All The Big Broadband Players Support FCC's Proposed Rules... Which Says All You Need To Know

from the preventing-cable-company-fuckery dept

John Oliver had the right idea last month when he noted that we shouldn't be discussing "net neutrality," but rather "preventing cable company fuckery." I've been sorting through a bunch of the hundreds of thousands of "comments" on the FCC's proposal, and it's amazing how nearly all of them basically say "we support a free and open internet..." but then totally diverge on how to accomplish that -- with people basically insisting that either reclassifying under Title II would protect an open and free internet, or destroy an open and free internet.

But if the goal is to honestly prevent "cable company fuckery," it's not difficult to figure out which plans make sense, because all of the major broadband players are pretty clear that they really, really like the FCC's plan -- and we already know that they also tend to like "fuckery." AT&T had already kicked this off last month by insisting that Section 706 was a lovely way to keep the internet open and free and Title II would damn us all to the 9th circle of hell (or something close to that). Yesterday, Comcast said something similar in its blog post and actual FCC filing. Though, as you dig deep into Comcast's filing, you get weasely language like the following:
Comcast supports the application of such a standard [the "commercially reasonable" standard for paid prioritization]. Comcast also would not be opposed to a rebuttable presumption that "paid prioritization" arrangements are commercially unreasonable. This presumption could be interpreted to preclude, among other things, exclusive arrangements and arrangements that prioritize a broadband provider's own affiliated Internet content vis-a-vis unaffiliated content. A broadband provider seeking to justify any "paid prioritization" arrangement could be required to bear the burden of showing that the arrangement is commercially reasonable and fair to consumers and edge providers. Comcast believes that few arrangements would be deemed to overcome the presumption.

However, the Commission should not establish a policy that would preclude all experimentation in this area. Arrangements could emerge between broadband providers and edge providers that could have widely varying implications for competition and consumer welfare based on the terms of an individual arrangement, the parties involved, and the markets affected. As FCC General Counsel Jon Sallet recently explained, "[c]ase-by-case enforcement offers a potentially more dynamic approach, permitting the Commission to respond to and learn from the rapid pace of change in the communications market."
This is sneaky in the extreme. Beyond being somewhat mealy-mouthed, that first paragraph pretends to say these rules would stop fast lanes. But what it really says is that broadband providers would be totally free to experiment with paid prioritization agreements, and might then have to defend them in front of the FCC later if and only if those who are screwed over (generally smaller players who have neither the cash nor the lawyers necessary) complain loudly enough to the FCC that it investigates the issue. The second paragraph makes it quite clear that the broadband companies have every intention of "experimenting" with fast lanes. They're just going to look for ways to pretend that they're beneficial to customers -- such as by first setting artificially low "broadband caps," and then letting big internet companies pay them to have those caps ignored for their content only.

Meanwhile, NCTA, the lobbying arm of the cable industry (which current FCC Commissioner Tom Wheeler used to run, and which is currently run by former FCC Commissioner Michael Powell), has also weighed in on just how great it thinks the proposed plans are. Just like AT&T and Comcast, it insists that (1) Section 706 is just dandy and (2) Title II would be horrific. It insists that Section 706 gives the FCC the power to deal with any problems, while Title II would just likely lead to litigation. This is self-contradictory. As both Comcast and NCTA make clear, part of their support for Section 706 is that it allows the FCC to pick and choose what to declare problematic on a "case-by-case" basis. But you (and those lobbyists) know that any such attempt by the FCC to declare something commercially unreasonable will lead to a lawsuit as well.

In other words, either plan is likely to lead to lawsuits and uncertainty. Anyone claiming that one plan won't is being misleading.

Finally, the mega filing came from Verizon late last night, and may be the most interesting and ridiculous. It too is quite happy with the FCC's plan, and Verizon's view is best summarized as "there's no reason to put rules on anything we do!" But... at the same time, it's rather passive aggressive in attacking internet companies like Netflix, Google and Amazon, pretending that if the FCC wants to regulate anyone, it might want to look at those guys. In other words "hands off of us, look at those guys who actually provide the services people like." But, when it comes to Title II classifications -- the very same one that Verizon begs to have its fiber lines classified under to get subsidies and tax breaks -- Verizon insists that it would be a total disaster for its broadband access to be regulated under that system. Because it says so. But, when it comes to actually creating fast lanes, like Comcast, Verizon is excited by the "commercially reasonable" standard and all the fuckery it allows, though of course it couches it in language pretending to be about "protecting consumers."
...consumer welfare is best protected if the Commission allows broadband Internet access service providers to manage their networks and—if they so choose—offer differentiated services or implement sophisticated pricing strategies as long as those practices do not harm competition.

In assessing whether a practice harms competition, it is essential not to confuse harm to competitors with harm to competition. The Commission has stated “We believe that consumers of broadband access service should have the ability to exercise meaningful choices.” Those choices should include services offered by edge providers that have chosen to enter arrangements for differential treatment in order to offer more desirable services to their customers. Such options will benefit consumers, even as they reduce rival edge providers’ economic welfare by increasing the competitive pressure they face.
In other words, give us our fast lanes and fuck the internet companies.

So, really, if you go back to the basic idea that John Oliver made clear: if the goal here is to prevent [broadband provider] fuckery, which do you think is really going to do that? The plan that the broadband providers claim to love, or the one that they're all scared to death the FCC might actually put in place?

Reader Comments (rss)

(Flattened / Threaded)

  1. identicon
    Anonymous Coward, Jul 16th, 2014 @ 12:26pm

    Can we somehow coordinate a simultaneous nationwide 'eminent domain' seizure on the telco infra? At this point I would prefer it to my current service

    reply to this | link to this | view in thread ]

  2. identicon
    Trevor, Jul 16th, 2014 @ 12:35pm

    As an attorney, "Reasonable" is the best and worst phrase you can find in a statute.

    "reasonable" is often left to the Court to decide, and can (and does) create some very big loopholes to drive internet fast lanes through.

    Whenever I see a standard is "reasonable" is shudder a little bit, because it falls to whoever can make the better argument, not necessarily an objective standard.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Anonymous Coward, Jul 16th, 2014 @ 12:40pm


    "would damn us all to the 9th circle of hell (or something close to that)"

    Is that an oblique or direct reference to the 9th Circuit?

    reply to this | link to this | view in thread ]

  4. identicon
    Baron von Robber, Jul 16th, 2014 @ 12:46pm


    Big Broadband Players: "Blah blah blah"
    Tom Wheeler: "Ah, you speak my language."

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, Jul 16th, 2014 @ 12:51pm

    Re: Language

    Replace 'blah' with 'perks'.

    And people say America isn't corrupt.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, Jul 16th, 2014 @ 1:05pm

    Re: Re: Language

    And people say America isn't corrupt.

    The only people who say that are the people who benefit from the corruption.

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, Jul 16th, 2014 @ 1:07pm

    Re: Re: Language

    "And people say America isn't corrupt."

    who says this? You mean the politicians and those bribing er lobbying them?

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, Jul 16th, 2014 @ 1:09pm

    Here's a simple solution for Verizon, Comcast, et al. Use your already existing infrastructure and offer an MPLS option for customers that want that prioritization. It's the way we've been doing this for years. I'm sure some customers would like to have a fast lane for NetFlix, Vonage, or provider X. Hell, I know some business' now that pay for such services.
    The problem isn't prioritization as much as normal US consumers don't have a choice in broadband providers. This is creating the same old problems that always arrive with such situations. The ISPs don't have to improve service because customers lack options to switch. ISPs don't want to expand territory to get more subscribers, because that would create competition and thus lower prices. In order to get around this lack of viable increases in income, they have to create a new revenue streams thus the "cable company fuckery" is created.
    Whether Title II would fix the issue, I'm not so sure. Would it mean that like the CLEC/ILEC system, other companies could hop onto their last mile network for a set fee? Even if it does allow competition, would this be enforced? (See Verizon's attempts to ditch copper phone lines and replace them with LTE broadband. Fire Island)

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, Jul 16th, 2014 @ 1:52pm

    I think what should be done is exactly the opposite of what the Cable companies want to have done.

    reply to this | link to this | view in thread ]

  10. icon
    Uriel-238 (profile), Jul 16th, 2014 @ 3:50pm

    Is there any reason to believe...

    ...that the FCC is not owned by big cable (e.g. Comcast and Time Warner)?

    The only apt interpretation of what I got from Wheeler is "I don't care what you say, how many petitions you sign or how many signs you wave, fuck you all." Comcast has paid be huge bucks and now unzipped its fly and it's time for me to put out.

    Maybe I'm cynical, but so far this is looking like some giant dance, as short of a literal gun to Wheeler's literal head, he's going give big cable every regulatory advantage that he is able in his position.

    Please, someone tell me I'm wrong and that there's more to it than that.

    reply to this | link to this | view in thread ]

  11. icon
    Uriel-238 (profile), Jul 16th, 2014 @ 3:53pm

    The only apt interpretation of what I got from Wheeler is "I don't care what you say, how many petitions you sign or how many signs you wave, fuck you all. Comcast has paid be huge bucks and now unzipped its fly and it's time for me to put out."

    Misplaced quotes.

    I've been having fantasies since the customer service recording that the civil war starts as the Comcast Riots.

    reply to this | link to this | view in thread ]

  12. identicon
    Mark Noo, Jul 16th, 2014 @ 4:05pm

    Corporate responsibility

    By law corporations are required to maximize shareholder profit. If they act contrary to this they can be sued by stakeholders.

    Everything is to increase profits.

    Profits come from users. That is you.

    What we need to know now is if the FCC, a government agency, is going to act to "promote the general welfare" as stated in the preamble to the Constitution or if they want to give corporate America everything they have asked for.

    reply to this | link to this | view in thread ]

  13. identicon
    ACoolName, Jul 16th, 2014 @ 5:01pm

    This will not just affect US based internet users.

    Can you see a world in which the internet continues to bring change and innovation to the rest of the world and where US internet users no longer have any choice except what their monopolistic ISP allows?
    Allowing US ISP to "manage" the internet as they see fit will be the end of the internet. It will just become the "net" The "Verizon net", the "AT&T net", etc.

    Will internet venture capitalist and entrepreneurs leave the US, or will innovation just stop?

    I come from a country (and spend summers there) with a fair bit more competition and live in one with a technically unregulated internet. I can choose from any number of ISPs at my home, but only have the duopoly choice at my rural summer residence. The difference is huge, and extremely costly*.

    I just had a fiber optic line installed right into my home and pay just $35 a month for it. This technical upgrade changes how I do things. I don't want this change to be stopped.

    I don't want the somewhat corrupt and completely broken American political system to mess with the internet in the way proposed. Really, can you get more corrupt than this:
    "... NCTA, the lobbying arm of the cable industry (which current FCC Commissioner Tom Wheeler used to run, and which is currently run by former FCC Commissioner Michael Powell), ..."

    Isn't the FCC supposed to work for the interests of the people of your country?

    *Were I to live at my rural summer residence, I have multiple and cost effective choices for ISPs.

    reply to this | link to this | view in thread ]

  14. identicon
    ACoolName, Jul 16th, 2014 @ 5:25pm

    Re: Corporate responsibility

    I went to business school, I know what corporations are supposed to do. Interestingly, the original reason to create this artificial legal entity was to benefit the consumer, not the investor.
    The problem is that the "company" was never meant to be so large that it could game the system. The system is supposed to work in the interest of the people of the country.

    The real problem is monopoly. The US ISPs seek to extract "economic rent" from the customer. Economic rent is not fair game and investors are not entitled to it. This money belongs to the customer.

    reply to this | link to this | view in thread ]

  15. identicon
    Anonymous Coward, Jul 16th, 2014 @ 6:13pm

    So all the last-mile telco providers waited until the 11th hour to file their comments with the FCC. Now it makes sense why the FCC extended the filing deadline. I imagine it was difficult for Comcast and Verizon to file their 11th hour fuckery after the FCC website crashed.

    reply to this | link to this | view in thread ]

  16. icon
    Ninja (profile), Jul 17th, 2014 @ 3:14am


    Most of the times it's inserted on purpose ;)

    reply to this | link to this | view in thread ]

  17. identicon
    Anonymous Coward, Jul 17th, 2014 @ 6:21pm

    the only reason the broadband players are on the FCC side is they can see more and more $$$$! they will make the speed that's available atm as the 'fast lane' and give the public, whose tax dollars have paid for the introduction and supposed improvements to the services, a slower connection. that way, the players dont have to spend anything on improvements and can continue to rake in millions in profits for doing nothing!!

    reply to this | link to this | view in thread ]

  18. identicon
    GEMont, Jul 17th, 2014 @ 11:12pm


    Simple prediction:

    Big Broadband Companies will get everything they want from the well-grafted politicians they bought, through weasel worded legislation entitled "The Act To Protect Net Neutrality", or something similarly misleading, that will accomplish exactly the opposite.

    The Public, small businesses, innovation will get a sharp stick in the eye, higher costs, and will be delegated to "the slow lane", or possibly multiple levels of variously priced "slower lanes".

    The Incredibly Transparent Federal Administration(TM) and the Truth Free Press will claim that the public, small business and innovation has won the battle for net neutrality.

    Business as usual.

    reply to this | link to this | view in thread ]

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