Nonsensical net neutrality trial to begin

Nonsensical net neutrality trial to begin

Summary: Network neutrality is an FCC policy, under challenge by major ISPs, that addresses a fictional problem with rules that create real ones. To institute it, the FCC played fast and loose with the law, and the courts will likely strike down the rules.


This morning in the United States Court of Appeals for the District of Columbia Circuit the case of Verizon, et al v. FCC, et al will begin. Verizon and other ISPs are appealing "Open Internet" rules issued by the FCC in 2010.

To pursue an ideological solution in search of a problem, the Commission and allies have, for many years, propagated the fear that large, corporate (i.e. "evil") ISPs would attempt to leverage their market power to balkanize the Internet so that there would be a high-quality, uptown Internet for the rich and a shoddy, slow downtown one for the proletarian masses.

In the meantime, access and subscription to broadband in the US has been growing rapidly. The recent Pew Home Broadband 2013 survey found that 70% of American adults ages 18 and older have a high-speed broadband connection at home. Given that the Census Bureau found in 2011 that 98% of US households have access to broadband, it would seem that private industry has done a great job of building out the networks. In many areas there are more than one option. (I live in New Jersey, and most of the state has more than one broadband provider available.)


How about the performance of those networks? The FCC's own "Report on Consumer Wireline Broadband Performance in the U.S." from February of 2013 says that ISPs in the U.S. are doing a good job of providing their customers with advertised Web speeds, and the average tier selected by Americans is 15.6 Mbps, up from 14.3 Mbps last year. And that doesn't even count mobile service, which is also getting faster, cheaper and more available. It's hard to make the case that the broadband industry is not getting fast Internet bandwidth to the American public.

But the lack of a real world problem with the market aside, the real problem for network neutrality advocates was that the FCC had no authority to regulate broadband ISPs. So Democrats in the FCC and some outside groups have been seeking a way to give the Commission regulatory jurisdiction over ISPs in order to do something about this "problem."

The Communications Act of 1934 (including many amendments over the years), which governs the FCC's conduct, was written at a time when communications services were neatly divided into distinct categories: wireline telephony (Title II of the act); services provided over the radio spectrum like broadcast TV, radio and wireless telephony (Title III of the act); and  or "cable services" like cable television (Title VI).

Here in the 21st century these distinctions are collapsing. Broadband Internet service doesn't clearly fit into any of the categories of service under the Act. The FCC's solution was to reclassify "broadband services" as "telecommunications services," which in theory would allow it to exercise direct jurisdiction under Title II. After Congress blew up at the FCC over this, the Commission cited a collection of other statutes which they claimed gave them jurisdiction. Then they issued the Open Internet Rules.

The court case will revolve around the jurisdictional issues; court precedents, as I understand them, lean heavily against the FCC. But are the rules themselves reasonable? Here are the 3 rules as written by the FCC:

  • Transparency. Broadband providers must disclose information regarding their network management practices, performance, and the commercial terms of their broadband services.
  • No blocking. Fixed broadband providers (such as DSL, cable modem, or fixed wireless providers) may not block lawful content, applications, services, or non-harmful devices. Mobile broadband providers may not block lawful websites, or applications that compete with their voice or video telephony services.
  • No unreasonable discrimination. Fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic over a consumer’s broadband Internet access service. Unreasonable discrimination of network traffic could take the form of particular services or websites appearing slower or degraded in quality.

The first 2, depending on how they are interpreted, are relatively unobjectionable. They're the sorts of things that customers would demand, and there aren't many incidents on the record (to my knowledge) to show that ISPs have been opaque or have unreasonably blocked lawful content, applications, services or non-harmful devices. So they are a solution in search of a problem.

It's rule 3, about discrimination, where net neutrality gets nutty. The scenario envisioned by the rule is one where ISPs slow down traffic to particular sites for whatever reason. The number of cases where this has happened in the real world is really, really small, and arguably there has been only one. This sort of thing just doesn't happen.

But if the FCC were the least bit expansive in their interpretation of the rule, it might be more of a problem. The fact is that major ISPs have been engaging in "discrimination" for a long time, and it's made the Internet much better. It's called CDN or Content Delivery Network. The most famous company in this business is Akamai, but others, like parts of VeriSign now owned by Symantec, are in it too.

A CDN places their own hardware and WAN connections directly inside ISP points of presence, giving the CDN's customers close access to end users. CDN marketing would call this improved service for their customers, but another person could call it degraded service for sites not in the CDN.

I know the word "unreasonable" is in there, but it's not defined and it's not at all clear what it means. And on top of all that, what's the point? The fact that and and other big budget sites pay for and get faster connections to end users doesn't mean that other sites, which go through their ISP's normal routing and peer connections to the end user's ISP and then to the end user, are "degraded."

Verizon v. FCC may not get into any of these arguments on the merits of the rules. It could be that the court will find for the plaintiffs simply because the redefinition of broadband as telecom is arbitrary and capricious, as it indeed is. If the court goes to the merits of the rules, don't expect it to go well for the FCC. 

Topics: Networking, Government US, AT&T, Verizon

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  • Nothing says "inaccuracy" like this article

    Larry.... Larry. I'm disappointed in your one-sided and poorly researched article. Do you not remember the allegations, lawsuits, and anti-compete practices under scrutiny over the last 7 years? Google "internet throttling" for a good start... Net neutrality never had anything to do with class wars or discrimination based on citizens - like everything else involving large companies, it was always about the money; discrimination based on TRAFFIC; stifling your competitors traffic to create a negative experience, for example. You wrote this entire article without even using the term "throttle".

    Start here with the basics. Then feel free to re-write your article accordingly.
    • Forget it...

      The guy is plainly interested in clouding the real issues by turning this into a faux-ideological Democrats vs. Republicans fight. Don't try to inject nuance or real world examples when dealing with a shill for corporations that stand to profit enormously from control over the data pipeline and the resulting power to pick and create winners and losers in the digital domain.
  • No No No

    You, Mr. Seltzer, should not care about net neutrality because of the reasons you condescendingly ascribe to its supporters. You should care because if the carriers exact a varying toll on data, they get to kill off any disruptions that challenge their businesses, i.e., they may impose an insurmountable barrier on innovation they don't like. For instance, let's talk about VOIP and the degree to which telephone companies wish to keep customers signing up for voice plans and land lines.

    Study railroads in the US in the 19th century. The populist movement did lead to the ICC which led to rail neutrality. It did lower the upside for rail companies, but the lowered costs of shipping was a boon to farmers and manufacturing because it was better for consumers. In totality, we were better off.
    • railroads?

      What rate discrimination exists between provider networks that analogous that what the ICC addressed?
  • Pure Politics

    I have a problem when people feel the need to call for the violation of the US Constitution to advocate for net neutrality. I mean if it were so good, an honest argument would be used, no?

    Violating Constitutional Separation of Powers is American Library Association's Latest Move for Net Neutrality
    Dan Kleinman
  • Tier stacking -- the root cause of the problem?


    Some interesting arguments, alas, all of your points about "I have good service" and "Microsoft and Yahoo get good connections" don't really answer some of the key issues. That is, that the owners of the pipes ARE requesting the ability to manage content sources in a discriminatory manner, and that the owners of the pipes DO have a history of favoring some (read: internal) sources over others.

    However, there are some points that aren't brought out here. Suggesting that one source using high bandwidth (e.g., Netflix) pay more to access the provider's content base? Nope, the FCC says that's illegal. Suggesting that a user pay by the volume of content used? Nope, that's bad business.

    What's happening is that we are allowing/encouraging different layers of technology/information to comingle, and we are allowing/encouraging single entities (read: Verizon, Comcast) to build end-to-end stacks in a manner that allows the entity to monopolize and favor proprietary channels.

    We need to recognize that there are three layers of information/data management. At one end, we have the content providers. Netflix. Google. GoDaddy (the host of so many commerce web sites). Next, we have the aggregators, the ISPs that provide IP addresses, virus filtering, email, and access to the cloud of content providers. Last, we have the delivery agents, the companies that provide the wire to the home. And yes, the aggregator and delivery agents can be separate. Remember the earlier days of DSL, where Verizon/AT&T provided the wire, and EarthLink AOL, Mom'n'Pop, NetAxs, and so on were acting as aggregators? Can be done.

    So what's the implication of splitting off content providers from aggregators to delivery agents? First, no monopoly of services. I can watch Comcast-owned Phillies broadcasts (sorry) by subscribing through any aggregator that contracts with the data stream. And I can subscribe to the aggregator through whatever delivery agent I want.

    Does it work for Pennsylvania's electric companies? I seem to be able to buy from a variety of sources (I'm all green, by the way), PECO provides the wires (delivery agent) and the billing service.

    Could it be done with information and content? I think so; the split-up of Bell worked (although we lost Bell Labs in the process, but that was probably due to transition to Xerox PARC, Microsoft Labs, Google, and the next generation of research labs, heck, Edison's Menlo Park labs aren't running any more either). Will it be difficult? Yes. A lot of hurdles to jump, a lot of corporate planning. Will it work? I think so. With no REASON to discriminate and a solid foundation of competitive companies at each layer (competing with each other and for clients above and below), it should.
  • The Job Of An ISP Is To Transport Bits

    Imagine if the electricity company were to charge more for plugging your new digital HDTV into the mains than your old analog CRT TV. Or toll roads were to inspect the contents of your car before setting the fee for letting you drive on them.

    That's what ISPs like Verizon want to do: charge you more for transmitting or receiving certain data bits than others. Their job is to be nothing more than a pipe, even though they hate that.
    • Simply Stated

      There it is, simply stated.