ISPs vs. FCC: Federal Ruling Is Blow to Net Neutrality

Well, the FCC just got kicked in the gonads.

A U.S. circuit court has ruled the agency does not have the jurisdiction to punish Comcast for throttling down its customers' BitTorrent connections without telling them.

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This throws a huge spanner into the National Broadband Plan and the hopes of getting some kind of Net neutrality principles in place.

Now, I'm not the biggest fan of government regulation of technology, mostly because so far the feds haven't done the best job of it. (DMCA, anyone?) Fact is, few people in Congress understand tech enough to write intelligent rules around it, so they let the industry lobbyists do it for them. That's changing as the old guard dies off, but very slowly.

Still, I don't think we can just sit back and let the "free market" rule -- because we've seen what happens when it does.

Why is Net neutrality important? Because in most areas of this country, broadband access still largely depends on regional monopolies or, in best case, duopolies. If you're lucky, you get a choice between a Monolithic Former Baby Bell or a Big Five Cable Company, both of which want to sell you Internet, voice, video, and maybe also wireless for $100 to $200 a month.

These companies do compete on price. They might compete on features. Will they compete on neutrality? Not bloody likely. So far, the cable and telco industries have been lobbying heavily against it [PDF].

So what happens in a world where Baby Bells and Big Cable control all the bits? Try these scenarios on for size.

  • Suppose you get your broadband service from a telco like AT&T or Verizon. Suppose they suddenly decide Skype or other VoIP services are competing with their own voice services and decide to block them. One day your VoIP calls work; the next day they don't -- hope you aren't using them to run your business.
  • Let's say you're a Comcast subscriber. You dial up its Fancast video-on-demand service and shows stream instantly to your PC. Strangely, though, when you dial up other online video services, they're so slow and jittery as to be unwatchable. Could there be a connection?
  • Maybe you use Time Warner or Charter or Cablevision to get 300 channels of dreck delivered to your home. But instead of renting their digital set-top/DVR box for $10 or $15 a month, you go with the far superior TiVo option -- except that suddenly your TiVo no longer works, because the cable companies require you to use their own hardware.
  • You're steamed at your cable company, so you create a Website called Other people are also steamed at your cable company, so they jump in with their own tales of woe. One day, though, won't resolve in your browser. Instead, visitors get redirected to a page on your cable company's Website warning them about violating its terms of service.

You might think I'm being excessively paranoid, if there weren't already examples of companies doing things much like this, starting with the throttling of BitTorrent connections. Comcast didn't announce to its customers, "Hey, we're throttling down your BitTorrents, hope that's OK." It didn't even say, "Hey, we're cool with using BitTorrent, but if you exceed a certain bandwidth threshold we're gonna ding ya."

Nope. Comcast just did it, in secret. And then denied it. The company selected the bits they allowed to go through, and blocked or throttled the ones it didn't like.

It's not just the big players. Earlier this week, DSL provider Windstream Communications admitted to hijacking its customers' search queries -- redirecting them from the Firefox Google toolbar to its own search portal. The company backed off this policy after it got called out by users on DSL Reports. In this instance, Windstream may have been more clueless than evil, but it points out the control your broadband ISP has over your Internet experience.

Art Brodsky at Public Knowledge puts it better than I can:

The current debate over Net Neutrality and the open Internet is not about the Net. It’s not about Neutrality. It’s not about openness. It’s about you. It’s about Personal Internet Freedom vs. Corporate Internet Control. It’s all about the money.

There’s a reason that Verizon and AT&T and Comcast and the rest of the crew are spending millions of dollars on their lobbying, campaign contributions, front groups and academics to beat up on the Federal Communications Commission (FCC), Congress, state regulators, state legislators and anybody else who gets in their way.... It’s so they can shape today’s Internet to their liking, and make money from it as they want the Internet to be, and what they want isn’t pretty. They want two things: 1) To do what they want, including destroying (or at least severely restricting) the Internet as we know it. 2) To do it without any government oversight or consumer protection.

It seems the FCC has three options. It can reclassify ISPs under the Communications Act as Title II common carriers, thus subjecting them to some or all of the rules that telcos must operate by. It can lobby Congress to pass a law giving it clear jurisdiction over ISPs (thus giving both sides something new to claw over for the next 18 months). Or it can appeal the court's decision, with the risk of landing back in the same position it now occupies: clutching its groin and moaning.

Personally, I'm voting for option No. 1. Yes, government regulation is often onerous. But if you think the cable and telco industries have your best interests at heart in this debate, I've got a network bridge I want to sell you.

Do our Internet rights need to be protected by the FCC? Weigh in on this debate below or email me:

This article, "Broadband monopolies 1, Net freedom 0," was originally published at Read more of Robert X. Cringely's Notes from the Field blog.

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