A lot. The FCC has made it very clear they're not going to regulate broadband ISPs as common carriers under Title II, which in turn the courts have made very clear means there is no basis to enforce net neutrality. "Commercially reasonable" is a very broad net, at least in English law, and could encompass almost anything except point blank refusal to carry, which would still be illegal.
1 - That's right. The definition of "commercially reasonable" is at the heart of the whole thing, and someday that phrase is going to be defined by a Republican FCC.
It's a good thing that we can count on the free market to do the right thing. Otherwise, I'd be worried.
The FCC said there has to be a standard tier of service, then providers can pay to get into a higher tier. They didn't say anything about the standard level so they could conceivably make it early 90s dial-up 2400bps. No more 1000 comment threads!
3: I take some solace from the fact that words are low-bandwidth. I fully expect Comcast Uber Alles to find a way to fuck around with blogs and such, but at this point, I don't know what the worst-case scenario is.
As an American exceptionalist, I am completely confident, however, that we will find that worst-case scenario.
1 - That's right. The definition of "commercially reasonable" is at the heart of the whole thing, and someday that phrase is going to be defined by a Republican FCC.
Or more likely a Roberts-led Supreme Court. It doesn't need a Republican FCC for this to be a disaster. The whole problem is that the FCC under Obama refuses to do the thing it has to do it legally has to do to live up to its rhetoric. If they had any intention of imposing a high bar of reasonableness, they'd just go ahead and use their Title II authority. And I suspect that if they do flesh it out in the NPR, the courts will just knock it back yet again.
Yeah, I guess one bright side of having already shitty Comcast service is that 2400bps wouldn't be much of a step down.
If I were a scrappy young internet startup with a high-bandwidth product, this would suck. As a potential consumer of said products, it kinda sucks.
Considering how we are always hearing, from certain quarters, about the importance of American competitiveness, I'm impressed how this decision is designed to accomplish the exact opposite. And yet, "certain quarters" seem ok with that.
I remember Obama promising to enforce net neutrality. Nice job Fartbama!
Also 7.1 concerns me because I like cool new stuff and that's going to tend to be high bandwidth.
7.2: Certain quarters stand to make a shit ton of money by fucking consumers, competitiveness be damned. The powers that be have no interest in competition except as a rhetorical bat with which to smite would-be regulators.
I don't like the high bandwidth stuff because I'm sick of videos.
Moby does make an important point.Think of what this might do to Upworthy! (Sorry, too sleepy to craft an Upworthy-style headline.)
I'm not a fan of upworthy at all, but I'm much more afraid we'll move from conference calls to video conferencing. Even conference calls are getting dangerous because I'm now expected to share my screen with the other participants. Makes it impossible to comment during the call.
I'm sick of videos.
The top seven things I'm sick of:
1. videos
2. infographis
3. buzzfeed headlines
4. upworthy headlines
5. doge anything
6. tumblr
7. numbered lists
I don't care about videos either, but games are important to me. Come to think of it, I run a couple game servers that might be effected by this. "You must pay Comcast or suffer lag."
Considering how many game servers are run by small businesses - or volunteers - , this could have a real consolidating effect on the game server hosting industry. That would suck.
13.1: I hadn't considered that. Put me down for Team Minecraft.
13.1: I hadn't considered that. Put me down for Team Minecraft.
I read that as "Team Microsoft" at first and got confused.
I have to say I found this move extremely baffling. The most recent DC Circuit decision gave the FCC a clear roadmap to impose net neutrality, which the FCC had said it wanted to do fairly clearly. Someone's lobbying arm must have broken out the champagne, but it was an odd sequence of events; there wasn't really any legal compulsion to do this and it seemed like the political decision had already been made. But I'm not really a telecoms lawyer, more an interested observer.
I also guess of you squint really hard you can see a world in which this isn't terrible policy, but that would require extremely strict antitrust scrutiny and regulating pricing of cable-Internet companies and major Internet companies as if they were public utilities, so in the real world this seems like an unbelievably bad idea and a total own goal.
I'm trying to get a village big enough for an iron golem to appear.
You want an iron golem, you got to pay for it.
The telecoms companies have been fighting hard for this and will continue to do so. I don't see a way to get them to accept neutrality short of some sort of threat of turning them into public utilities, which nobody seems to have the cojones to do.
Obama campaigned on net neutrality and has completely dropped the ball here. The FCC is in the end of the day answerable to the White House and he seems to be doing nothing at all. Personally I am tired of petitions and making phone calls. I want this settled in favor of neutrality in some permanent manner. This fight has been going on for years.
Maybe the "Net Neutrality" framing is wrong on this. Maybe "Obama wants to shut down Minecraft" would be more effective.
I also guess of you squint really hard you can see a world in which this isn't terrible policy, but that would require extremely strict antitrust scrutiny and regulating pricing of cable-Internet companies and major Internet companies as if they were public utilities
Which is exactly what the FCC is refusing to do. Or rather, they've been told time and again that if they want to achieve their stated policy objectives, they have to do it through Title II regulation. And yet they've come back with a proposal under which Title II is a "clear alternative", rather than the actual recommended course of action. So they've backed down on the policy objectives rather than declaring the ISPs utilities.
This one obscure government regulation will restore your faith in humanity!
The whole problem is that the FCC under Obama refuses to do the thing it has to do it legally has to do to live up to its rhetoric. If they had any intention of imposing a high bar of reasonableness, they'd just go ahead and use their Title II authority.
I used to think the same thing, but at this point I think it's fairly clear that a reclassification would be successfully challenged in court. There are certainly colorable arguments against it, and that's all it would take with this Supreme Court. If they didn't figure they could get the Supreme Court to reverse the DC Circuit in last year's Verizon case, they must not figure a reclassification would survive, so they're trying to come up with the best they can under Title I.
23 -- you may well know more than I do about this, but I thought that the DC Circuit's Verizon decision gave them a pretty clear roadmap for regulating under Title II, and I wouldn't think Supreme Court intervention and reversal would be a sure thing. Preemptively ceding, when youve got a clear circuit opinion telling you can do something, for the mere reason that the Supreme Court might reverse, seems odd and not much like what most federal agencies do.
To 21, while I'm not a telecom lawyer I'm pretty sure that simply regulating these companies as common carriers for net neutrality purposes would not (and certainly not necessarily) bring on a host of ancillary utility-like regulation; what I'd meant above is that I'd think that you'd want a host of agencies, not just the FCC, regulating these guys if we're not going to have net neutrality. But, here, I don't think the FCC had to turn the companies into full utilities to impose net neutrality; all it had to do was promulgate regulations slightly differently. So why not do that? There is certainly some interesting story about what's going on at the FCC on this, but I don't really know what it is.
I'm pretty sure that simply regulating these companies as common carriers for net neutrality purposes would not (and certainly not necessarily) bring on a host of ancillary utility-like regulation
Oh, sure. But my understanding was that the net neutrality part could (according to the courts), and could only, be done that way. There's other stuff, like proper local-loop unbundling and antitrust issues, that would need more full on regulatory reform/willpower.
24.1: Yeah, I don't know anything about this, just guessing. The DC Circuit's decision certainly recognized that the net neutrality rules it vacated would have been within the FCC's Title II authority, although I didn't read the decision as a roadmap on how to get there. I'm mostly assuming that the Supreme Court would vacate a reclassification because it would be too good an opportunity to screw consumers to pass up, and their last decision in this area, back in 2005, does present some real hurdles for the FCC (they shouldn't be insurmountable, but with this judiciary...). And if that's not what the FCC is balking at, I really can't understand why they didn't go the reclassification route. I was puzzled by the decision not to seek cert on the Verizon case, I'd have thought that'd be at least as winnable as defending reclassification, so I figure they must not trust the Supreme Court at all on this.
7. numbered lists
Perhaps the solution for saving culture is a browser plugin that auto-converts <ol>s to <ul>s.
And if that's not what the FCC is balking at, I really can't understand why they didn't go the reclassification route.
Not to go all conspiracy theorist, but the chair of the FCC is the former chief lobbyist for the cable industry. Beyond that, the Republican commissioners don't want net neutrality to begin with and I'm sure the Democratic ones are well aware of the lobbying shitstorm that would erupt if they went the Title II route.
Well, 28 is right but still doesn't really explain why they were/are so scared of the lobbyists now when they weren't previously or what the actual deal is. The FCC in its current configuration had been pushing net neutrality over stiff industry resistance for years. So why the change now? My guess would be some group of powerful Dem Silicon Valley people flipped on the issue, without making it public, but I have no actual idea and reporting as usual is terrible and stupid.
It's pretty sad when the middlemen lobbyists are more powerful than lobbyists for all the industries that have to endure the middlemen.
But I guess that's what we see with finance as well.
But, here, I don't think the FCC had to turn the companies into full utilities to impose net neutrality; all it had to do was promulgate regulations slightly differently
This is roughly what the original Open Internet Order was meant to be. I also remember a bit of scepticism back when net neutrality was originally a thing for precisely this reason, when I used to hang out on the same lists as all the people you can trust on this. NN as a shiny thing that wasn't quite Title II.
Title II TA '34 does a bunch of good stuff besides common carrier; there are provisions about special access (i.e. like the infrastructure unbundling we have in most of Europe), wholesale, universal service, etc.
I see Susan Crawford has essentially given up on the FCC and is arguing that the only measure worth having is municipal fibre everywhere. I dunno how you'd implement that, given that the TA '96 was meant to do that and the lobby managed to get state level laws passed to literally ban it in 20 states. Federal pre-emption of some sort?
(BTW, the only people you can trust on US telecoms regulation are Harold Feld, Susan Crawford, Susan Estrada, and Bruce Kushner.)
Oh, and Donald Sterling, because you can't trust me either:-)
Well, 28 is right but still doesn't really explain why they were/are so scared of the lobbyists now when they weren't previously or what the actual deal is. The FCC in its current configuration had been pushing net neutrality over stiff industry resistance for years. So why the change now?
Well, they've been pushing net neutrality in the context of Title I regulation. What's changed now is that it's become clear that it's legally impossible to enforce net neutrality under Title I.
I'm no expert on this, but I would imagine the industry resistance to Title II regulation would be (or indeed is) an order of magnitude stiffer than the opposition to net neutrality, which after all is basically the status quo (for landline broadband). Sure they don't like it, but it's a known known, and also one that the cable industry thinks it's winning on. No need to go full court press when the courts have your back.
Preemptively ceding...seems odd and not much like what most federal agencies do.
Except this is the Obama administration, after all.
I just noticed that Digby is writing for Salon. If that's what the future is going to look like, bring it on.
On topic, I thought this analysis was worth reading.
Is anyone here knowledgeable enough to tell me whether a simple regulation stating that the slowest offered speed has to be X% of the fastest would solve the problem here?
I think there's also trouble from monitoring everything to know whether it gets special treatment, though I suppose a system that put unmarked material through at X and marked material through at 100 would get around *that*.
in short: No, but is that going to stop me?
Are you trying to constrain the free market? What if someone freely wants to negotiate a lower price for less than X% speed?
I don't know if that regulation would work, but the bigger issue seems to be if it would be allowed at all.
What if the lowest offered speed was pegged at whatever would enable streaming C-SPAN in HD? For the public good.
For the encouragement of the others.
People have a weird attitude about the whole "prioritisation" business. Nobody, not even ^H Bruce Kushner ^H the most diehard NN advocate, thinks there should be a law against ever setting differential classes of service on network links. I mean, you can set up your home router to forward VoIP packets preferentially to generic lolcats'n'porn. No-one's stopping you.
You can put your customer traffic in one VLAN, your VoIP in another, and the management net in a third, and set DIFFSERV codepoints accordingly. Nobody minds. Telco people tend to think that a) NN means you can't have a spam filter b) IETF is run by Rosa Luxemburg c) they invented the idea of differential service.
But what we're concerned about is imposing it on the whole user base of an eyeball ISP, which in the US is usually a monopolist or duopolist, without the users' meaningful consent, and probably because some Hollymedia interest ^H^H Rupert Murdoch paid for it.
More formally, NN advocates hold that the settlement-free nature of the Internet termination regime (or rather, the absence of a termination regime) is constitutive of the Internet as we know it, and that offering priority delivery to Big Content amounts to imposing a telephony-like termination fee regime. Because the termination fee regime is a regulatory construct, this represents the monopolist usurping the regulatory power.
It is also the case that setting a higher quality of service class on some subset of your traffic is only of any value when the network is congested, and even then it only helps by reducing the quality of service provided to other flows, unlike (for example) content-delivery networking, which actually improves it.
Speaking to 37, 38, 39: this is basically orthogonal to whatever data rate is advertised. It's not about the access loop, but rather the terms of interconnection in the core between eyeball and content networks.
Speaking as someone who reads unfogged comment threads from rural Madagascar, the front page can take several minutes to load and comments are loaded at a rate of between 1 and 100 per 10 seconds, depending on the day.
So yeah, even text-based websites can go very slowly indeed under the right circumstances.
Also I hate the move to 'everything must be video' because 1) it's impossible to load and 2) even if I could, I'd rather read whatever it is.
So, nosy of me, but what are you doing in rural Madagascar other than reading Unfogged?
nosy of me
Leave it to LB to make a pun on Malagasy geographical terms. Anyway, we should be getting a reply to 46 in a few days.
We have a lurker in Madagascar! Neat.
Speaking of lemurs, last weekend I saw an Aye-aye! The Cincinnati Zoo is really amazing. (We took a short trip last weekend to get away from the super drunk students.) Totally world class.
45: Have tried using the lynx browser? Just for fun I ran that with a text-only twitter client and it seemed to load webpages noticeably faster than a graphical browser. The rendering wasn't great for complex pages but unfogged could be fine.
Let me be clear, however, as to what I believe is not "commercially reasonable" on the Internet:
* Something that harms consumers is not commercially reasonable. For instance, degrading service in order to create a new "fast lane" would be shut down.
* Something that harms competition is not commercially reasonable. For instance, degrading overall service so as to force consumers and content companies to a higher priced tier would be shut down.
* Providing exclusive, prioritized service to an affiliate is not commercially reasonable. For instance, a broadband provider that also owns a sports network should not be able to give a commercial advantage to that network over another competitive sports network wishing to reach viewers over the Internet.
* Something that curbs the free exercise of speech and civic engagement is not commercially reasonable. For instance, if the creators of new Internet content or services had to seek permission from ISPs or pay special fees to be seen online such action should be shut down.
The problem with this, as I see it, as that ultimately it's not up to the FCC to decide what's commercially reasonable. FCC v Verizon explicitly states that anti-discrimination and anti-blocking rules can't be imposed on broadband providers unless they are explicitly classified as common carriers. So to the extent that "commercially reasonable" has any teeth, it's going to be knocked down by the courts again (assuming the Supremes don't overturn FCC v Verizon). The ruling explicitly states (citing a previous one on cellular networks), that "commercially reasonable" allows for "substantial room for individualised bargaining and discrimination in terms". To the extent the FCC applies commercially reasonable "in a restrictive manner", such that it is analagous to "just and reasonable", it would be illegal.
50: If you were there the same day we were, I'll be really annoyed that there wasn't a meetup! But yeah, many Madagascar animals there. And, as the people in the other place learned recently, the cheetahs have pet dogs.
We were there this past Sunday. It was a very short trip planned at the last minute.
I was just teasing, Upetgi! That was a great day to be outside there and I'm glad you enjoyed it.
Cyril Connolly, author of Enemies of Promise, The Unquiet Grave, many novels and investigations including White Mischief, boyhood friend of Orwell's, was fascinated by Lemurs and often owned them.
There was a large book in our middle school--then called Junior High School--library with great images of some of them, I particularly remember Sifakas.
My kids would tease me that we had to see the lemurs at the Lincoln Park Zoo because in the years they were small I made such a point of it. They are mesmerizing.
One of the great things I learned from this blog is that the mythical prehistoric continent Lemuria was so called because it was thought to be the ancestral homeland of the lemur, now sunk forever beneath the waves.
Yet when I try to hold a single lemur's head under the water, I'm the asshole.
Unfogged renders just fine with links (haven't tried lynx), and you can comment too!
Sifakas are the best lemurs. We saw a baby one at the Baltimore zoo.
Sifakas are great and their sideways jumps are captivating. Selah gets so excited she claps.
53. Looked to me like the dog had a pet cheetah. It was obviously qualitatively more intelligent.