Open Internet – Wetmachine

Mozilla v. FCC Reaction, or Net Neutrality Telenovela Gets Renewed For At Least Two More Seasons.

Harold October 7, 2019 October 8, 2019net neutrality, Tales of the Sausage Factory

I’ve been doing network neutrality an awfully long time. More than 20 years, actually. That was when we started arguing over how to classify cable modem service. As complained almost a decade ago, this is the issue that just will not die. I understand that, given the central importance of broadband to our society and economy. Nevertheless, my feeling on this can be summed up by the classic line from�Godfather III: “Just when I thought I was out, they pull me back in.” [subtle product placement] I even went so far as to write a book on platform regulation to try to get away from this (available free here). [/subtle product placement] . But no. Here we are again, with a decision that creates further muddle and guarantees this will keep going until at least after the 2020 election.

Sigh.

Getting on to the basics, you can find the decision in its 186-page glory here. You can find a good analysis of what potentially happens next for net neutrality by my colleague John Bergmayer here. The short version is that we lost the big prize (getting the Order overturned, or “vacated” as we lawyers say), but won enough to force this back to the FCC for further proceedings (which may yet result in the “Restoring Internet Freedom Order” or RIFO being reversed and/or vacated) and open up new fronts in the states. The net result on balance is rather similar to what we had after the 2014 court decision that tossed out the 2010 net neutrality rules but laid the groundwork for reclassifying broadband as Title II; a curve ball that lets all sides claim some sort of win and creates enough uncertainty to likely keep the worst ISP abuses in check for the time being. (Mind you, ISPs will continue to test the boundaries, as they are already doing without actual enforceable rights in place.)

Most importantly, industry and the FCC can’t get what they want most (preemption of state authority) without going full Title II. This puts the FCC in a bind, since it can’t deliver the thing industry most wants. It also means that various state laws (especially the comprehensive California net neutrality law) and various executive orders imposing some sort net neutrality obligations now ~~go into effect�~~get to be litigated individually. As with the California privacy law passed last year, industry now has significant incentive to stop fooling around and offer real concessions to get some sort of federal law on the books. Also like the California Privacy Law, this is not going to be enough to overcome industry reluctance against a law with teeth and therefore is unlikely to go anywhere. So we are likely stuck until after the 2020 election.

I also want to emphasize that even the parts where we lost, as in 2014, contain the groundwork for ultimately winning. This gets lost in the headlines (particularly in the triumphant crowing of FCC majority). But like any good telenovela, this latest dramatic plot twist has lots of foreshadowing for the next few seasons and a set up for an even BIGGER plot twist in future seasons.

My incredibly long, highly personal and really snarky dissection of the D.C. Circuit’s opinion in�Mozilla v. FCC and what it means going forward below.

First Round of Lawsuits Filed In Net Neutrality Case. Now What?

Harold March 24, 2015 March 24, 2015Life In The Sausage Factory, Series of Tubes, Tales of the Sausage Factory

Yesterday, the U.S. Telecom Association (USTA), the trade association for incumbent telecoms like Verizon and AT&T, and a Texas WISP called Alamo Broadband,�filed separate appeals from the FCC’s Order reclassifying broadband as Title II and applying net neutrality rules. (This Ars piece links to both Petitions). USTA filed in the D.C. Circuit, while Alamo filed in the 5th Circuit (which is generally considered one of the more hostile to the FCC).

I dig into this a bit, and try to explain what happens next, below . . .

Tom Wheeler and the Defining Question of Network Neutrality

Harold May 1, 2014 May 1, 2014Series of Tubes, Tales of the Sausage Factory

Federal Communications Commission (FCC) Chairman Tom Wheeler caused quite a stir last week when he circulated a new Notice of Proposed Rulemaking on network neutrality. As reported by the press, the proposed rule moves away from generally prohibiting wireline broadband providers from offering “paid prioritization” (aka Internet “fast lanes”) to explicitly permitting wireline providers to offer paid prioritization subject to conditions designed to guard against anti-competitive and anti-consumer conduct.

Needless to say, this pleased just about nobody. Supporters of network neutrality regard paid prioritization as intrinsically anti-competitive and anti-consumer by making the Internet experience dependent on the ‘commercially reasonable’ deals of the network provider rather than the choice of the subscriber.�By contrast, opponents of net neutrality oppose any limitations on what ISPs can do as “regulating the internet.” To employ a crude analogy, network neutrality supporters see Wheeler’s proposal as roughly the equivalent of teaching the rhythm method in sex ed, while opponents are outraged that Wheeler would teach anything other than pure abstinence.

What Wheeler has done here is to frame the defining question of network neutrality. The upcoming Notice of Proposed Rulemaking (NPRM) gives those of us who believe that paid prioritization is the opposite of net neutrality and an Open Internet the opportunity to make the case. Even more importantly, Wheeler has now confirmed that the May 15 NPRM will ask whether the FCC needs to reclassify broadband as a Title II “telecommunications service” so that the FCC will have sufficient authority to create real and effective network neutrality rules. (You can see Wheeler’s�blog post setting out his proposed approach here, and his aggressive speech in the veritable heart of enemy territory — the 2104 Cable Show in Los Angeles) here.)