Dreadwinter wrote:
That is a lot of hot air.

Muni broadband providers don’t want to face common carrier rules
Small ISPs have no incentive to interfere with Internet traffic, they argue.

It's no secret that the big Internet providers like Comcast, AT&T, and Verizon oppose a move toward heavier Internet regulation.
But many smaller providers don't want stricter rules, either. Today, 43 municipal broadband providers asked the Federal Communications Commission to avoid reclassifying them as common carriers, a move that would expose them to net neutrality rules and potentially other requirements under Title II of the Communications Act.

Municipal broadband providers have mixed feelings about the policies of President Obama and FCC Chairman Tom Wheeler. Obama and Wheeler are planning to eliminate state laws that restrict growth of municipal broadband networks, a move that is opposed by the big private ISPs but supported by the municipal broadband providers.

But at least a few dozen municipal broadband providers oppose Title II regulation, including Cedar Falls Utilities in Iowa, which recently hosted Obama when he was arguing against anti-municipal broadband laws. The 43 signers of the letter included Cedar Falls, though it did not include two municipal broadband providers in Tennessee and North Carolina that have asked the FCC to preempt state laws.

"The undersigned, municipal providers of broadband Internet access service, are strong supporters of net neutrality and an open Internet but are staunchly opposed, like other, small and medium-sized Internet service providers (ISPs) who are privately held, to the reclassification and regulation of this service as common carriage under Title II of the Communications Act," the 43 providers wrote to the FCC.

If the commission does reclassify broadband under Title II, it should exempt small and medium-sized providers "from any new and enhanced transparency obligations; and ensure smaller ISPs that utilize poles that are subject to the cable rate formula are not forced into paying higher fees based on the telecommunications rate," they wrote.

"As smaller ISPs, we do not have an incentive to harm the openness of the Internet," they continued. "All of the undersigned face competition from one or more wireline ISPs, and we compete hard to attract and serve customers who would depart to our competitors if we engage in any business practices that interfere with their Internet experience."

Although Wheeler says he does not intend to impose rate regulation, tariff requirements, or last-mile unbundling, the providers said this is "cold comfort."

"The Commission has in the past imposed structural separations, service unbundling and resale obligations under Sections 201 and 202, and this Commission cannot bind the actions of a future Commission should it wish to institute rate regulation, tariffing, unbundling or any other form of before-the-fact regulation, creating deep and lasting regulatory uncertainty," they wrote. "Moreover, even this Commission will be obligated to respond to complaints about rates or seeking open access to facilities by third-party providers."

In making the case for Title II, Wheeler claimed that small Internet providers "have all come in and said, 'we like Title II, we hope you’ll do Title II.’”

The American Cable Association (ACA), which represents more than 900 small and medium-sized providers, including 100 municipal providers, begs to differ.

"ACA applauds the 43 municipal broadband Internet providers that are also ACA members for speaking out about the harms of Title II reclassification for smaller ISPs," CEO Matthew Polka said in an announcement today. "ACA agrees with their clear message that the FCC Chairman should make changes to the order to accommodate these concerns before the scheduled vote on Feb. 26.”

Google warns FCC plan could help ISPs charge senders of Web traffic

Net neutrality plan could have unintended consequences, Google argues.

Google is warning that the Federal Communications Commission's net neutrality plan could have unintended consequences that help Internet service providers charge Web services for sending traffic.

FCC Chairman Tom Wheeler's plan would reclassify broadband providers as common carriers on two fronts, in the service they provide home Internet customers and their relationships with "edge providers," companies like Netflix that offer content to consumers over the Internet. Classifying the ISP-edge provider relationship is, in the FCC's way of thinking, supposed to provide additional authority so the commission can intervene when an edge provider claims it is being treated unfairly.

But Google says that giving the ISP-edge provider relationships a new classification could actually make it easier for Internet providers to charge edge providers for the right to send traffic to consumers.

"[T]his issue must be viewed in light of the efforts by some ISPs, particularly abroad, to claim that they provide a service to content providers for which they should be able to charge under a 'sender pays' model—while still charging their retail customers for the same traffic," Google Communications Law Director Austin Schlick wrote in a filing with the FCC. "To the extent the Commission encourages the falsehood that ISPs offer two overlapping access services instead of just one, or the fiction that edge providers are customers of terminating ISPs when they deliver content to the Internet, it may encourage such attempts at double-recovery. That could do serious, long-term harm to the virtuous circle of Internet innovation, thus greatly undermining the benefit of adopting net neutrality rules."

Google is making an argument similar to one put forth by the advocacy group Free Press, which said that classifying the ISP-edge provider connection as a common carrier service is a legally dicey strategy. The FCC's goal is to be able to intervene in interconnection disputes that harm Internet service quality. But both Free Press and Google argue that the FCC can oversee interconnection simply by reclassifying consumer broadband as a common carrier service.

It is not "necessary to imagine a non-existent service in order to reach ISPs’ interconnection practices," Google told the FCC. "Should the Commission classify end-user broadband Internet access as a telecommunications service subject to Title II [of the Communications Act], that classification alone would enable the Commission to ensure that ISPs’ interconnection practices are just and reasonable. As noted, for instance, Section 201(b) requires just and reasonable practices 'for and in connection with such communication service.' If an ISP’s intentional port congestion or other interconnection practices denied end-user customers the full benefit of the two-way service they have purchased, then the Commission could take enforcement action."

Interconnection is when two network providers, or an edge provider and an ISP, exchange traffic directly without a middleman. These transfers can happen with or without payment. This type of paid traffic transfer is different from "paid prioritization" deals prohibited by the net neutrality proposal, because interconnection doesn't speed traffic up after it enters the ISP's network. But interconnection can greatly improve performance because it provides a dedicated path into the ISP's network.

Interconnection became part of the net neutrality debate only after a dispute between Netflix and ISPs caused consumers to have poor Netflix service for months, until Netflix relented and paid for direct network connections. The FCC is not proposing a ban on interconnection payments outright, but it wants to set up a complaint process in which edge providers could argue that they are being overcharged or that ISPs aren't upgrading capacity quickly enough.

Google, which is both a content provider and an ISP, has argued that companies like Netflix should not have to pay for interconnection. But the FCC's approach to interconnection is flawed, Google argued.

"Informal, settlement-free peering is the norm because it minimizes transaction costs and reflects the mutual benefit both parties receive from interconnection," Google wrote. "Google has entered into peering arrangements with some of the largest US broadband providers insofar as we are unable to use transit to reach users on those networks with reasonable quality. These arrangements are individually negotiated, however, so they could not support classification of a common carriage service provided to Google or any other edge provider."

FCC: We’re doing this “just in case”

Google acknowledged that the FCC appears to be reacting to the court ruling that vacated the commission's previous net neutrality rules.

"The impetus for seeking to classify a non-existent edge provider service appears to be language in the DC Circuit’s Verizon decision," Google wrote. "There, the Court of Appeals opined, without reference to any evidence, that 'broadband providers furnish a service to edge providers, thus undoubtedly functioning as edge providers’ ‘carriers.’ The Commission and the Department of Justice had argued to the contrary, correctly advising the Court that this view 'misstates... the nature of Internet access service.'"

The FCC "should not assume that the DC Circuit’s prior view will be the last word in future litigation," Google wrote.

The FCC seems to be hedging its bets in an attempt to survive court challenges. In a summary of Wheeler's proposal, the FCC said that reclassifying retail broadband should be enough to enforce net neutrality rules.

"But just in case, we also make clear that if a court finds that it is necessary to classify the service that broadband providers make available to 'edge providers,' it too is a Title II telecommunications service," the FCC said. "[B]oth the service to the end user and to the edge provider are classified under Title II."

A spokesperson for Wheeler declined to comment when contacted by Ars today. The commission is scheduled to vote on the net neutrality plan Thursday this week. Although we have a summary of the proposal, the FCC is not releasing the entire plan until after the vote, as is consistent with past practice.

A Democrat on the Federal Communications Commission wants to see changes that could narrow the scope of new net neutrality rules set for a vote on Thursday.

Mignon Clyburn, one of three Democrats on the FCC, has asked Chairman Tom Wheeler to roll back some of his provisions before the full commission votes on them, FCC officials said.

The request — which Wheeler has yet to respond to — puts the chairman in the awkward position of having to either roll back his proposals, or defend the tough rules and convince Clyburn to back down.

It’s an ironic spot for Wheeler, who for months was considered to be favoring weaker rules than those pushed for by his fellow Democrats, before he reversed himself and backed tougher restrictions on Internet service providers.

Clyburn’s objections complicate the highly anticipated vote and add an extra bit of drama to the already high tensions on the five-member commission.

Wheeler will need the votes of both Clyburn and Democratic Commissioner Jessica Rosenworcel to pass the rules, since the two Republicans on the commission are expected to vote against anything he proposes.

Clyburn’s changes would leave in place the central and most controversial component of Wheeler’s rules — the notion that broadband Internet service should be reclassified so that it can be treated as a telecommunications service under Title II of the Communications Act, similar to utilities like phone lines.

Proponents of net neutrality have said such a move is the surest way to prevent Internet service providers from interfering with people’s access to the Web.

However, she wants to eliminate a new legal category of “broadband subscriber access services,” created as an additional point of legal authority for the FCC to monitor the ways companies hand off traffic on the back end of the Internet.

Those deals, known as “interconnection” arrangements, became a point of contention last year, when Netflix accused Comcast and other companies of erecting “Internet tolls” before easily passing Web traffic from one network to another.

The initial plan sought by Wheeler would allow the FCC to investigate and take action against deals that are “not just and reasonable,” according to a fact sheet released by the commission earlier this month.

Eliminating the new legal category could make it trickier for the FCC to police those arrangements, said officials with the agency, who were granted anonymity in order to speak freely about the ongoing negotiations.

Other FCC officials have previously said that the broader act of reclassifying broadband Internet service would, in and of itself, give the commission enough power to oversee interconnection deals. That opinion has been backed up by lawyers at Google, among others, who made the argument to FCC officials last week.

Matt Wood, the policy director at the pro-net neutrality organization Free Press, disagreed with officials who thought the change could weaken the rule. Clyburn’s edit might actually make the rules stronger by getting rid of “unnecessary baggage” in Wheeler’s early draft, he said.

Clyburn’s changes also would replace a new standard for Internet service providers’ conduct, which was meant to act as a catchall rule for any future behavior that might abuse consumers. That standard would be swapped out with potentially narrower language from 2010 rules that prevented “unreasonable discrimination.” A federal court tossed out those 2010 rules early last year, setting the stage for the FCC to write new rules.

The full text of the rules will not be revealed to the public until after the FCC’s vote on Thursday morning.

Clyburn declined to discuss specific changes she was supporting on Tuesday.

“This is a process that is an interaction with all five members of the commission and their offices,” she said after remarks at a policy forum hosted by Comptel, a trade group.

“I will just say that I am attempting to strike a balance and whatever you hear, whether it’s accurate or not, is a reflection of my enthusiastic willingness to do so.”

In a speech at the Federal Communications Bar Association last week, the commissioner said that she was “pleased” with the initial draft but also hinted that she might need some fixes to strike that balance between “strong” protections for consumers and “clarity” for investors.

“Some have expressed concerns about allowing private rights of action in court, failing to consider the impact on smaller [Internet service providers], that including interconnection goes too far or that the case-by-case approach does not go far enough, and that the new conduct rule may not be as strong as the previous unreasonable discrimination rule,” she said.

The requested changes come as FCC lawyers are spending hours poring over the text of the rules.

In keeping with FCC procedural rules, the four other commissioners got their first look at the rules just two and a half weeks ago outside of Wheeler’s office. Now they are scrambling to make edits ahead of the vote on Thursday morning.

Corynne McSherry wrote:Dear FCC: Rethink The Vague "General Conduct" Rule

For many months, EFF has been working with a broad coalition of advocates to persuade the Federal Communications Commission to adopt new Open Internet rules that would survive legal scrutiny and actually help protect the Open Internet. Our message has been clear from the beginning: the FCC has a role to play, but its role must be firmly bounded.

Two weeks ago, we learned that we had likely managed the first goal—the FCC is going to do the right thing and reclassify broadband as a telecommunications service, giving it the ability to make new, meaningful Open Internet rules. But we are deeply concerned that the FCC’s new rules will include a provision that sounds like a recipe for overreach and confusion: the so-called “general conduct rule.”

According to the FCC's own "Fact Sheet," the proposed rule will allow the FCC to review (and presumably punish) non-neutral practices that may “harm” consumers or edge providers. Late last week, as the window for public comment was closing, EFF filed a letter with the FCC urging it to clarify and sharply limit the scope of any “general conduct” provision:

[T]he Commission should use its Title II authority to engage in light-touch regulation, taking great care to adhere to clear, targeted, and transparent rules. A “general conduct rule,” applied on a case-by- case basis with the only touchstone being whether a given practice “harms” consumers or edge providers, may lead to years of expensive litigation to determine the meaning of “harm” (for those who can afford to engage in it). What is worse, it could be abused by a future Commission to target legitimate practices that offer significant benefits to the public . . .

Accordingly, if the Commission intends to adopt a “general conduct rule” it should spell out, in advance, the contours and limits of that rule, and clarify that the rule shall be applied only in specific circumstances.

Unfortunately, if a recent report from Reuters is correct, the general conduct rule will be anything but clear. The FCC will evaluate “harm” based on consideration of seven factors: impact on competition; impact on innovation; impact on free expression; impact on broadband deployment and investments; whether the actions in question are specific to some applications and not others; whether they comply with industry best standards and practices; and whether they take place without the awareness of the end-user, the Internet subscriber.

There are several problems with this approach. First, it suggests that the FCC believes it has broad authority to pursue any number of practices—hardly the narrow, light-touch approach we need to protect the open Internet. Second, we worry that this rule will be extremely expensive in practice, because anyone wanting to bring a complaint will be hard-pressed to predict whether they will succeed. For example, how will the Commission determine “industry best standards and practices”? As a practical matter, it is likely that only companies that can afford years of litigation to answer these questions will be able to rely on the rule at all. Third, a multi-factor test gives the FCC an awful lot of discretion, potentially giving an unfair advantage to parties with insider influence.

We are days away from a final vote, and it appears that many of the proposed rules will make sense for the Internet. Based on what we know so far, however, the general conduct proposal may not. The FCC should rethink this one.

 Frazzled wrote:
I for one welcome our new internet Overlords and am willing to rat out anyone who says otherwise.

Hey after all these are the same guys that gave us the Obamacare website. What could go wrong?

 Ouze wrote:
I'm cautiously optimistic.

 Laemos wrote:
How can your brother know if rules have not been public yet?

 whembly wrote:
Well... my brother is a network engineer at Charter... and he's been told that basically nothing changes with this proposal, since the current iteration of the implemented plan won't jack things up.