

US court rules against FCC on net neutrality - viggity
http://finance.yahoo.com/news/US-court-rules-against-FCC-on-apf-78990100.html?x=0&.v=4

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grellas
The problem with what the FCC did here was to take upon itself the role of
having a roving commission to regulate carrier activities on the internet.

By law, the FCC is an administrative agency - that is, it is charged with
administering an act of Congress that gives it express authority to regulate
an industry. An administrative agency can only regulate things over which it
has been given such authority. In this case, the FCC did not have any
_express_ authority in any statute empowering it to impose rules of net
neutrality concerning a carrier's attempt to restrict peer-to-peer usage
across the carrier's network. The FCC admitted as much and argued that it had
so-called "ancillary" authority to make the ruling that it did in this case.
In other words, it claimed _implied_ authority to act as it did. The court
disagreed.

The Second Circuit's decision goes through a painstaking analysis of technical
doctrines of administrative law relating to the FCC's attempt to justify its
decision based on "ancillary" authority. The court concluded that the FCC, in
failing to tie this assertion of authority to any "statutorily mandated
responsibility," had overstepped its proper function. Accordingly the court
struck the order down as illegal.

A reasonably informed legal discussion of the case appears here
([http://www.law.com/jsp/article.jsp?id=1202447593360&Appe...](http://www.law.com/jsp/article.jsp?id=1202447593360&Appeals_Court_Finds_FCC_Lacks_Authority_to_Regulate_Internet)).
As noted in that piece, this is a "decision with far-reaching implications for
the future of the Internet and the role of the Federal Communications
Commission."

Whatever the merits of net neutrality, the FCC cannot disregard the rule of
law. Congress _can_ empower the FCC to regulate the net in this manner and
that is where this battle should be fought.

~~~
sachinag
Can I just say that having grellas active here on HN is one of the best
developments of the last year for this community? Thanks, sir.

~~~
some1else
Concur!

------
jamesbressi
This is nuts. Maybe the court ruling is correct that the FCC lacks authority
to enforce net neutrality, but we have to somehow figure out how to put an end
to this madness.

It is a case that has much greater implications than just unfair treatment of
traffic, and no I do not mean interference with the national broadband
initiative. I am speaking of the precedent it sets.

Unfortunately, still a great deal of the country has no idea about this issue,
what this means and it will go unnoticed. Even if it does come into the lime-
light of issues (doubtful), because of the lack of understanding by the
majority of constituents in this country it will be such an easy topic to
spin.

Depressing.

~~~
some1else
I hope this thing gets settled in congress, as it has been suggested and
attempted by civil-rights groups. Whatever precedence gets set, it will spread
to Europe too, and I really hope a mistake like this doesn't determine the way
westerners get to use internet in the future :-S

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grandalf
If anyone here supports Net Neutrality, I challenge you to explain why you
want the FCC to have more power. Do you approve of its regulation of content?
Would you like to see such regulation occur on the internet?

The FCC regulating the internet is a sure path to speech restrictions
(censorship, etc.) and taxation of the internet. Why? Because it becomes a one
stop shop for cultural conservatives who want the internet regulated.

~~~
jbooth
Slippery slope arguments are almost never persuasive.

Giving the FCC a mandate to enforce openness is in no way giving it a mandate
to enforce censorship. The world doesn't exist on a 1-dimensional plane
between zero FCC power and ultimate FCC power. There's other stuff going on.

~~~
grandalf
What else is going on? Currently there are lots of entrenched lobbyists who
influence FCC policy. This is why things like nipple slips or use of the word
"ass" on prime time TV are a big deal.

Do you think those lobbyists wouldn't immediately start lobbying for internet
"decency" regulations the minute the FCC gained additional power to regulate
the internet?

Such restrictions will start in obvious ways on largely uncontroversial
subjects -- perhaps a law that appears at first to target only pedophiles or
hard core pornography viewing by minors -- then more and more ambiguity creeps
in until you have horrible censorship going on.

Have you read quotes by recent FCC chairmen? They generally consider
themselves to be stewards of good taste. This is scary stuff.

~~~
chrischen
Grandolf, assuming the FCC doesn't fall down that slope, do you support forced
net neutrality?

Remember in the case that censorship does become an issue you can fight that,
but there's nothing about net neutrality that gives the FCC that power. I want
net neutrality and I'll be quite specific about what the FCC can do about
that. Plus if the FCC is already headed towards the censorship department,
blocking net neutrality isn't going to stop that.

~~~
grandalf
We have net neutrality today in fact, just not in law.

This battle is about big firms duking it out in the court of public opinion by
using FUD about a non-free internet.

Business is important too, and if someone can start a business delivering
100MB fiber to my door for $20 per month but Bing handles all search
traffic... so be it. I might very possibly want to buy that service.

Without the _freedom_ to have firms make such deals and offer such services,
we're giving up a lot of potential innovation (in services and in pricing
bundles).

I don't think there is anything inherently bad about the sorts of contractual
restrictions that may arise on the internet vs the rest of the universe.

~~~
chrischen
Good point. But also consider the same thing can happen on the other extreme.

For example say that internet service provider gains a monopoly through its
cheap service. Now it can unfairly suppress new search engines by only
allowing Bing.

The thing about the net neutrality law would be that it is equally applied
across the board. As long as it doesn't unfairly benefit a specific group,
it's fair. And it benefits people in general because it prevents companies
from leveraging power from short term tactics which have long term negative
repercussions on society.

------
lmkg
Let's just keep in mind, the court is not ruling against Net Neutrality
itself, only that the FCC in particular does not have the
authority/jurisdiction to enforce Net Neutrality. A legislative action, or
possibly even an executive order, could mandate net neutrality and/or expand
the FCC's powers to make that decision on its own. Time for you web startup
types to call up your senator and express concern about your small business
being shafted. Put it in terms they can understand: if my web traffic is a
second class citizen and my page loads 0.1 second slower, I lose $X,000 a
month.

~~~
grandalf
Small businesses are the ones most likely to benefit from preventing net
neutrality -- via an acquisition by a content provider like Comcast or Verizon
or AOL, etc.

It is the companies with > 30% market share that stand to lose, since ISPs
would be able to pick winners and fragment the market further. This is why
Google supports net neutrality.

~~~
apu
If I write on my blog about Comcast doing something bad, what is stopping
Comcast from simply blocking all connections to my blog?

~~~
allenp
Further - what is preventing them from changing the html and removing their
name from whatever they serve?

~~~
grandalf
Nothing, yet they don't do that. I think you proved my point.

~~~
jrockway
Just like MSNBC didn't block Wikileaks when Wikileaks made their parent
company, GE, look bad.

Oh wait, they _did_ do that.

~~~
grandalf
How is that relevant to net neutrality?

~~~
jrockway
What if GE was an ISP and not just a search engine?

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ryanisinallofus
Can we revoke their rights to location based monopolies?

~~~
jamesbressi
Yes, in a way. You would have to work with the mayor or counsel members of
your township in the U.S. They are responsible for controlling what companies
may lay wire and services in your township.

Note: Townships get a nice kickback per subscriber within their borders. Yes,
another money game. And yes, that kickback is a negotiable price-per-
subscriber...

------
grandalf
I think it's important to point out that firms like Google which have
supported net neutrality, have done so to support their own business models.

Microsoft 'cloned' google and created Bing in a very short time. As computing
power increases this task gets easier and easier. Plausibly, comcast could
create its own "google" and direct all search traffic there. It could sell ads
and use the ad revenue to lower monthly subscription fees to its customers.

If the service works well enough (i.e., if google is actually clonable) then
most consumers wouldn't care. That's precisely Google's concern. Why should it
give up its revenue so that Comcast can start its own revenue stream?

Think about Google's share price and all the billions of dollars of ad
revenue. That's what this issue is about. Google has invested hugely in
becoming "infrastructure" but the price of cloning that infrastructure is
quickly decreasing... so Google is trying to stop it by any means necessary.

~~~
Goronmon
_Plausibly, comcast could create its own "google" and direct all search
traffic there. It could sell ads and use the ad revenue to lower monthly
subscription fees to its customers._

Except they wouldn't do that. They would use QoS to make sure their search
engine was the only one usable to their customers and then they would charge
extra for access to the search engine as an added feature.

~~~
grandalf
What's wrong with that? Do you really think there would be so little benefit
from building a good search engine that Comcast would build a lousy one? They
could even license one from any number of third parties.

~~~
billybob
Well sure, that's the point - there would be little benefit from building a
good search engine if you couldn't choose a different one. Google has to be
great because otherwise somebody will get all its traffic. A monopoly can give
lousy service because you can't leave.

~~~
grandalf
True, but if the search engine is lousy there won't be much traffic. Google
has gone to great lengths to build a service that lots of us wouldn't want to
live without. So why worry?

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calcnerd256
Ideally, whoever grants the telcos monopoly power (Is it the FCC that does
that? I don't know.) should be able to enforce net neutrality. If that's the
FCC, they should be able to enforce it; if it's someone else, they should.

~~~
grandalf
So you are arguing that the FCC should have more power? Fuck I'd better hurry
up and swear on the internet while it's legal.

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sili
This situation looks similar to natural gas transportation. There needs to be
separate companies who provide internet access and who own and operate
transmition cables. Cable operators would not care about what kind of traffic
flows through their wires as long as it's paid for. ISP's would rent bandwidth
from cable providers and re-sell it to customers. Since there will be less of
an entry barrier to become and ISP there would be more competition and
customers in an area would not depend on the whim of one company.

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hkuo
I may not be up to speed with the whole argument, but is there a middle ground
that neither party seems to want to meet at?

Net Neutrality proponents seem to want to do away with QOS entirely, but this
seems to be on the grounds of ensuring the big operators don't use it for
evil.

QOS can be an extremely beneficial thing. How many times has anyone been on a
Skype call when the video dropped or the audio came through garbled? How many
of you want to ensure that when you're playing Call of Duty that the very
milisecond you hit the trigger for a headshot, your packet doesn't get dropped
and you miss your target? On the flip side, how many of you don't care if an
email you send gets sent that very milisecond or one or two seconds later? And
who would care if a podcast you have downloading from iTunes overnight takes
15 minutes or 20 minutes?

This kind of QOS ensures that video, audio, and gameplay get priority over
other forms of data that are not as time-sensitive.

Please correct me if I'm wrong, because this overall issue does seem a bit
complex.

~~~
grandalf
You are right. The reason Google supports net neutrality (for example) is to
prevent Comcast from making a deal with Vimeo to offer QOS on Vimeo videos,
allowing them to play at noticeably higher quality.

Comcast could even make a deal with a yet unheard of startup and suddenly
Google would lose lots of market share to an upstart who was willing to accept
Comcast's terms.

~~~
hkuo
YouTube isn't exactly a shining example of high-quality grade video, but I
totally get your point.

I'm just hoping that a tiering of QOS from a technical standpoint is not
entirely ignored. Perhaps it's something already being addressed by Net
Neutrality proponents.

Edit: Here's an article from a Cisco podcast that discusses this same issue
I've mentioned: [http://www.ciscohandsontraining.com/2009/09/need-for-qos-
ver...](http://www.ciscohandsontraining.com/2009/09/need-for-qos-versus-net-
neutrality.html)

~~~
grandalf
I hope so too. Surprisingly, I was watching youtube 1080p content via AppleTv
the other day and was quite impressed. I certainly know why Comcast opposes
net neutrality :)

------
blubb
All I can say is that I feel sorry for you in the US. In Norway, I get 16MBit
DSL at my cottage (yes, half an hours walk from the nearest dirt road). We
don't even have any net neutrality laws, and there are only two nationwide DSL
providers.

~~~
Estragon
The general bandwidth you get is irrelevant. The central question from the
perspective of net neutrality is whether there is any traffic shaping upstream
of you.

~~~
Vivtek
Yeah, well, I still envy him his ability not to live in town.

------
allenp
This commentary is interesting (and non-alarmist):
[http://balkin.blogspot.com/2010/04/whats-next-for-network-
ne...](http://balkin.blogspot.com/2010/04/whats-next-for-network-
neutrality.html)

------
stan_rogers
WTF??? I may not be a fancy big-city lawyer, but I would think that even
someone as dense as a Supreme Court Justice (and obtuseness seems to be a job
requirement these days), let alone a clearer-thinking lower court judge,
should be able to see the clear applicability of common carrier statute and
precedent here. Unless and until the ISPs actually create, procure and provide
exclusive content and _only_ their own content (goods) via their delivery
means, they are bound by common carrier. That goes back to what, Domesday?

~~~
wmf
Don't the FCC's own regulations say that ISPs aren't common carriers? Don't
recent acts of Congress (e.g. the Telecommunications Act) overrule ancient
common law precedents?

~~~
stan_rogers
Only if the adjudicators agree with statute and regulation -- and there is
clear parallel with every other application of common carrier law, so what the
courts should be finding is that the ISPs are _de facto_ and _de jure_ common
carriers, despite legislation to the contrary. To put it technically, they are
the same in essence, and the rule of law says that when two things are the
same in essence, they cannot be treated differently.

------
gojomo
If you support net neutrality, but are against FCC content censorship, you
should applaud this ruling. It checks the agency's ability to conjure new
powers for itself. That overreach is the mechanism by which "neutrality" could
be subtly redefined, over time, by the next generation of righteous
busybodies.

Without strict by-the-letter-of-the-law limits, future populist regulators
could easily decide that packets aren't truly "neutral" unless they advance
neutrality, equality, and justice for all Americans. Packets which contain
hate speech, pornography, anonymous speech, content inaccessible to the
handicapped, political campaigning beyond the spending limits of the FEC, or
an insufficient proportion of 'underrepresented' viewpoints all twist the net
against the public interest. So why shouldn't fair-minded regulators issue
extra rules to protect us? Demand more proof of compliance and 'good faith'
from operators to stay in business? And once an agency is reviewing business
practices for compliance with political ideals, where does it stop?

The diversity of political viewpoints available from a mass media is roughly
inversely correlated with the amount of government regulation. Broadcast TV --
requiring FCC licenses for using the "public" airwaves -- has the tamest
commentary. Cable TV -- federally-unregulated but locally-licensed, with a lot
of operator overlap with regulated broadcasting -- is slightly more diverse.
Books and periodicals -- there is no FCC of print, thankfully -- are the most
diverse.

Right now the internet is most like books and periodicals. Anything that gives
the FCC review power over net businesses will push it to be tamer, more like
cable or broadcast. (This is even if there are no explicit content
regulations; simply trying to keep the bipartisan regulators on your good side
with regard to future disputes means self-censorship.)

Even if you think that's a risk worth taking for "neutrality", you ought to at
least require that authority to come from explicit legislation. Get a clear
definition of new rules and authorities in writing; have that definition pass
Congress and constitutional review. Don't let an appointed agency of 3 Dems/2
Reps (and sometimes, 3 Reps/2 Dems) assign themselves this new authority.

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clammer
This was a clear victory for property rights. They own the equipment; they
should get to control how their property is used (in accordance with their
contracts).

The problem here isn't the lack of regulation, it's the lack of competition
(as other's have pointed out). No ISP can afford to be shackling their users
in the face of unshackled competition.

I hope we'll have a vibrant 4G broadband market in the next 5 years.

~~~
tumult
Then I want my chunk of the property back, the amount that the taxpayers
shelled out to subsidize the telcos laying down said equipment, and which
Comcast and others readily accepted.

~~~
sielskr
If parent means to assert or imply that taxpayers in the U.S. paid for more
than a tiny fraction of the costs of laying down the copper and fiber over
which residential internet service is delivered in the U.S., I would like
references supporting that assertion. The argument parent probably wants is
that in much or most of the U.S., local governments granted the telcos and
cable companies a government-created monopoly in the local jurisdiction, in
exchange for which it is reasonable for government to expect the companies to
submit to certain rules, especially since the rules are essentially the same
as the rules by which monopoly power in the railroad, telegraph and telephone
industries were somewhat-successfully ameliorated, and especially since there
exists in the fundamental architecture of the internet a bright line in the
form of the boundary between the IP layer (and everything below it) and
services that ride atop it that can serve as the target of network-neutrality
rules, and especially since most of the architects or "technical founding
fathers", many of whom are libertarians and lovers of private-property rules,
BTW, of the internet support the imposition of network-neutrality rules.
Reader who doubt the existence of a "bright line" at the IP layer should make
sure they have read the classic paper "The End-to-end argument in system
design" and the history of the internet since the publication of that paper.
(In other words, the "quality of service" arguments used by the telcos etc to
argue the impracticality of network-neutrality rules have always been on the
losing side of debates for the first 30 or 35 years of the history of the
internet, and consequently suffer from a high burden of proof.)

For these reasons, even a lover of property rights and constitutional limits
on government like myself can support network neutrality after having
familiarized myself with the pro-network-neutrality arguments by people with a
track record for good calls in internet design and internet policy and with
the history of industries with very strong networks effects, like the
railroad, telegraph, telephone, cable and residential-internet-service
industries.

And I have to say that the largeness of the number of opinions arrived at with
almost no knowledge in this comment section is very depressing.

