back to article FCC net neutrality blueprint TRASHED by US appeals court

A US appeals court has ruled that net neutrality measures put in place by America's Federal Communications Commission are invalid. The FCC's latest attempt to compel ISPs to treat all traffic on an equal basis suffered a significant blow, after the US Court of Appeals for the District of Columbia Circuit said (PDF): [E]ven …

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> Somalia did do better as an anarchist region

You're not setting the bar very high -- Hitler's nazis would struggle to be worse than Al Shabaab -- so that Somalia did better while it was divided into half a dozen little territories each run by a warlord and his clan doesn't really mean that clan rule is good, useful and made of chocolate.

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I don't know of a cablevision operator wanting to stream high-def product (like a DVR) through an unrelated cell/4G/LTE network so we can access our DVRs while we're stuck on a long layover.

Providers sell consumers "fast internet". Why isn't it fast from 3 to 11pm? Netflix abuse?

This is a solid win for everyone who isn't invested in content streamers (Netflix, RedBox, etc.)

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Joke

Way to go, Verizon! I'm sure you'll play fairly.

Hey... why is my access to fcc.gov suddenly so slow?

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Devil

I would like to be the first to....

Give this development a hearty "Booooooo!!!!" and say "Verizon and AT&T, you suck!!". This is all about protecting established players and corporations at the expense of innova....wait....What's that?!?....What do you mean AT&T and Verizon users aren't going to be able to see my comment??!!

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Mushroom

These corporate executives take everything if they are not stopped

If we don't push back, then we can forget about an open accessable internet.

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Anonymous Coward

Re: These corporate executives take everything if they are not stopped

"If we don't push back, then we can forget about an open accessable internet."

We've already got an open accessible internet and we don't have net neutrality regulations.

#fail

"These corporate executives"

Besides corporations who is going to give you any kind of internet? Co-operatives? Sure - and who do they buy it from?

#fail

Remind me how old you are. 15?

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Re: These corporate executives take everything if they are not stopped

"We've already got an open accessible internet and we don't have net neutrality regulations."

No, we don't. we have a highly regionalised internet. One in which data from different sources is treated differently, where telcos can - and do - pick winners and losers, where artificial scarcity drives up prices - and barriers to entry - and where both private businesses and nation states snoop on traffic and even censor access to information.

That's not an "open accessible internet" at all. We had an open, accessible internet. It hasn't been such for some time now.

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Big Brother

Verison will control the horizontal

NSA will control the vertical

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Anonymous Coward

Once the ISPs succeed in getting usage caps put in place, internet usage will be rolled back 15 years. Want video chat? Want movies? You're not paying enough.

Anti-monopoly laws should have prevented one industry from owning the telephone, the television, and the internet, but they didn't. Big money prevails. We're stuck with franchised dealership, too, so it's take it or do without. GW sold off the "public airwaves," so there's no going back to the old model even if we wanted to.

Ain't the "free market" grand?

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> Once the ISPs succeed in getting usage caps put in place

Oh you're thinking too small. They don't just want caps, they want walled gardens! They want users to pay for access, and companies to pay them to let users reach them -- and they WILL lock out companies and users who do not pay.

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Usage caps

Maybe I am just poor-done-by but we've had usage caps in Australia since, well, forever.

I absolutely support the ideas of 'net neutrality' and truly believe that the absence of such regulation will lead to gross profiteering by the ISPs and allow, say, one streaming video provider to enter into an exclusivity deal with an ISP that sees rival streaming services blocked. That will cost a huge amount for the the content-provider, but the benefits in completely shutting out the competition would be immense.

That said, and as one who has lived with usage caps since the days of dial-up, is it at all possible that the ISPs need to be able to charge someone for the large amounts of bandwidth* that modern Internet usage (streaming, software/game downloads, etc...) consumes? So, perhaps charging the providers of that content is an alternative to charging the consumers.

I have little doubt that rank gouging of all and sundry and a subsequent reduction in user experience will be the likely result but at least consider the idea that it's not necessarily feasible to demand that ISPs allow unlimited downloads, don't charge content providers, and still maintain (or improve) the speed of their services in the face of ever-increasing consumption.

Again, I am coming at this from a different country, where download limits are, and always have been the norm.

* - Yes, I am aware of the difference between bandwidth and data caps, but streaming HD movies and downloading multi-GB games from Steam means that the network bandwidth is being used for a relatively long period of time. When lots of people are doing that, a lot of bandwidth is required to maintain a good service."

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usage caps ? Everyone (but US) had them since day one, since telephone calls everywhere but in US are (or used to be) metered. Remember dial-up modems? That's where usage caps originate from - originally you paid for the time your modem was connected to BBS.

And it was totally different from IPSs selecting which content you may get for free and which you cannot. You used to pay (and still do, outside of US) for the proportion of ISPs infrastructure that is dedicated to handling your packets. There are many ways to bill that, but the simplest one seem to be bundle some amount of data in a monthly receipt (and thus call it "a limit", asking for a larger receipt if you want higher limit). As long as no one is trying to put a limit to where this data might be coming from/to , such a receipt seems perfectly "net neutral" to me.

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@Bronek

Good - glad it wasn't just me. (Though you said it far better than I did!)

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Re: Anti-monopoly laws should have prevented one industry from owning the telephone

It was the government that granted Ma Bell the monopoly in exchange for a promise of universal service. Think of it as the "net neutrality" issue of those days, which is why that will work out badly as well. Trevor's probably too young to remember the bad old days of nearly free local service, exorbitantly priced long distance, and government mandated corporate wealth redistribution (i.e. "fascism") of those days.

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What am I missing?

Can someone who understands this a bit better please clarify for me?

From what I can see, the FCC is contradicting itself, trying to apply common-carrier rules to services it had previously ruled to be 'information services' (explictly not common carriers).

Is that it?

The ruling seems to state that if ISPs were classified as 'common carriers', the FCC would have the authority to apply their 'open Internet' regulations.

If so, then that implies that all the FCC needs to do is to re-classify ISPs as 'common carriers' and, voila, they have the power to enforce non-discriminatory access and prevent blocking.

I am sure there are complexities here but surely it would be easier to re-classify ISPs than it would be to fight or amend the act. Especially as they were the ones who made the classification in the first place so they obviously have that power.

What am I missing?

I feel sorry for those in the US who are pretty much stuck with only one option in their area for high-speed Internet connectivity. Those regional monopolies are the reason why 'net neutrality' is so necessary as the principles of a free market don't really apply when consumers only have a single choice.

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Holmes

Re: What am I missing?

What you (and everyone else it seems) is missing is that this is all bullocks and distraction.

The Federal COMMUNICATIONS Commission did, does and always will have, jurisdiction over, well, communications, see?

The real issue is why was that power taken away and not for the first time. Rhetorical question. It's all about controlling speech propaganda.

And of course the continual dismantling of FDR's dirty commie New Deal regulations and anything else that smacks of the average person being treated as *sniff* some sort of deserving person.

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Re: What am I missing?

Funny - I was going to mention the New Deal when talking about socialist democracies in a previous post!

To the point, though, if you could clarify, how was the power taken away from the FCC?

Again, it is my understanding (and the decision seems to support this) that the FCC has the ability to regulate communications inside of the scope of the Communications Act. They way I read the details, they still have the power to regulate 'common-carriers' in the way they are proposing but ISPs are not common carriers and this classification was the decision of the FCC themselves.

I am pretty confused by headlines of this decision being a critical blow to 'net neutrality' as, if my understanding is more-or-less correct, then I fail to see how this decision is much of a set back as they just need to take a different approach.

The court ruling implies that they would be legally allowed to apply their regulations to ISPs if they were classified as 'common carriers' under the Communications Act so the path forward would seem simple.

As people are reacting to and reporting this as such a big deal, I can only assume that the next step is not so simple but I can't see why.

1 - If the FCC reclassified ISPs as 'Common Carriers', would it work?

2 - Can they actually reclassify them? (And if not, why not?)

?

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Anonymous Coward

Re: What am I missing?

"The FCC has the ability to regulate communications inside of the scope of the Communications Act."

Correct. The FCC can continue to police "net neutrality" competition issues - eg, http://transition.fcc.gov/eb/Orders/2005/DA-05-543A2.html

A Telco blocked Vonage's VOIP calls and agreed to pay a fine and sign a consent decree. http://www.ecommercetimes.com/story/41101.html It all took a few weeks to stop that behaviour.

What the FCC can't do is issue sweeping orders on "computer services". You are right to be confused because the ignorance of the commentards here is amazing.

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PAW

Re: What am I missing?

I believe your understanding is spot on. At some point in the past, the FCC chose not to classify ISPs as common carriers and then proceeded to regulate them with common carrier rules. This court ruling says they can't do that. The FCC can now either reclassify broadband companies as common carriers or change the net neutrality terminology to be different from that of common carriers. Or they could sit on their hands.

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Re: did, does and always will have, jurisdiction over, well, communications, see?

Actually, no they don't.

The original 1934 act only applied to telephone, telegraph, cable and all wireless communications. The word explicitly noted that it did not grant new power to the FCC, only re-organized existing powers under existing legislation. They were broadly grouped into separately regulated entities. The 1996 act moved to remove regulatory barriers to entry which were impeding competition. It also created a new category for information service providers. Since this originated with Congress, the FCC must comply with the Congressionally mandated provisions.

And yes, it was the continuation of dismantling that dirty commie FDR's monopoly producing regulations which treated the average person as just another mark to be shaken down by the well heeled and well connected.

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Re: If the FCC reclassified ISPs as 'Common Carriers', would it work?

That was my first thought until I did some checking: No. Congress specified the categories and didn't authorize the FCC to change them. That requires an act of Congress. Which interestingly enough, Congress opted not to do when they held the House and a filibuster-proof majority in the Senate even though The Big 0 asked them to. So this really WAS an attempted end-run around the US Constitution and therefore properly struck down by the court. In fact, the margin of the DC circuit court decision should give some indication of just how far wrong the FCC was. Yes, the 9th circuit is probably more leftist, but not by a whole bunch.

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Re: If the FCC reclassified ISPs as 'Common Carriers', would it work?

@Tom 13

Thanks for the reply.

What you say - that it was congress and not the FCC who classified ISPs as 'Information Services' - would certainly explain why the FCC didn't try to reclassify them.

Not to challenge you (as I did ask for help!) but what I have read says that Congress did not, specifically, classify ISPs as 'Informations Services' (ISs). What they did in the Act was lay out the definitions for what an IS is, but not explicitly put ISPs into that basket.

My understanding is that the most relevant case is National Cable and Telecommunications Association (NCTA) V. Brand X Internet Services. This is what I gather from that:

  • In 2002, the FCC decided to classify ISPs as ISs, not 'Common Carriers' (CCs).
  • In 2005, the ISP Brand X wanted to use the existing coax owned by other providers to deliver its services.
  • The FCC* confirmed it's stance that ISPs were ISs and not CCs, under the Communications Act (1996).
  • Brand X took this to court and 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 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 ruling.

I really do appreciate your input but it doesn't match what I have read about the issue.

* - Technically the National Cable and Telecommunications Association (NCTA) but effectively the same thing for this purpose.

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We already have a walled garden in internet/streaming. The pushing of content into cable networks, and channels being owned by specific providers has frustrated me for some time. The state of Intellectual property law and copyright law has created a situation where these ISP/Cable providers in an effort to protect their former license to print money which streaming and internet video has eroded have forced consumers to pay for some content a al carte. If there was real competition in the ISP space locally that might be an acceptable price to pay, but when Cable and internet providers cut deals with local municipalities to gain monopolistic advantages and regionalize their pricing based on how many options you have to their services, its not a fair marketplace that benefits the consumer.

Sports is the most obvious place this can be seen, but it is leaking into other content as well.

The FCC's approach was potentially worse, so there's that, but the current state of affairs is pretty ridiculous too. I suppose its a choice between service providers choosing winners and losers and the government doing so. The defensive purchasing of content providers by infrastructure companies has been a bad thing for consumers, but so called "Net Neutrality" would not have solved these issues since the problem is mainly companies who are refusing to license their content on other networks, not the other way around. (mainly because that would be stupid and in many cases illegal for the networks/ISPs to do that)

ATT, Verizon, Every Cable provider, and the major "networks" are guilty. So is the FCC, but using antiquated common carrier regulations is not going to fix this in a converged tech environment where the lines between cable, phone, TV, and internet are going away.

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Beware....

It's not a free market in the USA. Many (most?) areas still have legislated local loop monopolies and as such, customers aren't free to take their business to another DSL provider.

This is what makes network neutrality so cirtical in the USA.

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Re: Beware....

Ironically that's the worst part of the FCC's attempted power grab. The one power they do actually posses is to strike down the local government monopoly grants where they exist.

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The Internet is run on MAGIC!

"The original 1934 act only applied to telephone, telegraph, cable and all wireless communications."

Good thing the Internets run on luminiferous aether, then isn't it, and have nothing to do with communications (cats vids being the most obvious) or the courts might be wrong.

Oh wait... I've insulted cat lovers. My apologies.

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Re: The Internet is run on MAGIC!

Ask yourself. Is the Internet specifically a telephone, telegraph, cable, or wireless form of communication? Most would say "none of the above", and last I checked, the Telecommunications Act of 1996 did not change this picture. Meaning the Internet is in a grey area: not specifically under the FCC's remit. What is supposed to be the FCC's procedure regarding a form of communication OTHER than those listed in its mandate?

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Anonymous Coward

Read the judgement!

Read the history in the judgelent its really worth a read, to summarise the internet is not just ISP providers Verizon or AT&T but also edge providers e.g. Yahoo and Google who haul traffic to the backbone providers who connect to the last mile that may be mobile or cable ISP such as Verizon Comcast etc. The decision says if the the commission decided historically, albeit inconsistently, not to regulate "enhanced" or information service providers in legislation in 1996 then it has no statutory power to implement open internet for enhanced services only basic services (phone calls). Kinda can't have one rule for some and not the others. The FCC was hoisted by your own incompetent petard. What is funny is there is no suggestion this line was pursued the providers.

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Re: Read the judgement!

Next question: Is it within the FCC's power to actually make that determination? Or is "common carrier" status defined by the Act itself, meaning the FCC couldn't call ISP's common carriers even if they wanted to because it would require an Act of Congress to do?

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