FCC Net Neutrality Rules Finally Released, Cue The ISP Lawsuits And Hyperbole

from the let-the-games-truly-begin dept

Given the hysterical reaction to the FCC's new net neutrality rules the last few weeks, it was easy to forget that nobody had actually read them yet. As noted previously, the lack of public documents wasn't some sort of elitist cabal, but a routine (if stupid) part of FCC procedure restricting the agency from publicizing new rules until they've been voted on and include all Commissioner commentary. Of course, ISPs and congressional allies breathlessly opposed to Title II hadn't read the rules either, preventing their lawyers from launching their expected legal assaults.

Today the lawsuit countdown can begin in earnest on the news that the FCC has formally released the toughest net neutrality rules seen in U.S. history (which notably isn't saying much). The rules themselves can be found here (pdf), and while it's some 400 pages, much of that is supplemental material and included Commissioner dissents. You can find all the Commissioners' statements here. Ajit Pai, who has waged a one man war against Title II (and Netflix) for months, offered up a sixty-seven page dissent (pdf) in which he called the rules an "unprecedented attempt to replace...freedom with government control."

While it will take telecom lawyers a few days to fully parse out the legal semantics, the rules on first glimpse do precisely what the agency said they'd do, focusing primarily on four areas of protection: making sure ISPs are transparent with network management; prohibiting outright blocking of websites (unless you're the MPAA, of course), prohibiting the throttling of websites and services, and prohibiting anti-competitive "paid prioritization" (no, contrary to repeated claims, this doesn't ban things like technology for disabled people).

While a dramatic improvement over the 2010 rules (they actually cover wireless networks, for example), it remains wholly unclear if the FCC is actually going to tackle the hot spot areas where the modern net neutrality fights are actually occurring.

Issues like usage caps, usage cap meters, zero rated apps and interconnection -- areas where most of the current neutrality debate is focused -- remain in a sort of nebulous grey area when it comes to how far the FCC's willing to go to protect consumers. While the order contains a general conduct rule the agency says can be used "to stop new and novel threats to the Internet," the rules also make it very clear the agency's taking a "wait and see" approach to many of these issues:
"While we have more than a decade’s worth of experience with last-mile practices, we lack a similar depth of background in the Internet traffic exchange context. Thus, we find that the best approach is to watch, learn, and act as required, but not intervene now, especially not with prescriptive rules. This Order—for the first time—provides authority to consider claims involving interconnection, a process that is sure to bring greater understanding to the Commission."
Despite all the hand-wringing about the rules somehow killing innovation angels and startups, carriers will likely need to engage in some particularly ham-fisted abuses to truly get the attention of the FCC, who'll be working overtime to counter the narrative that they're a blundering government agency drunkenly implementing "heavy handed regulation." It's in this muddy grey area that you can expect ISP creativity to flourish when it comes to anti-competitive behavior, and despite a lot of breathy analysis today -- we're simply not going to understand the rules' impact until we have concrete examples of what the FCC considers anti-competitive behavior.

In an accompanying statement (pdf), FCC boss Tom Wheeler again makes it clear the agency is forbearing from many of the heavier-handed utility-style aspects of Title II -- including mandatory universal service contributions, rate regulations, or a return to local loop unbundling (much to the chagrin of some consumer advocates). The FCC boss also tries to shoot down for the millionth time (for whatever good it will do) the idea that the rules will somehow crush sector innovation or investment:
"Let me be clear, the FCC will not impose “utility style” regulation. We forbear from sections of Title II that pose a meaningful threat to network investment, and over 700 provisions of the FCC’s rules. That means no rate regulation, no filing of tariffs, and no network unbundling. During the 22 years that wireless voice has been regulated under a light-touch Title II like we propose today, there has never been concern about the ability of wireless companies to price competitively, flexibly, or quickly, or their ability to achieve a return on their investment."
Upon release, the rules head to the Federal Register, and after being published in the next week or two, a 60-day countdown begins before the rules formally take effect. ISPs have thirty days to sue after publication in the Federal Register, so you can expect legal maneuvering (and ridiculous ISP rhetoric) to heat up quickly. As for which ISP will sue, AT&T and Comcast are waiting for regulatory approval of their respective mergers, and may not want to play starring roles in the next round of legal fisticuffs. That leaves Verizon, whose earlier lawsuit brought us to this point to begin with, as most likely to lead the legal charge.

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  • identicon
    Anonymous Coward, 12 Mar 2015 @ 8:29am

    Cue the MPAA

    A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not block lawful content, applications, services, or non-harmful devices, subject to reasonable network management.

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

    • identicon
      Anonymous Coward, 12 Mar 2015 @ 8:48am

      Re: Cue the MPAA -- Cue pirate fanboy overlooking the word LAWFUL!

      That means copyrighted.

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

      • identicon
        Anonymous Coward, 12 Mar 2015 @ 9:02am

        Re: Re: Cue the MPAA -- Cue pirate fanboy overlooking the word LAWFUL!

        Except that 1. that was literally the point I was making - that the MPAA will jump on that language in an attempt to implement full blocking, and 2. That copywritten content on pirate sites is lawful content being distributed unlawfully.

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

      • identicon
        Anonymous Coward, 16 Mar 2015 @ 11:07pm

        Re: Re: Cue the MPAA -- Cue out_of_the_ass!

        out_of_the_blue just hates it when due process is enforced.

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

    • identicon
      PRMan, 12 Mar 2015 @ 9:08am

      Re: Cue the MPAA

      So, can I call Sprint and have them turn on tethering without a fee now? After all, they are blocking a lawful, non-harmful service.

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

      • identicon
        Anonymous Coward, 12 Mar 2015 @ 9:20am

        Re: Re: Cue the MPAA

        Not exactly. They aren't exactly blocking it on their end. It's turned off in the phone itself by their modified version of the tethering code that was added to the stock rom and they charge the fee once you ask them to enable that in the phone. Rooted phones can have restore the original functionality that allows it to work without their help. If they were actually blocking that on their end somehow, that would not be possible.

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

        • icon
          John Fenderson (profile), 12 Mar 2015 @ 10:44am

          Re: Re: Re: Cue the MPAA

          Gaining the ability to tether was the thing that made me start rooting my phones in the first place.

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

        • icon
          Falindraun (profile), 16 Mar 2015 @ 9:30am

          Re: Re: Re: Cue the MPAA

          Technically speaking since the mobile carrier requested to the mobile phone maker that tethering be disabled by default on all phones for their network, then yes they are blocking a lawful, non-harmful service.

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

          • icon
            nasch (profile), 16 Mar 2015 @ 12:05pm

            Re: Re: Re: Re: Cue the MPAA

            Technically speaking since the mobile carrier requested to the mobile phone maker that tethering be disabled by default on all phones for their network, then yes they are blocking a lawful, non-harmful service.

            As long as it can be done with a rooted device, then they're not blocking anything on the network. So it could be a problem - perhaps consumer rights, perhaps anti-competitive - but not a net neutrality problem.

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

    • identicon
      Anonymous Coward, 12 Mar 2015 @ 10:14am

      Re: Cue the MPAA

      That "lawful" word was probably intended to allow network operators to block attacks (hacking attempts, DDoS, etc) originating from or targeting their network. Not including that word could open an annoying can of worms (figuratively and literally, as worms are one kind of attack which the operators want to be able to block).

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

    • icon
      Lurk-a-lot (profile), 13 Mar 2015 @ 2:05am

      Re: Cue the MPAA

      That doesn't mean that they must block it, or even that they must look for it.

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

  • identicon
    Just Another Anonymous Troll, 12 Mar 2015 @ 8:33am

    So now billions of dollars in taxes, censorship by Iran and China, government control over the Internet, and cars crashing into one another loom on the horizon?
    Oh wait that was just the ISP BS, false alarm!

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

  • identicon
    Anonymous Coward, 12 Mar 2015 @ 8:56am

    Read some of it.

    Surprisingly straight forward, except I hate "Waivers" & "Reasonable".

    Back in the day people could literally own cannons by way of the 2nd amendment. Today... yea good luck, and while that is a separate issue, it provides a great example of just how much can change without even rewriting the law.

    Everyone's interpretation of "Reasonable" has always been clouded by their political and economic motives. With these clauses... there is enough of a loop hole for the FCC chairman to be bribed into submission if necessary.

    Yea, I don't buy it, nothing new here... I will finally believe there is teeth when someone knocks the likes of Verizon and Comcast over for bandwidth limiting services like netflix & youtube.

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

    • identicon
      Rich, 12 Mar 2015 @ 9:18am

      Re: Read some of it.

      There are still people that collect and fire cannons, so what's your point? Good luck with what?

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

      • identicon
        Anonymous Coward, 12 Mar 2015 @ 11:39am

        Re: Re: Read some of it.

        To help you out.

        The POINT IS!

        That the wording of the document is not strong enough to prevent ISP from going ahead and doing things to screw with the bandwidth.

        Furthermore, the wording also "allows" the FCC to put TOO MUCH unjustified pressure on a company because all they have to do is say something was unreasonable. The FCC already ensures a near monopoly on Telecom's and ISP's as it is. Most people have NO real competition at all.

        NEVER underestimate someones ability to completely misuse their power, especially when they work for the government. This bill like every other bill that has come out of congress in the past 20 years is nothing other than an unnecessary power-grab. When this is all said and done, it may not be any better at all.

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

        • icon
          nasch (profile), 12 Mar 2015 @ 11:50am

          Re: Re: Re: Read some of it.

          That the wording of the document is not strong enough... the wording also "allows" the FCC to put TOO MUCH unjustified pressure on a company...

          Those criticisms seem contradictory.

          This bill like every other bill that has come out of congress in the past 20 years

          This is not a bill, it's from the FCC.

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

        • identicon
          Anonymous Coward, 13 Mar 2015 @ 8:14am

          Re: Re: Re: Read some of it.

          Government agencies do not abuse power for lulz. When abuses occur there is a reason. SOMEONE stands to benefit from it otherwise it would not occur. Here is the way it likely will work. Big money telcoms push for no rules that allow them to abuse their position in the market through anti-competitive behavior by spreading FUD about oppressive government regulation. At best that is a stalling tactic. They already have a plan B. When the government steps in to make rules they switch to shape the rules such that either the rules have no teeth or are oppressive enough that it prevents new competitors from entering the market effectively using them to maintain their monopoly status and achieve their anti-competitive goals. They then point to their previous warnings to mislead the public and hide what they are doing by shifting the blame back to government oppression. Either way they win. The only way they don't is if the public doesn't go to sleep and keeps eye on what is going on to make sure that the regulation fosters competition.

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

  • identicon
    Anonymous Coward, 12 Mar 2015 @ 8:57am

    As John D Rockefeller said of Teddy Roosevelt concerning the breakup of his company Standard Oil, "venturing with rash experiments", "impeding prosperity", and "advocating measures subversive of industrial progress" though today they simply tie those last two up in the phrase "job killing".

    Obviously Rockefeller was right in his assessment at the time, it's not like the largest corporation in the world to ever exist was an oil company after the break up of Standard Oil... oh wait...

    So the real lesson, the telecom industry will lie and cheat and do everything they can to take money out of your pocket, and a big part of that is to convince you to not trust the only entity that can stop them.

    It's like a child molester telling a 6 year old "if you tell your parents, then you will get in trouble and they won't love you anymore, and send you away.", or "if you tell mommy or daddy, then I will kill them."

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

    • icon
      JohnG (profile), 12 Mar 2015 @ 9:01am

      Re:

      "a big part of that is to convince you to not trust the only entity that can stop them."

      The only problem with that position is the track record of bureaucratic incompetence that exists at nearly every level of gov't.

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

      • identicon
        Anonymous Coward, 12 Mar 2015 @ 5:00pm

        Re: Re:

        I'll take bureaucratic incompetence over sociopathic malevolence every day of the week.

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

      • identicon
        Pragmatic, 13 Mar 2015 @ 6:37am

        Re: Re:

        And overlarge corporations are better because...

        I heard of one case where a major oil company was continuing to pay wages to members of staff who had actually died or left the company because it was too much effort to check their records.

        In the company I work for there is no clear chain of command so good luck with the other departments to cooperate, particularly if they're not in the same state, and don't get me started on procurement or our hiring policies.

        The takeaway: any large organization can become a cumbersome, blundering behemoth. Being a private enterprise doesn't automatically make it efficient by the power of market forces, or whatever. I don't understand where people get these ideas.

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

    • identicon
      Anonymous Coward, 12 Mar 2015 @ 9:06am

      Re:

      Remember the Sherman act is only applied if it turns out that the people the companies serve are very unahppy with them. This is why Comcast will go to congress and convince them that they are the 'good guys" and convince them that they are good and honerable corporate citizens, so that they government will trust them... the way a parent might trust a close family friend to babysit, and once the parent is out of the house, the babysitter is free to molest their child all they want.

      I am not saying the American public are children or that the government is a parent.. but I am saying, that the telecom industry and child molesters use the same tactics in order to fuck their victims.

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

      • identicon
        PRMan, 12 Mar 2015 @ 9:11am

        Re: Re:

        "Remember the Sherman act is only applied if it turns out that the people the companies serve are very unahppy with them. This is why Comcast..."

        IS DOOMED!

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

      • identicon
        Anonymous Coward, 12 Mar 2015 @ 9:25am

        Re: Re:

        Companies avoid the Sherman Act by paying off the people that could enforce it even though the people the companies serve are very unhappy with them.

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

  • identicon
    Rudyard Holmbast, 12 Mar 2015 @ 9:50am

    This site accusing anyone of hyperbole on net neutrality is like Keith Richards telling me to "just say no".

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

  • icon
    TheResidentSkeptic (profile), 12 Mar 2015 @ 10:34am

    And in related news...

    New coast-to-coast Super Highway under development.

    The DOT, in partnership with the "Big 3" automakers is proud to announce the innauguration of a new coast-to-coast superhighway to be constructed to replace the existing Interstate system.

    One of the key features of the new highway are the vehicle-specific lanes which use NFC technology to detect the manufacturer and model of the car you are driving. For those who drive Corvettes (the "first" American sports car), your speed will be allowed to hit 125; for those with the new Ford GT-40, you will be allowed to hit 150. All foreign cars will be limited to 65 at all times as they are not "American" suppliers.

    Manufacturers who contribute the most to our new Super Highway will be allowed to set the maximum speeds of their vehicles, and those who contribute to our Senators along the route will also be able to "throttle down" vehicles from their competitors.

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

    • identicon
      Pragmatic, 13 Mar 2015 @ 6:42am

      Re: And in related news...

      Can someone PLEASE show this to Ajit Pai?

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

    • identicon
      Anonymous Coward, 13 Mar 2015 @ 8:31am

      Re: And in related news...

      You forgot part of the equation. To be considered an "American supplier" you have to have apply and be approved by an anonymous board trustees supplied by the controlling shareholders of the Big 3 companies evaluated based on a list of rules and criteria drafted and approved in secret by this board. Part of the application process will include an application fee to be determined by this board. Maintaining approved status will also require annual dues to be paid by the company which also will be determined by the board. Appointment to the board will also exempt the company from the application process and annual dues.

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

  • identicon
    Zonker, 12 Mar 2015 @ 11:34am

    And as promised, the actual rules themselves *are* only 8 pages (Appendix A: 283-290), not 300 or 400 pages. I had to scroll from the bottom through 210 pages of commentary on the rules to find them, almost half of it the dissenting opinion of the anti-net neutrality commissioners. Ajit Pai's dissent takes up a full 80 pages (321-400) of the document.

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

  • identicon
    Anonymous Coward, 12 Mar 2015 @ 12:09pm

    I wonder if Ajit Pai understands that he is either seen as a fool or a shill.

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

  • identicon
    Anonymous Coward, 12 Mar 2015 @ 7:21pm

    "unprecedented attempt to replace...freedom with government control."

    This started back in 1863 when the federal government decided to replace the freedom of private business to engage in innovative labor practices with government control almost as bad as Title II: the so-called emancipation proclamation.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
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    reply to this | link to this | view in chronology ]

  • icon
    Sheogorath (profile), 14 Mar 2015 @ 1:41am

    The rules are an "overdue attempt to replace [...] Telcos' control with long-awaited freedom."
    FTFY, Ajit Pai. YW.

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


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