11 ms·

Net neutrality is half-dead: Court strikes down FCC’s anti-blocking rules

360 points by shawndumas 13y ago

saalweachter 13y ago
Note that the DC Court of Appeals is the one that the Filibuster Crisis was all about. According to the Wikipedia, it still(!) has three vacancies, and the Senate Republicans have spent the last ~N months preventing any of the Obama administrations nominees from being confirmed to the Court. These things matter.
- esteb_li 13y ago
  I couldn't agree more. There's absolutely no way this ruling can benefit the customers. The article mentionned that the FCC could rewrite its rule so to fit under the law, so it may very well be far from over.
  - dragonwriter 13y ago
    The FCC could reclassify ISPs as telecommunication providers, which would remove the basis for the finding that the non-blocking and non-discrimination rules were (as common carrier rules, which cannot be applied to information service providers) outside their authority. Of course, such a decision would itself be challenged, with ISPs arguing that what they do is not "telecommunications" as defined in the Telecommunications Act (I'm not saying this argument would be correct, but its not an uncontroversial position that the conflict between the order and the law can be remedied by simply reframing the order without a change in the law.)
- cowsandmilk 13y ago
  I believe the two judges (Rogers and Tatel) that struck down the FCC's regulations were Clinton nominees. The one who dissented in part was a Reagan nominee (Silberman).
  - warfangle 13y ago
    Keep in mind that Clinton also signed the Telecommunications Act of 1996. A few key things that this act did: - Allow for consolidation of radio stations (and thus, the meteoric rise of ClearChannel) - Allow for consolidation of telecommunications companies (and thus, almost the major phone service companies are the progeny of the Baby Bells) It also did some very good things, like requiring entrants into the data services market to interconnect with incumbents. But it also allowed telecoms to rip off the USGOV and taxpayers in extraordinary lengths (see previous discussion on HN: https://news.ycombinator.com/item?id=7021057 https://news.ycombinator.com/item?id=7021057 )
    - saalweachter 13y ago
      As long as we're cataloging Clinton's sins, don't forget repealing Glass-Steagall.
  - slurry 13y ago
    In terms of judicial politics (as opposed to legislative politics of judicial nominations), this isn't Democrats vs. Republicans. This is Clinton and Bush II nominees vs. everyone else.
  - saalweachter 13y ago
    Fair point; just because you like a politician doesn't mean you'll like their judge or all of their decisions. Heck, maybe if the panel for this case had been an Obama, Clinton, and Reagan appointee, the Obama and Reagan appointees would have sided against the Clinton. The DC Court handles all of these big, Federal cases that make the top of HN. A President's impact on the DC Court is almost as important as their impact on the Supreme Court.
    - dragonwriter 13y ago
      > The DC Court handles all of these big, Federal cases that make the top of HN. No, it doesn't. The Court of Appeals for the DC Circuit handles appeals of federal regulatory agency decisions, but -- while this FCC decision is an example of those -- you don't see a lot of them make the top of HN. Most of the "big, federal" cases that make the top of HN are either: 1) criminal cases, which go to trial in the District Court in which the crime occurred, and for appeal to the Circuit Court in which that District Court is located (which might happen to be the DC Circuit if the trial was originally in the District Court for the District of Columbia, but usually that's not the case); or 2) coyright cases, which again go through any of the District Courts for trial, and the corresponding Circuit Court for appeals; or 3) patent cases, which go to trial in the District Court in which the crime occurred, and for appeal to the Court of Appeals for the Federal (not DC) Circuit. While the DC Circuit is very important, its not that commonly involved in cases that make the front page of HN.
- declan 13y ago
  The DC Circuit may have three vacancies (I'll trust your representation) but it also has the lightest workload per judge in the country: http://online.wsj.com/news/articles/SB10001424052702303936904579179791038352758 http://online.wsj.com/news/articles/SB1000142405270230393690... "For the 12-months ending in September, the D.C. Circuit had 149 appeals filed per active judge. By comparison, the 11th Circuit had 778 appeals filed per active judge for the same period... The national average of appeals per active judge is 383." These things matter.
  - dragonwriter 13y ago
    Counting cases per judge is a legitimate method of weighing workload only if the cases are drawn from a similar universe. Among the geographical circuits other than the DC Circuit, this may be reasonable, given that their appellate jurisdiction is similar in subject matter. But given that the DC Circuit handles comparatively few of the kinds of cases that the other circuits handle (having only a single subordinate district court from which to handle regular appeals of the type other circuit courts handle), but has a special role handling appeals of federal regulatory decisions, you aren't comparing like cases to like cases when you compare case numbers between the DC Circuit and the other circuits. You'd run into the same kind of issue comparing the Federal Circuit to other circuits. Of course, I'm not at all surprised to see a News Corp outlet overlook a critical distinction that is inconvenient for the propaganda interests of the Republican Party.
  - rayiner 13y ago
    It's misleading to compare the number of appeals per judge between the D.C. Circuit and other circuits, because the D.C. Circuit has a very different docket composition. Certain kind of appeals are much easier and quicker to resolve than others: criminal sentencing appeals, habeas petitions, immigration appeals, routine civil matters like foreclosures or certain benefits awards, etc. While the D.C. Circuit does hear these sorts of cases, it does so only for the ~600k people in the District of Columbia. The other circuits, on the other hand, have a much larger number of these cases because they cover several states and usually 20-35 million people each. The D.C. Circuit's docket consists very disproportionately of highly complex regulatory appeals, which take much more time than simpler types of cases. These cases are not only often very factually complex, but of a nature that leaves more scope for appellate review. Roughly speaking, when a circuit court reviews the factual findings or discretionary actions of a lower court, it does so deferentially. E.g. an appellate court reviews sentences imposed by a district court only for abuse of discretion. However, a circuit court reviews the legal conclusions of a lower court from scratch (de novo). Regulatory appeals in the D.C. Circuit are much more likely to turn on complex issues of legal interpretation that the appellate court must review from scratch, than on factual disputes that the appellate court need only review for clear error.
- DannyBee 13y ago
  Not to argue your point (which is 100% right IMHO), but this decision is pretty right on the merits. They refused to classify the providers in a way that gave them express statutory authority to promulgate these regulations, and the court called them on it. I want to see this happen, but the right way is for the FCC to stop pussyfooting around and classify them as common carriers, which they are, so it can regulate them as such. They are just afraid of the political whining.
  - gretful 13y ago
    politics before ethics. sigh, it was always thus, it shall always be.
    - macspoofing 13y ago
      I understand your point, but I just don't see the ethical implications. Net neutrality, may be important, but it is a legal directive. Not supporting, or actively working to abolish net neutrality, isn't unethical.
      - zem 13y ago
        without net neutrality we get an internet where the rich get preferential treatment, and where providers can pick and choose between people using their services. how is working towards that not unethical?
        rayiner 13y ago
        The rich get the treatment they can pay for, and most providers give better service to those who can afford to pay more. I can understand the objection to that at a meta level, but I don't see the need to single out the internet for special consideration.
        danielweber 13y ago
        > rich get preferential treatment It's comments like these that make me not like net neutrality. There is no way you are going to stop people who spend more money from being able to enjoy better Internet connections. On the other hand, ISPs ought to be stopped, in general, from discriminating against traffic based on a) their desire to sell their own service that competes with it, or b) who you are connecting to.
kolbe 13y ago
Intuitively, I would have thought that this would be horrible news for content providers/distributors, and great news for wireless carriers. However, today, Google, Facebook, Amazon &etc are flying, while Verizon and AT&T are falling. Does anyone in the industry know what this is all about, and what importance this decision really has on the future of mobile?
- venomsnake 13y ago
  Well right now carriers can be gatekeepers until the SCOTUS takes stand or FCC pick up their game if I understand the whole mess correctly. Everybody loses in the short term because the future is uncertain. Edit: Wrong TLA agency
  - dragonwriter 13y ago
    > Well right now carriers can be gatekeepers until the SCOTUS takes stand or FTC pick up their game if I understand the whole mess correctly. The Federal Trade Commission (FTC) has nothing to do with this. The Federal Communications Commission (FCC) does. > Everybody loses in the short term because the future is uncertain. The incumbent carriers that had already been instituting practices that violate the at least the non-discrimination provision clearly benefit in the short term.
- VLM 13y ago
  Note that your flying providers are huge. The hope of network neutrality is to turn the networks into gatekeepers to eliminate competition. So say I want to create in my garage, an online store to compete with Amazon selling in the pet rock market. Oh what a pity, all your online shopping traffic got dropped at our border routers. We can "fix things" for you for a modest fee, just like Amazon. Of course we have a minimum payment of $50M/month to "fix" things. Oh you say you can't pay $50M out of your garage? Well our internet isn't for people like you anymore. So yes, its very good news for large content providers because it eliminates any need for product development and eliminates competition. The other way it eliminates competition is Amazon might be able to afford a department of a couple people to do nothing all day but negotiate with ISPs, but a startup could never spare the manpower. So startups could only release on TWC or Charter or AT&T or ... rather than everywhere on the internet.
adricnet 13y ago
So, the court agrees with many others that the FCC needs to re-label cable companies as communication common carriers before regulating them as common carriers. I guess that's good? Is it a difficult thing technically or only politically for the FCC to change their minds / admit they did this wrong in the first place? What is the downside of treating the cable networks as communications media? There are some thoughts on that here, though note the source: http://www.attpublicpolicy.com/government-policy/the-fcc-having-its-forbearance-cake-and-eating-it-too/ http://www.attpublicpolicy.com/government-policy/the-fcc-hav... .
angersock 13y ago
Anyone who is interested in a really good overview of 20th century telco policy should read The Master Switch by Tim Wu (http://www.amazon.com/The-Master-Switch-Information-Empires/dp/B005GALGNY/ref=sr_1_2?ie=UTF8&qid=1389719458&sr=8-2&keywords=the+master+switch http://www.amazon.com/The-Master-Switch-Information-Empires/...). It goes over the transition from telegraph to telephone to internet, talks about the rise of media conglomerates, and basically explains how we're in the mess we're in today. Quite an enjoyable read, especially when learning about the differences between old and new styles of monopolies.
- staticshock 13y ago
  I second this suggestion, The Master Switch is a great read.
mjmahone17 13y ago
What the court is saying is that, if the FCC refuses to classify broadband providers as common carriers, then, because they neither receive the same protections as common carriers nor have the same responsibilities, they can't be regulated as if they were common carriers. The FCC could change their rules to treat broadband suppliers as common carriers. However, that's something that big-name broadband providers don't seem to want, as it would reduce their freedom of operations.
- ilyanep 13y ago
  What are the other ramifications of being classified as a common carrier?
  - Steko 13y ago
    Congress specifically forbade the FCC from applying common carrier regulation to what the Telecommunications Act of 1996 calls "information services."
    - hgsigala 13y ago
      But what mjmahone17 is saying is that the FCC should label broadband providers (in my view: both wired and wireless) as common carriers which would undo the "information services" label put on them in 2002 (http://transition.fcc.gov/Bureaus/Cable/News_Releases/2002/nrcb0201.html http://transition.fcc.gov/Bureaus/Cable/News_Releases/2002/n...)
    - dasil003 13y ago
      It's terrifying enough to think of congress today deciding the fate of the internet, much less the congress of 1996.
      - SG- 13y ago
        Well, at least the Internet in the US. Other countries have their own laws and regulations.
gdubs 13y ago
My knowledge of Anti-Trust laws dates back to elementary school, but how is it legal for the companies that maintain the infrastructure to be in the content game as well, when other content providers can't compete on favorable pricing for bandwidth?
- graedus 13y ago
  Because it's considered "vertical integration" and therefore not subject to anti-trust laws. Comcast merging with Time Warner would be considered horizontal; Comcast merging with NBCU was considered vertical and therefore allowed to go forward in January 2011. I'm currently reading Susan Crawford's book Captive Audience, which is a detailed history of this exact topic. Recommended. Here's a talk she gave at Harvard summarizing the story and issues at stake: http://www.youtube.com/watch?v=7R4xhwy-1oI http://www.youtube.com/watch?v=7R4xhwy-1oI
  - pessimizer 13y ago
    Since when has vertical integration not been subject to antitrust laws? https://en.wikipedia.org/wiki/United_States_v._Paramount_Pictures,_Inc https://en.wikipedia.org/wiki/United_States_v._Paramount_Pic....
    - graedus 13y ago
      Not sure, but since at least 2011 :) http://en.wikipedia.org/wiki/Comcast_NBC_merger http://en.wikipedia.org/wiki/Comcast_NBC_merger (thanks for the link, interesting reading)
    - smackfu 13y ago
      It definitely is. The Comcast / NBC merger had to be approved by the DOJ who only allowed it with conditions. http://www.ustelecom.org/news/newsletters/broadband-connection-depth/depth-comcast-nbc-merger-commitments http://www.ustelecom.org/news/newsletters/broadband-connecti...
jacobheller 13y ago
Here's the full text of the opinion on Casetext: https://www.casetext.com/case/verizon-v-fcc-3 https://www.casetext.com/case/verizon-v-fcc-3 We'll be getting some leading net neutrality scholars and lawyers to annotate the doc, so check back later today for interesting, in-depth analysis along-side the key passages in the case.
pasbesoin 13y ago
It is obvious that they are, de facto, common carriers. Give up the lobbyist payola, reclassify them, and introduce some real competition to my now more frequent than annual Crapcast price bumps (or significant humps, as it were). (And in my case, this is primarily for Internet, although basic cable comes along as a quasi-freebie -- it costs, but then a discount on the combined package largely or totally negates that cost.) Otherwise, you can bet I'm not voting for either major party, next time around. As a consumer, I find that the only way to defeat this bullshit, is to stop paying for it. If I had an alternative to Crapcast in my neighborhood, I'd take it. (I don't count AT&T, because for a lonnngggg time they refused to deploy high speed Internet here, and because their policies and behaviour are just as bad. As well, they've personally screwed me in a prior location, as I've commented before.)
- rayiner 13y ago
  > and introduce some real competition You do understand that regulating carriers as if they were utilities but then demanding more competition is inconsistent? Utilities get monopoly protection in return for offering universal service. That's the quid pro quo.
  - VLM 13y ago
    I think he's hoping if all ISPs become highly regulated common carriers, then all neighborhoods will have to be supplied with uverse, cablemodems, and long range wifi/wisp service, instead of just some. So there's one and only one highly regulated cable provider, and one and only one uverse , not sure about the WISP thing...
    - rayiner 13y ago
      But that's at odds with the call for more competition. In a more competitive market, providers would compete to provide faster and faster service in the most densely-populated, highest-value markets. E.g. basically T-Mobile's strategy in the U.S. They spend their limited infrastructure capital on rolling out fast LTE in key markets, while leaving non-urban areas with HSPA or even no service at all.
deleted 13y ago
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shmerl 13y ago
Why can't they start classifying ISPs like common carriers?
declan 13y ago
This is a duplicate of another thread started an hour earlier: https://news.ycombinator.com/item?id=7057495 https://news.ycombinator.com/item?id=7057495
- chii 13y ago
  it's a different article, about the same topic.
  - declan 13y ago
    Different article, but same court opinion!
pearjuice 13y ago
How can something or someone be half-dead? Life is a binary thing, you are either YES (1) alive or NO (0) dead. I fail to comprehend how any respectable (tech) journalist would call something "half-dead". It implies there is a state between being alive and death when this is clearly not the case.
- unfunco 13y ago
  I don't think this tangent adds much to the intended discussion, and I feel you're missing the point of the original post. There is much more to talk about here than the definition of death. However; I would like to both humour and disagree with you, I don't think there is an agreed position of what it really means to be alive. Is someone in a vegetative state really alive? If a human is on their deathbed with absolutely no chance of recovery, although they're not technically dead, they're not really alive either. There is most definitely a transition.
wahsd 13y ago
What I wish would happen is that organizational forces were focused on breaking up ISP monopolies over the pipes. Essentially, building a firewall between infrastructure and content. It would create a market...remember that thing we think controls America's destiny...that would lead to faster bandwidth and also ISPs that offer free, open, and protected services.
unethical_ban 13y ago
Am I experiencing deja-vu? I fee like many of these comments (and their responses!) are exact reposts from earlier submissions about this very same topic. "The court is saying the FCC needs to reclassify providers" "The Republicans are holding up nominations" so on so forth.
tomrod 13y ago
The economist in me is happy, as this allows for greater investment incentives on the part of ISPs. The FLOSS advocate in me is sad, as this is a compromise that I don't want to see go away.
VladRussian2 13y ago
>In its ruling against the FCC’s rules, the court said that such restrictions are not needed in part because consumers have a choice in which ISP they use. in theory vs. in practice
sologoub 13y ago
Definitions from US Code Title 47: "(1) Advanced communications services The term “advanced communications services” means— (A) interconnected VoIP service; (B) non-interconnected VoIP service; (C) electronic messaging service; and (D) interoperable video conferencing service." "(11) Common carrier The term “common carrier” or “carrier” means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this chapter; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier." "(24) Information service The term “information service” means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service." I'm not a lawyer, but consider myself well grounded in tech and telecom, but reading these definitions I'm kind of at a loss. In common law, my understanding is that a "common carrier" is someone that makes transport services available to the public. These can be physical, such as shipping a crate, or technological (telecom) in nature. By that inference, transporting packets of information is essentially same as transporting normal packages. Unfortunately, the "by wire or radio or interstate or foreign radio transmission of energy" is so period-specific that one could argue that it doesn't apply and the (24) Information Services is so broad and vague, it could practically be applied to anything. One interesting bit, which makes me think that there is hope, is the definition of advanced communications, that include both VoIP and messaging services. Sadly, their definitions are not that broad...
- rayiner 13y ago
  The definition of "common carrier" implies a lot more than just "carries goods for the public." For example, common carrier status implies regulation, often of rates, and liability on the part of carriers for any losses. In the world of telecom, it represents a whole host of regulations. For example, telephone carriage is taxed to fund something called the Universal Service Fund, which subsidizes infrastructure development of telecom service to rural areas. One of the key purposes of the 1996 telecom act was to deregulate the industry to the extent that it was possible. The FCC consequently decided to treat internet service as an "information service" under the Act, so as to avoid subjecting it to all the regulations applicable to "common carriers." So while you could argue that modern ISPs resemble common carriers in certain ways, one of the ways they do not is that they are relatively unregulated, and there was a lot of intent and purpose behind the decision to treat them that way.
the_watcher 13y ago
Does anyone have a good solution for this argument? I find myself wildly sympathetic to both sides of it. Is there any way to decentralize internet access in the future (something like what the utopian ideal of solar powering your home would be for electricity)?
- ef4 13y ago
  To the extent that near-future cellular data connections are good enough for most things, they introduce a lot of additional choice. Instead of just cable, DSL, or satellite, you can also throw three or more cellular networks into competition. As for wired connections, I see a way to get competitive pricing there too. Neighborhoods and towns should invest in their own last-mile fiber, and then buy transit at competitive rates. They could outsource the operation of the local network, but they would retain ownership of it and can always get competitive bids for another operator.
nitrobeast 13y ago
Quote from the linked article, "(net neutrality rules) forbid ISPs from blocking services or charging content providers for access to the network." But that is confusing. ISPs are already charging content providers for access to the network. Netflix and Google need to pay for their bandwidth. Actually, web neutrality means the ISPs should treat all data in their network equally.
deleted 13y ago
[deleted]
draggnar 13y ago
Perhaps this means the other shoe will fall. Will local regulations making it easy for municipalities or other actors to set up their own ISPs?
arlyle-leth 13y ago
Net neutrality never existed to begin with. It is a pipe dream of those who think Americans still live in the 'Land of the free'. Ever wondered why youtube videos seems to work for shit over some connections that are rated at a high throughput on speed tests? Yep... data discrimination in action. Especially on providers that also provide television? Hmmm... I wonder why a tv provider would want to slow down youtube. Duh. Also, for those who think net neutrality is a good thing; grow up. It is a good thing. Some thing actually -are- more important than others. I would prefer that I can actually get regular html pages at high speed while some dumbass is streaming a 4k video of some random off joke on the work connection. I realize this is just a local network example, but it ties all the way to the globe if you think about it for a bit. The end of net neutrality would be the end of spam. Why? Because if you charge a slight amount for email, it removes spammers ability to send 20 billion of them. They've tried this repeatedly though and it never took on. So long as the internet is a wild west of chaos, there can be no real improvement on the quality of the whole system. Keep smoking weed and believing. If you smoke enough maybe you'll start believing that the world really follows whatever delusional model you are believing in.
Grovara123 13y ago
Why is this not a bigger deal?
loup-vaillant 13y ago
We could make all the laws we want about Net Neutrality, it wouldn't change the fundamental flaw that made this problem possible in the first place: too much centralization. I hear that the US, there are only 2 ISPs: one of the big 2, or the little local one. In France, we have about 4. At the other end, we have Google, Amazon, but most notably we have YouTube and Netflix. Clearly the market is not efficient. Why do we have so big players in the first place? Why do we tend to have only the big players? Because of the infrastructure. In the way the internet is distributed, artificial economies of scale and barriers to entry favour the big ISPs (this is clearly the case in France, I suppose the US is the same). And, we have asymmetric bandwidth, which kills peer to peer exchanges. If people were allowed to host servers at home, there would be no need for things such as YouTube, Blogger, or Facebook (search engine are still a thorny problem, though). If we got rid of this over-centralization, it would be harder to discriminate your bandwidth in the first place. Net Neutrality would be the default, instead of something we have to fight for.
- deleted 13y ago
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- axus 13y ago
  4 major broadband providers would be a lot better than 2. In the US, the two are the cable TV company, and the telephone company. Recently, a telephone companies came to a marketing agreement with the cable companies; the telco would control the wireless connections, and stop seriously competing on the wired broadband side. So, we might be moving to de facto monopolies for fixed line. How does France have 4 providers? Wherever we tried line-sharing here, the ILEC would stop repairing the lines used by competitors until the customers switched to the incumbent.
  - loup-vaillant 13y ago
    The trick in France is, the last line often belongs to the former National Monopoly (which has been privatized since, and is now called the "historical operator"). Since monopolies are bad, the historical operator has an obligation of leasing its copper wires. It's still bad, and we still have a relatively high barrier to entry, but it is possible. There exist for instance a number of little non-profit providers (not among the big 4), who make do by sub-leasing part of the big one's network. There are still problems of the sort you're talking about (like "it's not us, it's the other company your data goes through"), but as people are now able to cut themselves off completely from the historical operator, their actual provider has to (and do) take responsibility, and fix the line. As an aside, it is somewhat written in our law that to be called an "internet connection", it must provide a public IP address, and the user must be able to do whatever she wants. There are violations (Orange blocks the outgoing SMTP port), but it mostly holds: users are all allowed to host servers —though asymmetric bandwidth makes this impractical. Note that mobile connections are called "data" deals, not "internet" deals.
hrjet 13y ago
How much should the rest of the world care about this? If a web service is hosted, say, in Europe and is being consumed by a customer also in Europe, will they be affected? AFAICT, they shouldn't.
- anExcitedBeast 13y ago
  That's like saying the rest of the world shouldn't care about the UK's content filtering. None of us live in isolation; all our lawmakers are friends and they like to share ideas and cut deals.
anExcitedBeast 13y ago
I know this isn't a popular opinion, but I think we need to reconsider accepting precedent that we're OK with the US government regulating the Internet (without legislation, no less). With the concern about surveillance, copyright abuse, DMCA/Computer Fraud and Abuse Act abuse, and content regulation (in the case of the UK and China), is this really the solution we're looking for? Neutrality is a real problem, but this seems like throwing the baby out with the bathwater.
- AaronFriel 13y ago
  The US Government has regulated telecommunications for nigh a century now. AT&T had cleverly figured out that the right way to avoid scrutiny for their monopoly was initially to provide a very good service and start a two-way relationship with the government. I'll clarify two things here. First: this actually had a net-positive effect on telephone communications in the US. Regulators were initially more informed, and Vail was able to grow AT&T by making legitimate concessions and demonstrating universal access and service. Second, we know in hindsight that this was also the start of a practice of regulatory capture, but regardless, that the history of regulating telecommunications has often-times been beneficial even when the regulators were biased.

360 points by shawndumas 13y ago

Note that the DC Court of Appeals is the one that the Filibuster Crisis was all about. According to the Wikipedia, it still(!) has three vacancies, and the Senate Republicans have spent the last ~N months preventing any of the Obama administrations nominees from being confirmed to the Court. These things matter.

esteb_li 13y ago
I couldn't agree more. There's absolutely no way this ruling can benefit the customers. The article mentionned that the FCC could rewrite its rule so to fit under the law, so it may very well be far from over.
- dragonwriter 13y ago
  The FCC could reclassify ISPs as telecommunication providers, which would remove the basis for the finding that the non-blocking and non-discrimination rules were (as common carrier rules, which cannot be applied to information service providers) outside their authority. Of course, such a decision would itself be challenged, with ISPs arguing that what they do is not "telecommunications" as defined in the Telecommunications Act (I'm not saying this argument would be correct, but its not an uncontroversial position that the conflict between the order and the law can be remedied by simply reframing the order without a change in the law.)
cowsandmilk 13y ago
I believe the two judges (Rogers and Tatel) that struck down the FCC's regulations were Clinton nominees. The one who dissented in part was a Reagan nominee (Silberman).
- warfangle 13y ago
  Keep in mind that Clinton also signed the Telecommunications Act of 1996. A few key things that this act did: - Allow for consolidation of radio stations (and thus, the meteoric rise of ClearChannel) - Allow for consolidation of telecommunications companies (and thus, almost the major phone service companies are the progeny of the Baby Bells) It also did some very good things, like requiring entrants into the data services market to interconnect with incumbents. But it also allowed telecoms to rip off the USGOV and taxpayers in extraordinary lengths (see previous discussion on HN: https://news.ycombinator.com/item?id=7021057 https://news.ycombinator.com/item?id=7021057 )
  - saalweachter 13y ago
    As long as we're cataloging Clinton's sins, don't forget repealing Glass-Steagall.
- slurry 13y ago
  In terms of judicial politics (as opposed to legislative politics of judicial nominations), this isn't Democrats vs. Republicans. This is Clinton and Bush II nominees vs. everyone else.
- saalweachter 13y ago
  Fair point; just because you like a politician doesn't mean you'll like their judge or all of their decisions. Heck, maybe if the panel for this case had been an Obama, Clinton, and Reagan appointee, the Obama and Reagan appointees would have sided against the Clinton. The DC Court handles all of these big, Federal cases that make the top of HN. A President's impact on the DC Court is almost as important as their impact on the Supreme Court.
  - dragonwriter 13y ago
    > The DC Court handles all of these big, Federal cases that make the top of HN. No, it doesn't. The Court of Appeals for the DC Circuit handles appeals of federal regulatory agency decisions, but -- while this FCC decision is an example of those -- you don't see a lot of them make the top of HN. Most of the "big, federal" cases that make the top of HN are either: 1) criminal cases, which go to trial in the District Court in which the crime occurred, and for appeal to the Circuit Court in which that District Court is located (which might happen to be the DC Circuit if the trial was originally in the District Court for the District of Columbia, but usually that's not the case); or 2) coyright cases, which again go through any of the District Courts for trial, and the corresponding Circuit Court for appeals; or 3) patent cases, which go to trial in the District Court in which the crime occurred, and for appeal to the Court of Appeals for the Federal (not DC) Circuit. While the DC Circuit is very important, its not that commonly involved in cases that make the front page of HN.
declan 13y ago
The DC Circuit may have three vacancies (I'll trust your representation) but it also has the lightest workload per judge in the country: http://online.wsj.com/news/articles/SB10001424052702303936904579179791038352758 http://online.wsj.com/news/articles/SB1000142405270230393690... "For the 12-months ending in September, the D.C. Circuit had 149 appeals filed per active judge. By comparison, the 11th Circuit had 778 appeals filed per active judge for the same period... The national average of appeals per active judge is 383." These things matter.
- dragonwriter 13y ago
  Counting cases per judge is a legitimate method of weighing workload only if the cases are drawn from a similar universe. Among the geographical circuits other than the DC Circuit, this may be reasonable, given that their appellate jurisdiction is similar in subject matter. But given that the DC Circuit handles comparatively few of the kinds of cases that the other circuits handle (having only a single subordinate district court from which to handle regular appeals of the type other circuit courts handle), but has a special role handling appeals of federal regulatory decisions, you aren't comparing like cases to like cases when you compare case numbers between the DC Circuit and the other circuits. You'd run into the same kind of issue comparing the Federal Circuit to other circuits. Of course, I'm not at all surprised to see a News Corp outlet overlook a critical distinction that is inconvenient for the propaganda interests of the Republican Party.
- rayiner 13y ago
  It's misleading to compare the number of appeals per judge between the D.C. Circuit and other circuits, because the D.C. Circuit has a very different docket composition. Certain kind of appeals are much easier and quicker to resolve than others: criminal sentencing appeals, habeas petitions, immigration appeals, routine civil matters like foreclosures or certain benefits awards, etc. While the D.C. Circuit does hear these sorts of cases, it does so only for the ~600k people in the District of Columbia. The other circuits, on the other hand, have a much larger number of these cases because they cover several states and usually 20-35 million people each. The D.C. Circuit's docket consists very disproportionately of highly complex regulatory appeals, which take much more time than simpler types of cases. These cases are not only often very factually complex, but of a nature that leaves more scope for appellate review. Roughly speaking, when a circuit court reviews the factual findings or discretionary actions of a lower court, it does so deferentially. E.g. an appellate court reviews sentences imposed by a district court only for abuse of discretion. However, a circuit court reviews the legal conclusions of a lower court from scratch (de novo). Regulatory appeals in the D.C. Circuit are much more likely to turn on complex issues of legal interpretation that the appellate court must review from scratch, than on factual disputes that the appellate court need only review for clear error.
DannyBee 13y ago
Not to argue your point (which is 100% right IMHO), but this decision is pretty right on the merits. They refused to classify the providers in a way that gave them express statutory authority to promulgate these regulations, and the court called them on it. I want to see this happen, but the right way is for the FCC to stop pussyfooting around and classify them as common carriers, which they are, so it can regulate them as such. They are just afraid of the political whining.
- gretful 13y ago
  politics before ethics. sigh, it was always thus, it shall always be.
  - macspoofing 13y ago
    I understand your point, but I just don't see the ethical implications. Net neutrality, may be important, but it is a legal directive. Not supporting, or actively working to abolish net neutrality, isn't unethical.
    - zem 13y ago
      without net neutrality we get an internet where the rich get preferential treatment, and where providers can pick and choose between people using their services. how is working towards that not unethical?
      - rayiner 13y ago
        The rich get the treatment they can pay for, and most providers give better service to those who can afford to pay more. I can understand the objection to that at a meta level, but I don't see the need to single out the internet for special consideration.
      - danielweber 13y ago
        > rich get preferential treatment It's comments like these that make me not like net neutrality. There is no way you are going to stop people who spend more money from being able to enjoy better Internet connections. On the other hand, ISPs ought to be stopped, in general, from discriminating against traffic based on a) their desire to sell their own service that competes with it, or b) who you are connecting to.

kolbe 13y ago

Intuitively, I would have thought that this would be horrible news for content providers/distributors, and great news for wireless carriers. However, today, Google, Facebook, Amazon &etc are flying, while Verizon and AT&T are falling. Does anyone in the industry know what this is all about, and what importance this decision really has on the future of mobile?

venomsnake 13y ago
Well right now carriers can be gatekeepers until the SCOTUS takes stand or FCC pick up their game if I understand the whole mess correctly. Everybody loses in the short term because the future is uncertain. Edit: Wrong TLA agency
- dragonwriter 13y ago
  > Well right now carriers can be gatekeepers until the SCOTUS takes stand or FTC pick up their game if I understand the whole mess correctly. The Federal Trade Commission (FTC) has nothing to do with this. The Federal Communications Commission (FCC) does. > Everybody loses in the short term because the future is uncertain. The incumbent carriers that had already been instituting practices that violate the at least the non-discrimination provision clearly benefit in the short term.
VLM 13y ago
Note that your flying providers are huge. The hope of network neutrality is to turn the networks into gatekeepers to eliminate competition. So say I want to create in my garage, an online store to compete with Amazon selling in the pet rock market. Oh what a pity, all your online shopping traffic got dropped at our border routers. We can "fix things" for you for a modest fee, just like Amazon. Of course we have a minimum payment of $50M/month to "fix" things. Oh you say you can't pay $50M out of your garage? Well our internet isn't for people like you anymore. So yes, its very good news for large content providers because it eliminates any need for product development and eliminates competition. The other way it eliminates competition is Amazon might be able to afford a department of a couple people to do nothing all day but negotiate with ISPs, but a startup could never spare the manpower. So startups could only release on TWC or Charter or AT&T or ... rather than everywhere on the internet.

adricnet 13y ago

So, the court agrees with many others that the FCC needs to re-label cable companies as communication common carriers before regulating them as common carriers. I guess that's good? Is it a difficult thing technically or only politically for the FCC to change their minds / admit they did this wrong in the first place? What is the downside of treating the cable networks as communications media? There are some thoughts on that here, though note the source: http://www.attpublicpolicy.com/government-policy/the-fcc-having-its-forbearance-cake-and-eating-it-too/ http://www.attpublicpolicy.com/government-policy/the-fcc-hav... .

angersock 13y ago

Anyone who is interested in a really good overview of 20th century telco policy should read The Master Switch by Tim Wu (http://www.amazon.com/The-Master-Switch-Information-Empires/dp/B005GALGNY/ref=sr_1_2?ie=UTF8&qid=1389719458&sr=8-2&keywords=the+master+switch http://www.amazon.com/The-Master-Switch-Information-Empires/...). It goes over the transition from telegraph to telephone to internet, talks about the rise of media conglomerates, and basically explains how we're in the mess we're in today. Quite an enjoyable read, especially when learning about the differences between old and new styles of monopolies.

staticshock 13y ago
I second this suggestion, The Master Switch is a great read.

mjmahone17 13y ago

What the court is saying is that, if the FCC refuses to classify broadband providers as common carriers, then, because they neither receive the same protections as common carriers nor have the same responsibilities, they can't be regulated as if they were common carriers. The FCC could change their rules to treat broadband suppliers as common carriers. However, that's something that big-name broadband providers don't seem to want, as it would reduce their freedom of operations.

ilyanep 13y ago
What are the other ramifications of being classified as a common carrier?
- Steko 13y ago
  Congress specifically forbade the FCC from applying common carrier regulation to what the Telecommunications Act of 1996 calls "information services."
  - hgsigala 13y ago
    But what mjmahone17 is saying is that the FCC should label broadband providers (in my view: both wired and wireless) as common carriers which would undo the "information services" label put on them in 2002 (http://transition.fcc.gov/Bureaus/Cable/News_Releases/2002/nrcb0201.html http://transition.fcc.gov/Bureaus/Cable/News_Releases/2002/n...)
  - dasil003 13y ago
    It's terrifying enough to think of congress today deciding the fate of the internet, much less the congress of 1996.
    - SG- 13y ago
      Well, at least the Internet in the US. Other countries have their own laws and regulations.

gdubs 13y ago

My knowledge of Anti-Trust laws dates back to elementary school, but how is it legal for the companies that maintain the infrastructure to be in the content game as well, when other content providers can't compete on favorable pricing for bandwidth?

graedus 13y ago
Because it's considered "vertical integration" and therefore not subject to anti-trust laws. Comcast merging with Time Warner would be considered horizontal; Comcast merging with NBCU was considered vertical and therefore allowed to go forward in January 2011. I'm currently reading Susan Crawford's book Captive Audience, which is a detailed history of this exact topic. Recommended. Here's a talk she gave at Harvard summarizing the story and issues at stake: http://www.youtube.com/watch?v=7R4xhwy-1oI http://www.youtube.com/watch?v=7R4xhwy-1oI
- pessimizer 13y ago
  Since when has vertical integration not been subject to antitrust laws? https://en.wikipedia.org/wiki/United_States_v._Paramount_Pictures,_Inc https://en.wikipedia.org/wiki/United_States_v._Paramount_Pic....
  - graedus 13y ago
    Not sure, but since at least 2011 :) http://en.wikipedia.org/wiki/Comcast_NBC_merger http://en.wikipedia.org/wiki/Comcast_NBC_merger (thanks for the link, interesting reading)
  - smackfu 13y ago
    It definitely is. The Comcast / NBC merger had to be approved by the DOJ who only allowed it with conditions. http://www.ustelecom.org/news/newsletters/broadband-connection-depth/depth-comcast-nbc-merger-commitments http://www.ustelecom.org/news/newsletters/broadband-connecti...

jacobheller 13y ago

Here's the full text of the opinion on Casetext: https://www.casetext.com/case/verizon-v-fcc-3 https://www.casetext.com/case/verizon-v-fcc-3 We'll be getting some leading net neutrality scholars and lawyers to annotate the doc, so check back later today for interesting, in-depth analysis along-side the key passages in the case.

pasbesoin 13y ago

It is obvious that they are, de facto, common carriers. Give up the lobbyist payola, reclassify them, and introduce some real competition to my now more frequent than annual Crapcast price bumps (or significant humps, as it were). (And in my case, this is primarily for Internet, although basic cable comes along as a quasi-freebie -- it costs, but then a discount on the combined package largely or totally negates that cost.) Otherwise, you can bet I'm not voting for either major party, next time around. As a consumer, I find that the only way to defeat this bullshit, is to stop paying for it. If I had an alternative to Crapcast in my neighborhood, I'd take it. (I don't count AT&T, because for a lonnngggg time they refused to deploy high speed Internet here, and because their policies and behaviour are just as bad. As well, they've personally screwed me in a prior location, as I've commented before.)

rayiner 13y ago
> and introduce some real competition You do understand that regulating carriers as if they were utilities but then demanding more competition is inconsistent? Utilities get monopoly protection in return for offering universal service. That's the quid pro quo.
- VLM 13y ago
  I think he's hoping if all ISPs become highly regulated common carriers, then all neighborhoods will have to be supplied with uverse, cablemodems, and long range wifi/wisp service, instead of just some. So there's one and only one highly regulated cable provider, and one and only one uverse , not sure about the WISP thing...
  - rayiner 13y ago
    But that's at odds with the call for more competition. In a more competitive market, providers would compete to provide faster and faster service in the most densely-populated, highest-value markets. E.g. basically T-Mobile's strategy in the U.S. They spend their limited infrastructure capital on rolling out fast LTE in key markets, while leaving non-urban areas with HSPA or even no service at all.

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shmerl 13y ago

Why can't they start classifying ISPs like common carriers?

declan 13y ago

This is a duplicate of another thread started an hour earlier: https://news.ycombinator.com/item?id=7057495 https://news.ycombinator.com/item?id=7057495

chii 13y ago
it's a different article, about the same topic.
- declan 13y ago
  Different article, but same court opinion!

pearjuice 13y ago

How can something or someone be half-dead? Life is a binary thing, you are either YES (1) alive or NO (0) dead. I fail to comprehend how any respectable (tech) journalist would call something "half-dead". It implies there is a state between being alive and death when this is clearly not the case.

unfunco 13y ago
I don't think this tangent adds much to the intended discussion, and I feel you're missing the point of the original post. There is much more to talk about here than the definition of death. However; I would like to both humour and disagree with you, I don't think there is an agreed position of what it really means to be alive. Is someone in a vegetative state really alive? If a human is on their deathbed with absolutely no chance of recovery, although they're not technically dead, they're not really alive either. There is most definitely a transition.

wahsd 13y ago

What I wish would happen is that organizational forces were focused on breaking up ISP monopolies over the pipes. Essentially, building a firewall between infrastructure and content. It would create a market...remember that thing we think controls America's destiny...that would lead to faster bandwidth and also ISPs that offer free, open, and protected services.

unethical_ban 13y ago

Am I experiencing deja-vu? I fee like many of these comments (and their responses!) are exact reposts from earlier submissions about this very same topic. "The court is saying the FCC needs to reclassify providers" "The Republicans are holding up nominations" so on so forth.

tomrod 13y ago

The economist in me is happy, as this allows for greater investment incentives on the part of ISPs. The FLOSS advocate in me is sad, as this is a compromise that I don't want to see go away.

VladRussian2 13y ago

>In its ruling against the FCC’s rules, the court said that such restrictions are not needed in part because consumers have a choice in which ISP they use. in theory vs. in practice

sologoub 13y ago

Definitions from US Code Title 47: "(1) Advanced communications services The term “advanced communications services” means— (A) interconnected VoIP service; (B) non-interconnected VoIP service; (C) electronic messaging service; and (D) interoperable video conferencing service." "(11) Common carrier The term “common carrier” or “carrier” means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this chapter; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier." "(24) Information service The term “information service” means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service." I'm not a lawyer, but consider myself well grounded in tech and telecom, but reading these definitions I'm kind of at a loss. In common law, my understanding is that a "common carrier" is someone that makes transport services available to the public. These can be physical, such as shipping a crate, or technological (telecom) in nature. By that inference, transporting packets of information is essentially same as transporting normal packages. Unfortunately, the "by wire or radio or interstate or foreign radio transmission of energy" is so period-specific that one could argue that it doesn't apply and the (24) Information Services is so broad and vague, it could practically be applied to anything. One interesting bit, which makes me think that there is hope, is the definition of advanced communications, that include both VoIP and messaging services. Sadly, their definitions are not that broad...

rayiner 13y ago
The definition of "common carrier" implies a lot more than just "carries goods for the public." For example, common carrier status implies regulation, often of rates, and liability on the part of carriers for any losses. In the world of telecom, it represents a whole host of regulations. For example, telephone carriage is taxed to fund something called the Universal Service Fund, which subsidizes infrastructure development of telecom service to rural areas. One of the key purposes of the 1996 telecom act was to deregulate the industry to the extent that it was possible. The FCC consequently decided to treat internet service as an "information service" under the Act, so as to avoid subjecting it to all the regulations applicable to "common carriers." So while you could argue that modern ISPs resemble common carriers in certain ways, one of the ways they do not is that they are relatively unregulated, and there was a lot of intent and purpose behind the decision to treat them that way.

the_watcher 13y ago

Does anyone have a good solution for this argument? I find myself wildly sympathetic to both sides of it. Is there any way to decentralize internet access in the future (something like what the utopian ideal of solar powering your home would be for electricity)?

ef4 13y ago
To the extent that near-future cellular data connections are good enough for most things, they introduce a lot of additional choice. Instead of just cable, DSL, or satellite, you can also throw three or more cellular networks into competition. As for wired connections, I see a way to get competitive pricing there too. Neighborhoods and towns should invest in their own last-mile fiber, and then buy transit at competitive rates. They could outsource the operation of the local network, but they would retain ownership of it and can always get competitive bids for another operator.

nitrobeast 13y ago

Quote from the linked article, "(net neutrality rules) forbid ISPs from blocking services or charging content providers for access to the network." But that is confusing. ISPs are already charging content providers for access to the network. Netflix and Google need to pay for their bandwidth. Actually, web neutrality means the ISPs should treat all data in their network equally.

deleted 13y ago

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draggnar 13y ago

Perhaps this means the other shoe will fall. Will local regulations making it easy for municipalities or other actors to set up their own ISPs?

arlyle-leth 13y ago

Net neutrality never existed to begin with. It is a pipe dream of those who think Americans still live in the 'Land of the free'. Ever wondered why youtube videos seems to work for shit over some connections that are rated at a high throughput on speed tests? Yep... data discrimination in action. Especially on providers that also provide television? Hmmm... I wonder why a tv provider would want to slow down youtube. Duh. Also, for those who think net neutrality is a good thing; grow up. It is a good thing. Some thing actually -are- more important than others. I would prefer that I can actually get regular html pages at high speed while some dumbass is streaming a 4k video of some random off joke on the work connection. I realize this is just a local network example, but it ties all the way to the globe if you think about it for a bit. The end of net neutrality would be the end of spam. Why? Because if you charge a slight amount for email, it removes spammers ability to send 20 billion of them. They've tried this repeatedly though and it never took on. So long as the internet is a wild west of chaos, there can be no real improvement on the quality of the whole system. Keep smoking weed and believing. If you smoke enough maybe you'll start believing that the world really follows whatever delusional model you are believing in.

Grovara123 13y ago

Why is this not a bigger deal?

loup-vaillant 13y ago

We could make all the laws we want about Net Neutrality, it wouldn't change the fundamental flaw that made this problem possible in the first place: too much centralization. I hear that the US, there are only 2 ISPs: one of the big 2, or the little local one. In France, we have about 4. At the other end, we have Google, Amazon, but most notably we have YouTube and Netflix. Clearly the market is not efficient. Why do we have so big players in the first place? Why do we tend to have only the big players? Because of the infrastructure. In the way the internet is distributed, artificial economies of scale and barriers to entry favour the big ISPs (this is clearly the case in France, I suppose the US is the same). And, we have asymmetric bandwidth, which kills peer to peer exchanges. If people were allowed to host servers at home, there would be no need for things such as YouTube, Blogger, or Facebook (search engine are still a thorny problem, though). If we got rid of this over-centralization, it would be harder to discriminate your bandwidth in the first place. Net Neutrality would be the default, instead of something we have to fight for.

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axus 13y ago
4 major broadband providers would be a lot better than 2. In the US, the two are the cable TV company, and the telephone company. Recently, a telephone companies came to a marketing agreement with the cable companies; the telco would control the wireless connections, and stop seriously competing on the wired broadband side. So, we might be moving to de facto monopolies for fixed line. How does France have 4 providers? Wherever we tried line-sharing here, the ILEC would stop repairing the lines used by competitors until the customers switched to the incumbent.
- loup-vaillant 13y ago
  The trick in France is, the last line often belongs to the former National Monopoly (which has been privatized since, and is now called the "historical operator"). Since monopolies are bad, the historical operator has an obligation of leasing its copper wires. It's still bad, and we still have a relatively high barrier to entry, but it is possible. There exist for instance a number of little non-profit providers (not among the big 4), who make do by sub-leasing part of the big one's network. There are still problems of the sort you're talking about (like "it's not us, it's the other company your data goes through"), but as people are now able to cut themselves off completely from the historical operator, their actual provider has to (and do) take responsibility, and fix the line. As an aside, it is somewhat written in our law that to be called an "internet connection", it must provide a public IP address, and the user must be able to do whatever she wants. There are violations (Orange blocks the outgoing SMTP port), but it mostly holds: users are all allowed to host servers —though asymmetric bandwidth makes this impractical. Note that mobile connections are called "data" deals, not "internet" deals.

hrjet 13y ago

How much should the rest of the world care about this? If a web service is hosted, say, in Europe and is being consumed by a customer also in Europe, will they be affected? AFAICT, they shouldn't.

anExcitedBeast 13y ago
That's like saying the rest of the world shouldn't care about the UK's content filtering. None of us live in isolation; all our lawmakers are friends and they like to share ideas and cut deals.

anExcitedBeast 13y ago

I know this isn't a popular opinion, but I think we need to reconsider accepting precedent that we're OK with the US government regulating the Internet (without legislation, no less). With the concern about surveillance, copyright abuse, DMCA/Computer Fraud and Abuse Act abuse, and content regulation (in the case of the UK and China), is this really the solution we're looking for? Neutrality is a real problem, but this seems like throwing the baby out with the bathwater.

AaronFriel 13y ago
The US Government has regulated telecommunications for nigh a century now. AT&T had cleverly figured out that the right way to avoid scrutiny for their monopoly was initially to provide a very good service and start a two-way relationship with the government. I'll clarify two things here. First: this actually had a net-positive effect on telephone communications in the US. Regulators were initially more informed, and Vail was able to grow AT&T by making legitimate concessions and demonstrating universal access and service. Second, we know in hindsight that this was also the start of a practice of regulatory capture, but regardless, that the history of regulating telecommunications has often-times been beneficial even when the regulators were biased.