Weasel Language In Proposal For FCC's New 'Open Internet' Rules Actually Opens The Door To An End To Net Neutrality

from the fast-lane dept

Yesterday reports started leaking about how FCC boss Tom Wheeler was getting ready to release his proposal for “new” net neutrality rules, to be voted on in a few weeks. They’ve now been introduced — and Wheeler insists that all the whining and hand-wringing from yesterday was wrong. Except that’s not true.

These new proposed rules are a response to a court tossing out the FCC’s 2010 rules for not actually falling under the FCC’s mandate. We pointed out that if the FCC were serious (and it’s not), it should be focusing on increasing competition (which it’s not). Congress certainly isn’t going to do anything. Like previous FCC bosses, Commissioner Tom Wheeler has made it pretty clear that he’s too timid to do anything serious, and instead will seek to find some sort of weak middle ground. Because there seems to be a rule that, if you’re to become FCC Commissioner, you can’t take a solid stand, but instead have to take a weak middle ground position and pretend it’s a strong stand.

But what’s currently being suggested may actually be worse. Because this opens the door to killing off net neutrality while pretending it’s supporting net neutrality. As Stacey Higginbotham points out, even if Tom Wheeler believes this proposal makes sense, it’s pretty ridiculous to claim it’s net neutrality or about protecting an open internet. Wheeler should step up and admit what he’s doing: killing off net neutrality to create a system that lets the big broadband providers double charge — and then explain why he thinks that’s necessary. Pretending this is net neutrality is a joke. Here’s the basic proposals:

  1. That all ISPs must transparently disclose to their subscribers and users all relevant information as to the policies that govern their network;
  2. That no legal content may be blocked; and
  3. That ISPs may not act in a commercially unreasonable manner to harm the Internet, including favoring the traffic from an affiliated entity.

The key issue is that last one, in which the FCC claims it will still have the ability to stop “commercially unreasonable” activities by broadband providers, while refusing any attempt to explain what commercially unreasonable means. At the same time, it makes it pretty clear that “commercially reasonable” (again, undefined) rules will be allowed — and it’s likely this means allowing ISPs to create “fast lanes” by which they can charge more, so long as anyone with a lot of cash can also pay more.

This is not net neutrality. Yes, the 2nd rule means that no ISP will get away with the outright banning of access to websites, but no ISP was seriously considering that anyway. This bans a practice no one was going to do, meaning it doesn’t ban anything. But by opening up “commercially reasonable” discrimination, it’s allowing ISPs to create privileged “fast lanes” by which large internet players can “pay” to have preferred access to users. If you have a fast lane, by definition you also need a slow lane. So the (reasonable) fear here is that smaller entities, who can’t pay for the fast lane, basically start out with degraded service compared to the big guys who can (and will) pay.

That means that services that don’t pay up are throttled. By definition.

It’s exactly what the big ISPs have wanted all along, which is a system to double charge big companies, who will now have to pay for both their own bandwidth and a portion of your bandwidth. If you think “hey, I already pay for my bandwidth,” you’re right. And now you’ll likely have to pay much more, because the big companies who pay are going to pass the costs on to you. And, you’ll have fewer interesting new services because the barriers to entry will be higher. So, the end result is the immensely profitable duopoly of internet service providers get more profitable and you pay more. Big internet companies pay off the broadband providers to stay fast, while startups and innovation are basically more difficult to create, because they’re going to have to set aside a huge chunk of money to pay for some of the bandwidth that you’re already paying for (and probably not getting anyway).

The Comcasts and AT&T’s and Verizons of the world are going to parade up and down about how this will let them invest in better networks and provide better services, but there is absolutely no incentive here for them to actually do so. In fact, they have every incentive in the world to degrade service in the “slow lane” to make it less useful, driving more companies to need to pay for the fast lane.

These aren’t rules for an open internet or for net neutrality. These are rules to kill that off.

“Commercially reasonable” are the weasel words here that effectively sell out the internet. The old rules were dreadful, and these rules are still just in proposal stages, but Wheeler’s first foray into net neutrality is a joke. He’s doing the same thing as his predecessor in refusing to stand up and say what he actually means, because he knows that what he’s proposing is bad news.

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Comments on “Weasel Language In Proposal For FCC's New 'Open Internet' Rules Actually Opens The Door To An End To Net Neutrality”

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Anonymous Coward says:

Re: Re: Re:

Which lead to: Is there a choice? Which leads to a principal philosophical discussion on economic support/lobbying/cronyism and the political systemic duopoly in politics. Which leads to some kind of election reform which leads to absolutely nowhere since politicians actually prefer the current economic benefits over… Change…

Anonymous Coward says:

Re: Re: Re: Now what?

Start voting for politicians who do not belong to a major party. If enough people do it, politicians will start paying attention to the electorate as it is their job at risk. The nice jobs in industry will disappear of too many politicians are looking for them at the same time.

Moose says:

Greed is Reasonable

The legal dictionary agrees: “Commercially reasonable efforts is a term incapable of a precise definition and will vary depending on the context in which it is used”

It’s probably commercially reasonable to spill oil in the Gulf, kill a few people with dangerous car parts, underpay employees, put chemicals in food, release test drugs with horrific side effects, prevent people from making claims on their insurance, and cheat at baseball.

If the context is, say, a statement from a corporation, it is probably commercially reasonable. Just because.

I personally think it is commercially reasonable for TechDirt to charge the FCC extra for this fine reporting.

Dirkmaster (profile) says:

Re: Tell Tom

You CANNOT! So I go to the above URL. It says the exact same thing as this article. I go to the comments section. None? Really? That’s odd. Sign in with Google. Nothing, still won’t let you comment. Log in with Twitter. Same thing. Create a Discus account. HA! Fooled you!

Yet more evidenct that they couldn’t care less what PEOPLE think, it’s all about his previous employers.

Anonymous Coward says:

Re: Re: Re:

I doubt they would throttle VPNs, but here’s how it will work out.

You have a community of 50 houses, of which let’s say 30 will watch Netflix at 1080P, according to Gigaom that’s 4.8 Mbps per stream. So if all are on at once, that equates to 144Mbps. Let’s say the backhaul for this neighborhood is a OC3, capable of 155.52 Mbps. That leaves a bit around 10Mbps for all other traffic to burst. You can only really max out the line for brief periods and even then you’ll end up killing yourself with retransmissions. In the end, the only available internet will be those providers that pay. Welcome to Net Neutrality. Now if you had 5 providers to pick from, I wouldn’t mind so much as competition would weed out the bad apples, but the current state of affairs are not so rosy.

Anonymous Anonymous Coward says:

Re: Re: Re: Re:

I suppose more buffering at a slower speed, maybe wait 5 or 10 minutes and then play? I watch the buffering happening on various streams and they always wait to the last second rather than continuous until you have the request.

Another alternative would be peer to peer. If Netflix started a P2P swarm for many currently viewed movies, it might help. I understand that there is such a service currently. The idea is how Neflix might use such a service, within the law of course. (OK, I know that is not possible in an environment where the MAFFIA keeps on trying to redefine the playing field).

Scott (profile) says:

People Dont Care

The American people are so demoralized with a government they feel they have no say in, so propagandized at every turn, and so entrenched in their own political right/left BS that this will happen and people will accept it as the new norm. Its sad and pathetic. If people really feel that this is a bad thing…get off your butt and get busy doing something to make the people that represent you know this is an issue that will determine how you vote, and get other people to do the same. Unfortunately most intelligent people that have a clue have been gerrymandered into districts where you’d be preaching to the choir. One bright spot is that all these right wing nut jobs like Marsha Blackburn will soon see what happens when you let monopolists go unregulated…even her constituents have to pay the cable bill (if they even have cable)

Steven says:

More confusionnnn

This article seems to be confusing a very simple concept:

Better speeds on the internet do *~not~* mean you are sending traffic faster. Better speeds mean you are sending *~more~* information at once.

Everybody keeps making the comparison to streets- the ISPs are going to make a new lane, and people that pay more can go on that lane and go faster… and that all the other people who don’t pay more are going to have to drive slower.

But that’s not what’s happening. If you want to compare it to a road, then assume everybody is always moving the speed limit- the speed of electricity over a wire- or light if fiber, it doesn’t matter which- everybody on the road is always moving the exact same speed. The limits at that point come down to how big the road is- or, how many cars can be on the road at once. If the ISPs build a four lane road, then four cars can be at a point on the road at a time. High-bandwidth companies, like Netflix, may need to send up to three cars at once; a smaller company, like a start-up competitor to Netflix, will be sending less data- in this analogy, it would be comparable to one or two cars. The problem comes in when Netflix has all three of its cars on the road- the smaller company can’t drive two cars through so one has to wait, and anybody else trying to drive a car through has to wait too.

The ‘pay more for faster speed’ isn’t a case of ‘oh, if you pay the cops you can drive faster than the speed limit and your data will get to people before your competitors’, it’s, ‘oh, you’re sending three cars worth of data on a four lane road, and everything can’t fit. Your data is getting clogged, and you’re clogging everybody else’s data too. If you pay the ISP, we’ll build a three-lane road just for you, and then everybody will be happy’.

When that happens, everybody is better off- smaller business that don’t need to send terabits of data over the internet will be able to get by just fine without needing to pay for ‘faster’ speeds, since the high-bandwidth users will be out of their way; the larger businesses that do need to send lots of data will be able to send it without being slowed down by others. The high-bandwidth users can pass that cost on to their customers.

When it isn’t allowed to happen, and the ISPs see Netflix is clogging their four lane road, they build a bigger road, sure… but they get the money for it from the end customers. In other words, they end up charging *~you~* more so that Netflix can send more data and stay cheap- regardless of if you use Netflix or not.

Another comparison would be like if a mall, instead of charging its stores overhead costs, decided to pass those costs on to anybody who walked in the mall. If you wanted to go to a small store in the mall, you’d first have to help pay to get into the mall, and that fee would be determined in part by the electricity bill of a big store like Sears. Let the mall- the ISP- pass that cost onto the stores, and let the stores pass it on to *their* customers- don’t make everybody pay more for a store they may or may not go to.

Anonymous Coward says:

Re: More confusionnnn

For the final mile of the Internet, it is the what the user is doing that determines their bandwidth requirement over that link, a video of a given resolution requires the same bandwidth regardless of whether it comes from a small site, or a large site. It is this final mile that the ISPs are talking about throttling. This is getting awfully close to pat us to deliver you content over the final mile, or we will make the service poor for your users. Further there is no guarantee that they will offer the same terms to all service providers. Also too many of the ISPs have ties to the MAFIAA, which make me doubt how fair handed they will be for s4ervices that the MAFIAA do not like.
The fuss they are making is mainly a justification for bumping up charges, and managing competition to the services belonging to their corporation and corporate friends.

John Fenderson (profile) says:

Re: More confusionnnn

Well, sorta, but not really. It’s not like there are actually more lanes being added.

“it’s, ‘oh, you’re sending three cars worth of data on a four lane road, and everything can’t fit. Your data is getting clogged, and you’re clogging everybody else’s data too. If you pay the ISP, we’ll build a three-lane road just for you, and then everybody will be happy’.”

This is at the heart of the deception. Let’s pretend that the analogy of building more lanes is accurate (it’s not, really, but we don’t need to go there right now).

The more correct version is: If you pay the ISP extra, they’ll let you use the shiny new “fast-lane” highway. In the meantime, the old, slow, highway will be left to rot, acquiring potholes, not getting new pavement, etc., as the efforts to keep the highways up will be devoted to the larger profit centers at the expense of the lesser ones.

The end result is that the wealthier people & business are better off, and everyone else can suck it.

Also, the whole scheme doesn’t address the inherent crookedness of the whole idea: each data transmission is being paid for at both ends already, in proportion to how much bandwidth they are allowed to use. To install new “fast lanes” is to reveal that the entire deal about buying bandwidth that we get into right now is a crock of shit. If someone is using terabits/sec of bandwidth right now, they’re actually paying for it. If the company can’t deliver the promised bandwidth (and this sort of deal implies that they can’t), then they’re engaging in fraud right now.

“When it isn’t allowed to happen, and the ISPs see Netflix is clogging their four lane road, they build a bigger road, sure… but they get the money for it from the end customers”

And one of those end customers is Netflix. The notion that regular people will bear this cost alone is the purest of bullshit. Everyone, even Netflix, pays for what they use. Right now.

“Another comparison would be like if a mall”

I don’t follow that analogy at all. You’re talking like people should be charged based purely on the services they connect to on the internet rather than the amount of bandwidth they use. I say that is a really, really terrible idea.

Anonymous Coward says:

Re: Re: More confusionnnn

The notion that regular people will bear this cost alone is the purest of bullshit.

Actually the ordinary person always bears the cost, either directly, or via the goods that they buy, where the profit pays for the advertising. However greedy corporations prefer the indirect route to the users pocket, as many forget that they are paying the company that pays for the adverts that pay for the bandwidth; or that part of what they pay for content or service is also being used to pay for bandwidth.
Therfore what Netflix pays for bandwidth comes out of the ordinary persons pocket.

nasch (profile) says:

The End

“Commercially reasonable” are the weasel words here that effectively sell out the internet.

My thought when I heard about this and the court decision is that this is the beginning of the end of the internet as we’ve known it. The Supreme Court has already shown it doesn’t mind if the FCC dismantles net neutrality. The executive branch is firmly on the side of the incumbent telcos. And we know Congress isn’t going to lift a finger.

Somebody please tell me why I’m wrong.

John Fenderson (profile) says:

Re: The End

You’re not exactly wrong, but perhaps you’ll get some meager solace from this thought… Once thee government and the likes of Comcast finish their plan of ruining the internet, we’ll move on to a new one. Eventually, the new one will be ruined by the same forces as well, then we’ll move on to the new new one. And so on.

Anonymous Coward says:

“Tom Wheeler is the current Chairman of the FCC.[1] Prior to working at the FCC, Wheeler worked as a venture capitalist and lobbyist for the cable and wireless industry, with prior positions including President of the National Cable Television Association (NCTA) and CEO of the Cellular Telecommunications & Internet Association (CTIA).[2][3]”


So a lobbyist for the cable and wireless industry is the head of the FCC? All his current actions towards killing off net neutrality, and jacking up internet costs for Americans, all makes perfect sense now.

America is a corrupt Oligarchy. It’s a statistical fact that’s backed up by political researchers at Princeton University.


Reach down and grab your ankles folks. Big corporations are about to give you a bumpy ride.

Leonardo (profile) says:

Re: Re: Your comments need to be directed to Wheelers FCC blog

When a private company takes public subsidies, yes its double taxiation. When a private company takes double dipping of revenue for the same service, it should fraud. If I charge you for a service and then I go further and charge the products you use which are part of the original service, it seems quite be institutionalized corruption and fraud when one puts this into law. btw these companies are public companies last I checked.

nasch (profile) says:

Re: Re: Re: Your comments need to be directed to Wheelers FCC blog

When a private company takes public subsidies, yes its double taxiation.

Taxation is when the government takes your money. Verizon is not part of the government.

btw these companies are public companies last I checked.

In the sense of being publicly traded perhaps (I haven’t checked), but not in the sense of being government owned.

GEMont (profile) says:

For the People - Not

“Because there seems to be a rule that, if you’re to become FCC Commissioner, you can’t take a solid stand, but instead have to take a weak middle ground position and pretend it’s a strong stand.”

Well, you’re close.

But the truth is simpler than that.

Like the IG that ran the DHS agency, the head of the FCC must be someone that obeys the needs of the Fed and the Fed and its commercial bosses want the internet strangled and controlled – just another channel for commercials and propaganda.

So anyone who becomes the head of the FCC has to first prove to the Fed that they are willing to do what they are told to do and that they will not interfere in any way with the ongoing destruction of the Internet, or work against the federal pogrom of population control.

If you actually look hard enough, you will begin to notice that any federal agency that is charged with doing something FOR the people, is now and will in future – until they are no longer needed – be headed by people exactly like these crooked minions for hire in the FCC and DHS.

Yes Angela, there really is a New World Order and its already here and its been running the show since 9/11 did away with your constitutional protections.

Leonardo (profile) says:

Nasch you talk like a lawyer, reality is


tax, overbilling, legalized fraud, legalized corruption-

in the end it takes $$ out of the consumers pocket in return for what? here the consumer clearly pays for the cost and profit of the cable company’s last mile connection. charging the product the consumer requested over that same connection, is double billing- it’s a methodology for a company to receive revenue for certainly not the cost of the service therfore a private company tax on consumer. Definition of tax is also a strain or burden which this clearly is.

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