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prepare to be annoyedIn an absolutely stunning turnaround, the FCC today will propose a new set of net neutrality rules that completely eviscerate the principle of net neutrality, and threaten to “brutalize the Internet” as we know it. You can read more on the proposal, and the importance of net neutrality, here and here.

For those who haven’t been following, net neutrality is the idea that Internet service providers (ISPs – Comcast, Verizon, Time Warner, etc.) have to treat all traffic and all content equally. They can’t favor one site/service (ESPN and Netflix) over another (CBS and YouTube) in terms of access or speed. The idea is that consumers pay for access to the Internet, and they should be able to see whatever they want on the Internet without the ISP discriminating among those choices.

Earlier this year, a court case threw a wrench in net neutrality, and required the FCC to come up with a new rule to address the issue. My fear at the time was that ISPs would pounce on this uncertain period and start charging content-providers an extra fee to connect consumers to their site/service. A lot of folks thought those fears were unfounded. Turns out, not only were they not unfounded, the FCC is considering explicitly legitimizing the practice.

Seeing the swift and strong reaction of folks who are in favor of an open Internet (which, like, should be every single person in the world except service providers and gigantic websites/services), the FCC released a statement to try and calm fears:

There are reports that the FCC is gutting the Open Internet rule. They are flat out wrong. Tomorrow we will circulate to the Commission a new Open Internet proposal that will restore the concepts of net neutrality consistent with the court’s ruling in January. There is no ‘turnaround in policy.’ The same rules will apply to all Internet content. As with the original Open Internet rules, and consistent with the court’s decision, behavior that harms consumers or competition will not be permitted.

That’s all well and good, but that’s a separate issue. No one fears that the FCC would actually allow ISPs to flat-out block certain content discriminately. The fear is that, if you allow ISPs to negotiate agreements that favor some traffic over others, the end result is discrimination against sites/services that can’t afford the price of that artificial poker.

Imagine that ISPs are the highway, and consumers are seeking to drive on that highway. You pay the ISP to get on the highway, and you can exit at whatever business you’d like. Now, ISPs want the right to charge those business for allowing you, the consumer, to exit at their stop. McDonald’s will easily (if begrudgingly) be able to pay that fee, and they will keep their customers exiting for their McGriddles. Mom ‘n Pop’s Bakery can’t afford the fee. Under these proposed rules, the ISP highway couldn’t stop you from exiting at Mom ‘n Pop’s, but they could install a traffic light at the exit that allows only one car through every hour. If that happened, how often would you actually go to Mom ‘n Pop’s?

In the Internet ecosystem, if things played out that way, the impact for consumers (and, obviously, sites like this one) could be devastating. For one thing, the content providers that agree to pay the fee to various ISPs so that their sites stay in the “fast lane” will inevitably pass those fees on to consumers. For another thing, content providers that cannot afford to pay such fees could suffer from reduced site effectiveness, reduced traffic, reduced profitability, etc. If and when that happens, new sites and services stop popping up. You know what’s good for consumers? Competition. You know what would suck? If we operated in a world where Twitter was squashed in the womb because it couldn’t afford to get going in a way that actually drew interest. There will be no next Netflix or next Facebook (and, indeed, big boys like that will lose some of their incentive to keep improving and innovating).

Allowing ISPs to favor some content over others – and, believe me, if they’re permitted to do it, they will, because money – will benefit two groups, and only two groups: ISPs who can then making money coming (you paying for service) and going (companies paying for access to you), and large sites/services that can afford to pay for the fast lane (and thus bleed out their competition). Among the groups that are hurt: consumers (who will face more fees, less choice, and less innovative services), small sites/services that can’t afford to pay (yo), and yet-unstarted sites and services that will find the barrier to entry now too steep to even try and climb (i.e., the next Netflix or Twitter or whatever).

The problem? The benefited groups are large and have significant lobbying power. The harmed groups are small (or don’t exist yet), and have no meaningful lobbying power.

If you are a user of the Internet – that’s not just websites, but it’s apps and services, too – you should care about this issue. And, from where I sit, you should want strong net neutrality.

UPDATE: A little from Boing Boing, and how to contact someone relevant to whom you can register a complaint:

  • JonKneeV

    So, using the highway analogy, they are trying to install toll roads? Chicagoans are plenty familiar with that.

    • http://www.friendly-confines.com hansman

      Not really.

      The ISPs are telling everyone they are going to put up traffic lights at each exit (website) and businesses can pay to allow the traffic lights to:

      1. Always be green (Serious money)
      2. Be green most of the time (a lot of money)
      3. Turn green whenever the hell it feels like (like most traffic lights when I am late for work) (no charge)

      Ultimately, every business is accesible/equal but some are more accessable/equal than others.

    • http://www.teamfums.org MichiganGoat

      It more than a toll you already pay that now if you want to stop somewhere in the highway it’s horribly inconvenient as compared just stopping at McD for coffee or ESPN for sports news. You can also look at the highway like this: every site gets lanes where customers can travel 35mph while big companies can pay extra to have lanes that travel at 55, 70, 100mph making it quicker for customers.

      It’s just bad bad bad.

  • http://www.friendly-confines.com hansman

    “The harmed groups are small (or don’t exist yet), and have no meaningful lobbying power.”

    It’s an election year, call up congressmen and senators.

    It worked in 2009 when folks wanted to squash amnesty for illegals. It worked for SOPA.

    Sadly, it probably wont work forever but we can at least kick the can down the road again.

    • http://www.bleachernation.com Brett

      Unfortunately, I don’t see a SOPA parallel here – many of the big boys were actively against SOPA. Here, I think they’ll be quietly in favor of reduced neutrality.

      • http://www.teamfums.org MichiganGoat

        As long as the people paging the campaign support this it won’t get challenged, but it will be promised in campaigns.

      • http://www.friendly-confines.com hansman

        Just trying to think of items that had a giant upswelling of public outcry that got something shot down.

        • http://www.teamfums.org MichiganGoat

          Sadly I think the average internet user doesn’t care, they have their major sites and are happy as long as those are easy to access. ESPN is successful because so many people just don’t care they now that is where to go for sports news. We are a minority population.

          • http://www.friendly-confines.com hansman

            “We are a minority population.”

            Hasn’t stopped a lot of groups from getting their way by being vocal.

            • CubFan Paul

              There’s probably a whitehouse .gov petition…

              • http://www.bleachernation.com Luke

                There was when the courts struck down the previous rules a few months back, and the Whitehouse responded.

                Basically, they gave a blanket endorsement to the actions of the FCC and said we have nothing to worry about.

          • Cizzle

            It does not take a majority to prevail… but rather an irate, tireless minority, keen on setting brushfires of freedom in the minds of men. – Samuel Adams. What a guy, and he still had time to make some damn good beer.

  • http://www.bleachernation.com Luke

    With any luck the FCC will add language to turn this from a disaster into simply a bad thing. But I really don’t expect it.

  • dreese

    Is there anything we can do?

    Sign a petition or something

    • http://www.bleachernation.com Luke

      Not much. The FCC is appointed, and looking at the resumes of those currently on the FCC, it seems likely that those doing the appointing would consider this sort of action to be acceptable.

      We’ll probably be dismissed as alarmists who should just trust that the FCC will take care of us.

      • Cubbie in NC

        If you like your internet you can keep it.

  • http://www.teamfums.org MichiganGoat

    Well this is just a shitty 24 hours… guess I take the kiddos to Founders at least they don’t slap me around. ;)

  • JulioZuleta

    I’ll freely admit I don’t quite grasp all of the potential implications, but is this something that could be challenged on free speech grounds?

    • http://www.teamfums.org MichiganGoat

      Expect nobody is being silenced, anybody can pay for the extra speed their freedoms are not being attacked. If anything this could become a anti-trust/monopoly issue- the big boys are harming the free market and competition.

    • http://www.bleachernation.com Luke

      I don’t think so. No one is being punished for saying anything (with “saying” covering the gamut of means of distributing information on the Internet, and “information” including all things on the Internet).

      I’d be interested to see an expert weigh in on that front, but right now I have a hard time imagining how such a first amendment challenge would be phrased.

    • http://www.friendly-confines.com hansman

      Not really.

      The government isn’t the one that would be limiting anything. It’s all on the backs of the ISPs. Since they are private companies, they could, in theory, shut down all websites that promote Facism and it wouldn’t fall under the 1st Amendment.

      However, according to the FCC, they wouldn’t allow that to happen.

      • JulioZuleta

        But the government act is the passing of the law that would allow it. To me, this isn’t analogous to Cable providers that choose to carry certain channels/charge more for them (I’ve seen that analogy in other articles on the topic). Subscribers don’t speak/communicate/express themselves through television in any legally significant manner (in my opinion). The same can’t be said about the internet, obviously. I’m no expert, but I feel like there might be a fighting chance.

        Unexpected side benefit- I may have just been served my next Law Review topic on a silver platter.

        • http://www.friendly-confines.com hansman

          I think it would be viewed no less than Brett banhammering someone.

          The government is saying “You must allow all to pass…but feel free to give some folks a Segway”.

          It’d be a tough argument to win.

          • MattM

            Hansman, here is the thing with that. Yes, they could say that they aren’t “stopping people” from viewing a site, but unless they expressly start advertising that the speeds they say they will provide at a certain price only apply to companies paying them; technically they are in breach of contract with their customers.

            And truly, what company is stupid enough to actually advertise that?

            • http://www.friendly-confines.com hansman

              Eh, companies already advertise their max speeds and you have to read deep to get to the tiers or what is an expected speed.

              The almighty “Speeds Up-To…” verbiage.

        • Karl Groucho

          Eh, you’d have to make an argument that goes very strongly against the way our telecom state currently functions. That is, you’d have to say that in some way these private actors are “public” merely by way of their natural monopoly and our regulation of it. Frankly, you’d have to say the First Amendment applies to any closely regulated body, and I don’t see it.

          (And to be clear: this isn’t “the passing of a law that would allow” discrimination. Discrimination was the natural state of things, was briefly disallowed but then found to be outside the Commission’s power, and the Commission responded by cutting out that which the court found to be improper.)

          • MattM

            Again, its going to fall back to a simple breach of contract if it happens….. Very simple actually…

  • waffle

    another thing I will be able to tell my kids I experienced way back in the day….”why, when I wanted to watch a cubs game I COULD! Really! Movies too! And it was pretty cheap and fast!”

  • Edwin

    How is this type of thing being handled in other countries?

    • http://www.friendly-confines.com hansman

      It appears the EU is enforcing net neutrality:

      http://www.extremetech.com/extreme/179762-europe-votes-to-protect-net-neutrality-abolish-mobile-data-roaming-charges

      China, on the other hand, is the Javier Baez of countries. They do what they want, when they want.

      • cubmig

        From the article link you provided:

        “There are, of course, two sides of the net neutrality coin. As a citizen/consumer, it is vitally important that the internet remains as free (in every definition of the word) as possible. For carriers, though, being a “dumb pipe” — aka a common carrier — that has no control over how people use their network is commercially a big pill to swallow. Without these carriers, many of us wouldn’t have internet access. I think it’s fair to give ISPs some control — but the problem is, if you cede some control to a commercial company, the sickeningly sweet allure of money will nearly always result in that company eventually abusing its powers and raping its customers.”

        I think this last paragraph predicts what will happen in the future. To which I might add: remember when cable tv came? We were suppose to be able to see commercial-free tv —for a price, of course. Check that out today. We are paying the cable fee—-paying more for more “packaged, non-choice” channels—AND having to sit through the commercial blocks we wanted to clear away. Viewer result: the hour has 40 minutes.

        Think too about going to the movies and how commercial ads have been forced on us. It’s all about money. And if you argue that the ads should be stopped, the response is that the price of admission will be raised.

        Internet access is headed in that same direction. I hope the FCC follows the EU proposal and keeps the internet free from those who wish to exploit it for personal gain and control.

        • Cubbie in NC

          If you look at the new proposed cable merger we already know the direction that this is going to take.

          Cable already props up stations that nobody watches by the packages that they create.

  • cubsfan08

    My immediate thought…Save Us Google Fiber!

    2nd is there has to be some heavy hitters in the “against” side. I get it that Netflix etc could gain a real competitive advantage over rivals if they have the money to take advantage, but a lot of streaming, gaming, etc companies are facing increased fees all over the place and this additional expense could easily break them. Netflix for example has their hands full with paying more for content but they basically can’t raise their prices or else customers will flee. How are they to absorb even more additional costs.

    3rd – everyone hates the cable / ISP providers. Everyone, so just on principle I hope people bitch like crazy about it

  • Karl Groucho

    The state of politics w/r/t the Internet is supremely depressing to me, and the bumbling of this issue — although not unexpected — is yet another example of our politicians’ stupidity in this area.

    The worst part? There’s no way Wheeler was appointed without Obama knowing his stance on Neutrality; and the Democrats offered Neutrality as an issue they would give up to end the government shutdown this past fall. That is to say: there’s no political will on either side that Neutrality should be a priority.

    This has been bubbling around as something of a tech/populist hot-button issue for years, but part of the reason it’s not gaining more traction is (a) as you rightly note, there’s no big player against it (as there was with SOPA/PIPA, the protests against which were, many think, largely puppeteered by Google), and (b) it’s a little too complicated to get people protesting over it (it’s not like we’re talking about inequality, but instead complex technology and the economics of regulation over it).

    That all said, I don’t know how much luck the FCC would ever have getting this done. It’s a purposefully underpowered regulator and nearly all of its attempts to get its paws on the Net have been shot down. All to say: not sure that the common carrier approach would even have worked. But the *reason* no approach would work goes back to the lack of political priority in this area; they are underpowered because there’s no priority to see things like this happen.

    Bleh.

  • Melrosepad

    Brett, I work for an ISP in Northwest Iowa and our COO travels to D.C. a bunch for lobbying for the small Telecommunication companies. I’ll try and see if I can get anything from him or my boss, the CTO, and will send it out.

  • Funn Dave

    The net neutrality conflict is one of many examples of how capitalism falters when it enters the modern, internet era. The government must either ensure that companies aren’t buying themselves unfair advantages, or find a new socioeconomic system that is more compatible with the globalized world.

    • Karl Groucho

      I am compelled to +1

  • MightyBear

    Brett, is there a net neutrality political org that we can utilize? For example, I am a proponent of online poker and follow the PPA (Poker Players Alliance) and we are constantly sending tweets and letters to our federal and state officials re our issue.

    Is there a net neutrality equivalent of the PPA or do we just have to send letters, tweets, etc on our own? Any info would be greatly appreciated and I would definitely support this issue.

  • Ill see you at Sluggers.

    As someone who works for a US Senator, my advice would be to call your Senator’s official office in DC and tell them to oppose this. If you really want to get under their skin, find out who their Chief of Staff is and ramble on the phone with them.

    • mikequinn_

      But it isn’t something they vote on, right? I mean they could go talk to the FCC, but what else they can do? The FCC is a separate entity. The White House has already said they will follow what the FCC rules.

      I’m so upset by this. I really thought when the court ruled against them, that they would do the right thing with this new rule and just give the big companies the middle finger and say they can’t charge. How naive I am…

      • Karl Groucho

        They could legislate Neutrality into existence. They could also apply political pressure on the Commission to act (although, again, I’m not sure that the Commission really has the power to do anything on this under their current charter).

        • Ill see you at Sluggers.

          Senators have the ability to raise awareness about certain issues. Rand Paul continues to attack the NSA and it’s policies, and Dianne Feinstein has also spoken out against the NSA/CIA. They can raise awareness to the issues to begin the process of legislation. ***We can also petition the White House about this matter*** Brett, let’s do it!! –> https://petitions.whitehouse.gov/

      • MattM

        I hate to get political, but here is what’s going to happen. If not in the next two years…when Hillary is in office one crazy conservative judge in the supreme court will die and we will fill it with a logical individual. I hope that crazy conservative turns out to be Scalia because he is friggen insane.

        Some well meaning customer of Comcast or Direct TV will find out that they are purposely slowing down his connection when he goes to a non paying site, and he sues. It will be appealed for years until it gets to the Supreme Court before finally being settled with a decision that enforces net neutrality.

        The main reason as I stated earlier is that Comcast or any other provider CANNOT be honest and tell customers that the speeds they offer only count when they go to certain sites and they they will be slowed when visiting non paying sites. You couldn’t sell your internet speeds for a certain price without false advertising. If they did tell people that they wouldn’t actually be paying for what they think then people wouldn’t buy anyway……

        • Karl Groucho

          To be sure, it wouldn’t be too hard to write anti-Neutrality language into your customer contracts. In fact, I’d be surprised if it hasn’t already been there for some time.

          Maybe you could make a claim for deception despite this. However, it wouldn’t strike me as judicially enforcing Neutrality as much as requiring more prominent notice of discriminatory policies.

          • MattM

            Actually, I just checked my contract and there is absolutely nothing in there about Neutrality. Furthermore, you CAN’T have a commercial that advertises a certain speed regardless and then create contracts in very small letters telling people, “oh yeah did we say that….well we lied.”

            Guaranteed the first time it happens there will be a massive class action….

            • Karl Groucho

              Yeah I just looked at the xfinity agreement online — they only touch on interruptions due to things outside of their control. Indeed, color me surprised; although it’s worth remembering that they were drafted at a time when Neutrality was (however tenuously) on the books.

              And still, the case would be about deception — not Neutrality itself. Class action or not, an ISP would simply need to make it more clear that they manipulate speeds. (Or if they think that’s too icky to publicly put forward, could just advertise different tiers of service and somewhere mention the “average speeds” of those services.) Neutrality is not judicially enforced, then, but instead age-old deception law.

              • MattM

                Correct…. The difference is that it is competitively and contractually enforced.

                If they lost customers to another carrier because they admitted to a crappier service it would change quite quickly……

                I don’t care about Neutrality per se….I care more about the advertising they would provide as well as the fact that if they did not honestly state it in their advertising….they are completely open to lawsuits…..

                • Karl Groucho

                  It’s an interesting thought re: the market getting rid of discrimination. The issues are (a) the websites your average users uses will be paying an ISP anyway, so most people won’t care, (b) saying “average speed” in advertisements is probably enough, so it’s not something that needs to get into the public eye too much, (c) this may decrease costs to consumers, making it something your average consumer is happy with anyway (e.g. “I only use Yahoo! and ESPN anyway, what do I care about discrimination against some blog?”), and (d) those who are discriminating are getting huge paydays from Netflix, Google, et al, so even losing a number of customers probably makes it the better competitive choice.

                  It’s possible that ISPs could compete on discrimination, but I doubt that it happens but among serious users who are willing to pay extra for a better Net experience.

                • bbmoney

                  I think this is an important point brought up by Matt. I’m not going to pretend to know enough about this whole topic to predict the future or try to change anyone’s opinion, so this is more of a question phrased as a statement.

                  I feel like this gives ISPs a chance to differentiate themselves which could limit some of the negative impacts of content providers being able to purchase faster delivery. As in customers might choose ISPs that don’t do this, even perhaps at a bit of premium. My concern is the size of the ISP market (# of competitors), the barriers to entry in that ISP market (which I would imagine are substantial …costs, etc.), won’t make it possible to have any real competition between ISPs.

                  I’m probably just too ignorant to realize that what I wrote above isn’t a real world possibility, which is why I wouldn’t mind feedback, even if it’s entirely negative. I just don’t have enough knowledge or information to really form an opinion.

                  • http://www.friendly-confines.com hansman

                    The barriers to entry would be far too great.

                    If a new ISP wanted to have a limitless internet, they’d either have to absorb all the costs themselves or lay new tubes everywhere.

                    I think.

                    • bbmoney

                      That’s kind of what I thought the response would be and why I kind of figured what I was saying isn’t really “realistic” in the actual world we live in, but only in a world where perfect competition actual exists.

                    • bbmoney

                      actually*

                    • Karl Groucho

                      Hansman is dead-on; we call these things “natural monopolies” because competition is simply not efficient; the fixed cost of entry is very high and there are only so many consumers to serve on a given network.

                      Also see my above post re: whether consumers would really even care about competition on this. I’m inclined to think most wouldn’t blink at it.

                    • bbmoney

                      Regarding whether or not most consumers care. I think you’re spot on. I’d say that’s true in most industries, at least until someone gets them riled about about negative consequences which can take a long time.

        • bbmoney

          I don’t really think you hate to go political, or you wouldn’t have. There was really no reason to. You could have made the exact same point without it.

          • DarthHater

            Yea, the first paragraph was entirely gratuitous.

        • mjhurdle

          im not sure what is sadder:
          The fact that you don’t have the ..umm…fortitude to at least admit you wanted to go political;
          or the fact that you are hoping someone dies because you disagree with their political views.

          • MattM

            Well, when you are a crazy racist psycho……Who doesn’t believe in the absolute right to vote, or basically anything true and good about our country… I dunno…. What can I say….

            • DarthHater

              No judge anywhere believes that the right to vote is absolute. One of the first sentences in pretty much every judicial decision about the right to vote says that the right is not absolute.

              • MattM

                Ok….well how about justices who don’t want to limit the right to vote based on skin color? Does that count?

                • CubsFaninMS

                  Equating skin color to “people who don’t feel like getting a totally free picture ID from the local DMV to prove who they are”… your argument is assuming that lack of intelligence or general laziness is associated with a particular minority or protected class. That, in itself, is racist. Keep politics off the board and I’ll be happy to debate this point with you elsewhere.

        • CubsFaninMS

          I hate that you went political as well.

          • MattM

            Sorry, it’s true……..

            Think about it….. The decisions made have been entirely for corporation. The supreme court thanks to Scalia is expected to give corporations the individual right to excersise religion and not provide contraception to employees in insurance as well…..

            Are corporations people?

            • bbmoney

              That CubsFaninMS hates you went political? Yeah I believe that’s true.

              The rest of it isn’t true. It’s your opinion. Which it seems like most of us don’t really care about since it’s not relevant to the Cubs or this article.

            • CubsFaninMS

              The Cubs are people.

              • http://www.friendly-confines.com hansman

                Except for bear cubs.

                They are bears.

  • cubmig
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