Net Neutrality is Now Deader than Dead

Comcast won a major legal case it filed against the FCC regarding Comcast’s attempt to throttle BitTorrent traffic on their network. The FCC fined Comcast on the grounds that it violated their net neutrality policy, and Comcast took them to court arguing that not only were they wrong to regulate internet data on the grounds of net neutrality, they actually didn’t have the authority to regulate the internet at all because even the FCC has said that the internet is not a telecommunication service and nothing in the Communications Acts says otherwise.

The FCC countered that the doctrine of “ancillary authority” granted them such powers even though the regulating law, the Communications Act, did not:

It is in itself a remarkable legal theory, allowing a regulatory agency to act in areas where there is no grant of authority, simply because it is related to an area in which authority has been granted.   In a very real sense, it is a “horseshoes and hand grenades” doctrine, in which close is good enough to count. Even within the framework of ancillary jurisdiction, however, the case for jurisdiction in this case is startlingly tenuous and dangerously broad. (For an excellent analysis of the problems, see James Speta’s new study here.)

[From Horseshoes, Hand Grenades, and the FCC: Will the D.C. Circuit Ground Net Neutrality Rules?]

What this means more broadly is that any notion of the FCC imposing net neutrality rules on it’s own accord is now dead… deader than dead. The Federal Appeals Court has definitively ruled that the FCC doesn’t have the power to regulate the internet and it must go to Congress in order to get that authority or reverse it’s own decisions regarding what the internet is and opening up a whole new Pandora’s Box.

The spin doctoring of this opinion will now commence. But it is very hard to see how the NPRM can go forward—or survive even the briefest of legal challenges should the FCC simply do so—given this ruling. The FCC could try to appeal to the U.S. Supreme Court or go back to Congress for explicit authority to issue net neutrality rules. As I’ve written earlier, the FCC could also try to reclassify Internet services under the common carrier rules of Title II, where it has extensive regulatory powers.

[From A Few Words on Comcast v. FCC: Net Neutrality Neutralized | Larry Downes]

Whether or not we agree with the decision we should find common ground in the concept that regulatory agencies must be restrained to what Congress originally intended and where there is ambiguity due to the evolution of technology and society Congress must act to expand or restrain agency powers as a matter of law rather than the agency itself expanding it’s own powers by fiat. Doesn’t matter whether we are talking about the FCC, EPA, or SEC, Congress must do the job required of it by the Constitution.

FCC admits CableCARD a failure

Yep, total failure. There is no real 3rd party marketplace for CableCARDs and what the network operators provide is limited in functionality while costing the same as a set top box (e.g. Comcrap’s CableCARD doesn’t support on demand). On top of everything else, the signal processing capabilities in the CableCARDs was suspect, in my own experience I found the image to be highly pixelated compared to set top boxes.

CableCARD was supposed to be the fix, but it was slow to deploy, was never widely supported, and had huge limitations. Early versions of the host spec supported only one-way access, so electronic program guides, video-on-demand, and other two-way services didn’t function. The FCC then tried to force the industry’s hand, all but demanding innovation by requiring cable operators to use CableCARDs even inside their own leased set-top boxes, just to level the playing field.

[From FCC admits CableCARD a failure, vows to try something else]

The cable industry has a boot to the neck of consumers and Comcast in particular is intent on having a piece of it’s equipment between every television and cable end on their network. As I wrote here, they have been successful in dismantling the very notion of “basic cable” and it was one of the reasons why I dumped them for Directv.

With the tech industry preoccupied with the FCC regulating the internet I am concerned that cable companies will use the time to tighten their stranglehold on customers. Given the way that licensing works these companies are operating regional monopolies with government stamps of approval yet there is little in the way of on the ground regulatory action that is intended to increase competition. As convergence between the Internet and television draws nearer this is not a good set of conditions to deliver innovation in, and with Comcast acquiring content networks there is much to be concerned about.

Internet Regulations Coming

One sobering thought to think about while you are celebrating the FCC’s decision to move forward with net neutrality regulations is that for the first time the FCC is asserting itself as the authority to regulate how the web is governed.

With Thursday’s vote, the five-member panel began the process to move forward with the regulations announced last month by the agency’s chairman, Juilus Genachowski. His proposal would formally codify the FCC’s four existing principles, intended to prevent Internet service providers from giving preferential treatment to certain content and services. He also proposed two additional principles: one to ensure providers do not discriminate between applications; and another to require Internet companies to disclose their network management practices to consumers.

[From On 5-0 vote, agency moves ahead in push to regulate Internet – TheHill.com]

If I am incorrect I would appreciate hearing about it, but to my knowledge all regulatory action to date involving the internet has been specifically targeted at commerce activities that are potentially fraudulent, data privacy (or lack thereof it would seem at times), technical aspects, and specific speech, such as SEC regulations on company disclosure. VoIP has been another focus of regulation but that would appear to be an extension of their traditional focus on telecommunications more so than Internet regulation.

I am a proponent of net neutrality but in the pit of my stomach I have a strong fear that now that the FCC has determined they can broadly regulate the relationship between internet technical service providers and content providers that they will have a reflexive desire to overreach much like the FTC did with their much maligned “guidelines” for bloggers and advertisers. There is one absolute truth about Washington D.C. and that is the desire for turf knows no bounds and once authority has been established it is fully exercised and rarely relinquished.

I simply hope that now that we have achieved what has long been desired with net neutrality that we won’t ultimately regret it.

Comcast Stacks F.C.C. Hearing

Consider this: One side in the debate actually went to the trouble of hiring people off the street to pack a Federal Communications Commission meeting yesterday—and effectively keep some of its opponents out of the room.

Broadband giant Comcast—the subject of the F.C.C. hearing on network neutrality at the Harvard Law School, in Cambridge, Massachusetts—acknowledged that it did exactly that.

Comcast spokeswoman Jennifer Khoury said that the company paid some people to arrive early and hold places in the queue for local Comcast employees who wanted to attend the hearing.

[From Comcast F.C.C. Hearing Strategy – Portfolio.com]

As if hiring people to warm seats in the hearing for Comcast employees is better than hiring people who don’t care about the issue to sit in the hearing. Equally unfair would be not allowing Comcast employees to attend a public hearing to begin with but a company willfully attempting to suppress the voices of it’s critics in a government hearing is intensely troubling.