Thread: Open Internet order loses. Net Neutrality struck down again.

Open Internet order loses. Net Neutrality struck down again.


By: Neil Stevens (Diary) | January 14th, 2014 at 03:30 PM


As many of us predicted all along, the DC Circuit Court of Appeals threw out the FCC’s Open Internet order, which attempted to force “Net Neutrality” on the nation. The Open Internet order was part of a plan claimed to oppose “discrimination” but in practice would hinder ISPs from charging people for what bandwidth they use.

The FCC had previously attempted to enforce such rules illegally, but lost in the Comcast v FCC case. This time Verizon took them on, and the FCC lost again.

If we don’t win the next Presidential election, I expect an even more radical attempt next time, though a move called Title II Reclassification.

You see, back in the Clinton years, a bill passed with bipartisan support that freed the Internet from burdensome regulation. It was called the Telecommunications Act, and its specifically separated information services from telecommunications services, disallowing the FCC from imposing the same degree of regulations on Internet services that they can on the Phone company.

This was important in the debate before the Open Internet order, because Net Neutrality had already been ruled illegal in the Comcast case. So the radical left had argued that the FCC should wave a magic wand and declare that Internet service providers are no longer information services, and are now phone companies, and so should be reclassified as such.

Today’s decision in Verizon v FCC rests on the classification of ISPs as being information services, as envisioned by the Telecommunications Act, which again was passed by Newt Gingrich’s House and signed by Bill Clinton. That’s how much of a common-sense thing it used to be, to have a lightly-regulated Internet.

But having lost in court twice without Title II Reclassification, I do expect them to try that trick next time. And here’s one fact that should concern us about that: Gigi Sohn, formerly of pro-reclassification Public Knowledge (in fact she previously criticized reclassification plans for not going far enough), is now an advisor to new FCC Chairman Tom Wheeler.

So all that talk about Wheeler being a moderate? Don’t count on it for a second. Watch this FCC. It has a dangerous majority from the left.


http://www.redstate.com/2014/01/14/o...ck-down-again/

Published on Jan 15, 2014
Net neutrality is dead. At least that's the verdict of the United States Court of Appeals for the District of Columbia.

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01-14-2014

The Internet As We Know It Is In Peril. The FCC Can (And Must) Save It

John Nichols

Thursday, 16 January 2014 11:18

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By John Nichols. This article was first published on The Nation.

The headquarters of the Federal Communications Commission (Flickr/Federal Communications Commission)
When the US Court of Appeals for the DC Circuit struck down the Federal Communications Commission’s Open Internet Order Tuesday—dealing what is being broadly interpreted as a fatal blow to net neutrality— it highlighted the urgent need for the FCC to develop a smarter and more assertive approach to protecting citizens and consumers in the digital age.
The court rejected a 2010 move by the FCC that was intended to prevent phone and cable conglomerates from subdividing the Internet in ways that block or interfere with communications. The commission’s attempt to reassert its authority—after a FCC dominated by appointees of former President George W. Bush had weakened it—was rejected on the grounds that the approach chosen by the FCC in 2010 was legally unsound.
The FCC classified broadband providers as information service providers rather than as telecommunications service providers. The move, widely criticized by consumer groups, created openings for legal challenges to regulations. And the conglomerates that control access to broadband Internet have taken them.
The DC Circuit has rejected the commission’s approach, and struck down key regulations that were designed to preserve net neutrality. In so doing, they have, as U.S. Senator Bernie Sanders, I-Vermont, says: "(dealt) a blow to consumers and small businesses alike." Without regulatory safeguards, adds Sanders, "corporations are able to prioritize the information available to users, it stifles ideas and expression, as well as commerce and innovation.”
But the court has not said the FCC lacks authority to protect broadband Internet users.
In fact, if the FCC responds to the court ruling with a bold move to reclassify broadband Internet access as a telecommunications service that can be regulated in the public interest, it has the ability to do just that.
This is the challenge that has been presented to Tom Wheeler, the new chairman of the commission, who recently said that “it is essential that the FCC continue to maintain an open Internet and maintain the legal ability to intervene promptly and effectively in the event of aggravated circumstances.”
Following the DC Circuit’s ruling Tuesday, Wheeler indicated the commission would “consider all available options, including those for appeal, to ensure that these networks on which the Internet depends continue to provide a free and open platform for innovation and expression, and operate in the interest of all Americans.”
That’s a sound immediate response. It is significant that Wheeler is sending positive signals about protecting net neutrality, the principle that all Americans should have equal access to all of the information and opportunities that are presented by the Internet. Media conglomerates have for years sought to diminish net-neutrality protections so that they can prioritize some traffic—and profit by putting paying customers’s communications on an information superhighway, while consigning those who cannot write the big checks to a digital dirt road.
Under such a structure, US Senator Al Franken has argued, “the Internet can be transformed from a free, open, and competitive playing field into a ‘pay-for-play’ arena in which citizen bloggers, nonprofits, and small businesses are simply outgunned by major media conglomerates.”
“That,” Franken has warned, “would transform the World Wide Web into a system of separate and unequal networks.”
With the DC Circuit ruling in a case brought by Verizon, the protections that were outlined by the FCC’s flawed 2010 Open Internet Order have been gutted—and the prospect of that “separate-but-unequal” transformation becomes very real.
“Now, just as Verizon promised it would in court, the biggest broadband providers will race to turn the open and vibrant Web into something that looks like cable TV,” says Craig Aaron, the president of the media reform group Free Press, which has been a key player in the “Save the Internet” campaign to maintain net neutrality. “They’ll establish fast lanes for the few giant companies that can afford to pay exorbitant tolls and reserve the slow lanes for everyone else.”
Washington is about to experience a period of rapid and intense political jockeying on media issues. The media conglomerates will look for every opening to use their considerable influence to narrow the options that are available to citizens and consumers, to artists and innovators, to small businesses and nonprofits.
But Wheeler really does have the authority to expand the debate—and to do so in the strategic and legally sound way that can prevent abuses of the public interest.
“The bright side is that the FCC, under the direction of newly appointed chairman Tom Wheeler, now has the opportunity to fix a problem of its own making,” says Casey Rae, interim executive director of the Future of Music Coalition (FMC), a national nonprofit research, education and advocacy organization for musicians. “It has never been more important to have basic rules of the road preventing ISPs from blocking content delivered over the Internet, regardless of how users connect.”

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Aaron agrees. “The FCC—under the leadership of former Chairman Julius Genachowski—made a grave mistake when it failed to ground its open Internet rules on solid legal footing. Internet users will pay dearly for the previous chairman’s lack of political will. That’s why we need to fix the problems the agency could have avoided in the first place.”
“Save the Internet” campaigners say they have been encouraged by Wheeler’s talk about how the FCC must have the ability to protect broadband users and preserve the Internet’s fundamental open architecture.
To make real that promise, however, Aaron says that Wheeler “must act quickly to restore and reassert the FCC’s clear authority over our nation’s communications infrastructure. The agency must follow its statutory mandate to make broadband communications networks open, accessible, reliable and affordable for everyone.”
John Nichols is a co-founder of Free Press, the nation’s media reform network, and the co-author, with Robert W. McChesney, of five books on media and democracy issues, including Dollarocracy: How the Money and Media Election Complex is Destroying America (Nation Books).

http://www.therealnews.com/t2/compon...t/article/1915

Why you should care about Net neutrality (FAQ)

A federal appeals court has thrown out the FCC's Net neutrality rules. CNET's Maggie Reardon explains what the ruling means to the average consumer -- and why it really, really matters.

by Marguerite Reardon
January 15, 2014 4:00 AM PST

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The FCC commissioners (left to right): Ajit Pai, Mignon Clyburn, Tom Wheeler (chairman), Jessica Rosenworcel, and Michael O'Rielly.
(Credit: FCC)
The US Court of Appeals for the District of Columbia Circuit on Tuesday struck down rules adopted by the Federal Communications Commission in 2010 meant to protect the openness of the Internet.
What does this ruling -- and the principles of Net neutrality that it affects -- mean to the average Internet user? While the legal arguments may seem complicated and arcane, the reality is that this court decision has the potential to alter the future of the Internet as we know it. Whether you think these changes will harm consumers or benefit them depends on whom you choose to believe in this ongoing debate.
To help readers get a better understanding of what the court's Net neutrality decision means and to get a handle on what the potential outcomes might be, CNET has put together this FAQ.
What are the Open Internet rules?
Adopted by the FCC in late 2010, the Open Internet regulations are supposed to provide a set of rules to ensure that broadband service providers preserve open access to the Internet.
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There are three main rules at the heart of the regulation. The first required that broadband providers, whether they're fixed-line providers or wireless operators, are open and transparent to their customers and to the services using their networks about how they manage congestion on the systems.
The second rule prohibited broadband operators from blocking lawful content on their networks. Here, there's some difference in strictness depending on whether the provider deals in fixed-broadband or wireless services. Fixed-broadband providers, such as cable operators and DSL providers, have abided by a more stringent set of rules, and wireless operators adhered to a less strict version of the rules.
And the third rule, which applied only to fixed-broadband providers, prohibited "unreasonable" discrimination against traffic on their networks.
What happened on Tuesday?
In 2011 after the FCC's rules were published and set into action, Verizon Communications challenged those rules in court, arguing that the FCC had no authority from Congress to impose such rules and that the rules stymied its First Amendment rights.
On Tuesday, the federal Court of Appeals for the DC Circuit ruled in a 2-1 decision that even though the FCC has the authority to regulate broadband access, it based these rules on a flawed legal argument. In other words, the FCC based its Net neutrality regulation on a law that does not apply to broadband providers.
Specifically, the court said that since the FCC has classified broadband providers differently than it has classified telecommunications providers, it cannot use statutes that pertain to telecommunications services as a basis for regulation on broadband services.
From the decision:

Even though the commission has general authority to regulate in this arena, it may not impose requirements that contravene express statutory mandates. Given that the commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the commission from nonetheless regulating them as such. Because the commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order.

What is a "common carrier," and how does the term relate to this specific case?
The basis for the Net neutrality regulation that the FCC implemented is predicated on a centuries-old legal concept known as "common carriage." This concept of "common carriage" has been used not just to regulate telecommunications but other industries as well. It was developed to ensure that members of the public retained access to fundamental services that use public rights of way. In the case of the Internet, it means that the infrastructure used to deliver Web pages, video, and audio-streaming services, and all kinds of other Internet content, should be open to anyone accessing or delivering that content.

Other examples of common carriage include transportation services. For example, a ferry operator under the common carrier concept is free to operate a business transporting people and goods across a river, but because he is using a public waterway, he's required to provide service to everyone. He cannot indiscriminately choose to service some customers and not others. And while the ferry operator can determine the price for his services, the prices must be fair and reasonable.
Throughout the 20th century this concept was applied to telecommunications services to ensure that phone companies, which use public rights of way to string wire and cable, service all customers.
Early in the last decade, there was a debate in communications policy circles about how broadband should be regulated. Should it be a telecommunications service subject to "common carrier" regulation like the traditional telephone network? Or should it be classified as an information service, which would exempt it from these "common carrier" requirements?
In 2005, the US Supreme Court ruled in its Brand X decision that broadband services should not be classified as telecommunications services. Therefore, because broadband is not a telecommunications service, broadband providers' infrastructure is not considered a public right of way and should not be regulated under the common carrier concept.
It's this decision that forms the basis of Tuesday's appeals court ruling. The reason the appeals court rejected the FCC's position is that the FCC was using a legal argument that placed "common carrier" requirements on a service the that Supreme Court ruled in Brand X is not subject to those requirements.
Does this mean the FCC has no authority to regulate the Internet?
No, not at all. In fact, the court rejected Verizon's argument that Congress did not give the FCC jurisdiction over broadband access:

The Commission has established that section 706 of the Telecommunications Act of 1996 vests it with affirmative authority to enact measures encouraging the deployment of broadband infrastructure. The Commission, we further hold, has reasonably interpreted section 706 to empower it to promulgate rules governing broadband providers' treatment of Internet traffic, and its justification for the specific rules at issue here -- that they will preserve and facilitate the "virtuous circle" of innovation that has driven the explosive growth of the Internet -- is reasonable and supported by substantial evidence.

This part of the decision is an important victory for the FCC. If the court had sided with Verizon on this argument, then it would have called into question the agency's authority to institute any regulation pertaining to the Internet or broadband providers.
I thought an appeals court already struck down Net neutrality? How is this decision different?
In April 2010, the same appeals court that handed down Tuesday's decision also decided a case that pitted the FCC against Comcast. In that case, Comcast had challenged the FCC's decision to punish the cable operator for slowing or throttling BitTorrent traffic as a way to manage its traffic. In that decision, the appeals court agreed that the FCC does not have the legal authority to enforce Net neutrality regulations on Internet providers. At the time, the FCC had not adopted official rules regulating Net neutrality. Instead, the agency imposed penalties on Comcast for violating Net neutrality principles it had in place.
After this court decision, a new Democratic FCC was installed. And the FCC, then headed by President Obama's former law school classmate Julius Genachowski, adopted formal Net neutrality rules. And it's these official rules and regulations that Verizon challenged in the federal appeals court case that was decided Tuesday.
Does this mean that the FCC's Net neutrality rules don't apply to any broadband provider?
The court's decision applies to all Internet and broadband service providers, except for one: Comcast. As part of conditions it agreed to when it purchased NBCUniversal, Comcast said it would abide by the FCC's Open Internet rules for seven years, even if the rules were modified by the courts.

"Comcast has consistently supported the Commission's Open Internet Order as an appropriate balance of protection of consumer interests while not interfering with companies' network management and engineering decisions," Comcast's executive vice president, David Cohen, said in a statement. "We remain comfortable with that commitment because we have not -- and will not -- block our customers' ability to access lawful Internet content, applications, or services. Comcast's customers want an open and vibrant Internet, and we are absolutely committed to deliver that experience."
Cohen went on to say that his company plans to work with FCC Chairman Wheeler and the rest of the FCC to find "an appropriate regulatory balance going forward that will continue to allow the Internet to flourish."
What does this decision mean for me, the average Internet user?
Whether you think this decision is a good thing for the average Internet consumer depends on which side of this political debate you sit on.
The first thing you need to keep in mind is that nothing will change for consumers right away. As with most major court decisions, there won't be any immediate fallout.
But what this court decision does do is pave the way for changes in Internet service business models in the future. And that could have a huge effect on the services that consumers use.
For instance, the ruling opens the door for broadband and backbone Internet providers to develop new lines of business, such as charging Internet content companies, like Netflix, Amazon, or Google, access fees to their networks. Companies like Verizon, AT&T, Time Warner Cable, Comcast, and others could offer priority access over their networks to ensure streaming services from a Netflix or Amazon don't buffer when they hit network congestion, providing a better experience for end users.
Wireless providers like AT&T have already proposed a plan in which app developers and other Internet services could pay for the data consumers use to access their services. Again, AT&T argues this service is a win for consumers since it saves them money by not requiring them to use the any of the data they pay for monthly.
Broadband-service providers claim that these new services and business models will benefit consumers by offering better service quality or defraying costs. Broadband providers also claim having this freedom to establish new lines of revenue will enable them to invest more in their networks, which ultimately benefits consumers.
Randal Milch, Verizon's executive vice president, head of public policy, and general counsel, said that the court's decision will ultimately lead to carrier innovation and that consumers will eventually have "more choices to determine for themselves how they access and experience the Internet."
But supporters of Net neutrality caution this is a very slippery slope. And they argue that these new business models will likely increase costs for companies operating on the Internet, and that eventually those costs will be passed onto consumers. What's more, erecting priority status for services online will result in bigger players being able to afford to pay the fees, while smaller upstarts will be blocked from competing because they won't be able to afford the fees that a Verizon or Time Warner Cable might impose.
Harvey Anderson, senior vice president of business and legal affairs for Mozilla, said the court's decision is alarming for Internet users because it will also provide broadband operators the legal ability to block any service they choose, which will undermine the once "free and unbiased Internet."
Michael Beckerman, president and CEO of the Internet Association, a political lobbying organization formed by members of the Internet industry, including Google, Facebook, and Amazon, argues that without any rules in place to protect the openness of the Internet, innovation on the Internet will be in jeopardy. He says that companies like Google, Facebook, and Amazon have been able to thrive because of the Internet's "innovation without permission" ecosystem, which provides a low barrier of entry to anyone with an idea. He cautions that the success of the Internet to date should not be taken for granted.
"The Internet Association supports enforceable rules that ensure an open Internet, free from government control or discriminatory, anticompetitive actions by gatekeepers," he said in a statement.
But I'm still not sure how that affects me. Does this mean my broadband provider will likely start charging me more for a prioritized service?
It's a possibility. Your broadband service provider could establish a service in which Gold customers pay more and are guaranteed a certain quality of service over Silver or Bronze customers.
But what's more likely to happen is that broadband providers will strike deals with content providers, as I mentioned above. And this will indirectly affect consumers potentially in negative and positive ways. On the positive side, video streaming services could get more reliable. The experience may be improved for customers willing to pay more for service.
There are also some potential negative consequences. If Internet startups' innovation is stifled, because they can't afford to "pay to play," then fewer new services will be available. But these types of services also set the stage for consumers to be caught in the middle of disputes between large companies over service fees.
For example, Time Warner Cable and CBS were in a knock-down-drag-out fight this past summer over how much Time Warner Cable would pay to retransmit CBS broadcast content over Time Warner's video service. The dispute resulted in CBS broadcasts being blacked out for several weeks for Time Warner video subscribers. (Disclosure: CNET is owned by CBS.)
Imagine if cable companies charged Internet companies to transmit their services to consumers. And imagine if there was a similar breakdown in negotiations between Time Warner Cable and Amazon or Google over these fees. Without any regulation prohibiting Time Warner from blocking access to a service or a Web site, Time Warner could block consumers' access to Amazon or Google until the fee dispute was settled.
There's no question that this could hit consumers.
Does the DC Circuit really think that the broadband providers can be trusted without any rules?
Actually, the court accepted the FCC's reasoning behind why it felt Open Internet rules are necessary. But the judges said that the legal basis for the rules -- that is, basing the rules on the concept of common carriage -- was not appropriate.
"Equally important, the commission has adequately supported and explained its conclusion that, absent rules such as those set forth in the Open Internet Order, broadband providers represent a threat to Internet openness and could act in ways that would ultimately inhibit the speed and extent of future broadband deployment," the judges write. "Nothing in the record gives us any reason to doubt the commission's determination that broadband providers may be motivated to discriminate against and among edge providers."

What will happen next? Is the fight for Net neutrality over?
That's the big unanswered question. FCC Chairman Tom Wheeler said in his statement Tuesday that the agency is considering all its options, including an appeal. This could mean an appeal to the US Supreme Court. Consumer advocates, which were very pleased the court sided with the FCC regarding its authority to regulate broadband services, say the FCC should come up with new regulations that don't use common carriage as their legal basis.
There's always the possibility that Congress could pass legislation that spells out rules. But because Net neutrality is such a polarizing political issue and because of the dysfunction in Congress at the moment, it's more likely that the FCC will be forced to act.
Sen. Al Franken (D-Minn.), one of the most vocal lawmakers supporting open Internet rules, said Tuesday that Net neutrality is the free speech issue of our time. He added that it's a common-sense idea that big corporations like Verizon, Comcast, and Time Warner shouldn't control who gets to innovate, communicate, or start a business on the Internet. And he is urging the FCC to find a way to make rules that will not be challenged in court.
"Getting rid of Net neutrality is bad for consumers and the economy, plain and simple," he said in a statement. "And it's a real risk to the Internet as we know it. The FCC needs to respond immediately in a way that keeps the Internet open to all of us, not just big corporate interests."
One thing is certain, the Net neutrality debate is far from over. And this court decision is not the last you'll hear about the issue.



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