Our Shiny New Net Neutrality Rules Won't Be Worth Squat If The FCC Isn't Willing To Act

from the we've-only-just-begun dept

While the FCC's new net neutrality rules are certainly a step in the right direction for consumers, it's aggressively premature to uncork the champagne. There are still ISP lawsuits waiting in the wings, not to mention the fact that a 2016 party shift (and subsequent FCC leadership change) could very quickly dismantle ten years of grassroots activism in the blink of an eye. And then there are the rules themselves and the FCC's dedication to them; as noted last week, it's difficult to know just how useful the new Title II-based rules are going to be until we see precisely what the FCC defines as actionable behavior.

For example, while the rules prohibit blocking, throttling, anti-competitive paid prioritization and require network management transparency -- there's a wide range of ISP behavior that will fall outside of the traditional definition of net neutrality, like Comcast refusing to authenticate HBO Go on Playstation 4 to protect its set top box empire, or carriers blocking Google Wallet for "security reasons" to (unsuccessfully) give their own mobile payment platforms a leg up. And while the FCC says it's going to use its new Title II authority to "keep an eye on" issues like interconnection, nobody actually knows what this means.

AT&T of course has been at the forefront of trying to test the FCC's boundaries for anti-competitive behavior for years, most recently with its Sponsored Data effort, which tries to pass off charging companies for cap-exemption as a great boon to consumers. AT&T's also been at the forefront of blocking access to services or throttling its grandfathered "unlimited" data plan users to shove them toward pricier metered options. So far, the FCC seems perfectly fine with Sponsored Data and T-Mobile's Music Freedom, even though both set incredibly bad precedents (albeit in notably different ways).

In fact, there's a myriad of anti-competitive behaviors carriers may still be able to engage in, provided they argue it's for the safety and the health of the network, or bury it under a cacophony of technical jargon. The term "reasonable network management" has long been a bane to the crafting of sensible net neutrality rules, given that carriers by their nature will always declare their network practices reasonable, even while they're happily abusing gatekeeper power to make an extra buck. The FCC's rules again trot out this definition in stating that network management is obviously fine if it's honestly about the health of the network:
"The record broadly supports maintaining an exception for reasonable network management. We agree that a network management exception to the no-blocking rule, the no-throttling rule, and the no-unreasonable interference/disadvantage standard is necessary for broadband providers to optimize overall network performance and maintain a consistent quality experience for consumers while carrying a variety of traffic over their networks."
The FCC's rules take things one step further in clarifying that "reasonable network management" can't be used as an excuse to make an extra buck:
"For a practice to even be considered under this exception, a broadband Internet access service provider must first show that the practice is primarily motivated by a technical network management justification rather than other business justifications."
Yet as it stands, AT&T's pretty clearly using network management to make an extra buck. For years, the company has been throttling its grandfathered unlimited customers once they reach 5 GB, a practice intended to drive them to more expensive metered plans. And as Ars Technica notes, it's entirely unclear if the FCC's going to act. AT&T, meanwhile, has been circulating this presentation arguing its behavior is perfectly above board. By the time the rules solidify and the FCC does act (should it act), who knows how many unlimited AT&T customers will be left:
"Given the 60-day waiting period before rules go into effect, the time it will take the FCC to evaluate complaints, and uncertainty over how rules will apply, AT&T can keep throttling unlimited data without fear for a good while. By the time AT&T is forced to stop, if indeed that happens, many customers will have already given up their old unlimited data plans and switched to subscriptions that charge them extra every time they exceed their cap. That's what AT&T was after all along, and for now it's still getting what it wants."
Between that and the FCC's refusal to identify zero rated apps as a threat to net neutrality (the practice is outright banned in Chile, Canada, The Netherlands, Norway and Slovenia), you might start to wonder how serious the FCC is really going to be when it comes to policing the murkier (but just as important) edges of anti-competitive behavior. Is the FCC going to be a tough, flexible watchdog on the beat? Or is it going to be so afraid of the hand-wringing over "onerous regulations" -- and so eager to have the debate settled -- that it's intentionally apathetic to more subtle abuses?

And that's the rub: it's great to have rules that give the FCC the flexibility to act against anti-competitive behavior, but they're only useful if the FCC actually successfully uses them. There are more than a few worrying indications that ISPs will be able to engage in net neutrality violations under our new paradigm -- just as long as there's a layer of semi-believable, faux-technical pretense justifying it. Yes, probably gone are the days where carriers could simply block services they don't like, but we've entered a more dangerous, subtle era in the fight for net neutrality.

Moving forward, each time consumers believe their ISP is engaged in anti-competitive behavior that exists in these nebulous grey areas (alongside zero rated apps and interconnection), they'll need to file a complaint with the FCC -- a process the EFF notes benefits deep-pocketed ISPs. ISP lawyers will then go to great lengths to explain how everything they're doing is simply for the health and security of the network and great benefit to the consumer, and it will be up to the FCC and consumers to consistently see through this obfuscation and do the right thing. Similarly, with net neutrality abuses being intentionally more difficult to clearly define, we'll likely start seeing more Chicken Little complaints than ever before, only adding to the uncertainty.

In other words, if you thought the net neutrality debate just got remotely settled by the creation of new Title II rules, you're probably going to be gravely disappointed. While the rules are a good start, we've likely only just finished chapter seven of what promises to be an epic, forty-five chapter novel -- one that's going to require the undivided, persistent attention of those hoping to protect a healthy, open Internet.

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  • icon
    limbodog (profile), 16 Mar 2015 @ 12:04pm

    True of all government oversight agencies.

    And politicians will work to weaken them if they endanger a pet project from which they get their funding.

    Seriously, have we not figured out how to oust corrupt politicians yet?

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

  • identicon
    TMC, 16 Mar 2015 @ 12:47pm

    BAA

    Does the FCC have the authority to, I don't know, eliminate the binding arbitration agreement clause in all ISP-customer contracts? Because that would restore private right of action against ISPs and make the public less dependent on FCC action.

    I'm not familiar enough with the FAA to know if it obviously overrules any agency-crafted exceptions.

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

    • icon
      fgoodwin (profile), 16 Mar 2015 @ 1:21pm

      Re: BAA

      @TMC:

      "Does the FCC have the authority to, I don't know, eliminate the binding arbitration agreement clause in all ISP-customer contracts?"

      Probably not.

      That clause is consistent with the Federal Arbitration Act, which favors binding arbitration. Binding arbitration has been a feature of cellular contracts for probably a decade, so if the FCC had a problem with such clauses, it has had plenty of time to eliminate them in the wireless context.

      It has not done so.

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

  • icon
    Pronounce (profile), 16 Mar 2015 @ 2:33pm

    Unintended Consequences

    I'm waiting until the unintended consequences come to light and some enterprise soul figures out how to use the Net Neutrality issue to make bank. When that happens it'll shut up the ISPs as the try and scramble to save their bacon.

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

  • identicon
    Anonymous Coward, 16 Mar 2015 @ 9:46pm

    Although widely marketed as "unlimited" -- bandwidth is a limited resource.

    How that limited resource is managed should at the very least be totally transparent, with the companies being required to inform consumers -- particularly any who might have mistakenly thought that "unlimited" actually meant unlimited.

    None of us had any illusion that the government would actually enforce a ban on abusive practices by the very parties that bankroll politicians -- in this case things such as the use of DPI, P2P-blocking, packet-forging, and other secret shenanigans against paying customers. As regulatory agencies are famous for doing, the FCC will 'pay lip service' to the ideals of network neutrality while at the same time ignoring complaints of abuses leveled against "too big to fail" corporations.

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

    • icon
      John Fenderson (profile), 17 Mar 2015 @ 8:03am

      Re:

      Given that unlimited plans have a well-advertised speed limit (the advertised limit is often unachievable, but that's a different issue), it's clear to me that "unlimited" doesn't mean "unlimited bandwidth". It means that you can use as much of the bandwidth you have purchased as you want. If you can do that, then the use can properly be called "unlimited". If you can't, then you don't have unlimited service and if they say you do, they're lying.

      It's the lying that's the issue, not the existence of limits. As long as limits are placed without regard to where your bits are going to or coming from, then this isn't something that should interest the FCC. If, as they tend to do, the ISP is lying in their marketing materials, that's an issue for the FTC.

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

  • identicon
    Anonymous Coward, 17 Mar 2015 @ 12:31am

    Imagine life without communication. If all 10 (or so companies) withdrew their sevices for a day, or even an hour, the entire country would be held hostage. Even if that's unlikely to actually occur, the fact that they could puts them at the top of the garbage pile of industries too big to fail. The government has no power. Not really. It's all smoke and mirrors.

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

  • identicon
    Anonymous Coward, 17 Mar 2015 @ 12:39am

    What would you expect the FCC to do if ISP's didn't behave? Throttling network traffic, padding bills with extra charges surely isn't worse than say watching a movie for free, which would land them in jail and kill the economy, is it?

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

  • identicon
    Anonymous Coward, 17 Mar 2015 @ 1:54pm

    Net neutrality is a pointless dream if you're handing the trust of the net to either large corporations or government agencies.

    Net neutrality can only come about when individuals themselves can become an ISP.

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

    • icon
      John Fenderson (profile), 18 Mar 2015 @ 8:13am

      Re:

      "Net neutrality can only come about when individuals themselves can become an ISP."

      Individuals can certainly become ISPs right now. Most don't want to, though, because getting connected to those upstream pipes isn't exactly cheap.

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

  • identicon
    INOC | NOC for Data Center, 23 Jul 2015 @ 4:56am

    As previously stated, bandwidth is not something infinite. It is, and has always been, about who gets to control and regulate it. The bottom line is, Big Brother will always want to be in control.

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


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