What it means: The FCC's net neutrality vote
What it means: The FCC's net neutrality vote
FCC says net neutrality plan is on a 'firm legal
foundation'
Net Neutrality: A social good, or a solution in search of
a problem?
In addition to expected legal challenges, experts say a
profusion of private networks will emerge
By Matt Hamblen
Computerworld | Feb 26, 2015 1:22 PM PT
Net neutrality has been debated for a decade, but the
Federal Communications Commission's historic vote on Thursday signals only the
beginning of further battles and likely lawsuits.
At issue is how best to keep the Internet open and
neutral to all while still giving Internet service providers sufficient
incentive to expand their networks to serve more customers and to support an
exploding array of data-hungry applications as futuristic as holographic
videoconferencing used for home-based medical exams.
The FCC voted 3-to-2 to create a series of sweeping
changes, including three open Internet conduct rules that block broadband
providers, both wired and wireless, from blocking or throttling Internet
traffic. The rules also ban broadband providers from taking payments to
prioritize content and services over their networks.
The vote followed party lines, with Democrats Tom
Wheeler, the chairman, and commissioners Mignon Clyburn and Jessica Rosenworcel
voting in favor. Republican commissioners Ajit Pai and Michael O'Rielly
dissented.
The main legal instrument used by the FCC to put these
rules in place comes through Title II of the Communications Act of 1934. Many
cable, phone and wireless providers, including prominent voices at AT&T and
Verizon, objected to the use of Title II, saying the rules would subject them
to arduous and costly reviews -- the same as other utilities like phone service
-- that will detract from their investments in growth and expansion.
Opponents also predict that future FCC commissioners will
try to impose tariffs and fee-setting regulations on Internet providers,
although the newly adopted rules don't
explicitly say so. An FCC summary states that broadband providers
"shall not be subject to utility-style rate regulation." (The full
ruling of the FCC is not expected for weeks.)
Title II supporters included FCC Chairman Tom Wheeler,
President Obama and many of the 4 million people, public interest groups and
companies who submitted comments to the FCC on the issue. These supporters
maintain that reclassifying broadband providers under Title II puts broadband,
appropriately, in the category of other utilities, akin to a 21st century
version of electricity or telephone service. The FCC outlined these so-called
"Bright Line Rules" and other details in an online fact sheet and a
press release.
Where it started
The primary motivation for Wheeler to propose these Open
Internet rules was a U.S. Court of Appeals decision on Jan. 14, 2014 in the
now-famous Verizon vs. FCC case which vacated existing FCC rules that
preventing Internet blocking and unreasonable discrimination. Those earlier FCC
rules had stemmed from two oft-cited FCC decisions: In 1995, the FCC found
Madison River Communications had blocked Vonage Voice over IP services to some
customers; In 2008, the FCC said Comcast was arbitrarily throttling BitTorrent
traffic in violation of FCC principles. The FCC has outlined some of this
history on its website.
Other provisions of new FCC rules
Also in its vote, the FCC decided to use Section 706 of
the Telecommunications Act of 1996 to supplant Title II in its adoption of Open
Internet rules. Section 706 was specifically cited by the Court of Appeals in
the 2014 Verizon case as giving the commission an independent grant of
authority to support such rules.
By using both Section 706 and Title II to invoke new
rules, FCC senior officials have said they are employing a "tailored"
approach to Open Internet enforcement that will withstand the inevitable
lawsuits threatened by multiple ISPs. Title II allows the FCC to use a broad
"just and reasonable" standard in its regulation of Internet
providers.
One area that is sure to stir up controversy and lawsuits
is how the FCC uses its Title II "just and reasonable" standard to
act on complaints by so-called "edge" companies, such as Netflix,
that connect their services to Internet providers like AT&T, Comcast and
other broadband providers. For example, an edge provider could complain to the
FCC that its Internet capacity was unreasonably limited by an Internet
provider, opening up an FCC inquiry and possible ruling.
Title II also allows competitors to an Internet provider
in a community to access the same utility poles and underground conduits, in
hopes of boosting the deployment of new broadband networks.
What some supporters and opponents say
Supporting the new FCC order are a range of public
interest groups that point to the Internet as the primary medium of free speech
today.
In congratulating the grassroots movement that spurred
the FCC's action, U.S. Sen. Ed Markey, D-Mass., called the effort a
21st-century battle where supporters acted as modern-day Paul Reveres.
"You have sounded the alarm and called us to arms ... to advocate for this
new set of rules," Markey said in a conference call with reporters.
"This revolution was not only televised but it was tweeted ... around the
world."
The new rules will help protect the economy and are as
important as keeping our air, water and roads safe, Markey added. "Reclassifying
under Title II is a major victory for consumers," he said.
During the FCC hearing, Tim Berners-Lee, founder of the
World Wide Web, in a pre-recorded video statement , gave his support to the
Title II reclassification as the means to keep "permissionless
innovation" alive on the Web.
Etsy CEO Chad Dickerson also testified about the value of
keeping an unrestricted Internet to support businesses like Etsy, a
peer-to-peer e-commerce Web site that supports sales by online artists and
designers. In an emotional highlight, Dickerson read a letter from a woman
identified only as Nancy from California who had been injured in a traffic
accident and was relying on sales of her goods from her chair at home via Etsy.
"My dream is alive and viable because of the free Internet," she
said.
Producer and writer Veena Sud described at the hearing
how her video series The Killing had been canceled on AMC television but gained
renewed life with online streaming over Netflix. Such online series are able to
promote more programming competition and bring more women into executive video
production roles, she said.
Malkia Cyril, director of the Center for Media Justice,
said the FCC order helps keep the Internet open to protect civil rights and
promote fair policing in cities such as Ferguson, Mo., as well as fair wages in
workplaces. "The Internet is where movements like Black Lives Matter are
born and where dissent is protected and where underserved communities can plead
our cause," she said in a conference call.
Like many other supporters, Cyril argued that enforcement
of the FCC's rules will matter as much as the creation of the new rules.
Opponents to the FCC's new rules, meanwhile, have thrown
out a wide range of objections.
Most critics call the FCC rules an over-regulation of a
thriving Internet industry. A group of congressional Republicans had urged the
FCC to delay its vote, while U.S. Rep. Marsha Blackburn, R-Tenn., described
reliance on Title II as an outdated, 1930s-style utility regulation.
Picking up on that theme, Verizon posted a blog shortly
after the FCC vote that was composed using old-fashioned Morse Code and titled,
"FCC's 'Throwback Thursday' Move Imposes 1930s Rules on the
Internet." (The blog includes a translation of the press release with a
1934 dateline and the typeface of a manual typewriter.)
Blackburn also argued that in the future, the FCC could
impose rate regulation on Internet providers.
Pai and O'Rielly, the Republican FCC commissioners, both
hammered on the likelihood of future FCC rate regulation on Internet service
providers. Pai predicted $11 billion each year in new fees would be imposed on
consumers. O'Reilly argued that the "just and reasonable" review
clause can be interpreted to grant the FCC the ability to regulate rates set by
Internet providers.
To rebut their point, former FCC Commissioner Michael
Copps, now with Common Cause, said that "regulation of rates is not what's
being contemplated" by the FCC. He pointed out that the FCC has the
potential to spur expansion of high speed, affordable broadband without
controlling rates set by Internet providers. Measures the FCC can use to spur
expansion include supporting municipal broadband by pre-empting state laws (as
the FCC did in a separate 3-2 vote affecting communities in Tennessee and North
Carolina) and slowing down industry mergers that can reduce the number of
broadband competitors.
AT&T Chairman Randall Stephenson has emerged as one
of the most vocal opponents of the new FCC rules. He has appeared many times in
recent months on television programs to point out that litigation against the
FCC's rules could last up to three years before real clarity emerges on how the
regulation will work and what Internet providers will be allowed to do.
Discussions are underway as to whether individual companies like AT&T and
others would file separate suits or would join together in a massive lawsuit,
he said recently.
A large number of Internet providers, including some
small municipal broadband authorities, have argued that they already adhere to
open Internet rules, making the new FCC rules unnecessary.
"There's not a shred of evidence that this [vote] is
necessary," O'Reilly said. Meanwhile, Pai said that both the BitTorrent
and Vonage VoIP infringement cases happened years ago and did not constitute
much harm, especially in light of the proliferation of Internet services in
recent years.
That's the same position that Verizon and other service
providers have taken.
"What has been and will remain constant before,
during and after the existence of any regulations is Verizon's commitment to an
open Internet that provides consumers with competitive broadband choices and
Internet access when, where and how they want," said Michael Glover,
Verizon senior vice president for public policy.
Questions over FCC's interconnection oversight
One area of the new rules that is ripe for attack will be
how the FCC deals with heavy traffic on public networks. The FCC will now
prohibit paid prioritization for traffic, as in a case where an Internet
provider allows, for a fee, an edge provider or other company to have a fast
lane for its fat data video service. While fast lanes are out, the FCC will
still allow an Internet provider to conduct "reasonable network
management" that recognizes the need for broadband providers to manage the
technical and engineering aspects of their networks.
(Of note: All of the FCC's Title II oversight applies to
public Internet services and not data services that use private pipes, such as
VoIP from a cable service or a dedicated heart-monitoring service. However, the
FCC will still keep tabs on these kinds of services through new transparency
rules on Internet providers to make sure such services don't undermine Open
Internet rules.)
Some Internet providers and other businesses have said
that prohibiting paid prioritization while still allowing reasonable network
management will create a murky area for the FCC in an era with new technology
such as Software Defined Networks (SDNs). For example, what if an Internet
provider creates an SDN over a fiber cable normally used for the public
Internet and then charges an edge provider a fee for using that fast lane SDN?
As a result of the FCC rules, some analysts predict that
Internet providers will be forced to create a profusion of private fast-lane
networks of all varieties for their customers that are willing to pay a premium
to push out fat content, especially byte-rich video, such as the real-time
holographic video now on the technology horizon.
Private networks and reserved private pipes are already a
reality, of course, but there are many quasi-public-private networks where a
conflict is expected to arise.
For example, Gartner analyst Akshay Sharma posed the
question of whether a doctor in surgery waiting for a critical MRI image to be
sent over a public network would have the right to network prioritization over
other users on the same network accessing games on BitTorrent. Likewise, in
January, the FCC chairman was asked in a public forum at the International CES
trade show if pornography on the Internet should be treated equally with
medical records. Wheeler didn't answer directly, but repeatedly said the "just
and reasonable" standard would apply.
There's not likely to be a much of a public discussion of
any of these what-if scenarios, and only a lawsuit resulting from a particular
dispute between an edge content provider and an Internet provider is likely to
have much bearing.
The FCC has already allowed choke points on telephone
networks for network management, Sharma noted. For example, when a radio
station offers a prize and callers flood the phone lines, there is network
management technology in place that still allows 911 calls to go through.
If the FCC does indirectly force creation of more paid,
private networks for heavy traffic users, the emergence of SDN and other
technologies will create gray areas, at least in a legal sense, if not a
technological one.
"The problem you will have is trying to define a
public network from what is a private one," said Derek Peterson, chief
technology officer for Boingo Wireless, which provides Wi-Fi access to more
than 1 million hotspots globally.
Peterson said it is reasonable for the FCC to prohibit
paid network prioritization because an Internet provider could hurt one
business while helping another on a network link. "An ISP (Internet
Service Provider) could sit there and say, 'I don't like that retailer,' which
could be bad for it," Peterson said in an interview.
"It's going to be interesting to see how crazy the
FCC gets and how technology providers work around rules to deliver the services
they need to deliver," he added. "It will be interesting to see how
the FCC balances all that and if they are successful at all."
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