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Federal Court Kills Net Neutrality, Says FCC Lacks Authority. 383

Posted by timothy
from the we'll-have-to-agree-to-disagree dept.
An anonymous reader writes "According to a report from Gizmodo, a U.S. Appeals Court has invalidated the FCC's Net Neutrality rules. From the decision: '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.' Could this be the final nail in the coffin for Net Neutrality? Or will the FCC fight back? This submitter really, really hopes they fight back..."
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Federal Court Kills Net Neutrality, Says FCC Lacks Authority.

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  • common carrier (Score:5, Insightful)

    by Spazmania (174582) on Tuesday January 14, 2014 @12:34PM (#45952087) Homepage

    It's past time to just classify them as common carriers and stop trying to make an end-run around the rules.

    • Re:common carrier (Score:4, Interesting)

      by Bacon Bits (926911) on Tuesday January 14, 2014 @12:47PM (#45952343)

      This always seemed like the obvious move.

      Can someone explain why they didn't just do this instead? Does this classification require legislation or something?

      • Re:common carrier (Score:4, Interesting)

        by Spazmania (174582) on Tuesday January 14, 2014 @12:50PM (#45952381) Homepage

        It isn't 100% clear that an ISP would have the authority to boot spammers if it was classified as a common carrier. They probably would but it isn't certain.

        • by gl4ss (559668)

          running robodialers gets you usually the boot... as seen on simpsons.

        • by Krojack (575051)

          You could always throttle them down to 1byte/s =)

          • by Krojack (575051)

            On better yet, 1 bit.

            • by barlevg (2111272)
              how about a half a bit? They can only send half a one or half a zero at a time. That should be quite effective at throttling them.
          • Re:common carrier (Score:4, Insightful)

            by Anonymous Coward on Tuesday January 14, 2014 @03:56PM (#45955889)

            No, actually that's the crux of the issue. Common carriers CAN'T fuck with the packages. Fedex isn't liable for all the crazy shit you ship through them and they can't fuck with your packages. They can't delay all packages sent from Texas because their legislaters aren't playing ball and they can't charge extra to deliver to abortion clinics because they're a common carrier. Fedex isn't hauled to court for drug dealers shipping drugs, or for game companies shipping brass knuckles to game reviewers in California.

            Likewise if your ISP was a common carrier, it can't fuck with the messages just because they think JohnnyMcSpammalot is being obnoxious and loud. And that includes throttling.

            And arguably can't perform any "quality of service". Then again, Fedex really does handle packages differently depending on where they're going, but it's cool because they're not dicks about it and they're just trying to do better business. If ISPs were upfront about their QoS, then they'd probably dodge that bullet too.

            • by the_arrow (171557)

              But doesn't e.g. FEDEX "throttle" packages by default? You have to pay extra to get express delivery.

        • Re:common carrier (Score:4, Interesting)

          by jdogalt (961241) on Tuesday January 14, 2014 @06:12PM (#45957811) Journal

          It isn't 100% clear that an ISP would have the authority to boot spammers if it was classified as a common carrier. They probably would but it isn't certain.

          And you know what would happen then? The spammers would be prosecuted, because customers don't like being charged for bandwidth that wasn't desired or initiated by them. The current method of spam-fighting that involves the ISP having arbitrary power to boot whatever speech from its wires that it finds 'undesirable' is HORRIBLE from a global free speech perspective. If the situation you feared came about, the instant a few people saw a few dollars on their ISP bill due to bandwidth, or a flood of spam in their inbox due to this- the spammers would be _sought out and prosecuted as they always should have been_. The current method is like making it legal (or an unenforced law) to pollute chemicals into a river, since all the downstream water treatment plants can just filter out the pollution. The right thing to do is to go after the polluters to stop polluting, and not depend on the last mile infrastructure to mitigate the consequences of the core problem. And given the free speech issues at hand, it is all the worse doing things this way on the internet.

          • by ppanon (16583)
            When a large proportion of those spammers work out of jurisdictions that turn a blind eye to the practice (China, Russia, other Eastern European states, Nigeria) and refuse to prosecute, then your preferred approach doesn't work.
      • Re:common carrier (Score:5, Insightful)

        by Nutria (679911) on Tuesday January 14, 2014 @01:11PM (#45952737)

        Does this classification require legislation or something?

        Hopefully. After all, bureaucrats shouldn't be able to just pass any regulations they feel like. Instead, they should be bound by the bills that the Congress passes and the President signs.

        Likewise, the Courts should not invent new law based upon their own feelings of what's Right and Wrong, but on the actual text of Laws and the Constitution.

      • Re:common carrier (Score:4, Insightful)

        by jythie (914043) on Tuesday January 14, 2014 @01:16PM (#45952833)
        That is a good question. From what I gather, who counts as a 'Common Carrier' does not require legislative changes, courts and regulators define it.
      • Re:common carrier (Score:4, Insightful)

        by tlambert (566799) on Tuesday January 14, 2014 @02:35PM (#45954275)

        This always seemed like the obvious move.

        Can someone explain why they didn't just do this instead? Does this classification require legislation or something?

        They typical reason given is that they can't be classified as *BOTH* "common carrier" and "information service", and by virtue of using the same infrastructure and corporate entity for both sets of service, they get to be classified as one or the other, with different rules applied.

        As a common carrier, they would be required to allow other cable providers to sell cable TV services over their physical infrastructure, and so they themselves have been objecting to reclassification, not just because of net neutrality, but as an anticompetition lockout.

      • Re:common carrier (Score:4, Informative)

        by Jane Q. Public (1010737) on Tuesday January 14, 2014 @02:56PM (#45954689)

        Can someone explain why they didn't just do this instead? Does this classification require legislation or something?

        They didn't do this because Congress explicitly exempted Internet businesses from Common Carrier classification (known as Title II).

        The FCC has several times since tried to classify ISPs as common carriers, but Congress (almost certainly due to lobbying) has refused to allow it.

        I definitely agree. Classifying ISPs as Title II Common Carriers would eliminate a great many of today's ills. It would just take enough people to badger Congress (or alternatively, a Congress with the cojones to stand up to lobbyists) to do it.

    • by iwbcman (603788)
      Bingo!
  • by Anonymous Coward on Tuesday January 14, 2014 @12:36PM (#45952113)

    There's a comment in the article stating that the court found the FCC regulations are not needed because consumers have a choice in broadband providers. That argument always make me shake my head. I have one broadband option - Comcast. Verizon FIOS isn't here. I suspect most people are actually in the same boat as me. There really is no viable broadband option to my local cable provider. Who/where are these people that have these so-called choices?

    • It is odd that they would cite consumer choice between competing ISP's, which doesn't exist because of the "natural monopoly" status granted to "utilities."
      • by SuricouRaven (1897204) on Tuesday January 14, 2014 @01:12PM (#45952755)

        No, that's a franchise monopoly.

        A natural monopoly isn't granted, it's simply the situation that occurs when economic factors hand such an advantage to incumbents that no other may effectively compete.

        Franchise monopoly: City government goes to Big Cable Co and says 'you, and only you, are permitted to run cables in this city.'
        Natural monopoly: Big Cable Co invests in a load of cable-laying. As they are the only choice, they secure every subscriber. When others wish to enter the market, they realize that they'd also have to spend just as much in cable-laying, but that everyone who wants internet service is already a Big Cable Co customer, and switching is a lot of trouble - there's no way they could make back the cost of digging up the roads and laying cable as a newcomer to the market.

        • by rahvin112 (446269) on Tuesday January 14, 2014 @03:36PM (#45955507)

          I cannot believe how common this misconception is. A franchise agreement CANNOT stop an over-builder. That would be a major violation of the constitution, particularly equal protection under the law. Such localities that have tried to do so have been sued into oblivion by the over-builder. Local government cannot legally exclude a public utility from using public ROW without violating equal protection. What a franchise agreement DOES do is streamline the process of building and installing. For example a general permit for construction is issued rather than requiring an separate construction permit for every day (or section) of work in the ROW.

          So yes, the franchise agreement is a valuable commodity but it is NOT a prohibition on secondary providers using the ROW.

    • by TWiTfan (2887093) on Tuesday January 14, 2014 @01:09PM (#45952715)

      I have exactly two options. AT&T (whose fastest speed in my area, last time I checked, was 6mbps) and Comcast, which is my only option for anything over 6mpbs.

      So yeah, whole lotta competition to choose from.

      • by gfxguy (98788) on Tuesday January 14, 2014 @02:15PM (#45953923)

        At least it's some choice... the same ones I have. If I could half of comcast's speed from someone else, I'd be there - I already canned their asses for the lousy TV service I got, but if I want to work at home occasionally then I need better than what I can get from AT&T. Aside from them, there's satellite (really expensive and high latency), and nothing else.

        As I mentioned in another post - I am Comcast's customer, not Netflix or Hulu or anybody else. I am the customer and if I am choosing to use the bandwidth that I paid for by using Netflix, then that's my prerogative. If Comcast has a problem with it, the problem is with me, not the content provider I chose.

    • by Tablizer (95088)

      Generally you need roughly at least 7 competitors to get decent choice, in my experience. Any fewer, and they mutually slack in order to mutually fleece customers.

    • by Ichijo (607641) on Tuesday January 14, 2014 @01:20PM (#45952915) Homepage Journal

      Maybe your area is too rural to support more than one broadband provider, just like it might be too rural to support more than one freeway, or gas station, or supermarket, or school. Some things are more economical in cities, so consider the lack of broadband providers one of the costs of living close to nature.

      Or maybe your neighborhood signed a contract with a broadband provider that prevents others from competing. Such contracts ought to be illegal, but they aren't. Until the FCC makes such contracts illegal, if such a contract is in force in your community, you should lobby your community representative to end that contract.

      Meanwhile, you're always free to setup a community broadband co-op. Just don't ask the city to pay for it or the incumbent communication company will have a fit.

    • by jythie (914043)
      Maybe they were given out dated documents from back when DSL providers were required to allow other ISPs on their lines and consumers had a rich selection of choices?
  • It's dead, it died years ago.

  • by i kan reed (749298) on Tuesday January 14, 2014 @12:36PM (#45952125) Homepage Journal

    smallwebsite.ext cannot be found. Please verify you have bribed your ISP to allow access, and that you have typed the domain correctly.

    If you are still having trouble, try being a larger corporation again later.

  • by Mitsoid (837831) on Tuesday January 14, 2014 @12:39PM (#45952187)

    The free market, especially in the broadband sector, has shown time and again, across all state lines, through cities, and in local neighborhoods, to be a fair, equal-service provider to all customers.

    When I had Cox Cable, and they were the only provider available other than Dial Up, i was treated with respect, my calls were answered promptly, and my network node was NOT overloaded for months.

    As soon as Verizon FIOS moved in, however, it was hell. Prices doubled, speeds were cut to 1/5th what they used to be, and service calls took 2 weeks longer to get answers on...

    I, for one, wish they'd bring back the monopoly carrier. At least then I was treated fairly. I mean, just look at what Google is doing -- they moved in, and prices went up 3-4x ! and the speeds are 10x slower!

  • My cynical take. (Score:5, Informative)

    by koan (80826) on Tuesday January 14, 2014 @12:40PM (#45952209)

    The FCC won't fight back, in fact this result was probably the intention along.

    Prior to joining the FCC, Chairman Wheeler was Managing Director at Core Capital Partners, a venture capital firm investing in early stage Internet Protocol (IP)-based companies. He served as President and CEO of Shiloh Group, LLC, a strategy development and private investment company specializing in telecommunications services and co-founded SmartBrief, the internet’s largest electronic information service for vertical markets. From 1976 to 1984, Chairman Wheeler was associated with the National Cable Television Association (NCTA), where he was President and CEO from 1979 to 1984. Following NCTA, Chairman Wheeler was CEO of several high tech companies, including the first company to offer high speed delivery of data to home computers and the first digital video satellite service. From 1992 to 2004, Chairman Wheeler served as President and CEO of the Cellular Telecommunications & Internet Association (CTIA).

    http://www.fcc.gov/leadership/tom-wheeler [fcc.gov]

    • Re: (Score:3, Funny)

      by Anonymous Coward

      thanks obamacare

    • by Ralph Wiggam (22354) on Tuesday January 14, 2014 @01:50PM (#45953427) Homepage

      So he's saying and doing things to promote net neutrality, but you know that he secretly hates net neutrality because he worked in the telecom industry?

      I know that Obama is secretly a Kenyan Muslim. He says he's not, but I know he is. It's all a big conspiracy.

      ISPs were classified as an information service in 2003, long before this guy was involved.

  • by MobyDisk (75490) on Tuesday January 14, 2014 @12:50PM (#45952401) Homepage

    It sounds like this is a technicality because the FCC's rules are inconsistent with law. They need to fix them.

    I am reposting this comment by "CakeStapler" from GizModo because it explains it well:

    As we explain in this opinion, 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. That said, 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.

    (Emphasis mine)

    So, the FCC will remove their exemption from treatment as common carriers, reenact the regulations, and there's nothing to see here. 20 minutes ago

    • by Kohath (38547)

      Yet another government agency acting outside the law. Ho hum. Just a technicality.

      Acting is accordance with the law is such a burden; when will our benevolent government overseers finally be free of it, once and for all?

    • by compro01 (777531)

      So, the FCC will remove their exemption from treatment as common carriers, reenact the regulations, and there's nothing to see here

      With Thomas Wheeler running the FCC? Good luck with that.

  • The Internet was fun while it lasted....

  • by matbury (3458347) on Tuesday January 14, 2014 @01:31PM (#45953081) Homepage
    What part of full spectrum corporate domination don't you get? It's oligarchies all the way!
  • by nightfire-unique (253895) on Tuesday January 14, 2014 @02:03PM (#45953659)

    Netflix should very loudly sue all of the major ISPs in the states, asking the court to affirm its right to reach its users at the same rate content-partners (or other business units) of the ISP pay.

    They should make all sorts of noise about anti-competitive practices, damage to the Internet, corruption and bribery, lack of last-mile competition, lack of common-carrier status, etc.

    They wouldn't win any judgments, but at least they could provide exposure and coverage in mainstream media so more of the population would grasp what's at stake here.

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