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FCC Vote Isn’t the End of Net Neutrality, But It’s a Good First Step

This isn't about whether the internet will be free and open. It's about how much power the FCC should have.

RICHARD B. LEVINE/NewscomRICHARD B. LEVINE/NewscomWith a party-line vote Thursday, the commissioners of the FCC took the first step in what will be a months-long process to repeal Obama-era rules categorizing internet service providers as common carriers subject to federal regulations written in the 1920s.

It's not the end of the debate over net neutrality, and it's not the end of federal regulations for the internet. Instead, this is a first step towards eliminating a nonsensical legal justification for giving the FCC the authority to regulate internet service providers in the first place.

Technically, Thursday's vote did nothing more than open a period of public comment on reversing two legal claims, made in 2010 and 2015, that expanded the FCC's authority to regulate ISPs. After the public comment period closes, the FCC will be able to vote on revering those claims and effectively undoing the strained logic that the Obama administration used to asset those powers in the first place. The vote on actually reversing those policies probably won't happen for several months, at least.

"Today's vote isn't about net neutrality, but the FCC's legal authority over the internet," says Brian Szoka, president of Tech Freedom, a tech policy think tank that favors less regulation. "The real debate is over the FCC's power."

As Szoka points out, even after the FCC finishes the process of repealing the Obama-era rules, it won't be the end of government regulation of the Internet. The Federal Trade Commission, the Department of Justice, state attorneys general, and private attorneys will still be able to exert legal and political pressure on ISPs that breach contracts or otherwise violate the rule of law.

To understand what's happening at the FCC under new chairman Ajit Pai, it's useful to understand how we got to this point. During the Obama administration, FCC Chairman Tom Wheeler tried to impose net neutrality—twice—only to have federal courts block both efforts because the FCC lacked the authority to exert such broad control over ISPs. In response, the FCC in 2015 gave itself the authority (after privately working with the White House) to impose net neutrality by reclassifying ISPs as a Title II telecommunications service. With ISPs now subject to the same federal regulations as so-called "common carriers" like telephone services, a third attempt at imposing net neutrality survived a court challenge.

"Title II involves the panoply of heavy-handed economic regulations that were developed in the Great Depression to handle Ma Bell, the telephone monopoly of the 1930s," Pai told Reason TV last month. "My previous colleagues imposed those rules on the internet, one of the most dynamic systems we've ever known."

In short, the Obama administration found a clever way to get around limitations on the FCC's regulatory power. Thursday's vote is the first step towards putting the FCC's regulations back within those previous limits. As Pai points out, we weren't living in a digital dystopia in the years leading up to 2015.

Giving the FCC the sole regulatory authority over the Internet never made much sense. Since each new president can appoint new members to the commission, "the question of the FCC's legal authority will keep ping-ponging back and forth depending on which party controls the FCC," says Szoka. Just look at what's happened in the last few years. The FCC imposed net neutrality with party-line votes when a Democrat was in the White House and is now starting to repeal those rules with similar party-line votes from the new Republican majority.

That's no way to run anything, but it could have a particularly chilling effect on the development of the internet, which has grown in incredible and creative ways, in part, because of the lack of regulatory control exerted upon it. Worse, perhaps, than excessive regulatory control would be a lack of regulatory certainty, which would be the result of letting the FCC write and re-write rules for ISPs every four or eight years.

If there's a need and a public desire for net neutrality, those rules should be debated and passed by Congress. Congress could, for example, pass a law to prohibit ISPs from engaging in throttling or peering, and give enforcement authority to the FCC (or the FTC, which might actually make more sense).

Until and unless that happens, the Internet will be better off without a single government agency—and one with a track record that's hardly kind to freedom and free expression—handing itself a blank check to set rules for the web.

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  • ||

    No it is just the end of the beginning of the end :-)

  • Diane Reynolds (Paul.)||

    Technically, Thursday's vote did nothing more than open a period of public comment on reversing two legal claims, made in 2010 and 2015, that expanded the FCC's authority to regulate ISPs.

    Oh shit, don't let those idjuts over at Slashdot in the forum.

  • Rhywun||

    MUH NETFLIKS!

  • Diane Reynolds (Paul.)||

    Muh anime torrents!

  • Brendan||

    There's a few fighting the good fight over there through. Otherwise, what a shit show.

  • Aloysious||

    Are those swamp people? They do look kind of moist.

  • Mickey Rat||

    Another impeachable offense by one of Trump's coterie of mini-authoritarians.

  • ||

    My Comcast rate went up; does that count?

  • BYODB||

    No one, since the rules haven't taken effect yet.

  • Sevo||

    DanO.|5.18.17 @ 4:16PM|#
    "Whose net experience changed during the Reign of Neutrality?
    Not mine."

    Dumb-as-a-brick DanO thinks this means something.

  • esteve7||

    People have no fucking long term memory and that's why the leftists get away with this crap. Everyone freaking out about repealing NN (which wasn't even a damn law) ---- NN started in 2015, so are you telling me all this shit was happening in 2015?

    Or the fucks saying people will DIE if Obamacare is repealed. Well what was it fucking like in 2008?

    Seriously, fuck off, you insufferable hacks.

  • Robbzilla||

    NN hadn't even really gotten going. We never saw the effects of NN because it was slated to start this year.

  • esteve7||

    But our internet is in danger! Damn Comcast is going to ruin it!

    / Prog

    Only a leftist could take the greatest invention of their lifetime and think, ah, government should regulate that. Doesn't matter that it got that way without it, but hey not controlling something is scary!

  • ChipToBeSquare||

    Implicit in the Obamacare assumption is the idea that doctors and hospitals in a free market (which obviously we still did not have in 2008) would want to see poor people die rather than giving them care. I personally don't think most doctors get into medicine just to watch people die, but I just wanna hear one progressive admit that they are making such a pessimistic assumption about humanity

  • Brendan||

    LINK

    Apparently:

    Companies are now free to start hijacking DNS to redirect traffic destined for the local pizza joint to another one that pays more.
    Comcast was wrong not to let Netflix and Cogent free ride on their network.
    The US is basically Venezuela and human rights are almost gone.

    So much liberal tears shedding there.

  • Brendan||

  • ChipToBeSquare||

    The "digital dystopia" quote is still great and gets at one of the core problems with the progressive ideology, one that comes up all over the place: attempting to solve problems before we actually have any proof that they are in fact an issue worth addressing

    Regulations and licensing are the classic example. Has there ever been a massive crisis of inexperienced barbers and hairdressers harming customers and giving them diseases because they don't know how to use their tools? If not, then why have such strict licensing requirements for them?

  • esteve7||

    because the purpose of regulations are not to help the consumer, they are to create barriers to entry. Honest progs realize this, and they don't care. They are lying when they act like this is about the people. Of they are complete idiots and should be in charge of nothing.

  • ChipToBeSquare||

    I have once seen a prog argue that the higher prices and wages brought about by licensing could possibly benefit a greater number of people than a more free market where wages could be lowered by enhanced competition

    I think that argument is flat-out wrong, but it's far more convincing than any argument that it's for the people. And maybe someone can do that math and there is indeed a utilitarian benefit to lower competition. Still, city near me is trying to regulate their world-class taco trucks out of existence. I highly doubt there's been some rash of food poisoning to motivate that decision, or concerns about wages, but maybe there was a timely donation from the restaurant industry to the right prog politician

  • BYODB||

    Yeah, except their argument is basically 'fuck poor people' which is pretty ironic considering that's the reason they claim for doing it in the first place. Ask that person why they're such a fan of indentured servitude in the welfare state, or for even one solitary economist who thinks that's even remotely possible.

  • ||

    Sorry IMHO you are all incorrect; a prog agenda is full employment and more bureaucrats is still less unemployment. Their salaries are paid for by rich gits who can afford internet speeds greater than that required for the common good so even better

  • ||

    If I remember correctly the "net neutrality" regs imposed by 'He Who Must Be Obeyed' included the ability for the FCC to impose taxes. As with both terrestrial and cellular 'phone services there is a tax line item on all our bills - 'Universal Service Charge' or words to that effect - to pay for those poor unfortunates who could not afford the services. Did I think Obamaphones out loud?

    It is not beyond the wit of man to assume that there was a ambition to provide 'free' broadband access to the unfortunates with such a 'tax'.

    BTW, I do not have a cellphone 'cause they are to expensive and my income is too high to qualify for a free one.

  • MollyGodiva||

    The internet has always been network neutral and net neutrality was a central component of the internet from the beginning (even if the name "net neutrality" was in use). It was that neutrality that lead to the internet that we know today and allowed companies and innovation to thrive by providing every company an equal change to reach their customers. Thus the Net Neutrally regulation was put in place to preserve the status quo.

    In the early 2010's, the consolidation of ISPs began to worry people, with the fear that decreased ISP competition would lead to ISPs to mess with internet traffic in order to boost their bottom line. This did happen in a few isolated cases. I don't want Comcast dictating what websites I can visit, or degrade the speed of websites in order to coerce me to use the sites of their business partners. The lack of Net Neutrality is what would stifle innovation on the internet, not the regulations.

    Also note that historically a similar issue arose with phones. In 1968 the FCC issued Order 13 F.C.C.2d 420 which allowed consumers to connect any compatible device to the telephone network. This was fought hard by AT&T but paved the way for fax machines, answering machines and modems to flourish, which helped give us the internet that we have today.

    The Net Neutrality order is about protecting the free market on the internet from ISPs. Who knows what innovations would not arise if we lose net neutrality.

  • BYODB||

    Tell me this, what could AT&T have done to prevent people from plugging in an answering machine, modem, or fax machine? Listen in on every phone conversation in the nation and search everyone's house with a phone?

    I think you're full of crap that those innovations were a result of the FCC.

  • ||

    Can't speak to here in the US but in the UK the government regulators had rules that prevent households from tampering with their telephone connections without professional services. As with other ex-nationalized entities British Telecom benefited by having customers engage 'professional' contractors in order to connect 'approved' devices to the network.

    In answer to your question "what could AT&T have done ... " probably nothing, with the exception in the event of some problem with your service they could fuck with you if they discovered, via a home visit for example, that you connected your own fax.

    In this context Comcast tried the same shit a few years ago when they sold a 'Home Network Service' - namely a rented router. I read on the internet that the ISP cannot tell if you have a router as, to them, it looks like a PC; so that Comcast service went away but if there are support issues the tele-tech will ask if one has 'router' device - an Apple Time Capsule in my case - and, if so, disconnected from the network before troubleshooting can proceed.

    From experience the Apple device is quite capable of resolving Comcast network on by itself. :-)

  • MollyGodiva||

    I gave you the specific reference. You should have brushed up on your history first. Back then AT&T prohibited any device that they did not sell or rent to attach to their phone lines. The commercial proliferation of answering machines, faxes, modems, and even the module telephone jack happened after 1968 because of the ability for consumers to use those products. This is undisputed history.

    Now, you could argue that as a private company, AT&T should have been able to control everything, and that would be your political opinion, but don't deny history.

  • BYODB||

    'Paved the way' is possible, yet it's odd that you use an example of a public utility causing drama in an example of why the Internet needs to become a public utility considering said public utility was in fact already a public utility.

    What about the FCC's 2008 decision that was a reversal of that previous 1968 ruling? The same FCC we're talking about now?

    I call bullshit because you can't draw a causal relationship. You can not know if, sans that ruling, AT&T wouldn't have developed said technologies on their own on their network. I fully admit that looking at history backwards it's easy to make such claims, but it assumes a lot and gives far too much credit to Federal regulators given the years between the development of those technologies and that particular ruling. Perhaps 'bullshit' is too strong a word? I'll admit to that.

    The government just doesn't like markets that they don't have their boot on and the one's they do have their boot on are allowed more regulatory deference, shall we say.

  • MollyGodiva||

    The 2008 FCC decision was not a reversal of the 1968 ruling, they just declined to extend the same logic to wireless networks. I think that had the FCC gone the other way in 2008 and denied the wireless companies veto power over devices we would have had some pretty amazing developments in wireless communications.

  • Microaggressor||

    That's some nice revisionist history you've got there.

    The reason you think we've had net neutrality all this time is because competitive pressure makes it bad business to do what you're afraid of Comcast doing, consolidation notwithstanding. The reality is we haven't. There are lots of different types of services that would be technically impossible without traffic prioritization, but I wouldn't expect random internet fucktard to know that.

    The ironic thing is, net neutrality imposed as stated would achieve just what its proponents are afraid of. It would cripple the development and expansion of infrastructure, and put an end to innovation because you'd no longer be free to experiment with technologies that depend on traffic prioritization. You literally just said "Net Neutrally regulation was put in place to preserve the status quo." How can you have innovation when the status quo is frozen in place? These goals are in conflict.

  • MollyGodiva||

    You are confusing the cause for the effect. The internet was neutral before there were any businesses online. The internet was born neutral. You are also confusing essential network management, such as briefly delaying e-mail or large downloads in favor of real-time audio or video, with a company degrading service for commercial reasons.

  • Sevo||

    MollyGodiva|5.18.17 @ 7:25PM|#
    "...The internet was neutral before there were any businesses online. The internet was born neutral...."

    Yes, and that is not any sort of argument that it should remain so.

    "You are also confusing essential network management, such as briefly delaying e-mail or large downloads in favor of real-time audio or video, with a company degrading service for commercial reasons."
    Got any evidence of any company 'degrading' service?

  • NotAnotherSkippy||

    What a crock of shit. Exchanges are not required to accept as peers all comers.

    On the topic of peering, there are two types of exchanges: public and private.

    A public exchange will allow most anyone to become a member. Public peering doesn't imply that you all of a sudden get free routes to every ISP that's on the exchange; rather it simply means that you can connect to the exchange, sometimes for free. One very popular exchange is the SIX, or Seattle Internet Exchange. If you are already a tenant of the Westin building in Seattle, you can pay them to patch you into the SIX closet. Once you get an IP from the SIX operator, you're on. After that, however, you must form peering arrangements with the other BGP speakers in the exchange.

    ...
    Then there's private peering.

    Most public exchanges have 100Mb or 1Gb connections participants can connect to. If you're a very large ISP, you need (many) 10Gb links to handle all your traffic. The problem is that public exchanges don't normally have the funds to provide this type of service reliably. Private peering provides an SLA (service level agreement), and most of the time that comes with better hardware to handle the traffic.

    Holy shit, Netman, that's not FAIR! How dare you keep me out of your exchange!!! NETZ NEWTRALS!

  • MollyGodiva||

    I am not talking about exchanges. I am talking about the control that an ISP has over the websites that the home consumer visits.

  • Brendan||

    What control is that?

  • Sevo||

    Prolly the same one where the EVUL KORPURSHUNS eat the chillunz.
    Molly seems to toss a lot of unsupported shit around like trueman, except trueman knows his shit won't fly here anymore.
    Molly, got any more bullshit to sling?

  • Sevo||

    MollyGodiva|5.18.17 @ 4:57PM|#
    "...Thus the Net Neutrally regulation was put in place to preserve the status quo."

    Yep, gotta make sure those buggy whips have a market.
    Are you familiar with Ned Ludd?

  • Brandybuck||

    Listened to the Reason podcast with Pai, and he makes a like of sense. There's no reason the FCC is in charge of the internet and every reason that the FTC should be in charge of the very few areas where it makes sense to have some government oversight.

    This is NOT Ma Bell, and should not be treated as Ma Bell.

    You simply cannot regulate an ever changing network of wireless connections in the same way you regulate a mandated monopoly network of fixed copper wires.

  • BYODB||

    The whole logic of putting the FCC in place was because of the very method that radio uses for distribution, which is wholly ludicrous for something that transmits through a fiber optic cable. Sure, Wi-Fi is a thing but it's encoded for hundreds of very good reasons, and frankly even radio itself works that way today.


    So this never made sense, but if the government see's a shiny it wants it.

  • MollyGodiva||

    It is so odd that this site is anti-neutrality since net neutrality is a great example of the the free market in action benefiting companies and consumers alike. It is what made the internet great. Why throw all that away for the financial benefit of a few large companies?

    Government regulation is not always bad. I see that the religion of anti-regulation is getting in the way of good public policy that has a history of working.

  • Sevo||

    MollyGodiva|5.18.17 @ 10:04PM|#
    "It is so odd that this site is anti-neutrality since net neutrality is a great example of the the free market in action benefiting companies and consumers alike."

    What a steaming pile of crap!
    Yes, government price-fixing is a great example of a "free market"!
    I'll bet you're all for "free speech", BUT...

  • George J. Dance||

    "After the public comment period closes, the FCC will be able to vote on revering those claims"

    Does this have something to do with the Cult of the Omnipotent State?

  • josh||

    I've heard many perverted arguments about why net neutrality should stay, and perhaps my favorite is that the government had to intervene to keep the government from intervening too much. If you don't want politicians making decisions about what you see on the internet, then we need more government involvement. I'm barely literate on this issue and about the only thing those kinds of arguments make in favor of is abortion.

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