As Expected, Court Strikes Down FCC's Net Neutrality Rules: Now What?

from the not-the-end-of-the-world dept

Almost everyone I've spoken to (on both sides of the net neutrality debate) more or less expected the ruling that came down this morning in the DC circuit, in which the appeals court struck down the FCC's net neutrality rules because the the FCC had no mandate under the rules it used to issue that ruling. Basically, this is exactly what lots of us said at the start of this whole process. I've seen a bunch of reports overreacting to this today, from people saying that it's "the death of the internet." It's not. There are problems on both sides here. The telcos absolutely do want to abuse things to effectively double charge both sides. And that could clearly create significant issues with the basic end-to-end nature of the internet.

However, on the flip side, we should be equally concerned about the FCC overstepping its bounds and mandate in regulating the internet. Because that opens up the opportunity for the FCC to regulate all sorts of aspects of the internet in dangerous ways. So, this ruling is both good and bad. It stops the FCC from overstepping its bounds... but opens up the opportunity for the telcos to sweep in and try to upset the basic concepts of the internet. It's what happens now that becomes interesting. The court does leave open the possibility that the FCC could use other aspects of its mandate to establish net neutrality rules -- where it has a much more firm legal footing. In other words, the court is telling the FCC basically: you can establish net neutrality rules if you do it correctly.

Separate from that, it's possible that Congress could step in as well -- though the issue of net neutrality in Congress has become partisan, and thus toxic. Of course, in the meantime, it seems likely that the FCC will appeal to the Supreme Court, and there's a decent chance that the Supreme Court will take the case -- though I'd be very, very surprised if the Supreme Court came to a different ruling. The original FCC rule, while well intentioned, definitely stretched the FCC's mandate, and it's no surprise that it's now been slapped down.


Reader Comments (rss)

(Flattened / Threaded)

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    DMC, Jan 14th, 2014 @ 9:46am

    As a related aside, I'd like to see the FCC use its newly affirmed 706 powers to preempt state laws restricting municipal broadband. This would spark more public broadband providers to launch which in turn would provide the kind of real competition that could undermine the private broadband cartel's efforts to destroy net neutrality.

     

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    Jill, Jan 14th, 2014 @ 9:53am

    Chord cutters are screwed

    Old media fights back - and wins. The internet is now, effectively, cable television... Will YouTube lovers now be willing to pay a subscription fee for speedy access? How much would you pay for PewDiePie? Chord cutters are screwed...
    http://mankabros.com/blogs/chairman/2013/10/25/old-media-fights-back/

     

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    out_of_the_blue, Jan 14th, 2014 @ 10:04am

    As usual, you don't mention Google in this.

    Google 'sold out the net neutrality hippies' in 2008
    Company acts in own interest shocker

    http://www.theregister.co.uk/2010/08/11/google_killed_the_hippies_in_2008/


    Now That It’s in the Broadband Game, Google Flip-Flops on Network Neutrality

    "In a dramatic about-face on a key internet issue yesterday, Google told the FCC that the network neutrality rules Google once championed don’t give citizens the right to run servers on their home broadband connections, and that the Google Fiber network is perfectly within its rights to prohibit customers from attaching the legal devices of their choice to its network."

    http://www.wired.com/threatlevel/2013/07/google-neutrality/

    Ain't it odd how Google has a history of "don't be evil" until it's in power, then abruptly reverses? Who could possibly predict that of a mega-corporation? -- Not Mike! He can't ever see what his precious will do next!

    Civilization isn't just to have a few highly "efficient" corporations concentrating wealth: it's to provide FAIRNESS FOR ALL.

    06:02:00[h-5-0]

     

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      crade (profile), Jan 14th, 2014 @ 10:10am

      Re: As usual, you don't mention Google in this.

      As usual, Elmo was also left out of this article.

       

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      Bengie, Jan 14th, 2014 @ 10:21am

      Re: As usual, you don't mention Google in this.

      Apples and Oranges. Google said you can run servers, you just can't run commercial servers.

      This is akin complaining that the local Government won't let you babysit children at your home, when you're trying to run a 40 child daycare out of your house.

      If you're going to try to prove something, please research the subject a bit more than just reading headlines and seeing the same word and assuming they're the same thing.

       

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      Anonymous Coward, Jan 14th, 2014 @ 10:21am

      Re: As usual, you don't mention Google in this.

      Is this oob guy just flat out insane?

      If not, what is his agenda? Anyone been reading this rambling long enough to know who oob supports?

      Is it really Mike just making posts just so there is some sort of troll on here at any given time to help galvanize the troops?

       

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        Anonymous Coward, Jan 14th, 2014 @ 10:32am

        Re: Re: As usual, you don't mention Google in this.

        Can't be Mike. He would've gotten tired of doing it months ago. I know I would have.

        It's probably just some random tinfoil hat guy that occasionally gets drunk/high/whatever and then goes to post on Techdirt because WAKE UP SHEEPLE. And then automatically gets reported by everyone who sees him because oh great it's THAT guy again.

         

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        John Fenderson (profile), Jan 14th, 2014 @ 10:35am

        Re: Re: As usual, you don't mention Google in this.

        Blue's agenda is that everyone and everything related to Techdirt is evil and must be disrupted no matter how severe the attack on rational thinking is required.

         

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          Sheogorath (profile), Jan 15th, 2014 @ 7:25pm

          Re: Re: Re: As usual, you don't mention Google in this.

          Um, no. Blue's agenda is that Mike Masnick is Beelzebub, Satan, and Lucifer all rolled into one, and that every time Mike speaks, his words take the form of the Four Horsemen of the Apocalypse. Just sayin'.

           

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          btrussell (profile), Jan 16th, 2014 @ 4:44am

          Re: Re: Re: As usual, you don't mention Google in this.

          Either they are paid or they truly need help. Even aj can go months without posting.

           

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        Pragmatic, Jan 15th, 2014 @ 5:04am

        Re: Re: As usual, you don't mention Google in this.

        OOTB is a nutty Alex Jones/Daily Caller reader who claims to be some kind of class warfare radical but whose wild rants betray a pro-corporate agenda - as long as copyright is involved.

        Highlights include declaring herself an influential commenter (that honor belongs to Karl and John Fenderson) and pretty much demanding that Mike give her a job as a paid article writer.

        She's the crazy copyright/cat lady of TD, and is incapable of reason. Ignore, ignore, ignore.

         

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        jackn, Jan 15th, 2014 @ 2:44pm

        Re: Re: As usual, you don't mention Google in this.

        He supports google!

         

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    RyanNerd (profile), Jan 14th, 2014 @ 10:09am

    It's the end of the world (as we know it)

    And I feel fine.

     

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    Internet Zen Master (profile), Jan 14th, 2014 @ 10:16am

    So in other words

    Pray that the current FCC chair doesn't go full telco shill on us and let the telcos run roughshod over the Internet?

    That's... not exactly reassuring, but it considering (as far as I've heard anyway) he's not a total corporate lapdog people expected him to be, we might not be as doomed as I originally thought.

    As the Zen Master says, "We'll see."

     

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    DannyB (profile), Jan 14th, 2014 @ 10:18am

    How long before?

    Before long, the fastest way to get a packet from my box to your box will be via the NSA's private network that connects to both endpoints.

     

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      Internet Zen Master (profile), Jan 14th, 2014 @ 10:35am

      Re: How long before?

      ...I just imagined them starting their own ultra-high speed broadband provider as a "gesture of goodwill" to their detractors.

      Sad thing is, I wouldn't put it past them to try something like that if they got desperate enough in terms of public opinion.

       

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        Anonymous Coward, Jan 14th, 2014 @ 11:09am

        Re: Re: How long before?

        I've actually been arguing for a need for government led layer 1 (Physical)/layer 2 (Switched) infrastructure for quite awhile, long before any NSA news came about. The lack of non metro fiber deployment in the US is a total disgrace. I'm sketchy now, but hopefully hardware vendors will catch up with switching fabric encryption with minimal latency. Even then though, we still have SSL/TLS, IPSec, and other application layer encryption methods.

         

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    Internet Zen Master (profile), Jan 14th, 2014 @ 10:31am

    My only gripe is that people who are cheering ruling as a good thing because it's 'stifling the free market' are telling everyone who knows this ruling potentially has devastating consequences to the Internet if the current telco oligopoly gets their way that it's good because "competition!" and "if you don't like your provider, vote with your wallet!".

    It's not exactly a free market when your city's only real options are Craptastic company A or Craptastic Company B, and that's if your lucky. A virtual duopoly (or worse, monopoly) a free market does not make.

     

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      John Fenderson (profile), Jan 14th, 2014 @ 10:37am

      Re:

      A thousand times this. People often make free market arguments about the broadband industry when the broadband industry in the US is the exact opposite of a free market.

       

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        Anonymous Coward, Jan 14th, 2014 @ 10:56am

        Re: Re:

        The free market argument doesn't apply in the U.S. since the government limits competition in just about every industry.

         

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          willibro, Jan 14th, 2014 @ 11:36am

          Yeah it limits competition

          in favor of whomever happens to have bought the most congresscritters this year. That's usually only the big guys.

          Don't kid yourself: Free markets don't exist in the US NOT because of the government. They don't exist because big companies like it that way.

           

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        vancedecker (profile), Jan 14th, 2014 @ 8:48pm

        Re: Re:

        It truly is a free market. There is so much competition such as DSL, Dial-Up Service, and Satellite Dishes. You are free not to use any number of high speed broadband choices.

         

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        Pragmatic, Jan 15th, 2014 @ 5:07am

        Re: Re:

        Right on, brothers. So can we all stop pretending that there's such a thing as the free market and that it's actually possible to vote with your wallet? Please note, "Take it or leave it" ain't a viable option for those of us who need the internet.

         

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        jackn, Jan 15th, 2014 @ 2:47pm

        Re: Re:

        Anyone that stands to loose in a 'fair' market is usually a huge supporter of the 'FREE' market.

         

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      willibro, Jan 14th, 2014 @ 11:33am

      Yeah

      Which kinda DOES mean it's the end. What conceivable incentive does the FCC have to fight the telcos on this or break up the monopolies (barely any duopolies that I can see out there; Uverse is dying on the vine most places)? About the only hope is removing the restrictions on municipal wifi, and that's a very slim hope in any major market.

       

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    Anonymous Coward, Jan 14th, 2014 @ 10:47am

    The logic of the FCC's rules struck down being bad sounds very familiar

    "However, on the flip side, we should be equally concerned about the FCC overstepping its bounds and mandate in regulating the internet. Because that opens up the opportunity for the FCC to regulate all sorts of aspects of the internet in dangerous ways."

    By that kind of logic you can justify the government standing back and doing nothing while private individuals/corporations do all sorts of MUCH WORSE things.

    I'm not trying to call you or that logic racist, but that's the EXACT logic that some in congress like Barry Goldwater used to justify voting against civil rights acts half a century ago. They didn't say "I'm a racist so I'm voting against this", they said things like this. "Sure racism is a horrible thing, but I don't think we should let the federal government interfere with states by forcing equality onto them. This kind of logic opens the door for the federal government to abuse it's power and do much more dangerous things in the future if these civil rights acts go through".

    Allowing the government to step in and stop rampant abuses by the free market that are becoming the reality we warned about years ago doesn't automatically lead to government abuses. Look at utilities like electric and water, they're heavily government controlled, much more so then the Internet, yet do you see the government abusing them? Such as deciding to shut off electricity at the houses of people they don't like? Or letting electric companies tell people or companies "because you use way more watts a month then our customers we're charging you twice as much per watt then everyone else".

     

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      @blamer, Jan 14th, 2014 @ 5:04pm

      Re: The logic of the FCC's rules struck down being bad sounds very familiar

      This: "because you use way more watts a month then our customers we're charging you twice as much per watt then everyone else"

      ISP's live in an upside-down world where buying-in-bulk is gonna cost you extra.

      This seems to be because, unlike gas & elec providers, the telco's own the pipes (infrastructure) such that they can charge the supplier of online information (the 0s and 1s that I'm sending you here) *PLUS* the consumer of them (you).

      Imagine US telco's dont like techdirt's criticism of US telco's... can they now throttle this website??

       

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      Pragmatic, Jan 15th, 2014 @ 5:22am

      Re: The logic of the FCC's rules struck down being bad sounds very familiar

      That's because the government-haters are an irrational bunch who would rather have a government that doesn't work than a government that does so they can make a case for getting rid of it altogether. That's where all the horse-hockey about the free market comes in; they assume that the private sector and public-minded individuals will sort things out, e.g. "The people will build it."

      However, they never say how or what with.

      The truth is, the far right have been using the Big L's for a long time, feeding them the lie that they're all about small government. They're not, as the latest slew of legislation has proved.

      Can we all please stop pretending that principles trump common sense and the needs of the people? We need some government, enough to protect us from the tyranny of the strong. This needs to be paid for by taxes, not via service charges per individual, as this means that justice, etc., would only be available to the richest among us, and of course it would open up the system to all kinds of abuses. Some of you may have noticed this is happening now.

      We need governance. The private sector can't and won't deliver that because private individuals and groups act in the best interest of themselves or their particular group, and according to their principles, not for the greater good. They're not neutral, is what I'm saying, and the service providers have got to be neutral or the conditions attached to accessing those services may restrict the people who need them most from receiving them.

      Therefore we need government.

      Have you ever noticed that whenever the small government types get into office, they get rid of the programs we need and replace them with the programs they want?

      I see nothing wrong with municipal broadband and other valuable services as long as private sector service providers are allowed to compete with them. We need net neutrality now and in case you haven't noticed, no private sector provider is providing it. At this point, I'd welcome government regulation that makes them treat us fairly and allow competition instead of locking up the market and pretending that "Take it or leave it" is a choice.

      /End rant.

       

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    Not That Chris (profile), Jan 14th, 2014 @ 11:31am

    Better explanation?

    The court does leave open the possibility that the FCC could use other aspects of its mandate to establish net neutrality rules -- where it has a much more firm legal footing. In other words, the court is telling the FCC basically: you can establish net neutrality rules if you do it correctly.

    I'm curious as to what their suggestion was, but I'm a bit overwhelmed by 81 pages of legal jargon (and maybe I'm lazy, so what?). Can someone point out what the court's explanations were regarding how the FCC could still accomplish the regulations within the confines of the current law?

     

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      Benny6Toes (profile), Jan 15th, 2014 @ 8:21am

      Re: Better explanation?

      I don't know about a, "suggestion," but the ruling did leave the door open to reclassifying ISPs as common carriers. The opening paragraph of the Mother Jones post about the ruling sums it up nicely:

      The long, grinding fight over net neutrality—the principle that everyone should have equal access to the internet—hit another speed bump today. But first, some background. Net neutrality was the de facto status quo until several years ago, when the Bush-era FCC decided to classify internet provision as an information service (IS) rather than a telecom service (TS). This mattered because telecom services had always been regulated as common carriers, which effectively required internet providers to treat everyone equally. Under the IS regime, the old common carrier requirements were replaced by four net neutrality "principles" that were considerably less stringent.


      The entire post is very short and should answer your question pretty well.

       

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    Rekrul, Jan 14th, 2014 @ 12:15pm

    Don't worry, the hotbed of competition in the cable industry will keep them honest...

     

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    vancedecker (profile), Jan 14th, 2014 @ 5:47pm

    What about all the good things Cable companies do?

    I'm more than a little troubled by the lopsidedness of both the comments section here and the tone of the articles. There are so many interesting and unique advances that have come from the Cable Broadband providers that is often overlooked by what people perceive as high service fees.

    The fact of the matter is that this ruling simply makes some common sense adjustments to cyberspace, given the reality of the real world costs:

    Mommy bloggers will no longer be able to shill for cloth diaper manufacturers and receive the same level of internet throughput as an established brand like Huggies.

    Conspiracy theorists will now have their Monotone YouTube videos shoved to the back of the internet bus, so that people can see better quality content such as more Vice documentaries on people littering.

     

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      Pragmatic, Jan 15th, 2014 @ 5:32am

      Re: What about all the good things Cable companies do?

      Mommy bloggers will no longer be able to shill for cloth diaper manufacturers and receive the same level of internet throughput as an established brand like Huggies.

      I'd be interested to learn why you think that is a good thing. Bear in mind that to get the "throughput" the established brands get, you need to be as popular. I can't name many mommy bloggers, and if they make a few bucks off of advertising revenue on the back of their popularity, good luck to 'em.

      Oh, hang on, my sarcasm detector is playing up. Were you trying to be funny? If so, well played.

       

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        vancedecker (profile), Jan 16th, 2014 @ 1:59pm

        Re: Re: What about all the good things Cable companies do?

        If you get too many Mommies using cloth diapers it's going to create a health hazard eventually. Those things wreak!

         

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      John Fenderson (profile), Jan 15th, 2014 @ 8:49am

      Re: What about all the good things Cable companies do?

      There are so many interesting and unique advances that have come from the Cable Broadband providers that is often overlooked by what people perceive as high service fees.


      Such as? (Enabling internet access over the cable doesn't count).

       

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        vancedecker (profile), Jan 16th, 2014 @ 2:04pm

        Re: Re: What about all the good things Cable companies do?

        One advance is how now you can find your favorite shows on the channels internet web page, and you just need to prove you're a cable subscriber to watch it over the internet instead on your TV.

        Also, it's really cool how most providers offer you free email accounts. Everyone in the family can have their own emails.

         

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    Anonymous Coward, Jan 14th, 2014 @ 6:53pm

    One thing I see like that is ISPs making peolpe buy more expensive tiers of service, if they want unfettered access.

    Cable and DSL ISPs already do that, if you want to run a server. If you want to run a server on AT&T, Sonic, or Verizon , you have to get their more expensive tiers of server. If short, you have to buy business level tiers of service, if you want to run a server.

    Wanna run a sever on Comcast or Charter? You will have to shell out for their business level service.

    I could seethe same thing happening if people want unrestricted access, so they can make more money.

     

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      vancedecker (profile), Jan 14th, 2014 @ 8:13pm

      Re:

      This makes a lot of sense. It's similar to text messaging costs which cell phone providers charge. They are providing a service and those who want premium features or access should pay a premium for those value added services.

      People who use too much bandwidth are typically driving up costs for everyone else. They are typically high maintenance customers who over utilize fixed commodities such as customer service resources.

      People just don't realize that competition drives down quality along with cost, as it is now, typically these regional cable providers have large numbers of departments and executives and installers, all of which need to be supported in some manner.

       

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        Anonymous Coward, Jan 15th, 2014 @ 1:55am

        Re: Re:

        " People who use too much bandwidth are typically driving up costs for everyone else. They are typically high maintenance customers who over utilize fixed commodities such as customer service resources. "

        No. No. No!

        That's the disingenuous fantasy being sold to the general public, because the public is ignorant enough (about the internet) to fall for it.

        "Bandwidth hogs" aren't a problem -- and this was demonstrated in concrete, real-world terms when a fairly large ISP finally accepted an industry expert's challenge, and submitted a moth's logs for analysis.

        In short, it turns out almost everyone is a "bandwith hog" because almost everyone wants to use the internet at the same time, when everyone else is using it -- leading to congestion, regardless of whether they are heavy users or not.

        At the same time, the clear, top-tier heavy users didn't contribute much more than their fair share to the congestion, because their heavy use was mostly during "quite" hours. In fact, the users with the top-tier plans generally weren't causing as much congestion as those a couple of tiers down -- there was no correlation between over-all bandwidth consumption and contribution to congestion, nor between bandwidth tier and congestion.

        The only meaningful correlation was between time of use and contribution to congestion. Which is pretty much what those in the know predicted.

        It's just like telephone service. Gossipy Aunt Tilda may be a "phone system hog", yakking away to her friends 14 hours a day -- but that doesn't hurt the service. What hurts the service is when for some reason, everybody in town want's to make a call at the same time (eg Christmas, major news event, etc.) And like the phone system, the best (and oddly enough most cost effective) way to deal with more load than the system can properly handle, is to increase the capacity of the system (and next to that, offer incentives to shift use to less busy hours, when the system has more unused capacity).

        The fact that the telcos and ISPs are fighting so hard to implement these more complicated, more expensive, but more profitable, schemes that are actually less effective for solving the alleged problem, is just more proof that this is really about gouging customers, rather than providing fair service at a fair price.

         

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          vancedecker (profile), Jan 15th, 2014 @ 4:15am

          Re: Re: Re:

          Heavy users are also typically the same high bandwidth hogs I spoke of earlier, but that's a tangent to the main concern, which is that these users place an undue strain on Broadband provider services.

          Your contention that:

          "No. No. No!"

          ...this is all a big myth, just doesn't hold water. For instance:

          Take an archetypical heavier than average user who uses a large amount of internet bandwidth. When their entire first season of Game of Thrones torrent seed all of a sudden stops seeding, allowing a rival cyber-hipster release crew to get cred, what is the first thing that he does? He's on the phone immediately wasting valuable customer support resources trying to get answers, when level 3 are the only people located in this country who know what's going and they have gone home for the day.

          Just take a gander broadbandreports or dslreports whatever they are calling themselves now, and look at how many threads are discussing alleged youtube bandwidth throttling, now how many calls did those same obsessed users make to the internet service provider demanding answers for their throttling conspiracy theories? Who has time for that? It would better if these users simply had their own 'special' support team who knew how to deal with these special users, instead of needlessly bothering the regular support teams which are only trained in terms of solving real world problems experienced by a majority of users, things that are resolved through various combinations of turning things on and off, like restarting the router, turning the computer on and off again in order to resolve issues, etc...

           

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            jackn, Jan 15th, 2014 @ 2:43pm

            Re: Re: Re: Re:

            First, once their free of neutrality, you can say by to torrent. That kindof stuff is now history.

             

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              vancedecker (profile), Jan 16th, 2014 @ 2:06pm

              Re: Re: Re: Re: Re:

              Imagine using a torrent which your cable company sends you in order to download your favorite shows. It's easier than dealing with all the virus.

               

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    Anonymous Coward, Jan 14th, 2014 @ 9:25pm

    Hello 'sponsored data', goodbye affordable internet.

     

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    Sheriff Shelby Mahoney, Jan 15th, 2014 @ 5:54am

    FCC making you pay for YouTube

    I disaggre with the FCC to make u pay for YouTube I think it should be free and and I want the FCC to here me loud and clear .
    If u guys make us pay for YouTube u will loose me and the whole USA of device so don't mess with our YouTube
    Any question email me back as soon you get this message

     

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      vancedecker (profile), Jan 15th, 2014 @ 4:22pm

      Re: FCC making you pay for YouTube

      Damn! It dawned on me. I don't want to paying to Youtubes either! This is like a new Arab Spring but for us this time!

       

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    jackn, Jan 15th, 2014 @ 2:40pm

    This is going to be awesome. Image the ability to replace advertisements or other content with your own. The isps can just inject content into webpages.

    They will even be able to redirect clicks. Fck, you wont even know that a competing product exists.

    Im gonna be RICH.

     

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