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Watchdog Groups Ask FCC to Examine Internet Data Caps

Jared Moya — Wed, 11 May 2011 15:38:36 +0000

Public Knowledge and the New America Foundation’s Open Technology Initiative say that with 56% of households now affected by data caps the FCC must ensure they are linked to "legitimate network capacity concerns." Add that investigation has been made all the more urgent by AT&T's recent decision to "convert its data cap into a revenue source."

Public Knowledge and the New America Foundation’s Open Technology Initiative (NAFOTI) have a written a letter to the Federal Communications Commission (FCC) asking it to use its authority to investigate the nature, purpose, and impact that broadband caps are having on US consumers. "The need to fully understand the nature of broadband caps is made all the more urgent by the recent decision by AT&T to break with past industry practice and convert its data cap into a revenue source," it reads. The remark is in reference to AT&T's recent decision to implement a 150GB p/mo data cap for DSL customers, and a 250GB p/mo data cap for U-verse customers in order to address the 2% of users the ISP claims use a “disproportionate amount of bandwidth.” The groups note that it's still unclear why AT&T's caps are "at best" equal to those implemented by Comcast more than two years ago, and more importantly, why the cap for DSL customers is still a full 100GB lower than Comcast's was way back then. "The lower caps for DSL customers is especially worrying because one of the traditional selling points of DSL networks is that their dedicated circuit design helps to mitigate the impacts of heavy users on the rest of the network," they add. "Together, these caps suggest either that AT&T’s current network compares poorly to that of a major competitor circa 2008 or that there are non-network management motivations behind their creation." Public Knowledge and NAFOTI suggest that that data caps are more about monetizing bandwidth than they are about relieving network congestion. With 56% of US consumers now under the weight of monthly data caps without clear and transparent justification no one can say for sure if they are needed to address "legitimate network capacity concerns." "Unlike competitors whose caps appear to be at least nominally linked to congestions during peak-use periods, AT&T seeks to convert caps into a profit center by charging additional fees to customers who exceed the cap," they write. "In addition to concerns raised by broadband caps generally, such a practice produces a perverse incentive for AT&T to avoid raising its cap even as its own capacity expands." Precisely. They ask the FCC to request anonymous report from all the ISPs regarding the following:

Which ISP-offered services are excluded from the cap.
How often the cap is enforced.
Steps taken to warn customers.
Average penalty incurred by customers.
When and how often a penalty is waived.
The relationship of enforcement to times of network congestion.
How data caps are set.
How data caps are evaluated on an ongoing basis.

At what point will AT&T decide caps aren't necessary? Likely never, and worse still - what happens if it decides that even stricter data caps are necessary since it says the average customer only uses 18GB p/mo? A 50GB data cap isn't so far fetched. At least somebody is asking the FCC to take a look at the situation. Stay tuned. jared@zeropaid.com

Senator DeMint Vows to Reverse Net Neutrality Regulations

Jared Moya — Wed, 22 Dec 2010 21:15:17 +0000

Sen. Jim DeMint, R-SC, says the FCC should really stand for "Fabricating a Crisis Commission," and slams the proposal as an "Internet takeover" by "unelected bureaucrats."

Yesterday, the FCC approved landmark Net Neutrality regulations intended to “preserve Internet freedom and openness,” and already at least one senator is vowing to fight its implementation. "Chairman Julius Genachowski promised his decisions would be ‘data-driven’, but this unwarranted government intervention in an already open and thriving internet market proves that, on his watch, FCC really stands for Fabricating a Crisis Commission,” said Senator Jim DeMint, R-SC. “The Obama Administration has ignored evidence that this federal takeover will hang a millstone of regulatory and legal uncertainty around the neck of a vibrant sector of our economy. Proceeding on its own liberal whims rather than facts, this FCC has chosen to grant itself broad authority to limit how businesses can bring the internet to consumers in faster and more innovative ways. The rules, though not yet released in detail to the public, require all ISPs to publicly disclose their network traffic management practices, restricts them from blocking legal content and applications, and bars them from “unreasonable discrimination” of lawful network traffic. Sen. DeMint is urging Congress to use its authority to reverse the decision, and pass the Freedom for Consumer Choice Act to prevent it from making any decisions in the future without first: a) proving consumers are being substantially harmed by a lack of marketplace choice, b) weighing the potential cost of action against any benefits to consumers or competition. “Americans loudly demanded a more limited federal government this November, but the Obama Administration has dedicated itself to expanding centralized government planning," he adds. "Today, unelected bureaucrats rammed through an internet takeover, even after Congress and courts warned them not to." By courts he is referring to Comcast's victory over the FCC earlier this year. The United States Court of Appeals for the District of Columbia Circuit sided with the ISP in the long-running dispute over the its ability to manage network traffic as it sees fit. The FCC had attempted to sanction Comcast for throttling BitTorrent traffic which it said was a "discriminatory and arbitrary practice" that "unduly squelches the dynamic benefits of an open and accessible Internet." Comcast challenged the FCC's ability to regulate the Internet at all, and the court agreed, ruling that the FCC lacked the “ancillary” authority relevant to the “effective performance of its statutorily mandated responsibilities.” “To keep the internet economy thriving, this decision must be reversed," continues Sen. DeMint. "Regulatory reform will be a top priority for Republicans in the next Congress, and I intend to prevent the FCC or any government agency from unilaterally burdening our recovering economy with baseless regulation." The main thrust of his argument, as well as the two Republican FCC commissioners who voted against the proposal, is the idea that the private sector is the one best capable of handling any problems in the marketplace. They fear govt intrusion will only interfere with the dazzling business success stories the Internet has produced. The only problem with this, and the three FCC commissioners who voted for the Net Neutrality regulations agree, is that ISPs in many cases lack real competition in the marketplace. Americans need to have regulations in place that protect the “openness” of their Internet connections, and can't always rely on private businesses with their vested interest in protecting marketshare to do the right thing. As FCC Chairman noted after yesterday's news, there are real "competition issues among broadband providers," and it's important the FCC maintains its " historic role as a cop on the beat to ensure the vitality of our communications networks and to empower and protect consumers of those networks." Until those "competition issues" are settled, Senator DeMint is only working against the very consumers he claims to represent. Stay tuned. jared@zeropaid.com

FCC Approves Net Neutrality Legislation!

Jared Moya — Tue, 21 Dec 2010 21:30:01 +0000

Approves regulations that require all ISPs to publicly disclose their network traffic management practices, restricts them from blocking legal content and applications, and bars them from "unreasonable discrimination" of lawful network traffic.

Today the FCC voted, in the words of Chairman Julius Genachowski, to "preserve Internet freedom and openness," establishing for the first time regulations governing the Internet. "Now, for the first time, we’ll have enforceable, high-level rules of the road to preserve Internet freedom and openness," he says in a press release. By a 3-2 vote the FCC enacted rules that require all ISPs to publicly disclose their network traffic management practices, restricts them from blocking legal content and applications, and bars them from "unreasonable discrimination" of lawful network traffic. Here are some key excerpts:

Rule 1: Transparency A person engaged in the provision of broadband Internet access service shall publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings. Rule 2: No Blocking A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not block lawful content, applications, services, or non-harmful devices, subject to reasonable network management. A person engaged in the provision of mobile broadband Internet access service, insofar as such person is so engaged, shall not block consumers from accessing lawful websites, subject to reasonable network management; nor shall such person block applications that compete with the provider’s voice or video telephony services, subject to reasonable network needs. Rule 3: No Unreasonable Discrimination A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not unreasonably discriminate in transmitting lawful network traffic over a consumer’s broadband Internet access service. Reasonable network management shall not constitute unreasonable discrimination.

Chairman Genachowski makes the excellent point that unless the FCC guarantees free and unfettered access to all legal content and services ISPs could take advantage of their position and prevent competitors from reaching their customers. He reminds us that "broadband providers have natural business incentives to leverage their positions as gatekeepers of the Internet in ways that would stifle innovation and limit the benefits of the Internet." "Given the importance of an open Internet to our economic future, given the potentially irreversible nature of some harmful practices, and given the competition issues among broadband providers, it is essential that the FCC fulfill its historic role as a cop on the beat to ensure the vitality of our communications networks and to empower and protect consumers of those networks," he adds. In an illustration of the partisan divide that currently plagues the nation's capitol, the FCC's vote fell along ideological lines. The two Democrat commissioners felt the new regulations didn't go far enough while the two Republican commissioners felt no new Internet regulations were needed at all. Commissioner Mignon Clyburn (D) said that she would have extended Net Neutrality regulations to mobile connections, would've banned usage-based billing outright, and wants to guarantee to that an open Internet is "available to all end users" no matter their classification. Commissioner Meredith Attwell Baker (R) said it was "not a consumer-driven or engineering-focused decision," and that it foolishly attempts to fix that which isn't yet broken. The theme behind the two Republican commissioners dissent appears to be that they think the private sector is best suited to sorting out problems in the marketplace, and that in the absence of any identifiable problems the FCC ought not to interfere. The Democrats, on the other hand, counter, and rightly so, that ISPs in many cases lack real competition in the marketplace, and that Americans need to have regulations in place that protect the "openness" of their Internet connections. "Allowing gigantic corporations—in many cases, monopoly or duopoly broadband Internet access service providers—to exercise unfettered control over Americans’ access to the Internet not only creates risks to technological innovation and economic growth, but it poses a real threat to freedom of speech and the future of our democracy," said Commissioner Michael Copps (D) after the vote. "Increasingly our national conversation, our source for news and information, our knowledge of one another, will depend upon the Internet. Our future town square will be paved with broadband bricks. It must be accessible to all—not handed over to a handful of gatekeepers who can control our access." Precisely. If consumers had a plethora of ISPs to choose from then the discussion about Net Neutrality would be much different. However, fixed line broadband remains clustered in regional monopolies where ISPs hold sway over a captive consumer base. The private sector is hardly suited to "sort itself out" if consumers can't force its hand by choosing a competing service. Moreover, the FCC decision hands President Obama an important legislative victory. During the 2008 campaign he affirmed his support for Net Neutrality to "protect the openness of the Internet." Stay tuned. jared@zeropaid.com

FCC Chief Suggests ISPs Switch to “Usage-Based Pricing”

Jared Moya — Fri, 03 Dec 2010 22:10:59 +0000

FCC Chairman Julius Genachowski tells audience that ISPs need "meaningful flexibility to manage their networks," and that in order to "promote network investment and efficient use of networks" measures like one in which "match price to cost such as usage-based pricing" ought to be considered.

The Chairman of the FCC, Julius Genachowski, has endorsed the idea of allowing ISPs to institute consumption-based billing practices. In statements made this past Wednesday, Genachowski spoke of the importance of "protecting Internet freedom and openness," and creating a framework of rules that advance a set of "core goals." "It would ensure that the Internet remains a powerful platform for innovation and job creation; it would empower consumers and entrepreneurs; it would protect free expression; it would increase certainty in the marketplace, and spur investment both at the edge and in the core of our broadband networks," he said. Genachowski said that what has enabled the Internet "unparalleled success" is it's openness and freedom, "the ability to speak, innovate, and engage in commerce without having to ask anyone’s permission," and that these qualities must be "preserved and protected." He points out that ISPs have "natural business incentives" to warp their status as as gatekeepers of the Internet to suit their own ends, and that we've seen that in the past with Comcast's throttling of BitTorrent. For this he has proposed rules which to maintain an open Internet:

Consumers and innovators have a right to know basic information about broadband service, like how networks are being managed.
Consumers and innovators have a right to send and receive lawful Internet traffic -- to go where they want and say what they want online, and to use the devices of their choice.
Consumers and innovators have a right to a level playing field.

Genachowski does, however, caution that ISPs need "meaningful flexibility to manage their networks," such as the threats posed by harmful traffic, users, and congestion. This is a fairly benign admission, but what is of concern is his support for consumption-based billing. "Our work has also demonstrated the importance of business innovation to promote network investment and efficient use of networks, including measures to match price to cost such as usage-based pricing," he adds. The problem with this suggestion is that it risks undermining its status as a "powerful engine for innovation, creativity, and economic growth," the very adjectives he used in describing its importance. Some consumers use a variety of data intensive applications and services that could become quite expensive if they were charged on a per byte basis, or for a cap with penalties if exceeded. HD movies on Netflix, for example, at 5GB a pop, would almost certainly become a luxury unless an ISP offered generous monthly data allotments. With Netflix representing more than 20% of downstream traffic during peak times, and growing larger all the time, consumption-based billing risks successful video streaming services such as this. Moreover, consumption-based billing is simply another tool for ISPs to use in squeezing more profits from subscribers. They've tried to argue, so far with limited success, that it's "inherently unfair" that everybody pays the same for a broadband package despite one customer using more bandwidth per month than another. Yet, as Tony Werner, the chief technical officer of Comcast, pointed out last year, "just because someone consumes more data doesn’t mean they drive more cost.” Stay tuned. jared@zeropaid.com

US Net Neutrality Supporters Get New Ally – Democrats

Drew Wilson — Tue, 17 Aug 2010 06:47:26 +0000

The network neutrality debate has been getting very heated in the US. A Verizon-Google agreement drew heavy criticism from proponents of network neutrality. Now, it seems, that four Democrats from the US government is stepping in and disagreeing with the Google-Verizon pact.

The network neutrality debate quieted down for a while, but it seems to be roaring back in to the headlines as of late in the US. That all changed when Verizon and Google announced an agreement that some say was a compromise between the two sides. The press release starts off with this that sounds like it's siding with proponents of network neutrality:

In providing broadband Internet access service, a provider would be prohibited from engaging in undue discrimination against any lawful Internet content, application, or service in a manner that causes meaningful harm to competition or to users. Prioritization of Internet traffic would be presumed inconsistent with the non-discrimination standard, but the presumption could be rebutted.

Things then seemingly took a turn later on down in the press release that sided with those opposed to network neutrality:

Additional Online Services: A provider that offers a broadband Internet access service complying with the above principles could offer any other additional or differentiated services. Such other services would have to be distinguishable in scope and purpose from broadband Internet access service, but could make use of or access Internet content, applications or services and could include traffic prioritization. The FCC would publish an annual report on the effect of these additional services, and immediately report if it finds at any time that these services threaten the meaningful availability of broadband Internet access services or have been devised or promoted in a manner designed to evade these consumer protections.

It was a distinction between a public internet and additional online services that sparked huge criticism from proponents of network neutrality. "The companies seem to want to divide the Internet yet further—not just between wired and wireless," said John Bergmayer of Public Knowledge, "but between “the public Internet” and “additional online services.” Thus, “third party paid prioritization” is allowed—a particular online service might pay Verizon so that its services and content reach customers sooner. According to the proposal, these “additional online services” may “make use of or access Internet content, applications or services and could include traffic prioritization.” According to Ivan Seidenberg of Verizon, these can even include entertainment content—he gave examples including a local opera house paying so that its operas are given prioritization, and 3D video." Protesters also showed up at the Googleplex to voice their anger at the news that Google is caving. A blogger from CNET responded to the news by calling some supporters of network neutrality "zealots" and offering the following opinion:

What Free Press and Public Knowledge don't seem to realize is that AT&T and Verizon already offer differentiated services today with enhanced quality of service to business customers. Verizon's Fios TV and AT&T's U-verse TV services are also examples of managed Internet services that are delivered to consumers. And the last time I checked, no one, other than their cable competitors, has complained about AT&T and Verizon offering competition in the TV market. The truth is that if Verizon and AT&T wanted to cannibalize their broadband business with premium broadband services, they'd already be doing it. But they aren't, because there hasn't been a market for it.

At the very least though, Comcast is trying to cannibalize their network and has been trying for years. Things were starting to not look good for supporters of network neutrality, but a new development saw support for network neutrality supporters from high places - the US government. Edward Markey (D-Mass.), Anna Eshoo (D-Calif.), Jay Inslee (D-Wash.) and Mike Doyle (D-Pa.) penned a joint letter expressing concern with what is happening between Google and Verizon. The letter writes, "The recent proposal by Google and Verizon of an industry-centered net neutrality policy framework reinforces the need for resolution of the current open proceedings at the Commission to ensure the maintenance of an open Internet. Rather than expansion upon a proposal by two large communications companies with a vested financial interest in the outcome, formal FCC action is needed. The public interest is served by a free and open Internet that continues to be an indispensable platform for innovation, investment, entrepreneurship, and free speech." They said that the FCC should be guided by the following principles for broadband proceedings: 1. The FCC must have oversight authority for broadband access services. 2. Paid prioritization would close the open Internet. 3. Wired and wireless services should have a common regulatory framework and rules. 4. Broad “managed services” exceptions would swallow open Internet rules. One thing is for sure, if the network neutrality debate in the US wasn't interesting before, it sure is now. Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

Verizon: Comcast Shouldn’t Have Throttled P2P

Jared Moya — Sat, 19 Jun 2010 04:04:06 +0000

Says it "clearly did harm a lot of users" and calls for an ISP code of conduct that says "any of the players on the Internet should not do anything that harms users or competition," though its CEO said just a few months ago that it would find pirates, throttle them, and "charge them something else."

In the wake of the FCC's court loss against Comcast for BitTorrent throttling many have been concerned with Chairman Julius Genachowski's efforts for a "third way" plan that would narrowly reclassify the Internet as a telecommunications service that the FCC could directly regulate. Verizon and other Internet stakeholders like Google are promoting an nongovernmental alternative to address concerns like P2P-induced network congestion until Congress has a chance to sort the whole thing out. Verizon wants to create a "consensus framework" where Internet stakeholders establish governing principles like what to do when a "bad actor does do something in the Internet ecosystem that is damaging." It wants a standard that says stakeholders "should not do anything that harms users or competition." "Because what it says is that, take the Comcast case, in that case, they were using reset packets and it clearly did harm a lot of users," said Link Hoewing, Vice President, Internet and Technology Policy, for Verizon at a recent meeting of the Progress and Freedom Foundation. "They were not able to use the Internet, some of them. So that principle basically says you can’t do that kind of thing, even if it’s network management to deal with congestion problems." One of the more interesting proposals he says that Verizon is working on is one to increase ISP transparency and accountability so that customers can have a "good idea" of what kind of connection speeds they can expect on a regular basis. This could one day mean that an advertised 15Mbps connection may come with a disclaimer that you're more likely to see an average of 12Mbps. It also thinks this should cover other Internet players like software developers so that if there is an application that’s not working well or is harming people’s broadband connection in some way, the industry "should look at that, too." Hoewig continues:

And the final piece of that is that the industry should try to come up with a good, reputable group of technologists, Internet experts, engineers, who, on a regular basis, meet to talk through some of these issues so they don’t all become policy debates.So, for example, again the Comcast case, if there would have been an industry body, and I don’t just mean industry players, I mean also even advocates that have an engineering and technology background, they should be part of the process; so should folks in the academic world. But they should be able to meet regularly and look at some of these issues. So Comcast could have come in and said "Look, we’ve got a congestion problem. It’s severe, it’s caused, we think, by P2P. How do we deal with this? Have you guys got some ideas, because frankly, the ideas we are thinking about we are not sure are going to work that well.”

Verizon may now think that Comcast's BitTorrent throttling was a bad idea, and it's new "ensure everyone does no harm" mantra is certainly noble, but just this past April its CEO, Ivan Seidenberg, said the company needs the discretion to run its business and “takes care of that 10% that’s abusing the system.” He said Verizon wants the ability to target excessive users and remedy the problem as it sees fit, saying that “those are the people we will throttle and we will find them and we will charge them something else.” So does Verizon think file-sharers that use their connections speeds as advertised "damage" the Internet ecosystem? If it believes that Comcast "harmed" file-sharers by throttling their connections then how would Verizon address the problem? Would it throttle or not? It seems to me that Verizon really isn't sure. Stay tuned. jared@zeropaid.com [Hat Tip]

MPAA Successfully Kills TVs Record Button

Drew Wilson — Mon, 10 May 2010 05:21:12 +0000

If anyone thought the ideas around the Broadcast Flag have finally died off, they'd be dead wrong. Reports are coming in that the FCC has granted Selectable Output Control (SOC) meaning that they, not you, can choose what can be recorded on your own TV.

If you remember the Broadcast Flag, you'll probably know it had quite a history over the years. In 2005 in the court of Appeals, the American Library Association battled the FCC over the broadcast flag. The FCC at the time tried to put in a broadcast flag which would allow studios to pick and choose what TV shows can be recorded. The court held (PDF) "that the rules exceeded the Commission’s authority" That wasn't going to stop rights holders in their war against its own customers from the button. In 2006, Sen. Ted Stevens attempted to reintroduce the broadcast flag. Sen. John E. Sununu later tried to strike this amendment, but it failed. It seemed to be a major loss for consumers, but when the House adjourned, the bill was never passed. A reprieve to say the least. Now, it almost seems like consumers have experienced a sudden and quiet loss. The FCC recently had this ruling (PDF) with regards to SOC:

In this order, we act on a request for a waiver of Section 76.1903 of the Commission’s rules to allow multichannel video programming distributors (“MVPDs”) to disable certain audiovisual outputs on set-top boxes to assure that copy protection is active for certain high-value content, specifically early-release films. We deny the waiver request as filed, but, in order to encourage Motion Picture Association of America (“MPAA”) member companies, independent filmmakers, and their MVPD partners to offer their films for home viewing during early release windows, we grant a limited waiver of the prohibition on disabling audio-visual outputs.

"[T]he Commission recognized that SOC might have future utility in facilitating new video service [...] When the Commission adopted the prohibition on SOC, it specifically contemplated waivers for high value content to facilitate new business models. MPAA member companies have proposed a new business model – films available to consumers for in-home viewing earlier in the release process business models" The MPAA, without a doubt, is salivating over the victory. This is what they said in a press release:

“This action is an important victory for consumers who will now have far greater access to see recent high definition movies in their homes. And it is a major step forward in the development of new business models by the motion picture industry to respond to growing consumer demand,” said Bob Pisano, President and Interim CEO of the MPAA. “We deeply appreciate the recognition by the FCC that recently released movies need special protection against content theft when they are distributed to home televisions.”

Only the MPAA could view this as a victory for consumers. It's nothing more than a victory for their bottom line as they not only wage a war on the future, but the present as well. It's highly doubtful consumers from across the country are leaping to their feet in victory that their media recorder has now been legally broken. Michael Weinberg of Public Knowledge said, "The MPAA essentially put forward two arguments for SOC: preventing piracy and giving people trapped at home (specifically citing the physically challenged, elderly, and/or parents of children unable to find or afford babysitters) easier access to movies. Both of these arguments are bunkum." Weinberg added, "which should be looking out for the public interest, accepts “it is frustrating when somewhere like the Media Bureau of the FCC, which should be looking out for the public interest, accepts “because we want it, and we are studios” as a compelling reason to screw millions of Americans." If this proves anything else, it's that regulators have been bought and sold by the very industry's they are suppose to regulate. If you didn't believe it before, this case should add to a mountain of evidence that proves it. So what will a world of TV DRM look like? You don't have to look far to find comparisons. Just look at the CD vs. the DVD. The CD doesn't have much in the way of limitations and it can be used anywhere in the world. The DVD has DRM encoded on to each disc and now you suddenly can't skip ads encoded in to the movie. You also have to worry about region codes, so it really depends on what place in the world you can watch specific movies. On the CD, you can copy the contents and make back-ups. On the DVD, you can't legally make a back-up copy as long as the local laws prohibit anti-circumvention. Don't worry, in countries that don't have such laws, businesses are prospering as a result of other countries prohibiting the manufacturing and distribution of anti-circumvention technology. Good thing the US economy doesn't need anything helping it at this time. The scarier part is not that corporate America owns the US, but that this will now suddenly give them more confidence to take this to the international stage and force other countries to fall in line. We all know that this won't stop innovation as innovation will now be directed toward breaking the Berlin Wall of DRM rather than going toward making more uses of technology. If recording TV shows becomes a crime in the US, we may see headlines of peoples homes being raided for containing illegal PVRs and recording devices. The USA: land of the free unless it stands in the way of profit for incumbent industries. Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

FCC Wants to Restore Broadband “Status Quo”

Jared Moya — Thu, 06 May 2010 16:03:45 +0000

Wants to develop approach that would "empower consumers" and "enhance economic growth," while at the same time avoiding regulatory overreach to address concerns that the Internet should only have those regulations necessary to promote essential goals like protecting consumers and fair competition.

Federal Communications Commission Chairman Julius Genachowski laid out his new road map for regulating the Internet today. The plan comes in the wake of last month's court loss to Comcast in the long-running appeal of earlier sanctions by the FCC for BitTorrent throttling, which the ISP had told the FCC was a justifiable way to keep network traffic flowing for everyone. Critics argued that the ISP was violating the principle of “net neutrality,” that all Internet traffic should be treated equally regardless of consumption levels, and hinted that the company has ulterior motives in hindering the downloading of video content since the practice competes with its very own rapidly expanding cable TV business. The efforts also ran contrary to President Obama’s campaign promise to “protect the openness of the Internet.” He also said that throttling of BitTorrent and other P2P applications would be illegal. The United States Court of Appeals for the District of Columbia Circuit ruled that Congress has never given the FCC authority to regulate the Internet let alone network management practices. It found the FCC lacked the “ancillary” authority relevant to the “effective performance of its statutorily mandated responsibilities.” Rather than seek out that authority necessary by convincing Congress to reclassify the Internet as a “telecommunications service” under Title II of the Communications Act, he instead wants to "restore the broadly supported status quo consensus that existed prior to the court decision." He says the FCC would:

Recognize the transmission component of broadband access service—and only this component—as a telecommunications service;
Apply only a handful of provisions of Title II (Sections 201, 202, 208, 222, 254, and 255) that, prior to the Comcast decision, were widely believed to be within the Commission’s purview for broadband;
Simultaneously renounce—that is, forbear from—application of the many sections of the Communications Act that are unnecessary and inappropriate for broadband access service; and
Put in place up-front forbearance and meaningful boundaries to guard against regulatory overreach.

Genachowski's main reason for not asking Congress to reclassify the Internet is because he's wary of possible regulatory overreach. He thinks the Internet should only have those regulations necessary to promote essential goals like protecting consumers and fair competition. "The state of our economy and recent events are reminders both of the need to be cautious and the necessity of a regulatory backstop to protect the American people," he adds. "I stand ready to explore all constructive ideas and expect those who engage with us to do so constructively as well. The issues presented by the Comcast decision are a test of whether Washington can work—whether we can avoid straw-man arguments and the descent into hyperbole that too often substitute for genuine engagement." Critics like FreePress, a national, nonprofit organization dedicated to universal access to communications, are happy the FCC's recommitted to oversight of broadband transmission, but thinks it should be "cautious" about giving up on rules that ensure competition and affordability, especially when many ISPs enjoy regional monopolies as many, myself included, have warned about. "The FCC's own data indicates that we have a duopoly problem today, and a looming cable monopoly problem ahead," says Liz Rose, the group's Communications Director. "The commission should not unnecessarily take away the tools Congress gave the FCC to promote competition and affordability in our advanced communications markets." With some ISPs like Comcast venturing into the world of content production and distribution with its pending merger with NBC, it’s only a matter of time before they decide to how best to “manage” your broadband connection. Will the FCC then have the regulatory tools necessary to protect consumers? It's not likely. Stay tuned. jared@zeropaid.com

FCC Giving Up on Net Neutrality?

Jared Moya — Tue, 04 May 2010 08:03:58 +0000

Federal Communications Commission Chairman Julius Genachowski appears ready to cave in to demands of ISPs that it leave them alone, and to decide how best to manage their networks following last month's court ruling that the FCC exceeded its authority in the Comcast BitTorrent throttling case.

Things aren't looking very good for Net Neutrality proponents increasingly concerned that ISPs will become content and application gatekeepers of the Internet. Last month Comcast prevailed in its long-running appeal of earlier sanctions by the FCC for BitTorrent throttling. First discovered back in late 2007, Comcast told the FCC that throttling BitTorrent traffic was a justifiable way to keep network traffic flowing for everyone. Critics argued that the ISP was violating the principle of “net neutrality,” that all Internet traffic should be treated equally regardless of consumption levels, and hinted that the company has ulterior motives in hindering the downloading of video content since the practice competes with its very own rapidly expanding cable TV business. The efforts also ran contrary to President Obama’s campaign promise to “protect the openness of the Internet." He also said that throttling of BitTorrent and other P2P applications would be illegal. The United States Court of Appeals for the District of Columbia Circuit ruled that Congress has never given the FCC authority to regulate the Internet let alone network management practices. It found the FCC lacked the “ancillary” authority relevant to the “effective performance of its statutorily mandated responsibilities.” It first seemed that Genachowski would naturally turn to Congress for help, but according to reports, he's “leaning toward” a decision not to “reclassify” broadband in order to re-establish FCC authority over the nation’s ISPs. Why? It's not because he suddenly thinks it's unnecessary, but rather that he's afraid the "current regulatory framework would lead to constant legal challenges to the FCC's authority every time it attempted to pursue a broadband policy." In other words he's afraid ISPs like Comcast will drag every decision it makes through the courts for years. Critics like Public Knowledge, a DC-based digital rights group, are rightly upset, emphasizing the fact that ISPs are important "on-ramps" to the Information Superhighway, and that we can't allow them to "insert themselves in the middle – picking winners and losers in the process." "The loss of an open Internet would irrevocably diminish the freedom of expression of all Americans, who already have and increasingly will come to rely on this most accessible and democratic communications medium," the group's President, Gigi B. Sohn, told the FCC during a recent Seattle workshop held to discuss how to preserve an open Internet in the wake of the Comcast ruling. "The loss of such freedoms would be especially devastating to typically marginalized demographic groups, such a low‐income individuals, rural populations, and people of color. Thus, it is critical that the Commission adopt rules to protect both citizens and companies from the activities of access providers that would change the fundamental open nature of this revolutionary medium." Others like FreePress, a national, nonprofit organization dedicated to universal access to communications, also expressed its anger with the reports Genachowski was throwing in the towel. Said the groups' Executive Director Josh Silver in a statement:

We simply cannot believe that Julius Genachowski would consider going down this path. Failing to reclassify broadband means the FCC is abandoning the signature communications and technology issues of the Obama administration. Such a decision would destroy Net Neutrality. It would deeply undermine the FCC’s ability to ensure universal Internet access for rural, low-income and disabled Americans. It will undermine the FCC’s ability to protect consumers from price-gouging and invasions of privacy. If Chairman Genachowski fails to re-establish the FCC authority to protect Internet users, he will be allowing companies like Comcast, AT&T and Verizon to slow down, block or censor content at will. They can block any website, any blog post, any tweet, any outreach by a political campaign — and the FCC would be powerless to stop them. Without reclassification, nearly every broadband-related decision the agency makes from here forward will be aggressively challenged in court, and the FCC will likely lose. The phone and cable companies know this, which is why they're going all out to keep the FCC from doing so. Genachowski should not buckle to phone and cable industry pressure, but it will take courage to stand up to one of the biggest lobbying juggernauts in Washington. It’s not too late — and the public is watching.” This decision facing the FCC chairman is about more than one single issue, or even a broken promise to the American people. If the FCC fails to stand with the public, it will be the end of the Internet as we know it.

Without skipping a beat ISPs are, in fact, happy the FCC will reportedly give them free reign, and warned that any interference in the market or "further regulation" will discourage "private investment and market-driven innovation." What ISPs, and now apparently the FCC, conveniently overlook is that there is no marketplace competition in this country. ISPs enjoy regional monopolies that do allow them to pick winners and losers when it comes to applications, services, and even destinations on the Internet. With the Internet having become such a vital tool for everything from education, communication, and entertainment to civic and political participation, people need to have a system of check and balances in place to guard their interests as well. With some ISPs like Comcast venturing into the world of content production and distribution it's only a matter of time before they decide to how best to "manage" your broadband connection. Let's only hope Genachowski reconsiders. Net Neutrality's too important to just simply give up on without a fight. Stay tuned. jared@zeropaid.com

Scrutiny Over 1.5 Million US Job Losses Due to Net Neutrality Mounts

Drew Wilson — Sat, 01 May 2010 05:01:47 +0000

While the European Union is dealing with a filtering debate that appears to be a threat to the internet as we know it, the internet as we know it isn't exactly safe in the US either with the heated network neutrality debate at the FCC.

While Comcast was able to win its case over throttling practises in the US earlier this month, that didn't mean that the debate was over. Far from it and the battle rages on at the FCC. Just a few days ago, we highlighted a suspicious report that claims that network neutrality would negatively impact 1.5 million jobs. We looked deeper in to the report and were able to find quite a few flaws in the report that puts in to question the validity of the claims. Unfortunately, I don't have the benefit of being a US citizen to know how everything works to the fine detail, but others, it seems, have looked at the report and found similar flaws and were able to flush out some more details on why the findings were flawed. Robert X Cringely of info world is also aware of the report and he had a few similar concerns about the validity of the report. "Who paid for this report?" Cringely asked, "A telecom lobbying firm called Mobile Future, which sports a weird hodgepodge of member organizations, including Alligator Planet, Climate Cartoons, Goomzee, and the League of United Latin American Citizens. But the most recognizable name on the list is AT&T. Color me surprised." So there was a definite connection to the telecom industry after all. So while on first glance, it appears more neutral, apparently deeper in to the origins report reveals what some would consider a conflict of interest. Cringely did, however, come to a few conclusions we were able to come to. For instance, the calculated losses didn't really appear to have very strong basis to draw such conclusions. Another similar conclusion was that one cannot base the market experience of DSL vs. cable of the early to mid 2000s and use that as a lesson on regulation. We only needed to look at reported price points of both years to debunk it. Cringely took a different approach by noting the quality of service instead:

Delivering DSL over copper lines involves more variables and more barriers -- including a customer's proximity to a central office, the quality of their phone service, the amount of non-DSL-compatible fiber in the ground, and the Baby Bells' own bureaucratic intransigence. This process was widely known as "DSL hell," and it's why the DSL Reports site was created and continues to flourish.

We were aware of the potential issue of quality of service, but chose to use a simpler method because the amount of time it took to go through the paper (3 days). Cringely did note something else that was interesting that originally came from Brett Glass which comments, "Net neutrality rules as currently written are not actually neutral. They benefit Google in particular because it owns its own backbone and, thus, can prioritize and manage its own traffic at will, free from any government constraint." This clearly shows, ultimately, that the report was fatally flawed when drawing up these numbers and there are other observers who will agree. Like Cringely, we were running in to the problem of how thorough should we go in finding holes in the report? I would argue you could fill an encyclopedia of all the ways you can find flaws in the report. The question is, what angle do you look at this paper and what information is immediately available in your memory do you use against this paper? Bottom line is that you can't trust the findings of this report because there is too many pieces of evidence that would argue against some of its assumptions that pretty much kills the validity of the core argument. In short, the paper should be junked when considering network neutrality. We do know one thing though, its a high stakes fight and there has already been sparring matches over what roll the FCC plays in the network neutrality debate. The internet is changing, the question is, will it serve the same people as it once did? Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.