In The FCC's Own Words: Chairman Wheeler Has Proposed Online Discrimination, Paid Prioritization, And Exclusive Deals

from the that's-not-net-neutrality dept

Last week, we showed how the Verizon court decision made it clear that without Title II reclassification, the internet would be open to discrimination, paid prioritization and exclusive deals. This week, we’re looking at how FCC Chairman Tom Wheeler’s claims back that up, despite his attempts to argue otherwise.

Chairman Wheeler claims to oppose discrimination and a two-tiered Internet of fast lanes and slow lanes.

Chairman?s speech on 5/15/14: ?This agency supports an Open Internet. There is ONE Internet. Not a fast internet, not a slow internet; ONE Internet. ? The potential for there to be some kind of ?fast lane? available to only a few has many people concerned. Personally, I don?t like the idea that the Internet could become divided into ?haves? and ?have nots.? I will work to see that does not happen. In this Item we specifically ask whether and how to prevent the kind of paid prioritization that could result in ?fast lanes.??

But his proposal would authorize discrimination and a two-tiered Internet of fast lanes and slow lanes.

Chairman?s proposal: ?[W]e propose to adopt the text of the no-blocking rule that the Commission adopted in 2010, with a clarification that it does not preclude broadband providers from negotiating individualized, differentiated arrangements with similarly situated edge providers (subject to the separate commercial reasonableness rule or its equivalent). So long as broadband providers do not degrade lawful content or service to below a minimum level of access, they would not run afoul of the proposed rule. We also seek comment below on how to define that minimum level of service. Alternatively, we seek comment on whether we should adopt a no-blocking rule that does not allow for priority agreements with edge providers and how we would do so consistent with sources of legal authority other than section 706, including Title II.? (para. 89)

That is, the rule proposed would allow for cable and phone companies to offer and cut new deals with websites and applications, and those deals do not have to treat similar companies similarly. These priority arrangements could be for a fee, and wildly different fees for each site. As an “alternative” to the proposal, the FCC agreed to ask whether it should adopt a rule that forbids “priority arrangements,” but that is certainly not Wheeler’s official proposal.

Further, Wheeler is also proposing exclusive deals, with merely a rebuttable presumption against a very small subset — between an ISP and a website it owns. So Verizon-Amazon or Comcast-Apple exclusives would be legal.

In light of such concerns, we propose to adopt a rebuttable presumption that a broadband provider?s exclusive (or effectively exclusive) arrangement prioritizing service to an affiliate would be commercially unreasonable. (para. 126)

What this means is that the FCC is presuming that all exclusive deals with websites and applications are reasonable — except for a small subset where a cable company makes an exclusive deal with a company it owns. So if Comcast prioritizes NBC.com (which it owns) and one other company (say Apple or Facebook), then Comcast’s deals are presumed reasonable. If Verizon makes an exclusive deal with one investment platform (e.g., E-Trade or TD Ameritrade), then the exclusive deal is presumed reasonable because Verizon does not own either of them.

As I noted in my previous post , if the FCC relies on the authority in Section 706, and not the one in Title II, the FCC must in fact permit discrimination, paid prioritization, and exclusive deals. Meaning, so long as the FCC grounds its rule in Section 706 and not Title II, Wheeler could not have even proposed a better rule.

Filed Under: , , , , , , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “In The FCC's Own Words: Chairman Wheeler Has Proposed Online Discrimination, Paid Prioritization, And Exclusive Deals”

Subscribe: RSS Leave a comment
33 Comments
That Anonymous Coward (profile) says:

Maybe instead of pouring money into them for the last decades, we should have taken that fund and wired up the whole damn country.

Then we’d not have a few companies trying to find creative ways to get even more money instead of having to actually expand their networks to meet what they already sold.

So services will have to pay to travel over the the lines, customers will have to pay to access the line, and pay more when the data caps get put into place because they are jealous of the money wireless is pulling in.

And magically no money will be put into improving the service or underlying infrastructure, making sure that broadband is capped at 1024kbps and the fact no one is willing to pay the cost of a new car for faster speeds will be all the convincing the FCC needs that we shouldn’t have better.

Johnny B. Goode says:

Pay Attention to the Phrasing

I’m afraid I disagree with the author’s analysis of the statement. I would like to call attention to a part of the bold text(emphasis does not appear in the original) in the quote from the article, “with similarly situated edge providers”.

Granted this gets into an area that I despise, the intersect of legal and technical definitions, but what what this sounds like to me is the preservation of the very common and long standing practice of peering agreements.

This is important because, in general, peering agreements have nothing to do with content. There are situations where the peering agreement does have to do with content, and I’m sure most of this site’s readers will be familiar with the Netflix/Comcast agreement.

While the Netflix/Comcast agreement does give Netflix a “better” connection to Comcast’s network, it is important to understand that this is an edge connection between two networks. I say this because most of the media attention(I include the blogosphere in this statement) illustrates a situation more similar to a QoS implementation prioritizing Netflix traffic.

This brings me to two important points:
1.) There is a world of difference between increasing throughput on an edge connection and implementing QoS.
2.) Without these peering agreements the internet as it exists today would cease to function.

What I think is the most important point to note is made in the last paragraph of the article, dealing with what authority the FCC is relying on. In reality, the FCC is on shaky ground making any attempt to regulate internet traffic in any way. The FCC knows this, and so do most other folks knowledgeable on the subject.

This is one of many reasons why I think most of what the FCC can/may do at this point is little more than lip service. What remains to be seen is whether or not they decide to pursue actions(undoubtedly with heavy opposition) that do make a significant impact.

This situation, in my opinion, also further underscores the need for significant internet related legislative actions far beyond the authority of the FCC.

Whatever (profile) says:

Re: Pay Attention to the Phrasing

I think you are correct here. The FCC appears to be saying that they do not think that adding direct peering to services such as Netflix is a problem provided that their other peering arrangements are not overloaded or they otherwise deny or degrade access to other similar services.

The author really needs to take a step back and re-read the original FCC quote, and come to understand the issue.

Now, I personally think that such direct peering arrangements are still against the concept of net neutrality if you take it to it’s absolute limit. My personal feeling is that ISPs should always obtain their peer connectivity from transit providers, and that services should do the same. In that manner, all services would generally have the same access to the ISPs network. However, peering is the very nature of the internet, and a direct peering arragement that doesn’t cause other services to be degraded, blocked, or obstructed appears to be neutral enough.

Jack says:

Re: Re:

AC you need the read the rest of the sentence since you are missing the key piece – they CAN degrade content and services as long as it doesn’t go below a specific and completely undefined “minimum level of access” threshold…

When the FCC references “minimum level of access” you really need to be concerned seeing as their “advanced” level of access is a whopping 4 Mbps…

Anonymous Coward says:

Re: Re: Re:

No I understood it , what I’m questioning is who’ll be judge and jury and ultimately the executioner, when it comes to what content is legal or not , remember even fair use isn’t assured, 4Mbps, being the lowest but many people only have the choice of that connection will they be slowed or completely shut off.

Whatever (profile) says:

Re: Re: Re:3 Re:

Oh really? who did that exactly? If you are going to say “comcast” or whatever in dealing with Netflix, try not to hurt yourself trying to prove the point. It’s not the ISPs blocking, it’s Netflix rapidly ramping up the number of customers and overwhelming networking that was otherwise fine.

Should point out too that even with Netflix being willing to purchase prefential service, it’s still going to take a long while to get it all hooked up and working. There are no instant solutions… just Netflix blaming others for their business model failings.

nasch (profile) says:

Re: Re: Re:4 Re:

If you are going to say “comcast” or whatever in dealing with Netflix, try not to hurt yourself trying to prove the point. It’s not the ISPs blocking, it’s Netflix rapidly ramping up the number of customers and overwhelming networking that was otherwise fine.

No, it was Comcast intentionally letting their links with Netflix’s provider saturate.

Should point out too that even with Netflix being willing to purchase prefential service, it’s still going to take a long while to get it all hooked up and working.

Wrong, speeds immediately recovered after Netflix paid up.

Gwiz (profile) says:

Re: Re: Re:4 Re:

Should point out too that even with Netflix being willing to purchase prefential service, it’s still going to take a long while to get it all hooked up and working. There are no instant solutions… just Netflix blaming others for their business model failings.

So much wrong in that sentence…

First off, the conflict was between Verizon and Netflix (and Level3 after Verizon pulled them into it).

Verizon “fixed” the problem by spending 5 minutes and a couple thousand dollars for a new port card, but only after Netflix payed up.

https://www.techdirt.com/articles/20140718/06533327927/level3-proves-that-verizon-is-absolutely-to-blame-netflix-congestion-using-verizons-own-data.shtml

Nicci Stevens (profile) says:

Re: Re:

Every day, I start to wonder more and more whether or not we’re in the waning days of the internet. Or an internet worth paying money for, anyway.

Perhaps that is the true intent of the govt. It might sound like tin-foil-hat thinking but what if the pesky internet was removed and instant, user generated content (read: dissent) were quashed?

R Andrew Ohge (user link) says:

Wheeler-Dealer Tom

We sent E-mails-Millions, made calls-hundreds of thousands-if not millions, but the industry always had “Wheeler-Dealer Tom” in their pockets, and because they control the MSM, the Public can potentially be conned into believing it’s all for the best, and will even save money.

“Wheeler-Dealer Tom” knows which side of the bread to butter.

Add Your Comment

Your email address will not be published.

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...
Loading...
Older Stuff
10:50 NY AG Proves Broadband Industry Funded Phony Public Support For Attack On Net Neutrality (10)
06:24 The GOP Is Using Veterans As Props To Demonize Net Neutrality (22)
06:03 Telecom Using Veterans As Props To Demonize California's New Net Neutrality Law (12)
09:32 AT&T Whines That California Net Neutrality Rules Are Forcing It To Behave (11)
06:23 The New York Times (Falsely) Informs Its 7 Million Readers Net Neutrality Is 'Pointless' (51)
15:34 Facebook's Australian News Ban Did Demonstrate The Evil Of Zero Rating (18)
04:58 'Net Neutrality Hurt Internet Infrastructure Investment' Is The Bad Faith Lie That Simply Won't Die (11)
05:48 Dumb New GOP Talking Point: If You Restore Net Neutrality, You HAVE To Kill Section 230. Just Because! (66)
06:31 DOJ Drops Ridiculous Trump-Era Lawsuit Against California For Passing Net Neutrality Rules (13)
06:27 The Wall Street Journal Kisses Big Telecom's Ass In Whiny Screed About 'Big Tech' (13)
10:45 New Interim FCC Boss Jessica Rosenworcel Will Likely Restore Net Neutrality, Just Not Yet (5)
15:30 Small Idaho ISP 'Punishes' Twitter And Facebook's 'Censorship' ... By Blocking Access To Them Entirely (81)
05:29 A Few Reminders Before The Tired Net Neutrality Debate Is Rekindled (13)
06:22 U.S. Broadband Speeds Jumped 90% in 2020. But No, It Had Nothing To Do With Killing Net Neutrality. (12)
12:10 FCC Ignores The Courts, Finalizes Facts-Optional Repeal Of Net Neutrality (19)
10:46 It's Opposite Day At The FCC: Rejects All Its Own Legal Arguments Against Net Neutrality To Claim It Can Be The Internet Speech Police (13)
12:05 Blatant Hypocrite Ajit Pai Decides To Move Forward With Bogus, Unconstitutional Rulemaking On Section 230 (178)
06:49 FCC's Pai Puts Final Bullet In Net Neutrality Ahead Of Potential Demotion (25)
06:31 The EU Makes It Clear That 'Zero Rating' Violates Net Neutrality (6)
06:22 DOJ Continues Its Quest To Kill Net Neutrality (And Consumer Protection In General) In California (11)
11:08 Hypocritical AT&T Makes A Mockery Of Itself; Says 230 Should Be Reformed For Real Net Neutrality (28)
06:20 Trump, Big Telecom Continue Quest To Ban States From Protecting Broadband Consumers (19)
06:11 Senators Wyden And Markey Make It Clear AT&T Is Violating Net Neutrality (13)
06:31 Net Neutrali-what? AT&T's New Streaming Service Won't Count Against Its Broadband Caps. But Netflix Will. (25)
06:23 Telecom's Latest Dumb Claim: The Internet Only Works During A Pandemic Because We Killed Net Neutrality (49)
13:36 Ex-FCC Staffer Says FCC Authority Given Up In Net Neutrality Repeal Sure Would Prove Handy In A Crisis (13)
06:27 Clarence Thomas Regrets Brand X Decision That Paved Way For The Net Neutrality Wars (11)
06:17 The FCC To Field More Comments On Net Neutrality. Maybe They'll Stop Identity Theft And Fraud This Time? (79)
08:56 AT&T, Comcast Dramatically Cut Network Spending Despite Net Neutrality Repeal (16)
06:18 Ajit Pai Hits CES... To Make Up Some Shit About Net Neutrality (24)
More arrow