Ars Technica: Court: FCC had no right to sanction Comcast for P2P blocking. The FCC’s decision to sanction Comcast for its 2007 P2P blocking was overruled today by the US Court of Appeals for the DC Circuit. The question before the court was whether the FCC had the legal authority to ‘regulate an Internet service provider’s network management practice.’ According to a three-judge panel, ‘the Commission has failed to make that showing’ and the FCC’s order against Comcast is tossed.

We’re in scary territory, but it’s not a big surprise that we are.

Comcast and the other carriers will be emboldened to continue what they’ve started: the subjugation of America’s broadband future to their interests and those of their entertainment industry partners and subsidiaries. Our second-class status in broadband will soon be even worse if they get what they want: turning the Internet to a television-on-steroids system where control is in the middle, where the edges of the networks — that is you and me — do what the center tells us we may do.

The cable and phone companies have built networks from the favored position of having been government-granted monopolies. They are an effective duopoly — wireless providers can’t provide the same bandwidth and they are trapped by the oligopoly (carrier owned, to a major extent) in the backbone networks — and they are going to use it for their benefit, not ours.

This isn’t just a free-speech issue at its core. It also raises some basic economic questions; America lags further and further behind the rest of the developed world in taking advantage of broadband’s potential, and the consequences of our inaction grow more serious every year.

While I’m skeptical of all of the specific network-neutrality fixes I’ve seen so far — unintended consequences worry me — I’m absolutely freaked out at the trend. We are turning over our fundamental rights to communicate and collaborate to companies that have not earned even a semblance of trust.

The FCC’s incoherent policy-making is only partly the issue here. More important is the refusal of Congress to do its job. If only that was surprising.

Network neutrality has always been the kind of issue requiring serious engagement from the lawmakers. As they do so often, they’ve ducked and dodged, leaving it to regulators to make vital policy decisions.

Will Congress wake up? And even if it does, given our pay-to-play lawmaking environment these days, will it do the right thing? My doubts keep growing, on both counts.

7 Responses to “Net Neutrality Has Always Been Up to Lawmakers: Will They Pay Attention Now?”
  1. In my estimation, one of the challenges is in understanding who is in whose pocket. While you clearly understand the nuances of government-granted monopolies, it seems the average activist is convinced that this means taxpayer dollars, not understanding the nature of the franchise agreement. It’s my understanding these franchises obligate the cable operator to remit upwards of 10% of its revenues (not including taxes) to the licensing municipality.

    In an era when cities are wondering about which services to shut down, cable franchise fees are sacrosanct.

    As for me, I’m more concerned that we seem to be concentrating our ire on the US government and cable companies, while it appears that countries like Iran and China are increasingly asserting novel interpretations of the notion of “privacy” and “sovereign rights” even as the United Nations has tasked WGIG to reconsider what international governance of the Internet might look like. Our current inchoate view of internet taxes may come back to haunt us.

    In the meantime, though, I just traded my Palm Treo for a Palm Pre at Verizon, and I love the fact that Verizon lets me use the Pre as a wireless hotspot for free for the first 5Gb of usage. I’ve used Clear in Las Vegas and I’m excited that Sprint has indicated they are going to launch Clear in Denver later this year.

  2. bill says:

    I think we are still basically where we were before. The issue for the ISPs has always been how to keep Congress from legislating. The market is so consolidated that any legislation on Net Neutrality would undoubtedly have unintended consequences financial consequences for ISPs. As a result companies in an effort to protect their current business plans will largely maintain their current net neutral policies if only to protect themselves from the possibility of legislation.

  3. Jeffrey says:

    Here’s the thing. The last time i checked, no one was holding a gun to your head and stopping you from building your own broadband network. Want to have net neut – build your own and sell it the way you want. Good luck getting financing, but hey go for it.

    Otherwise, stop complaining that companies can do what they want with the assets they paid for. Don’t like, compete against them.

    Regards

    • Dan Gillmor says:

      Jeffrey, last time I checked, no one other than the incumbent telecom companies had the advantages they’ve had.

      Can you help me get rights-of-way that the cable and phone companies got by government edict, so I can tear up the streets and put up poles and lines and — best of all — have a captive customer base with no competition? Thanks so much. Can I then jack up rates year after year and use my profits to kind of, sort of build a broadband network? Thanks again!

      Assets they paid for? Not even close.

      • In the recent attempt to build municipal wifi, it seemed many cities in fact offered rights-of-way to companies large and small, Google and smaller entrepreneurs alike. Here in Denver we had a broadband company named Ricochet that might have had a chance to succeed were it managed by someone other than a LEC castoff. I’d also point out companies like X10 and Wirelinx, who are experimenting with reinventing broadband over power lines.

        Today most homes get passed by at least 5 broadband providers: the cable company, the wireline telco, and some combination of AT&T, Sprint, T-Mobile and Verizon. And as far as building the broadband plant, cable built the assets with debt, not by jacking up rates and allocating the surplus to pay down the build-out.

        And, if memory serves me, it was the cities themselves that came up with the brilliant idea of creating exclusive municipal contracts for cable delivery in exchange for getting a piece of the action. It saved them from the headaches of having multiple companies fight over the same conduit and gave them an ongoing source of revenue without having to raise taxes. So when the cable companies jack up the prices, the cities don’t care because that means they get a little bit more love too.

        I appreciate many of the arguments you make and the ideals you strive for, but I think it’s important to challenge many assumptions in order to get at the result you seek.

        • Brian,

          I’d be interested in where you have the information that cities ever desired exclusive contracts. To my knowledge, very few cable franchises were ever exclusive; to the contrary, I’ve heard of many cases where cities tried in vain to attract competitors as a way to improve the franchise deal. But because cable companies don’t compete with each other, cities are forced to accept the deal that the incumbent is willing to give them. As franchise terms have shifted to the state and federal levels, cities have increasingly been left at the mercy of deals made elsewhere.

          As for cities being complicit jacking up rates, even if true that only applies to cable television. Broadband, which is what we’re discussing, is exempt from franchise fees.

          Finally, most people do not have a realistic choice of five broadband carriers. While tethering over cell networks can work for some people in some circumstances (not iPhone users, for example), affordable broadband is effectively a cable/DSL duopoly, so let’s not pretend we have anything like a truly competitive market.

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