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U.S. FCC Chairman Tom Wheeler testifies before the House Communications and Technology panel on Capitol Hill in Washington December 12, 2013. REUTERS/Gary Cameron (UNITED STATES - Tags: POLITICS TRANSPORT BUSINESS TELECOMS) - RTX16FJ9
FCC Chair Tom Wheeler

Federal Communications Commission Chairman Tom Wheeler indicated this week that he still intends to enforce net neutrality rules after a three-judge panel struck down the means the FCC was using to enforce it. Those rules required that internet service providers treat all web traffic equally. The court didn't strike down the concept of that rule, just how the FCC had chosen to do it, and hinted at more than one way that the FCC could change its enforcement. Wheeler, apparently, is leaning toward a case-by-case approach.
"The court took a look at the anti-discrimination and non-blocking structure," Wheeler said at a Washington conference Tuesday, "not the concepts. ... I interpret what the court did as an invitation to us, and I intend to accept that invitation." [...]

While the agency can't lay down a blanket rule prohibiting ISPs from abusing their power, it could go after offending companies on a case-by-case basis. This is exactly what Wheeler has in mind.

"We are not reticent to say, 'Excuse me, that's anti-competitive. Excuse me, that's self dealing. Excuse me, this is consumer abuse,'" said Wheeler on Tuesday. "I'm not smart enough to know what comes next [in innovation]. But I do think we are capable of saying, 'That's not right.' And there's no hesitation to do that."

That leaves ISPs in the position of playing the odds, essentially, over whether or not the FCC is going to go after them for any given violation. That's certainly not as strong as one of the other options the court made clear was available to the FCC: reclassifying ISPs to make broadband companies fit under the same classification as other telecommunications companies the FCC regulates without question.

As EFF persuasively argues, reclassification isn't the be-all and end-all solution in part because the FCC can be somewhat arbitrary from year to year in making and enforcing rules. What's really needed is actual legislation. But legislation isn't happening any time soon (because face it, this Congress isn't doing much of anything any time soon) and will be a huge pull for activists, given the industry's influence in Congress. At this point, the best hope for net neutrality is still the FCC reclassifying ISPs and using its blanket authority to enforce it.

Originally posted to Joan McCarter on Wed Jan 29, 2014 at 12:07 PM PST.

Also republished by Daily Kos.

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Comment Preferences

  •  Tip Jar (29+ / 0-)

    "The NSA’s capability at any time could be turned around on the American people, and no American would have any privacy left, such is the capability to monitor everything. [...] There would be no place to hide."--Frank Church

    by Joan McCarter on Wed Jan 29, 2014 at 12:07:32 PM PST

  •  Net neutrality (3+ / 0-)
    Recommended by:
    enhydra lutris, Odysseus, tobendaro

    is right up there with freedom of the press and freedom of speech. We need a Congress that can recognize that and protect it as such.

    Election Day is Nov 4th, 2014 It's time for the Undo button on the 2010 Election.

    by bear83 on Wed Jan 29, 2014 at 12:23:09 PM PST

  •  A "case-by-case" basis will be the easiest (2+ / 0-)
    Recommended by:
    enhydra lutris, tobendaro

    for the Kochians to use their "divide and conquer + BIG $$$$$$$$" to make sure it is meaningless.

    Though I like the intention, we need to do far better by invoking the Constitution that states we MUST HAVE a "free press," which in 2014 = net neutrality.

    Separation of Church and State AND Corporation

    by Einsteinia on Wed Jan 29, 2014 at 12:38:05 PM PST

    •  The next 'case' won't be before a court... (0+ / 0-)

      The  'case' won't be before a Dictrict Court dominated by Bush appointees,,, next time.
      Obama just filled the 3 vacancies the R's have been blocking since the old testament.

      Nuclear Reactor = Dirty Bomb

      by olo on Thu Jan 30, 2014 at 05:48:17 PM PST

      [ Parent ]

  •  So what will happen? (1+ / 0-)
    Recommended by:

    Free market has proven predatory when left with a mandate like prevention of terrorism. Why should we trust Wheeler? Just make your case, Tom.

    •  You mean former head of the telecom lobby (1+ / 0-)
      Recommended by:

      Tom wheeler?  

      Another shitty pick by Obama forgoing the strongest action he could take in favor of the optics...

      I hope to be pleasantly surprised by this tool.

      Deserves it! I daresay he does. Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement. For even the very wise cannot see all ends. - Gandalf the Grey

      by No Exit on Fri Jan 31, 2014 at 05:53:47 AM PST

      [ Parent ]

  •  Net neutrality (0+ / 0-)

    This is NOT a good thing for liberals/progressives.

    Do not be misled.

  •  Interesting That the Fundamental Nature of the (3+ / 0-)
    Recommended by:
    quill, olo, justintime

    venue of civilization is up to the whim of an appointed functionary.

    High seas free or the private property of the East India Tea Company?

    Flip a coin.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Thu Jan 30, 2014 at 05:25:04 PM PST

  •  Net Neutrality is highly imortant, and if ISPs (2+ / 0-)
    Recommended by:
    justintime, cybersaur

    start doing things like charging for certain sites, blocking them, slowing them and generally mucking with the internet, users are going to revolt. They will not, I suspect, tolerate some of the real abuses that could and probably would happen without it.

    Pope Francis: the Thumb of Christ in the eyes of the Pharisees.

    by commonmass on Thu Jan 30, 2014 at 05:38:42 PM PST

    •  They Do So at Great Financial Risk (2+ / 0-)
      Recommended by:
      commonmass, justintime

      The Providers have made a lot of noise over wanting Net Neutrality to go away, but it isn't clear that they are all that eager to take advantage of its sudden shaky underpinnings. Providers already charge more to the end user for providing faster speeds. It is not clear that it is really going to be in their financial interest to muck with that income stream by trying to strong arm companies like Netflix for additional revenue by slowing down their data since Netflix's existence is one of the chief reasons why they are able to charge a premium for a faster connection. Netflix has already thrown the gauntlet down and said they are not going to play ball with the providers and frankly Netflix which is beloved has a lot more leverage that your typical highspeed internet provide that is loathed.

      There has been a lot of concern that providers might put smaller sites on the slow train and give priority to paid traffic, but the internet just isn't set up to distinguish data that way. It would be a programming nightmare to try and manage that with the current structure we have and frankly not worth effort considering how little traffic all of those tiny sites combined generate.

      The biggest opportunity would be for someone like Time-Warner to try and capture users by offering their content faster but while nice in theory, they don't have the lock on enough content that would make anyone think this is a winning idea. Still these companies are not known for clear thinking so it is quite possible they would do something to alinate their customers and hurt their bottom line by chasing after phantom dollars.  

      •  If I Were Running Netflix... (1+ / 0-)
        Recommended by:

        ...I'd prominently display and advertise a "speed test" tool with short to-the-point text about the possibility that your ISP is slowing your connection. Ideally, it would be a side-by-side test against some site the ISP is unlikely to throttle (e.g. their own video service), to make the point more obvious and to eliminate false positives from problems at the user end.

        On the Internet, nobody knows if you're a dog... but everybody knows if you're a jackass.

        by stevemb on Fri Jan 31, 2014 at 07:31:54 AM PST

        [ Parent ]

  •  Hmm, how about an Executive Order? (1+ / 0-)
    Recommended by:

    The US Government created the Internet and supported expansion of it, why doesn't the President of the United States sign an Executive order protecting the Internet as a resource or national treasure ... like Theodore Roosevelt did wilderness areas?  It may seem farfetched, but I don't see any reason the US Government needs to cede ownership of the Internet to the private sector, anymore than it is required to turn over protected lands for pillage. Maybe just say the Internet is a part of the commons and will be protected as such ... it's worth a try.

    •  In a way, though, that gives up on democracy (0+ / 0-)

      Letting the executive handle it lets Congress off the hook and leaves it open to future executive mishandling.

      Government and laws are the agreement we all make to secure everyone's freedom.

      by Simplify on Thu Jan 30, 2014 at 05:49:51 PM PST

      [ Parent ]

      •  The Panama Canal likely wouldn't have been built (2+ / 0-)
        Recommended by:
        justintime, No Exit

        if President Theodore Roosevelt hadn't bypassed Congress to do it ...  (Additionally, TR fomented rebellion in Columbia that led to the creation of the nation of Panama, which, in turn, granted TR the right to build the canal)

        So, none if this is really new from the office of the President. In some cases, Executive action is required to get things done for the good of the country.

        I think the building of the Panama Canal was a net positive for the US, so though there is always the possibility of executive abuse, that is not always the outcome.  Additionally, every President but Gerald Ford was elected to office by the same Americans who elect Congress, so Democracy isn't actually impaired if the President is performing an action for the benefit of the People who elected him.

        To Fight is To Win.

        by FogBelter on Thu Jan 30, 2014 at 06:04:16 PM PST

        [ Parent ]

      •  We don't live in a democracy now... (0+ / 0-)

        Deserves it! I daresay he does. Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement. For even the very wise cannot see all ends. - Gandalf the Grey

        by No Exit on Fri Jan 31, 2014 at 05:55:35 AM PST

        [ Parent ]

  •  Common carrier (2+ / 0-)
    Recommended by:
    Elwood Dowd, justintime

    While the EFF article is highly knowledgeable, I still don't think it successfully argues against "common carrier" status. It rails against the FCC allowing other media consolidation, but similar consolidation happens with Internet companies with or without the FCC. At least with, we have a body we can hold accountable.

    "Better no regulation than to even bother to try" is an unrealistic libertarian cop-out.

    Government and laws are the agreement we all make to secure everyone's freedom.

    by Simplify on Thu Jan 30, 2014 at 05:48:23 PM PST

  •  The FCC screwed up but is afraid of its easy out (1+ / 0-)
    Recommended by:

    Okay, show of hands, please.  How many of you were ripshit about your ISP's non-neutral behavior before 2005?  Do  see any?  No?  Well, of course not, silly. The FCC had NO rules about the Internet then, and it ran just fine!  It did however have rules that REQUIRED telephone companies to make their lines available to ANY ISP that wanted to pay the company-set price.  Which was not even regulated, other than needing to be "just and reasonable".  So if you had Verizon DSL and their ISP sucked, you could switch to Earthlink or Speakeasy across the same Verizon wire.  This competition, or threat of it, kept Verizon in line, and it also kept cable in line, even though they didn't have to share. When you have an open choice of ISPs, they behave. And that was exactly what was assumed when the Telecom Act of 1996 passed, an At that was intended to support the Internet, not hurt it.

    But under the Republican FCC, the Bells called the shots, so in 2002, they got their fiber optics exempted from the rules, promising to hold their noses until they turned blue and not install the fiber they needed to compete with cable otherwise.  Idle threat, but a good nod-wink cover story.  And in 2003 the FCC took away the ability of competitive DSL providers (not ISPs per se, but CLECs) to share copper telephone lines, a requirement for full consumer-DSL competition.

    Well, there wasn't much fiber in 2005 yet.  But the FCC that year decided that since cable didn't have to share, the pooah widdwe Beww tewefone companies shouldnt have to either.  So they changed a fundamental rule, and declared that DSL is no longer common carriage.  Not that the Internet over DSL is no longer common carriage -- the IP layer on up on DSL never was -- but that the raw wire wasn't either.  ISPs lost their last access.  

    And a few months later, the term "network neutrality" was coined.  It was really, however, a feint by the Bells to distract from what had happened! They were calling for rules that were harder for cable than telephone companies to conform to, and for regulation of the Internet itself, so in case any small wireless ISP was available in your area, they'd be subject to the same rules as the dominant Bell. But without the lawyers and lobbyists to blunt their impact.

    The FCC on its second attempt in 2010 came up with the idiotic NN rules (Part 8) which were overturned last week.  The DC Circuit pointed out that the lower layers, the raw bit transport, had been common carriage (Title II) until 2005, and gee that was sure legal, but since the FCC explicitly disclaimed that DSL and cable were common carriers any more, they can't regulate the Internet itself like common carriage, which is what Part 8 did.  And folks, if you think the threat of non-NN is bad, just imagine if the FCC had to rule on every ISPs' move, the way common carriers are regulated.  Want to block spam?  Five to ten years of proceedings!  (That's about the FCC's "Hello World" turnaround.) It would not be the Internet.  It would be horrible, totally overwhelmed with TV, and any real internet in the US would have to be underground.

    The easy way out is for them to just say that the wire is f'n common carriage (Title II), and has to be made available to anyone who pays, and you can choose your ISP, and ISPs aren't regulated because the market does handle that really really well when you have a choice!  And they have plenty of justification, which is required when they change their mind -- the mere panic over NN should be enough!  But so should the market segmentation agreements between Comcast and Verizon, who have agreed to stop competing with each other in much of their common footprint.  That was never contemplated. Hell, a "reclassification" rule would pass the DC Circuit in spaces, quickly and unanimously. But Verizon and Comcast and AT&T and CenturyLink and Charter would have a sad.  And there's nothing that seems to panic Tom Wheeler more than a sad big telephone or cable company.

  •  FCC needs to classify internet as an essential (2+ / 0-)
    Recommended by:
    justintime, cybersaur

    communications tool..just like phone service.

    Today internet is more integral to equal access to communications, to education, to democracy...than phone service ever was.

    Rates and equal access need to come under FCC regulation.

  •  NetFlix is an information service... (1+ / 0-)
    Recommended by:

    Google Maps is an info service; Wikipedia is an info service.

    The notion that an ISP, de facto the ONLY practical path for millions of people to the universe of cyberspace is anything other than a common carrier is absurd on its face.

    There's no such thing as a free market!

    by Albanius on Thu Jan 30, 2014 at 08:16:35 PM PST

  •  I hope we're not depending on Tom Wheeler . . (0+ / 0-)

    . . to keep the internet neutral.

    He looks like he's afraid of something.

    •  He is. Offending any of the companies he used to (1+ / 0-)
      Recommended by:

      Lobby for of work for directly.

      Deserves it! I daresay he does. Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement. For even the very wise cannot see all ends. - Gandalf the Grey

      by No Exit on Fri Jan 31, 2014 at 05:58:43 AM PST

      [ Parent ]

  •  No Neutrality OK... so since the US Govt owns (1+ / 0-)
    Recommended by:

    the backbone of the internet, we the people can start "throttling" the ISPs. Verizon is clearly using too much bandwidth, we will have to change their priority perhaps Comcast is better behaved, we can give them a bigger slice?

    After all, the "ISP"'s are simply whoring out OUR PUBLIC RESOURCE back to us at obscene inflated prices. And they have the gall to claim the RIGHT to pick and choose what they will allow we the people to access and how.

    The balls on these assholes. Time for them to be declared officially public utility monopolies, and have their prices regulated.

    •  The USG doesn't own squat (0+ / 0-)

      Where do you get the idea that the USG owns the backbone of the Internet -- a 1990 textbook?  Guess what -- it was fully privatized by 1993.  The backbone is simply a set of agreements among a number of service providers. The American ones are privately owned, as are most of the foreign ones.

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