Wireless Industry To Request En Banc Appeal Hearing On Net Neutrality Rules

from the never-ending-fisticuffs dept

After months of anticipation, last June the U.S. Court of Appeals for the D.C. Circuit upheld the FCC’s Open Internet Order, an indisputably-massive win for net neutrality advocates. Not too surprisingly, net neutrality opponents have been engaged in histrionics ever since, with ISP loyal allies in Congress doing their best to punish the FCC with a series of senseless, taxpayer funded “accountability hearings” designed specifically to shame the agency for daring to stand up to large, incumbent ISPs. That’s when they’re not busy trying to gut FCC funding and authority via a rotating crop of sneaky bill riders.

As Mike and I noted in a recent Techdirt podcast on net neutrality, most of these efforts are just lawmakers barking for their campaign contributions. There are really only a few ways for ISPs to effectively kill the rules, one of which being the election of a President who’ll restock the FCC with revolving door regulators who’ll either try to roll back the rules, or (more likely) will just refuse to enforce them whatsoever.

On the legal front, options are more limited; ISPs like AT&T have stated they’ll appeal to the Supreme Court, but with the FCC’s legal win relatively solid, the court itself not fully stocked, and the high court just not hearing all that many cases, most telecom lawyers think a win via this path is extremely unlikely. The other option is for carriers to request an en banc review from the full 9-member DC Circuit Court of Appeals. Even though these requests are commonly rejected, it’s that latter path that the wireless industry’s biggest lobbying and trade association, the CTIA, has started signaling it will take:

“CTIA: The Wireless Association, which represents wireless ISPs, will seek en banc (full court) rehearing of the three-judge panel decision upholding the FCC’s Open Internet order reclassifying fixed and mobile broadband as telecommunications services subject to Title II common carrier regs. That is according to a source familiar with the association’s thinking. The deadline for seeking that hearing from the U.S. Court of Appeals for the District of Columbia is Friday (July 29), 45 days after the initial decision June 14.”

It’s likely we’ll see appeal requests by numerous incumbent ISP organizations, each using their fifteen-page appeal request to roll the dice on different arguments. But again, telecom lawyers I’ve spoken to over the last few months don’t think the en banc victory is likely, assuming the request for a hearing is even granted.

“I honestly don?t see success,” Free Press Research Director S. Derek Turner tells me. “The dissent?s main argument is that the FCC didn?t explain why it was changing its mind, and spent quite a bit of ink on the issue of the market?s competitiveness. But how competitive a market is or is not has no bearing on the classification issue, only the nature of the service itself. The majority opinion does a good job of explaining why the dissenting opinion is off base, noting that the FCC had satisfied the standard in Fox for reversing a prior opinion.”

ISPs and their policy wonk allies will obviously try to claim the contrary.

Regardless of the outcome, it remains important for people to understand that net neutrality isn’t magically “over” just because of June’s court victory. Net neutrality and the quest to keep the Internet relatively open is a fight that will never actually end, because incumbent ISPs will never stop probing for creative new ways to take advantage of their last-mile broadband monopoly. However fatiguing and hyperbole-soaked the net neutrality debate may be, consumers, startups, and small businesses can’t afford to tune out now — or ever.

Filed Under: , , ,
Companies: ctia

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 “Wireless Industry To Request En Banc Appeal Hearing On Net Neutrality Rules”

Subscribe: RSS Leave a comment
17 Comments
WellSaidKarl says:

Well Said, a good reminder

“Net neutrality and the quest to keep the Internet relatively open is a fight that will never actually end, because incumbent ISPs will never stop probing for creative new ways to take advantage of their last-mile broadband monopoly. However fatiguing and hyperbole-soaked the net neutrality debate may be, consumers, startups, and small businesses can’t afford to tune out now — or ever.”

Well said.
Perhaps someone should contact John Oliver and see if he wouldn’t mind, reminding American’s what’s at stake.

DigDuggery says:

I think we need to get the FTC involved as well.

Terms like “unlimited” only have one meaning, and usage caps are limits. False advertising at best for the ISPs, contract violation and/or RICO act violation at best for the Customers.

Paying for a 20Mb/s internet service means 20MB/s * 60 Seconds * 60 Minutes * 24 Hours * XX days per month of download capacity. Anything less than that is “LIMITING”.

If the ISPs do not have the capacity to serve every customer at their paid for maximum data rate, that is limiting.

If the ISPs throttle or shape traffic that is limiting.

Now, I’m not a neutrality maximilist, I do believe that DDoS and other malicious traffic can and should be blocked. Known and agreed upon attack vectors (by the security industry, not the ISPs and backbone carriers) can and should be blocked.

Between the FTC and the FCC we should be able to wrangle these Internet mobsters into shape. If they don’t comply, convert their entire infrastructure into common carrier via eminent domain. See how they like having to pay the government to access what used to belong to them.

Shilling says:

Re: I think we need to get the FTC involved as well.

Uhm if they sell ‘unlimited’ they usually set an amount of data for high speed internet and after you have used the set amount of data they just dial the speed down to barely useful but you can still use it hence ‘unlimited’. Furthermore they will most certainly advertise an upto speed and not a set speed so they will always be covered under the current laws.
FTC can’t do anything.

DigDuggery says:

Re: Re: I think we need to get the FTC involved as well.

That’s what I mean by “unlimited” only has one meaning, period.

Limiting unlimited with asterisks and redefining what the word unlimited means is what I mean to have the FTC put a stop to.

Words mean what they mean. It’s like “sugarfree” – and then in asterisks say “contains 50g sugar per 51g product”.

The FDA would be all over them in a heart-beat.

The FTC needs to get all-over ISPs, Cellular companies, etc for false and misleading advertisement.

Force them to make good on “unlimited” or have to pay every customer a 1000x what they paid for the service for as long as they were “limited” including all fees, charges, taxes, tarrifs.

Whatever says:

“Paying for a 20Mb/s internet service means 20MB/s * 60 Seconds * 60 Minutes * 24 Hours * XX days per month of download capacity. Anything less than that is “LIMITING”.”

Incorrect, possibly one of the most misleading concepts out there.

A 20 MB connection means that your connection from your home to the first network point (usually a C/O or remote C/O) will test at 20 meg a second or better. It is NOT, and never has been, an assurance of 20 meg a second to any particular (random) point on the internet.

“If the ISPs do not have the capacity to serve every customer at their paid for maximum data rate, that is limiting.”

It would be cost prohibitive for an ISP to build a network that could handle 100% of the customers running at 100% bandwidth at all times. When you consider that most ISPs (including the sainted Google Fiber) oversell total connectivity anywhere from 3 to 100 times gives you an idea of the situation. Having not only to purchase more connectivity from companies like Level3 or HUrricane Electric, but also to “end to end” their networks to support this would be cost prohibitive. To do so would likely double your current internet bill.

In the end, they sell you the ability to send and receive at a burst level that is higher than the sustainable level. It means that if you are downloading a Unix distribution (because people mostly do that when they download), you will be able to download it at a pretty high speed. However, if everyone in your neighborhood was download unix 24/7, it’s likely you would get slower speeds.

“Between the FTC and the FCC we should be able to wrangle these Internet mobsters into shape.”

Yes, you should be able to make it even less appealing for new players to enter the market, and force the existing players to adjust their plans accordingly.

All of this gets back to a car analogy – your connection speed is like your car’s maximum speed. The fuel in your tank is the bandwidth. You can drive very fast and use it all up sooner, or you can drive at a reasonable pace with occassional bursts of speed and have plenty of fuel left for your full monthly “journey” online.

Ninja (profile) says:

Re: Re:

It would be cost prohibitive for an ISP to build a network that could handle 100% of the customers running at 100% bandwidth at all times.

Then don’t sell speeds you can’t maintain. Simple as that. If the problem lies with peak times then sell tiered plans where getting 100% speed at peak times costs a premium.

Even utilities that bill per unit of consumption be it kWh or liters they still have to be able to fully serve the customers at any time if they demand it. They still have to keep a generation/intake and distribution that can support peak times loads. The difference is that keeping a 100% load costs shitloads less for data than for physical things like water and electricity. The additional energy cost for increasing the data load in the network is negligible.

There is no excuse for overselling capacity.

All of this gets back to a car analogy – your connection speed is like your car’s maximum speed. The fuel in your tank is the bandwidth. You can drive very fast and use it all up sooner, or you can drive at a reasonable pace with occassional bursts of speed and have plenty of fuel left for your full monthly “journey” online.

No. The bandwidth is the road width or the pipe diameter and the data is the cars and the water going through them. It doesn’t matter if you use it to transport 1 car or pack it full of cars. With the added benefit that the wear and tear in data distribution is way lower than roads and pipes. Your analogy is flawed.

nasch (profile) says:

Re: Re: Re:

I don’t think there are any utilities that can handle everyone using it to the max all at once. That’s how blackouts happen. If everyone in your neighborhood turned on their sprinklers and taps at the same time, the pressure would drop drastically. If everyone in town picked up their phones (meaning landlines) at the same time, the switches would crash. ISPs are no different from the rest, they count on not everyone needing all of it all at once.

The difference is, with ISPs – in the US anyway – nobody gets the advertised maximum most of the time. With the others, I can run my sprinklers or air conditioning or make a phone call and it works perfectly, whereas there’s no telling how well my internet connection will work at any given time.

Ninja (profile) says:

Re: Re: Re: Re:

True enough. I don’t know how things happen there but here there is a limit to “oops, the load exceeded our max” excuse. There’s an allowed percentage of outage for electricity for instance and you actually get discounts in your bill if they exceed that amount. Same happened with my ISP last month. There was an issue with the network that prevented my area from using speeds above 10mbit. I got a refund for these 3 days in my bill and I wasn’t even in the city during the time so I didn’t know and didn’t call them.

I see your point but it still doesn’t justify the caps.

Whatever says:

Re: Re: Re:

“Even utilities that bill per unit of consumption be it kWh or liters they still have to be able to fully serve the customers at any time if they demand it”

Incorrect. You can figure this out in two ways:

1 – blackouts during peak demand times. This is because demand exceeds the ability of the network to deliver.

2 – Assuming every residence has a 100amp entrance (many have 200) and each business has the same, just take the number of addresses in your area and figure out what the actual “peak peak peak” demand would be. It far exceeds their ability to produce or obtain power.

The power companies work on the assumption that the moment you happen to be running full AC, the dryer, your electric stove and water heater all at the same time that they guy next door went out to the store. It balances out.

“It doesn’t matter if you use it to transport 1 car or pack it full of cars. “

You miss the point. Imagine for a moment that the road outside your house had to be as wide as your driveway, muliplied by the number of driveways. When that road got to the main road, that main road would have to be the size of all of the connecting roads, and so on. There is no possible way to make that happen. Building a huge private road just from your driveway to your destination is wasteful. Provisioning 100% of your bandwidth END TO END 100% of the time is wasteful as well.

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
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)
06:24 Mozilla, Consumer Groups Petition For Rehearing of Net Neutrality Case (22)
06:49 AT&T Exec Insists That No Broadband Company Is Violating Net Neutrality Even Though AT&T Is Absolutely Violating Net Neutrality (19)
06:45 Shocker: ISPs Cut Back 2020 Investment Despite Tax Breaks, Death Of Net Neutrality (61)
06:28 Ajit Pai Whines About The Numerous State-Level Net Neutrality Laws He Just Helped Create (47)
More arrow