Huge pro-Net Neutrality protests planned for this week. The first Tesla Model 3 rolled off the line on Friday. Sexual Harassment in Silicon Valley. The Nokia 3310 Trump/Putin “Caviar” phone costs $2500. the iPhone 8 might use facial recognition instead of Touch ID. Merck shut down by Petya ransomware. The role of government in cybersecurity and privacy. The role of technology and those versed in it in government. Jawbone closes down. Amazon Prime is a great deal, but Prime Day might not be. The Amazon Echo Show is our favorite potentially creepy digital assistant. Apple vs Qualcomm: what it’s all about.
Out of the many lawsuits filed this week against the Federal Communications Commission, just one came from a major Internet service provider: AT&T.
AT&T made no secret of its opposition to the FCC’s net neutrality order, but it was reported last month that trade groups rather than individual ISPs would lead the legal fight against the FCC. That has mostly been the case so far, with AT&T but not other big ISPs like Comcast or Verizon filing suit. Lawsuits have been filed by four consortiums representing cable, wireless, and telecommunications companies. One small provider in Texas called Alamo Broadband sued the FCC as well.
Comcast, when asked if it plans to file a lawsuit, told Ars that it is “referring all questions to NCTA,” the National Cable & Telecommunications Association, which sued on behalf of cable providers. We’ve asked Verizon the same question but haven’t heard back yet. Verizon did sue the FCC over a previous version of its net neutrality rules passed in 2010. Verizon won that case, inadvertently opening broadband providers up to even stricter rules.
AT&T’s lawsuit filed yesterday in the US Court of Appeals for the District of Columbia Circuit objects to the FCC’s decision to reclassify fixed and mobile broadband as common carrier services in order to impose net neutrality rules that forbid blocking and discriminating against traffic. The petition is brief and follows the same script as those filed by trade groups, accusing the FCC of violating the Constitution and Communications Act with an “arbitrary” and “capricious” decision.
Parties suing the FCC will make more detailed arguments later; the initial petitions just get the process started.
We could see more lawsuits this week and next. The rules were published Monday this week. Parties have 60 days after publication to sue but filing within the first 10 days makes it easier to get the judicial circuit of one’s choice. “[I]f multiple petitions for review are filed in different circuits in the first ten days, it will be decided by lottery where the appeal goes,” Public Knowledge Senior VP Harold Feld explains.
FCC chairman Tom Wheeler has announced that the agency will vote on new proposed net neutrality rules next February 26. He made the announcement during a public interview at the ongoing CES event in Las Vegas.
Wheeler said the proposal will be circulated to the commissioners on February 5th, which means that they will have a three week window before the vote.
As far as the proposal is concerned, he didn’t provide details, but did hint that it will reclassify broadband as a Title II utility. He also mentioned that the agency might take a hybrid approach, applying only relevant Title II restrictions to broadband Internet.
Last November President Barack Obama publicly came out in support of net neutrality, asking the regulator to reclassify Internet service as a utility. At that time Wheeler didn’t officially say whether he would support the president’s suggestion, although there were reports suggesting that he’d likely move in a different direction.
He touched upon the issue during the interview, saying, “When the president came out … there was an effort made to say Wheeler and the president are pulling in opposite directions on this,” adding, “But that wasn’t exactly the reality because we’re both pulling in the same directions, which is no blocking, no throttling of applications, and transparency about how we get there.”
However, Wheeler was also quick to add that prioritization may be appropriate in some scenarios, for example, in case of an emergency health alert. “There are instances where priority makes a whole heck of a lot of sense,” he said.
Opponents of net neutrality argue that prioritization of bandwidth is necessary for future innovation on the Internet, and greater regulation will negatively affect the investment in next-generation Internet infrastructure, something which would in turn stifle growth across the entire economy.
Advocates of strong net neutrality rules are calling for the U.S. Federal Communications Commission to reclassify broadband as a regulated utility, but such a move would trigger a lengthy court fight between the agency and broadband providers, some telecom law experts say.
With net neutrality back on the FCC’s agenda in recent weeks, many net neutrality advocates—including digital rights groups Free Press and Public Knowledge—have resurrected their long-time push for the FCC to reregulate broadband as a traditional telecom service as an alternative to FCC Chairman Tom Wheeler’s proposed set of regulations, released in late April, that they view as too weak.
Despite a large public outcry—the FCC has received more than 45,000 public comments in the past month, with many calling for reregulation—some telecom law experts question whether the agency will take that step.
“People at the FCC refer to broadband reclassification as the nuclear option,” said Jonathan Jacob Nadler, a telecom regulation lawyer with the Squire Sanders law firm in Washington, D.C. “It’s just not going to happen.”
The FCC, in a public notice of proposed rules released earlier this month, asked for comment on Wheeler’s proposal, which would allow broadband carriers to engage in “commercially reasonable” traffic management, and also on whether the FCC should reclassify broadband as a common-carrier telecom service subject to utility-type regulations under Title II of the Telecommunications Act.
Is a legal backlash worth it?
But Nadler and some other telecom regulation experts expect a huge legal backlash if the FCC moves toward Title II regulation. “If the FCC were to reclassify broadband as a telecom service, lawyers for the major telcos and cable systems would immediately start lining up in front of the court of appeals and would file petitions for review within minutes after the order was published,” Nadler said.
Broadband providers would argue that reclassification is a “trillion-dollar bait-and-switch,” said Scott Cleland, chairman of the NetCompetition advocacy group supported by broadband providers. Providers would argue that a change in classification would be arbitrary and capricious, the classic language of a challenge to agency regulations.
“Promising an industry light regulation to encourage $1.2 trillion in private risk capital investment, and then after it’s built, breaking that promise, would be the [ultimate] arbitrary and capricious FCC action,” Cleland added. “Expect a tsunami of legal challenges against any FCC reclassification decision in multiple courts pursuing multiple different legal challenges and theories in order to stay and overturn the FCC decision.”
Harold Feld, senior vice president at Public Knowledge, downplayed potential arguments by broadband providers. In a handful of recent Supreme Court cases, justices have suggested the FCC has the authority to change its mind, he noted.
Asked if reclassification would trigger a backlash in Congress, Feld said it might, particularly if Republicans gain majority control of the Senate in elections later this year. But Congress would have a difficult time overturning the rules, he said.
Politics, as usual
“President Obama would still be able to veto any such resolution,” Feld said. “While one does not like to rely on a presidential veto, it is equally foolish to assume that a future Congress will automatically overrule any FCC classification. The tide on this is clearly shifting.”
A Republican Congress would likely attempt to overturn any net neutrality rules, Feld noted. Whether the FCC relies on reclassification or takes another route, it “makes no difference if the Senate flips, so you might as well do what you think is right,” he said.
Net neutrality advocate Marvin Ammori of the Ammori Group law firm also discounted the broadband providers’ chances of overturning reclassification.
“They’ll argue the FCC didn’t provide a reasoned basis for the policy tweak,” he said. “They’re very likely to lose that. Courts would defer to the FCC, and the FCC would win.”
Wheeler has defended his proposal, which uses Section 706 of the Telecom Act, a section giving the agency responsibility for robust broadband deployment, as a quicker way to restore net neutrality rules after the U.S. Court of Appeals for the District of Columbia Circuit struck down an old version of the FCC’s net neutrality rules in January.
The appeals court pointed to Section 706 as a way the agency could find authority for net neutrality rules, and Wheeler has argued that it makes sense to follow the court’s lead after judges there twice struck down the agency’s attempts to enforce net neutrality rules.
The case for reclassification: not a trivial one
Alternatively, reclassification would “not be as straightforward or easy as many assume,” said Berin Szoka, president of free-market think tank TechFreedom. Reclassifying broadband as a utility “would take, best guess, five to 10 years of back and forth between the FCC and courts,” he added.
The agency, to reclassify, would have to find a justification for changing its mind on its decade-old classification of broadband as a lightly regulated information service, Szoka said.
Reclassification would be additionally complex because the agency would also have to draw a line between broadband and other Internet services, Szoka said. The FCC would “have to explain why it should only reclassify broadband and not some edge services, too,” he added.
Like Nadler, Szoka questioned whether the FCC will reclassify broadband. The complexity and likely legal challenges are “all why I don’t think the FCC is serious about Title II,” he said. “I think they’re going through the motions of including it … so they can tell the angry mob outside their gates that they considered this option.”
Some opponents of reclassification have questioned whether the FCC has the authority to reverse a series of decisions in the early 2000s to classify cable broadband, then telecom broadband as an information service. But many telecom law experts say the agency does have that authority, as long as it justifies its reasons for the switch in policy.
Ironically, clear authority for the FCC to change its mind comes from the 2005 Supreme Court case that ruled the FCC had the authority to deregulate broadband and classify it as an information service. In the Brand X case, the Supreme Court ruled that the agency had reasonably interpreted the Telecom Act when classifying cable broadband as a lightly regulated service.
The Brand X case “makes clear that the courts must defer to any reasonable interpretation” of the Telecom Act that the FCC makes, Nadler said. Justice Clarence Thomas, writing for the majority in the Brand X case, also notes that government agencies can change their policies if they have a good reason.
Thomas quoted a 1984 Supreme Court decision in Chevron USA v. Natural Resources Defense Council, a major case in administrative agency authority: “An initial agency interpretation is not instantly carved in stone,” the 1984 decision said. “On the contrary, the agency … must consider varying interpretations and the wisdom of its policy on a continuing basis.”
Heavy broadband users should help shoulder the cost of their traffic, but Verizon Communications does not give preferential treatment to some Web traffic, the company’s CEO said Monday.
Still, Verizon has had its own interconnection discussions with Netflix related to increasing the video provider’s traffic speeds on the broadband carrier’s networks, Verizon Chairman and CEO Lowell McAdam said. Following a Sunday announcement that Comcast and Netflix had reached an interconnection deal, McAdam said his company has had similar discussions with the video provider.
The Comcast and Netflix deal shows “the commercial markets can come to agreement on these to make sure the investments keep flowing,” McAdam said.
McAdam addressed the U.S. Federal Communications Commission’s proposed net neutrality rules during a conference call about the company’s acquisition of Vodafone’s 45 percent stake in Verizon Wireless. The FCC’s move this month to resurrect net neutrality rules should provide “clarity” for the broadband industry, said McAdam, whose company successfully challenged an old version of the regulations in court.
McAdam dismissed concerns that his company would selectively block or slow some Web content. “We make our money by carrying traffic,” he said. “That’s how we make dollars. So to view that we’re going to be advantaging one over the other really is a lot of histrionics, I think, at this point.”
But McAdam suggested that broadband power users should pay extra. “It’s only natural that the heavy users help contribute to the investment to keep the Web healthy,” he said. “That is the most important concept of net neutrality.”
The FCC needs to look at the broad Internet industry, not just broadband providers, when it considers new net neutrality rules, McAdam said. Companies like Netflix, Apple, Microsoft and Google have a role, and “any rules will have to include all of these players,” he said.
McAdam called for the FCC to create “light touch” rules on net neutrality. The FCC needs to consider growing uses of broadband in medicine and other fields, he said. “Everything from health care to telematics to the energy grid need to be balanced with someone who’s trying to watch last year’s episode of [TV show] NCIS,” he said.
McAdam said he’s “encouraged” that the latest FCC effort may bring clarity on net neutrality rules.
Verizon is denying a charge leveled by a security expert and seemingly acknowledged by its own customer service department that it is “limiting bandwidth” to Amazon Web Services, and by extension Netflix, in response to a recent court decision.
Just a few weeks ago a Washington D.C. appellate court struck down the Federal Communication Commission’s net neutrality rules. The judge ruled that the FCC cannot regulate how ISPs like Verizon deliver services, which could open the door to ISPs providing different connect speeds to different services. Verizon says it has not changed its connection policies since the net neutrality rules were struck down.
David Raphael, director of engineering for cloud security provider iScan, outlines in a blog post how he began noticing that his Internet connection at home was slow. It got to a point where it began impacting his streaming service from Netflix, he says. So he did a couple of tests. From his home he got a bandwidth rate of 40kbps when accessing Amazon Web Services’ Simple Storage Service (S3). When he tested it from his work, he got 5000kbps. Both his home and work use Verizon’s FiOS Internet Service.
He contacted a Verizon customer support representative to inquire about the issue. After what he says was about a half hour, he asked the representative point-blank if Verizon is now limiting bandwidth to cloud providers such as AWS. “Yes, it is limited bandwidth to cloud providers,” the online chat representative said. Raphael responded, “And this is why my Netflix quality is so bad right now?”
The Verizon representative’s response: “Yes, exactly.”
Raphael says he’s worried the net neutrality wars are upon us. “In my personal opinion, this is Verizon waging war against Netflix. Unfortunately, a lot of infrastructure is hosted on AWS. That means a lot of services are going to be impacted by this.”
Verizon denies favoritism in speeds
In response to a request for an explanation, executive director of communications for Verzion Edward McFadden replied:
“We treat all traffic equally, and that has not changed. Many factors can affect the speed a customer’s experiences for a specific site, including, that site’s servers, the way the traffic is routed over the Internet, and other considerations. We are looking into this specific matter, but the company representative was mistaken. We’re going to redouble our representative education efforts on this topic.”
Raphael’s blog post is already garnering considerable attention on social media sites. On Twitter some users are wondering if Raphael’s account is one of the first results of the net neutrality ruling. On HackerNews, a tech forum, users point out that the statement is from a Verizon customer service representative and should be taken in that context.
Following the net neutrality ruling, Verizon stated that it had no plans to make any changes to its Internet service. “Today’s decision will not change consumers’ ability to access and use the Internet as they do now,” company officials wrote in a statement posted on its website. “The court’s decision will allow more room for innovation, and consumers will have more choices to determine for themselves how they access and experience the Internet.”
Neither Amazon nor Netflix immediately responded to a request for comment.
When the Federal Communications Commission (FCC) adopted the Open Internet Order in 2010—forbidding Internet Service Providers from blocking services or charging content providers for access to the network—there was one thing the commission was careful not to do.
What the FCC did not do is declare that Internet service providers are “common carriers,” a classification that could have opened the door to even stricter regulations. Pre-dating the Internet by centuries, common carriage is “this age-old doctrine that says the person doing the shipping for you can’t mess with the contents,” said Matt Wood, policy director for Free Press, a group that advocates for “universal and affordable Internet access.”
The FCC has avoided calling ISPs common carriers for more than a decade, favoring a “light touch” regulatory approach that could protect consumers while (hopefully) appeasing political foes of net neutrality, Wood said.
That approach may be backfiring. Verizon recently challenged the legality of the Open Internet Order, and yesterday the company argued its case in front of a three-judge panel at the US Court of Appeals for the District of Columbia Circuit. A Verizon win would allow ISPs to block content or charge providers for a faster lane to customers.
Judges are skeptical of FCC reasoning
Wood is hoping the judges will uphold the Open Internet Order, but he believes that the FCC would be having an easier time defending itself if it declared ISPs common carriers in the first place. Most of the two-hour court session focused on the common carriage issue, he said.
The concept that “the person doing the shipping for you can’t mess with the contents” is “what I think most people want to have out of their Internet service if they’re getting it from Verizon or from AT&T or Comcast or somebody else who provides that wire,” Wood told Ars. “They don’t want to give in to Verizon’s claim that the ISP somehow has the right to edit the Internet and pick and choose where you can go and what you can say. The FCC has left that in doubt too much from its authority choices.”
While not proclaiming ISPs to be common carriers, the commission said it can make rules that sound similar to common carrier regulations because of the FCC’s legally mandated responsibilities to promote broadband deployment and adoption, to make sure video services are competitive, and to make sure wireless carriers serve the public interest.
Wood and others who observed the judges’ interactions with Verizon and FCC lawyers yesterday agree that the judges expressed skepticism about the FCC’s argument that the Open Internet rules don’t amount to common carriage-style regulations. Telecom analysts at Stifel sent a note to clients saying that the court seems likely to let ISPs charge for premium Internet links.
“We believe a DC Circuit panel majority signaled today at oral arguments that it’s inclined to pare back FCC Open Internet rules in a way that would allow cable and telco broadband providers to charge Internet edge providers for improved connections to broadband customers,” Stifel wrote. “At the same time, the panel seemed inclined to uphold the FCC’s authority to regulate broadband to some extent. … Such an outcome could give telcos and cable new flexibility to strike paid-prioritization deals for offering better service to Internet edge providers (e.g., Google, Amazon, Netflix), which could also include media companies (e.g., Disney, Fox, CBS, Viacom, Time Warner Cable). Whether it would be good or bad for edge/media providers would depend on their business plans and financial wherewithal, but it could create faster ‘toll’ lanes that give big edge players advantages over upstarts.”
In December 2010, the Federal Communications Commission adopted the Open Internet Order, enshrining the concept of “network neutrality”—that Internet Service Providers must treat all data on the Internet equally—into law.
Although wireless broadband was exempt from many of its restrictions, the FCC’s net neutrality law says that fixed broadband providers “may not block lawful content, applications, services, or non-harmful devices” or practice “unreasonable discrimination” that slows content down or degrades its quality. They also must disclose information about their network management practices.
ISPs don’t like this, naturally, but Verizon has objected most strenuously of all. The company sued to halt the Open Internet Order, and after a couple of years worth of legal filings the case is now set to be decided by the US Court of Appeals for the District of Columbia Circuit.
Verizon and the FCC on Monday will each get 20 minutes to make their oral arguments. There won’t be a trial, as the oral arguments are typically the last step before the court makes its decision, said Senior Staff Attorney John Bergmayer of Public Knowledge, an advocacy group that filed briefs in the case supporting the FCC’s position.
“It’s really just a chance for the judges to ask questions they feel are not answered in the briefs, to poke at weak points in arguments, etc.,” Bergmayer told Ars.
The court will issue a decision when it’s good and ready. We don’t know when that will happen.
Verizon: Our “First Amendment” rights are under attack
As a refresher course on this complicated topic, Public Knowledge published a series of blog posts on what net neutrality is, what the FCC’s Open Internet Order does, and what the appeals court will decide.
Verizon is arguing that the FCC over-stepped its authority in issuing the regulations in the Open Internet Order, that it has a free speech right to block or degrade content under the First Amendment, and that the FCC didn’t do a good enough job explaining its reasoning and the evidence that the rules are necessary.
Verizon outlined its argument in a 118-page brief (PDF) filed jointly with MetroPCS in January. MetroPCS dropped out of the case after being acquired by T-Mobile, leaving Verizon to fight alone.
The Open Internet Order exceeds the commission’s authority as granted in the Communications Act which “expressly forbids the FCC from applying common-carrier regulation to broadband Internet access,” Verizon wrote. The FCC’s net neutrality rules “subject broadband providers to quintessential common-carrier duties by compelling them to carry the Internet traffic of all comers, and to do so at a uniform, nondiscriminatory price of zero.” The Communications Act includes no other provisions giving the FCC the authority to make the net neutrality rules, Verizon argued.
The FCC rules are also unconstitutional, violating the First and Fifth amendments, Verizon said. “Broadband networks are the modern day microphone by which their owners engage in First Amendment speech,” Verizon wrote. “The FCC thus must identify an actual problem and narrowly tailor its solution to solve that problem. The FCC’s ‘prophylactic’ rules cannot pass that test. The Fifth Amendment likewise protects broadband network owners from government compulsion to turn over their private property for use by others without compensation, especially in light of their multi-billion-dollar investment-backed expectations.”
Finally, Verizon argued that the FCC order is “devoid of evidence of any problem sufficient to justify these extensive regulations. The FCC also arbitrarily applied its rules to a single class of service providers even though myriad others in the Internet economy can engage in ‘gatekeeping.'”