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The Rotten Roots - Summary of Issues and Sources on Net Neutrality

Origin of the problem

The timeline of the Net Neutrality issue has been detailed here. And quoting from Vox: ‘Wheeler said that peering is “an issue that we are investigating, it’s an issue we are very interested in, but it’s not the issue here today.”’

Refreshing some concepts

Today’s problem

For fast realization of the problem, the video made by the Washington Post here or here.

“You might remember the incident earlier this year when Netflix paid Comcast for a direct connection to its network. Netflix signed this deal after a months-long standoff in which the quality of Netflix videos on the Comcast network steadily declined. Netflix has blasted these payments as unfair “tolls” that undermine the open internet.” (Vox)

In February 19, 2014, Tom Wheeler made this statement about open network.

“Wheeler, who was appointed by Obama last year to lead the agency, signaled early on that he preferred light regulation and would encourage new business models such a paid prioritization.” (Washington Post)

“Net neutrality became part of public conversations in the United States after the U.S. Court of Appeals for the District of Columbia Circuit struck down previous FCC regulations that prohibited Internet providers from selectively slowing Internet traffic. In an attempt to fill the gap left by the court’s rejection of previous regulation, the FCC then proposed its new plan for regulation.” (CSIS)

The Notice of Proposed Rulemaking (NPRM) concerns “network neutrality,” the concept that Internet service providers should treat all Internet traffic equally, even if it comes from a competitor. But the rules, while preventing ISPs from blocking content outright, would allow ISPs to charge third-party Web services for a faster path to consumers, or a “fast lane.” (Ars Technica)

“...there are no rules at all against Internet service providers blocking traffic or prioritizing some content over others. That’s because a federal appeals court this year overturned the FCC’s previous net neutrality order, issued in 2010. (Ars Technica)

“While the FCC’s latest proposal doesn’t specifically authorize fast lanes, it didn’t have to: they’re already legal. ISPs can charge Web services like Netflix (“edge providers” in regulatory parlance) for a faster path to consumers over the last mile of the network because there aren’t any enforceable rules against it. (Ars Technica)

“When asked by a reporter whether edge providers can purchase a faster path beyond the performance levels a consumer has paid for, Wheeler dodged. “You’re going off and inventing hypothetical paths to the Internet,” he said.

“[F]avoring affiliated content would be OK if unaffiliated providers are given the same offer.” ... “Go ahead and favor your own content as long as you allow others to buy the same special treatment ...”

“In 2010, the FCC adopted regulation that was later challenged in court by Verizon. The FCC lost the lawsuit, and the rules, which many in the digital advocacy world believed were too weak anyway, were thrown out on a legal technicality.” (CNET)

“The stronger net neutrality rules the FCC passed in 2010 (and which courts struck down earlier this year) wouldn’t have helped either. In fact, Comcast has already agreed to respect network neutrality until 2018 to help it win approval for its merger with Time Warner Cable.” (Vox)

roadband providers could charge content companies a fee for priority access to the network. For instance, Netflix or Amazon could pay extra to ensure their traffic is delivered more expeditiously for a better quality of service.” (CNET)

“Reclassifying broadband as a Title II service or creating a brand new category of service as Mozilla has suggested are approaches that will likely be met with much resistance from broadband providers, such as AT&T, Comcast, and Verizon. These companies fought off earlier attempts by the previous FCC chairman to reclassify broadband traffic and impose telephony-style regulation.” (CNET)

“Broadband providers say such a move would be a mistake. They argue changing the classification of broadband would subject their networks to regulation similar to the old telephone network, which they claim would stifle innovation.” (CNET)

“If the agency elects to use Title II authority to regulate network neutrality, it would have to adjust or eliminate some of the requirements that Title II puts on ISPs that are harmful or irrelevant to how their businesses operate. Title II is from an era of landline and copper networks, so requirements associated with elements like forcing ISPs to open their networks would cause them to go all-out nuclear on the agency. The FCC would have to tweak those rules. It might do so on a case-by-case basis or might investigate whether applying Title III regulations to wireless carriers would make more sense.” (Gigaom)

Statements made by Tom Wheeler: “If a network operator slowed the speed of service below that which the consumer bought, it would be commercially unreasonable and therefore prohibited,” Wheeler aid. “If the network operator blocked access to lawful content, it would violate our no-blocking rule and therefore be doubly prohibited.” (Washington Post)

“...consumer advocates say the agency needs to more aggressively rethink its entire philosophy on broadband Internet regulation.” (the page includes tons of political opinion about the whys and hows related to the issue)

“Michael O’Rielly said the commission hasn’t tried to identify any market harm and thus shouldn’t issue the rules in the NPRM. He also argued that the FCC has invented new authority to regulate the Internet by exaggerating its Section 706 authority. The federal appeals court ruling in the Verizon case contradicts O’Rielly’s argument, however. The judges said the FCC “has reasonably interpreted section 706 to empower it to promulgate rules governing broadband providers’ treatment of Internet traffic.” (Ars Technica)

Who is Who on this game

“Michael Powell is the president of the NCTA, the National Cable and Telecommunications Association, which is the cable industry’s largest lobbying group. He is also the former chairperson of the FCC, the Federal Communications Commission. His target: net neutrality. The battleground is in Washington, D.C., inside the FCC’s nondescript headquarters. The largest Internet service providers—companies like Comcast, Time Warner Cable, AT&T and Verizon—are joining forces to kill net neutrality. Millions of citizens, along with thousands of organizations, companies, artists and investors, are trying to save it.” (Democracy Now)

Worst case: Digital Divide

“Many of those critics see the new proposal as an about-face on the part of the FCC. Rather than preserving net neutrality, these regulations, so say their critics, will divide the Internet into slow and fast lanes. And concerns abound over the ambiguous definition of “commercially reasonable” traffic management, with many questioning the discretionary nature of such language.” (CSIS)

How process will develop in the U.S

“Chairman Wheeler is encouraging the public to share their views now. He intends to have rules of the road in place before the end of the year to protect consumers and entrepreneurs. He will be listening, and your comments will help inform the final rules.

Please send your thoughts to [email protected] (FCC Establishes New Inbox for Open Internet Comments)

“This process, known as “notice-and-comment rulemaking,” allows the administrative agency (in this case, the FCC) to propose a rule that is then published and available to the public in the Federal Register. After a period of public commenting, the agency then published the new regulation.” (CSIS)

[T]he FCC will ask the public whether it should bar paid prioritization completely. It will ask whether the rules should apply to cellular service in addition to fixed broadband, whereas the prior rules mostly applied just to fixed broadband. (Ars Technica)

The NPRM will also ask the public whether the FCC should reclassify broadband as a telecommunications service. This will likely dominate debate over the next few months. Classifying broadband as a telecommunications service would open it up to stricter “common carrier” rules under Title II of the Communications Act. The US has long applied common carrier status to the telephone network, providing justification for universal service obligations that guarantee affordable phone service to all Americans and other rules that promote competition and consumer choice. The full text of the NPRM is not public yet. (Ars Technica)

The FCC will accept initial comments from May 15 until July 15 and reply comments until September 10.

The proposal is here.

“While the two Democratic commissioners Mignon Clyburn and Jessica Rosenworcel each supported the item, they admitted that they weren’t entirely happy with the firestorm that erupted around the chairman’s approach.” (CNET)

“During the meeting, Republican Commissioners Ajit Pai and Michael O’Reilly, who not surprisingly each voted against the order, expressed their concerns with respect to the proposal. Commissioner O’Reilly, the newest member of the commission, said he doesn’t think the FCC has the authority to impose these rules.” (CNET)

“That public comment period begins today and will run for 60 days, until July 27th, at which point a second phase of commenting will open up. That second phase will run for 57 days beyond that, until September 10th, and is meant to allow the public to reply to comments that the FCC received during the first phase.” (The Verge)

If you want to send a long comment to the FCC, click here. Or email them to [email protected]. “Your email address will then become part of the Open Internet Rule docket.” (E Pluribus Unum)

Word games and their meaning

“FCC Chairman Tom Wheeler, despite weeks of backlash, still wants to allow Internet Service Providers like Comcast and Verizon to “offer” different levels of service to internet companies, although he refused to call them a “fast lane” and a “slow lane” and refused to recognize how those arrangements up the food chain affect consumers and a neutral internet.” (Wired)

“By allowing for “commercially reasonable” traffic management, the FCC sought to get around the court’s issue with a blanket prohibition on management, allowing the FCC to determine on a case-by-case basis what is acceptable under the new regulations.” (CSIS)

“The basic question is what would be regulated… No, the Internet wouldn’t be regulated. The telecommunications service that allows the Internet to exist would, as services did before now which made the early online world possible.” (Wired)

“[T]hese new rules do indeed allow for so-called fast lanes, though again, it’s unclear how slow the “slow lane” will be.” (Engadget)

Wheeler has said he would consider using Title II rules if it turns out that ISPs discriminate against smaller companies. (Ars Technica)

f the proposal simply enforces a baseline level of service and doesn’t take a position on whether third-party services can pay for more than that. (Ars Technica)

“In an explainer document, the FCC said that it “tentatively concludes that priority service offered exclusively by a broadband provider to an affiliate should be considered illegal until proven otherwise.” This could mean agreements are allowed as long as each third-party service is offered similar, commercially reasonable terms. (Ars Technica)

“The fact sheet says the FCC is going to “Enhance the transparency rules to provide increased and specific information about broadband providers’ practices for edge providers, consumers.” This could include disclosing information on network practices, performance characteristics like upload and download speeds, latency and packet loss, and data caps. But the important thing regarding fast lanes is that the FCC said it has “tentatively” concluded that disclosures to the public should include “congestion that may adversely impact the experience of end users, including at interconnection points, and information about new practices, like any paid prioritization, to the extent that it is otherwise permitted.” (Ars Technica)

“What he did say is that broadband providers will not be able to block services, and they will have to give consumers access to services at the level of quality they pay for. I literally this weekend just dealt with my broadband provider to make sure that I had sufficient capacity,” Wheeler said. “I buy a pipe. I buy a pathway. Nobody can mess with that. They can’t degrade it, they can’t tell me I can’t access something, they can’t tell somebody you can only get on to Tom’s pathway if you pay me a price. They can’t block.” (Ars Technica)

“Companies will be allowed to create fast lanes so long as they do so in a “commercially reasonable” manner, but what exactly defines a commercially reasonable manner isn’t clear yet…” (The Verge)

Real technical problems related to guaranteeing a specific speed

“But Wheeler is saying that although his plan allows a tiered Internet with faster lanes, the floor will be set at whatever service a customer has bought.

“This potentially puts you in control of the speed of your own slow lane. Your experience of the Internet will still be powerfully shaped by what plans your broadband provider offers, and what their network policies are (e.g., whether they decide to speed up video traffic faster than e-mail, for instance). But if you buy, say, a 35 Mbps broadband plan, your ISP will be required to deliver all content to you at at least that speed. Astute Internet users will point out that speeds on some broadband services—particularly cable providers—varies depending on network load and time of day; sometimes that speed might dip below a company’s advertised speeds. The question is whether this would be a violation of the FCC’s proposed rules, or whether ISPs could write it off as simply a function of the business.” (Washington Post)

“[R]egulating the terms of interconnection on the internet is even more complex than regulating classic network neutrality. It’s relatively straightforward to say that a network provider can’t prioritize one type of traffic over another on its network. But writing rules to govern when two networks must connect with each other and how much they can charge is really difficult. So FCC policymakers may have decided to tackle the easier problem first.” (Vox)

Rotten roots: Carriers (Access Service Providers) behaving as Content Service Providers

All are named as ISPs… but… are they all equal? Is this the mother of all troubles?

“...big ISPs can cause traffic congestion, demand tribute to fix it, and get away with it.” (Wired)

“...to deter broadband providers that might otherwise be tempted to abuse their control of the last-mile Internetnetwork.” (CNET)

Messages straight from horse’s mouth: what Telcos/Carriers say.

AT&T: “Going backwards 80 years to the world of utility regulation would represent a tragic step in the wrong direction. Utility regulation would strangle investment, hobble innovation, and put government regulators in charge of nearly every aspect of Internet-based services. It would deprive America of the world’s most robust broadband infrastructure, and place a cloud over every application or website that delivers products and content to consumers. In short, it would place government in control of the Internet at the expense of private companies, inventors and entrepreneurs, and ultimately at the expense of the American people.

“Such an approach would also send an alarming message to the rest of the world-a message that says the United States believes it is appropriate for governments to place onerous regulations on the Internet. This could encourage other countries to pursue their own goals, whether to suppress ‘dangerous’ speech or extract economic value from American Internet and content companies.”

Verizon: “But one thing is clear: For the FCC to impose 1930s utility regulation on the Internet would lead to years of legal and regulatory uncertainty and would jeopardize investment and innovation in broadband.”

Comcast: “As strongly as we believe in the propriety of legally enforceable open Internet rules, however, we have an equally strong belief that any proposal to reclassify broadband Internet access as a telecommunications service subject to Title II of the Communications Act would spark massive instability, create investor and marketplace uncertainty, derail planned investments, slow broadband adoption, and kill jobs in America.”

ISPs have argued that common carrier rules would force them to spend less on network upgrades and be less innovative. (Ars Technica)

Saints and Demons… the blurred line

“... Google, one of the 100 or so companies signing a pro-Net Neutrality letter to the FCC, caused some of this mess by cutting a deal with Verizon… Google has a big business in YouTube, which streams video. They don’t want to pay the Wheeler Tax, so now all of a sudden, they are back in the fold. The same goes for Amazon, which wants to be a streaming competitor…Microsoft and Yahoo! were early supporters of Net Neutrality, but bailed when the fight got serious in Congress eight years ago. Now they are signing anti-FCC letters…” (Wired)

How it should have been. A lesson and a recipe for today’s problems

“...every… Web site is carried over high-speed connections, wired or wireless. It’s those connections that are the service.” http://www.wired.com/2014/05/fcc-proves-yet-again-that-its-out-to-kill-net-neutrality/

“Wired, Amazon, Netflix and on and on are the content that is the Internet.” (Wired)

“As Internet access continues to skyrocket all around the world, governments will face increasing pressures to provide the kinds of protections that the Marco Civil already intends to guarantee.” (CSIS)

Consumer advocates say that common carrier status is needed for the FCC to impose strong network neutrality rules that would force ISPs to treat all traffic equally, not degrading competing services or speeding up Web services in exchange for payment. (Ars Technica)

Other stakeholders show up

“A five-member panel at the FCC should not be dictating how Internet services will be provided to millions of Americans,” Cruz said in a Wednesday afternoon statement. I will be introducing legislation that would remove the claimed authority for the FCC to take such actions, specifically the Commission’s nebulous Sec. 706 authority. (Infowars)

Aftermath. Outcome of the battle.

“The proposal has sparked a massive fight between two of the most powerful industries in the country—on one side, Silicon Valley, and on the other, companies such as Verizon and AT&T that built the pipes delivering Web content to consumers’ homes. The telecom companies argue that without being able to charge tech firms for higher-speed connections, they will be unable to invest in faster connections for consumers.” (Washington Post)

“The lack of a clear signal from the White House means the agency is likely to stick to its guns on using Section 706, unless public sentiment rallies so far in favor of Title II that Congress or the president push for a change in tactics. If that happens, expect an epic battle behind the scenes as ISPs and web giants fight to carve out Title II to meet everyone’s needs.” (Gigaom)

“But the reality is that banning one kind of fast lane without banning the other isn’t going to accomplish very much. If net neutrality supporters want to preserve a level playing field online, they’re going to have to go back to the drawing board.” (Vox)

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