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: appeals, dc circuit, en banc, net neutrality
Companies: ctia


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  • icon
    Vidiot (profile), 28 Jul 2016 @ 3:38pm

    Just in case...

    The Comcast Gift Delivery Truck is circling DC right now, trying to drop off baskets of joy to the Supremes' homes; turns out the lobbyists aren't allowed to stroll the Justices' hallways, for some reason. Not as easy as Congress!

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

  • identicon
    WellSaidKarl, 28 Jul 2016 @ 4:17pm

    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.

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

  • icon
    Aaron Walkhouse (profile), 28 Jul 2016 @ 6:09pm

    Oh, I'm sure at least one of his staff is reading this site.

    ;]

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

  • identicon
    DigDuggery, 28 Jul 2016 @ 6:41pm

    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.

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

    • identicon
      Shilling, 28 Jul 2016 @ 9:34pm

      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.

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

      • icon
        nasch (profile), 29 Jul 2016 @ 6:04am

        Re: 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'.

        Yeah, you can use it. With limits.

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

      • icon
        Ninja (profile), 29 Jul 2016 @ 11:41am

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

        Then it is not unlimited. There is a limit where your speed is reduced.

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

      • identicon
        DigDuggery, 29 Jul 2016 @ 11:58am

        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.

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

  • icon
    Whatever (profile), 28 Jul 2016 @ 7:14pm

    "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.

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

    • icon
      Ninja (profile), 29 Jul 2016 @ 11:34am

      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.

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

      • icon
        nasch (profile), 29 Jul 2016 @ 12:12pm

        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.

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

        • icon
          Ninja (profile), 29 Jul 2016 @ 12:29pm

          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.

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

      • icon
        Whatever (profile), 29 Jul 2016 @ 9:59pm

        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.

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

  • identicon
    annonymouse, 28 Jul 2016 @ 9:28pm

    Belonged maybe but never paid for since all those subsidies paid for all that infrastructure multiple times over

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

  • identicon
    Anonymous Coward, 28 Jul 2016 @ 9:35pm

    Like I've been telling you people before, we should write to our corporate lawmakers (write, type, call). It's not enough just to contact politicians. We should also contact Time Warner Cable, AT&T, etc... on these issues. Let them know what we think. Protest them.

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


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