes a moral obligation to offer your service to EVERYONE in that public.

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Re: Pissing the night away.

RE: ....As I've said, when said business is a service open to the public, then some would say there comes a moral obligation to offer your service to EVERYONE in that public.

Outlawing racial discrimination is a very different thing from regulating prices. The first does not excuse the latter. The first is merely an act of justice, the latter is an act of injustice. Monopolies only exist where government establishes them. Get the government out of the market and monopolies simply disappear.

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Re: keep many competing companies from laying intrusive infrastructure

Horse hockey!

That may be the lie they told when they pitched it to the masses, but it was always about lining the pockets of the people who paid them.

You may not like the facts as I've posted them, but they remain the facts.

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Re: yet I must have an ATT phone line

That's odd. I know I'm very fortunate in that I live in an area with actual competition in the high speed broadband market. I have the choices of Verizon, Comcast, Dish, RCN, and a few others. AT&T isn't among them. In fact, you can't actually have an ATT phone line to your house, because all AT&T kept was the long distance business and it immediately had to compete with Sprint. It was the Baby Bells that got the local service and a temporary monopoly for local phone service.

If you don't have these basic facts straight, what else that you think you know isn't true?

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Unhappy

Doesn't it depend what you mean *by* "net neutrality" ?

The question has been is broadband (or cable TV provided equivalent) "common carrier" like a phone line or postal service, or not.

If it is then everything gets a chance to use the service, regardless of content. Flipside is the carriers are not responsible for any content sent down the system.

But it seems the FCC have been treating the broadband suppliers as being responsible.

so broadband <> common carrier <> neutrality required.

OTOH you also see Google backing this idea of neutrality, yet their network (which most people don't seem to realize even exists) seems to either carry or generate 40% of all internet traffic.

Why is this concept so f**king difficult to grasp?

infrastructure --> big investment --> high barriers to entry --> prone to monopoly (or at least oligopoly) --> ways to extort monetise captive market.

Let's see if the appeal clears things up.

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Re: Doesn't it depend what you mean *by* "net neutrality" ?

I think most people support the principle of being able to use the internet, what many of us object to is the extreme wing of net neutrality wanting to ban traffic management such as being able to prioritise packets such as VOIP because that's not neutral(?!?!)

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Re: Doesn't it depend what you mean *by* "net neutrality" ?

But that introduces a slippery slope. If you prioritize ANY type of packet (a VoIP packet, like you say), what's to stop de-prioritizing a different type of packet (like a BitTorrent packet)? Furthermore, what if the ISP faces an encrypted or otherwise-obfuscated stream where identifying the purpose is difficult?

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Re: The question has been is broadband ... "common carrier"

No, it's not.

The 1996 law defined what is a common carrier and what is an ISP. The FCC isn't allowed to change those definitions.

In your own words: Why is this concept so f**king difficult to grasp?

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Re: Doesn't it depend what you mean *by* "net neutrality" ?

But that introduces a slippery slope.

Which is a logical fallacy. Normally that would end the argument. But your next question is just interesting enough to merit continued discussion.

If you prioritize ANY type of packet (a VoIP packet, like you say), what's to stop de-prioritizing a different type of packet (like a BitTorrent packet)? Furthermore, what if the ISP faces an encrypted or otherwise-obfuscated stream where identifying the purpose is difficult?

The answer is you don't prioritize ANY type of packet. You prioritize identified packets based on how latency-sensitive their payload is. That's good traffic management in a nutshell.

Those packets which are obfuscated (encrypted streams generally aren't encrypted at the transport layer, which means they still include readable metadata indicating their purpose -- c.f. PRISM) are by definition not identifiable, so they needn't be prioritized.

The problem comes when ISPs try to assign priority based not on packet type but on source and/or destination. That's not only not neutral, it's bad traffic management.

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Re: Doesn't it depend what you mean *by* "net neutrality" ?

"The answer is you don't prioritize ANY type of packet. You prioritize identified packets based on how latency-sensitive their payload is. That's good traffic management in a nutshell."

That's still prioritization of a sort. I have to wonder if some applications wouldn't cheat on this kind of system and disguise their packets' latency sensitivity to fool QoS systems.

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Re: Doesn't it depend what you mean *by* "net neutrality" ?

@Steve Knox A slippery slope is not always a logical fallacy. It is only a logical fallacy if the individual using the argument can demonstrate a clear means by which one could "tumble down the slope." I think the means - and the motives - are clear in this case, making the slippery slope argument valid.

Also: if you prioritize one packet then by definition you are deprioritizing all others. Inspecting the content in order to prioritize a packet A) is a massive privacy violation and B) doesn't remove the original dilemma that by prioritizing "the chosen 1%" you are forcing "the other 99%" to make do with fewer resources.

More to the point, the current trend is to encrypt everything (and that's a fantastic thing.) No method by which you can snoop on content. (Unless you're the NSA and have compromised everything.)

That means you can only reliably prioritize based on source/destination. Pray tell, why not prioritize packets from white neighbourhoods above those of black neighbourhoods? Or from political campaign contributors above those of political opponents.

Oh, you find that suggestion illogical? I feel the same way about saying we should prioritize packets from those with more money over those with less. That's what this all boils down to, at the end of it.

Are we to build an equal society - digitally as well as in the real world - or not? I believe we should. You don't seem to. Never the twain shall meet.

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Re: The question has been is broadband ... "common carrier"

Hi Tom,

I got back to you in the last FCC thread but I don't know if you saw it (it was, like this post, a bit delayed - sorry!).

To repeat what I said there, thanks for you clarification but it doesn't actually conform to what I have read.

Summary

The Telecommunications Act (1996) did define what a 'Common Carrier' (CC) is and what an 'Information Service' (IS) is, however it did not explicitly assign cable broadband providers as one or the other. In the absence of a clear ruling from congress, the FCC has the power to decide which category to put cable broadband providers (and other communications services) into.

So, while the FCC cannot change the definitions provided by the Act, they can decide which of those definition cable broadband comes under.

Boring part

For this, I look to National Cable and Telecommunications Association (NCTA) V. Brand X Internet Services. The summary of this and the relevant background is:

  • In 2002, the FCC decided to classify cable broadband providers as ISs, not CCs.
  • In 2005, the ISP Brand X wanted to use the existing coax owned by other providers to deliver its services.
  • Under CC regulations, the other providers would be obliged to rent their coax to Brand X, however under IS regulations, they wouldn't.
  • The FCC confirmed it's stance that cable providers were ISs and not CCs.
  • Brand X took this to court, arguing that cable providers should be CCs. They lost.

The important part, however, is the reason why they lost and the FCC's classification was upheld.

The central question of the case was whether the FCC's classification of ISPs as ISs rather than CCs was a valid interpretation of the Communications Act. Brand X argued that it was not not; the NCTA/FCC argued that it was.

The court, however, ruled that the Act was "ambiguous" and, as per the Chevron doctrine, the FCC - as the agency tasked with upholding the Act - should be deferred to and thus their interpretation should be accepted, where it is deemed permissible* and reasonable.

In other words, the FCC has the legal authority to rule whether ISPs are classified as Common Carriers or Informations Services because Congress (through the Act) has not made an explicit, unambiguous ruling.

* - In their ruling, the court made particular note that, under Chevron, the agency's interpretation must be a "permissible" reading of the statute, but it does not have to be the best reading. Even if the court believes there is a better reading, so long as the statute is ambiguous and the agency's interpretation permissible, the court will defer to the agency.

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