
Net neutrality is half-dead: Court strikes down FCC’s anti-blocking rules - shawndumas
http://arstechnica.com/tech-policy/2014/01/net-neutrality-is-half-dead-court-strikes-down-fccs-anti-blocking-rules/
======
mjmahone17
What the court is saying is that, if the FCC refuses to classify broadband
providers as common carriers, then, because they neither receive the same
protections as common carriers nor have the same responsibilities, they can't
be regulated as if they were common carriers.

The FCC could change their rules to treat broadband suppliers as common
carriers. However, that's something that big-name broadband providers don't
seem to want, as it would reduce their freedom of operations.

~~~
ilyanep
What are the other ramifications of being classified as a common carrier?

~~~
Steko
Congress specifically forbade the FCC from applying common carrier regulation
to what the Telecommunications Act of 1996 calls "information services."

~~~
dasil003
It's terrifying enough to think of congress today deciding the fate of the
internet, much less the congress of 1996.

~~~
SG-
Well, at least the Internet in the US. Other countries have their own laws and
regulations.

~~~
vacri
Treaty obiligations make some onerous US law viral.

~~~
crististm
We should stockpile modems. It seems we're going to need them...

------
saalweachter
Note that the DC Court of Appeals is the one that the Filibuster Crisis was
all about. According to the Wikipedia, it still(!) has three vacancies, and
the Senate Republicans have spent the last ~N months preventing any of the
Obama administrations nominees from being confirmed to the Court.

These things matter.

~~~
cowsandmilk
I believe the two judges (Rogers and Tatel) that struck down the FCC's
regulations were Clinton nominees. The one who dissented in part was a Reagan
nominee (Silberman).

~~~
warfangle
Keep in mind that Clinton also signed the Telecommunications Act of 1996. A
few key things that this act did:

\- Allow for consolidation of radio stations (and thus, the meteoric rise of
ClearChannel)

\- Allow for consolidation of telecommunications companies (and thus, almost
the major phone service companies are the progeny of the Baby Bells)

It also did some very good things, like requiring entrants into the data
services market to interconnect with incumbents.

But it also allowed telecoms to rip off the USGOV and taxpayers in
extraordinary lengths (see previous discussion on HN:
[https://news.ycombinator.com/item?id=7021057](https://news.ycombinator.com/item?id=7021057)
)

~~~
saalweachter
As long as we're cataloging Clinton's sins, don't forget repealing Glass-
Steagall.

------
pasbesoin
It is obvious that they are, de facto, common carriers.

Give up the lobbyist payola, reclassify them, and introduce some real
competition to my now more frequent than annual Crapcast price bumps (or
significant humps, as it were).

(And in my case, this is primarily for Internet, although basic cable comes
along as a quasi-freebie -- it costs, but then a discount on the combined
package largely or totally negates that cost.)

Otherwise, you can bet I'm not voting for either major party, next time
around.

As a consumer, I find that the only way to defeat this bullshit, is to stop
paying for it. If I had an alternative to Crapcast in my neighborhood, I'd
take it. (I don't count AT&T, because for a lonnngggg time they refused to
deploy high speed Internet here, and because their policies and behaviour are
just as bad. As well, they've personally screwed me in a prior location, as
I've commented before.)

~~~
rayiner
> and introduce some real competition

You do understand that regulating carriers as if they were utilities but then
demanding more competition is inconsistent? Utilities get monopoly protection
in return for offering universal service. That's the quid pro quo.

~~~
VLM
I think he's hoping if all ISPs become highly regulated common carriers, then
all neighborhoods will have to be supplied with uverse, cablemodems, and long
range wifi/wisp service, instead of just some.

So there's one and only one highly regulated cable provider, and one and only
one uverse , not sure about the WISP thing...

~~~
rayiner
But that's at odds with the call for more competition. In a more competitive
market, providers would compete to provide faster and faster service in the
most densely-populated, highest-value markets. E.g. basically T-Mobile's
strategy in the U.S. They spend their limited infrastructure capital on
rolling out fast LTE in key markets, while leaving non-urban areas with HSPA
or even no service at all.

------
loup-vaillant
We could make all the laws we want about Net Neutrality, it wouldn't change
the fundamental flaw that made this problem possible in the first place: too
much centralization.

I hear that the US, there are only 2 ISPs: one of the big 2, or the little
local one. In France, we have about 4. At the other end, we have Google,
Amazon, but most notably we have YouTube and Netflix.

Clearly the market is not efficient. Why do we have so big players in the
first place? Why do we tend to have _only_ the big players?

Because of the infrastructure. In the way the internet is distributed,
artificial economies of scale and barriers to entry favour the big ISPs (this
is clearly the case in France, I suppose the US is the same). And, we have
asymmetric bandwidth, which _kills_ peer to peer exchanges. If people were
allowed to host servers at home, there would be no need for things such as
YouTube, Blogger, or Facebook (search engine are still a thorny problem,
though).

If we got rid of this over-centralization, it would be harder to discriminate
your bandwidth in the first place. Net Neutrality would be the default,
instead of something we have to fight for.

~~~
axus
4 major broadband providers would be a lot better than 2. In the US, the two
are the cable TV company, and the telephone company. Recently, a telephone
companies came to a marketing agreement with the cable companies; the telco
would control the wireless connections, and stop seriously competing on the
wired broadband side. So, we might be moving to de facto monopolies for fixed
line.

How does France have 4 providers? Wherever we tried line-sharing here, the
ILEC would stop repairing the lines used by competitors until the customers
switched to the incumbent.

~~~
loup-vaillant
The trick in France is, the last line often belongs to the former National
Monopoly (which has been privatized since, and is now called the "historical
operator"). Since monopolies are bad, the historical operator has an
obligation of leasing its copper wires.

It's still bad, and we still have a relatively high barrier to entry, but it
_is_ possible. There exist for instance a number of little non-profit
providers (not among the big 4), who make do by sub-leasing part of the big
one's network.

There are still problems of the sort you're talking about (like "it's not us,
it's the other company your data goes through"), but as people are now able to
cut themselves off completely from the historical operator, their actual
provider has to (and do) take responsibility, and fix the line.

As an aside, it is somewhat written in our law that to be called an "internet
connection", it must provide a public IP address, and the user must be able to
do whatever she wants. There are violations (Orange blocks the outgoing SMTP
port), but it mostly holds: users are all allowed to host servers —though
asymmetric bandwidth makes this impractical. Note that mobile connections are
called "data" deals, not "internet" deals.

------
angersock
Anyone who is interested in a really good overview of 20th century telco
policy should read _The Master Switch_ by Tim Wu ([http://www.amazon.com/The-
Master-Switch-Information-Empires/...](http://www.amazon.com/The-Master-
Switch-Information-
Empires/dp/B005GALGNY/ref=sr_1_2?ie=UTF8&qid=1389719458&sr=8-2&keywords=the+master+switch)).

It goes over the transition from telegraph to telephone to internet, talks
about the rise of media conglomerates, and basically explains how we're in the
mess we're in today. Quite an enjoyable read, especially when learning about
the differences between old and new styles of monopolies.

~~~
staticshock
I second this suggestion, The Master Switch is a great read.

------
jacobheller
Here's the full text of the opinion on Casetext:
[https://www.casetext.com/case/verizon-v-
fcc-3](https://www.casetext.com/case/verizon-v-fcc-3)

We'll be getting some leading net neutrality scholars and lawyers to annotate
the doc, so check back later today for interesting, in-depth analysis along-
side the key passages in the case.

------
gdubs
My knowledge of Anti-Trust laws dates back to elementary school, but how is it
legal for the companies that maintain the infrastructure to be in the content
game as well, when other content providers can't compete on favorable pricing
for bandwidth?

~~~
graedus
Because it's considered "vertical integration" and therefore not subject to
anti-trust laws. Comcast merging with Time Warner would be considered
horizontal; Comcast merging with NBCU was considered vertical and therefore
allowed to go forward in January 2011.

I'm currently reading Susan Crawford's book Captive Audience, which is a
detailed history of this exact topic. Recommended. Here's a talk she gave at
Harvard summarizing the story and issues at stake:
[http://www.youtube.com/watch?v=7R4xhwy-1oI](http://www.youtube.com/watch?v=7R4xhwy-1oI)

~~~
pessimizer
Since when has vertical integration not been subject to antitrust laws?

[https://en.wikipedia.org/wiki/United_States_v._Paramount_Pic...](https://en.wikipedia.org/wiki/United_States_v._Paramount_Pictures,_Inc).

~~~
smackfu
It definitely is. The Comcast / NBC merger had to be approved by the DOJ who
only allowed it with conditions.

[http://www.ustelecom.org/news/newsletters/broadband-
connecti...](http://www.ustelecom.org/news/newsletters/broadband-connection-
depth/depth-comcast-nbc-merger-commitments)

------
adricnet
So, the court agrees with many others that the FCC needs to re-label cable
companies as communication common carriers before regulating them as common
carriers. I guess that's good?

Is it a difficult thing technically or only politically for the FCC to change
their minds / admit they did this wrong in the first place?

What is the downside of treating the cable networks as communications media?

There are some thoughts on that here, though note the source:
[http://www.attpublicpolicy.com/government-policy/the-fcc-
hav...](http://www.attpublicpolicy.com/government-policy/the-fcc-having-its-
forbearance-cake-and-eating-it-too/) .

------
sologoub
Definitions from US Code Title 47:

"(1) Advanced communications services The term “advanced communications
services” means— (A) interconnected VoIP service; (B) non-interconnected VoIP
service; (C) electronic messaging service; and (D) interoperable video
conferencing service."

"(11) Common carrier The term “common carrier” or “carrier” means any person
engaged as a common carrier for hire, in interstate or foreign communication
by wire or radio or interstate or foreign radio transmission of energy, except
where reference is made to common carriers not subject to this chapter; but a
person engaged in radio broadcasting shall not, insofar as such person is so
engaged, be deemed a common carrier."

"(24) Information service The term “information service” means the offering of
a capability for generating, acquiring, storing, transforming, processing,
retrieving, utilizing, or making available information via telecommunications,
and includes electronic publishing, but does not include any use of any such
capability for the management, control, or operation of a telecommunications
system or the management of a telecommunications service."

I'm not a lawyer, but consider myself well grounded in tech and telecom, but
reading these definitions I'm kind of at a loss. In common law, my
understanding is that a "common carrier" is someone that makes transport
services available to the public. These can be physical, such as shipping a
crate, or technological (telecom) in nature. By that inference, transporting
packets of information is essentially same as transporting normal packages.

Unfortunately, the "by wire or radio or interstate or foreign radio
transmission of energy" is so period-specific that one could argue that it
doesn't apply and the (24) Information Services is so broad and vague, it
could practically be applied to anything.

One interesting bit, which makes me think that there is hope, is the
definition of advanced communications, that include both VoIP and messaging
services. Sadly, their definitions are not that broad...

~~~
rayiner
The definition of "common carrier" implies a lot more than just "carries goods
for the public." For example, common carrier status implies regulation, often
of rates, and liability on the part of carriers for any losses. In the world
of telecom, it represents a whole host of regulations. For example, telephone
carriage is taxed to fund something called the Universal Service Fund, which
subsidizes infrastructure development of telecom service to rural areas.

One of the key purposes of the 1996 telecom act was to deregulate the industry
to the extent that it was possible. The FCC consequently decided to treat
internet service as an "information service" under the Act, so as to avoid
subjecting it to all the regulations applicable to "common carriers."

So while you could argue that modern ISPs resemble common carriers in certain
ways, one of the ways they do not is that they are relatively unregulated, and
there was a lot of intent and purpose behind the decision to treat them that
way.

~~~
sologoub
While there might have been reason to not regulate in the past, schemes like
the ones advocated by Verizon really strike me as questionable. In 1996, we
had to worry about these networks really catching on. In 2014, it's hard to
imagine not having them.

Consider a simple ad supported news site. It may run ads hosted on hundreds of
sources. When the page loads, the browser requests individual images from
different sources. If some are not paying the verizon tax or not paying
enough, the page loads slower or with broken content. This is pretty
foundational stuff. It really isn't all that different from having different
audio quality in a phone call depending if the local exchange operator was
paid extra or not.

As the result, it seems to me that classification and the additional
regulation is warranted.

------
declan
This is a duplicate of another thread started an hour earlier:
[https://news.ycombinator.com/item?id=7057495](https://news.ycombinator.com/item?id=7057495)

~~~
chii
it's a different article, about the same topic.

~~~
declan
Different article, but same court opinion!

------
anExcitedBeast
I know this isn't a popular opinion, but I think we need to reconsider
accepting precedent that we're OK with the US government regulating the
Internet (without legislation, no less). With the concern about surveillance,
copyright abuse, DMCA/Computer Fraud and Abuse Act abuse, and content
regulation (in the case of the UK and China), is this really the solution
we're looking for? Neutrality is a real problem, but this seems like throwing
the baby out with the bathwater.

~~~
AaronFriel
The US Government has regulated telecommunications for nigh a century now.
AT&T had cleverly figured out that the right way to avoid scrutiny for their
monopoly was initially to provide a _very good service_ and start a two-way
relationship with the government.

I'll clarify two things here. First: this actually had a net-positive effect
on telephone communications in the US. Regulators were initially more
informed, and Vail was able to grow AT&T by making legitimate concessions and
demonstrating universal access and service. Second, we know in hindsight that
this was also the start of a practice of regulatory capture, but regardless,
that the history of regulating telecommunications has often-times been
beneficial even when the regulators were biased.

------
nitrobeast
Quote from the linked article, "(net neutrality rules) forbid ISPs from
blocking services or charging content providers for access to the network."
But that is confusing. ISPs are already charging content providers for access
to the network. Netflix and Google need to pay for their bandwidth.

Actually, web neutrality means the ISPs should treat all data in their network
equally.

------
kolbe
Intuitively, I would have thought that this would be horrible news for content
providers/distributors, and great news for wireless carriers. However, today,
Google, Facebook, Amazon &etc are flying, while Verizon and AT&T are falling.

Does anyone in the industry know what this is all about, and what importance
this decision really has on the future of mobile?

~~~
VLM
Note that your flying providers are huge. The hope of network neutrality is to
turn the networks into gatekeepers to eliminate competition.

So say I want to create in my garage, an online store to compete with Amazon
selling in the pet rock market. Oh what a pity, all your online shopping
traffic got dropped at our border routers. We can "fix things" for you for a
modest fee, just like Amazon. Of course we have a minimum payment of
$50M/month to "fix" things. Oh you say you can't pay $50M out of your garage?
Well our internet isn't for people like you anymore.

So yes, its very good news for large content providers because it eliminates
any need for product development and eliminates competition.

The other way it eliminates competition is Amazon might be able to afford a
department of a couple people to do nothing all day but negotiate with ISPs,
but a startup could never spare the manpower. So startups could only release
on TWC or Charter or AT&T or ... rather than everywhere on the internet.

~~~
rayiner
> Oh you say you can't pay $50M out of your garage? Well our internet isn't
> for people like you anymore.

The fact that it doesn't work that way already is largely just an accident of
history, and I don't know if its necessary to keep that status quo
artificially. Small entities are just in a bad leverage position, especially
when their "product" depends heavily on someone else's very expensive and hard
to reproduce infrastructure. Look at the app market. The people selling the
infrastructure (Apple, Samsung) make all the money, because lots of people can
write apps but very few can build cell phones. That's the natural state of
things.

~~~
revelation
That is an odd analogy, and I don't think infrastructure providers making all
the money is "the natural state of things".

The people actually building the infrastructure (Android) arent't making much
any money with it, while those using it (Samsung) are. That is how its
supposed to work; if power companies and utilities had been able to extract
all the profit from manufacturing companies and discriminate against specific
ones or have the ability to simply deny necessary upgrades, we would still be
using oil lights.

I also respectfully disagree on the "very expensive" part. Internet access is
one of the _cheapest_ basic services, trivial to scale and the variable costs
are basically _zero_. There is no inherent difficulty in transporting bits!
Consider other infrastructure. Providing reliable electricity is _very
difficult_ (you need to balance demand and supply at all times), there is a
very harsh regulatory environment that is constantly changing (in some
countries, pocos need to prioritize renewable energy and pay guaranteed prices
to customers inserting it), the _hardware_ necessary is copper-heavy and poses
significant reliability and safety issues.

Meanwhile, we are being reluctant to regulate internet providers to the point
where they are the fast, dumb pipe we need, because lawmakers are clueless how
this internet thing works (the 'cloud' isn't helping) and internet providers
have this dream where they are the premier entertainment and media source
(wakeup; YouTube and Netflix exist).

~~~
rayiner
Android is part of the platform, but it's clearly not the capital intensive
part of the cell phone infrastructure. That's be the CPUs, the DRAMs, the
flash memory, etc.

And there is nothing cheap about providing internet access. AT&T and Verizon
lead the country in annual capital expenditure:
[http://news.investors.com/technology/091913-671712-institute...](http://news.investors.com/technology/091913-671712-institute-
ranks-highest-us-corporate-capital-spending.htm).

> Meanwhile, we are being reluctant to regulate internet providers to the
> point where they are the fast, dumb pipe we need

Why should we regulate the telecoms into being fast, dumb pipes because that
is what best serves the Youtubes and Netflixes of the world?

> because lawmakers are clueless how this internet thing works

There is a difference between not understanding the internet, and having a
different value structure with respect to the internet. Saying that telcoms
should be "fast, dumb pipes" isn't a matter of technical fact. It's not a part
of any RFC. It's a (very software-centric) normative judgment about how the
ideal organizational structure of the internet. It's certainly more consistent
with how most software people view the internet to treat the physical
infrastructure as dumb pipes, but that view has no technical basis. TCP/IP
works just fine if AT&T gives higher priority to packets originating from
companies that pay to play.

~~~
revelation
CapEx obviously doesn't tell the story, certainly not for companies like AT&T
and Verizon. Try fundamentals; Moores has done good work for bandwidth, as
media is still being streamed at 6 MBit. I'm not sure lawmakers understand
this; _there is no capacity problem_. Technology is vastly ahead of growth and
certainly consumer access to bandwidth. Meanwhile, internet providers are
trying to tell lawmakers they need to make YouTube (and customers) pay for
traffic because theres somehow congestion.

Of course it's not a technical fact. The basic idea is that regulating them to
be the dumb pipe can yield the biggest gain for the general economy, while
they get the benefit of a low margin, but extremely stable business (as with
any other infrastructure).

The obvious problem right now is that instead of competing with each other,
_internet providers are trying to compete with their customers_. That is not
the sign of a working market, and it is not acceptable for critical
infrastructure. Regulation is needed, and certainly not towards giving
providers more flexibility.

~~~
rayiner
> CapEx obviously doesn't tell the story, certainly not for companies like
> AT&T and Verizon. Try fundamentals; Moores has done good work for bandwidth,
> as media is still being streamed at 6 MBit.

It's hilarious for you to say CapEx doesn't matter, then invoke Moore's law,
which is rooted in exponentially increasing CapEx! Guess who is in the top-5
of the CapEx list along with AT&T and Verizon? Hint: it's Intel.

------
shmerl
Why can't they start classifying ISPs like common carriers?

------
tomrod
The economist in me is happy, as this allows for greater investment incentives
on the part of ISPs.

The FLOSS advocate in me is sad, as this is a compromise that I don't want to
see go away.

------
wahsd
What I wish would happen is that organizational forces were focused on
breaking up ISP monopolies over the pipes. Essentially, building a firewall
between infrastructure and content. It would create a market...remember that
thing we think controls America's destiny...that would lead to faster
bandwidth and also ISPs that offer free, open, and protected services.

------
unethical_ban
Am I experiencing deja-vu? I fee like many of these comments (and their
responses!) are exact reposts from earlier submissions about this very same
topic.

    
    
      "The court is saying the FCC needs to reclassify providers"  
      "The Republicans are holding up nominations"  
      

so on so forth.

------
the_watcher
Does anyone have a good solution for this argument? I find myself wildly
sympathetic to both sides of it. Is there any way to decentralize internet
access in the future (something like what the utopian ideal of solar powering
your home would be for electricity)?

~~~
ef4
To the extent that near-future cellular data connections are good enough for
most things, they introduce a lot of additional choice. Instead of just cable,
DSL, or satellite, you can also throw three or more cellular networks into
competition.

As for wired connections, I see a way to get competitive pricing there too.
Neighborhoods and towns should invest in their own last-mile fiber, and then
buy transit at competitive rates. They could outsource the operation of the
local network, but they would retain ownership of it and can always get
competitive bids for another operator.

------
hrjet
How much should the rest of the world care about this?

If a web service is hosted, say, in Europe and is being consumed by a customer
also in Europe, will they be affected? AFAICT, they shouldn't.

~~~
anExcitedBeast
That's like saying the rest of the world shouldn't care about the UK's content
filtering. None of us live in isolation; all our lawmakers are friends and
they like to share ideas and cut deals.

------
VladRussian2
>In its ruling against the FCC’s rules, the court said that such restrictions
are not needed in part because consumers have a choice in which ISP they use.

in theory vs. in practice

------
draggnar
Perhaps this means the other shoe will fall. Will local regulations making it
easy for municipalities or other actors to set up their own ISPs?

------
Grovara123
Why is this not a bigger deal?

------
pearjuice
How can something or someone be half-dead? Life is a binary thing, you are
either YES (1) alive or NO (0) dead. I fail to comprehend how any respectable
(tech) journalist would call something "half-dead". It implies there is a
state between being alive and death when this is clearly not the case.

~~~
unfunco
I don't think this tangent adds much to the intended discussion, and I feel
you're missing the point of the original post. There is much more to talk
about here than the definition of death. However; I would like to both humour
and disagree with you, I don't think there is an agreed position of what it
really means to be alive. Is someone in a vegetative state really alive? If a
human is on their deathbed with absolutely no chance of recovery, although
they're not technically dead, they're not really alive either. There is most
definitely a transition.

