FCC outlines new 'third way' internet regulatory plan, will split access from content
By Nilay Patel 
posted May 6th 2010 1:53PM
posted May 6th 2010 1:53PM
Here's the deal: in 2002, the FCC decided to classify internet access as a Title I "information service," which meant that the agency didn't have specific and direct authority to regulate providers -- instead, it relied on its "ancillary authority," which basically boils down to "we're allowed to do anything reasonable to accomplish the goals Congress lays out for us." After the FCC told Comcast to stop filtering BitTorrent, Comcast sued, and in early April the court ruled that the FCC's ancillary authority wasn't strong enough to impose restrictions on ISPs -- a decision that was obviously a huge blow to net neutrality efforts. However, the conventional wisdom was that Comcast had won itself a battle but would ultimately lose the war in spectacular fashion, since the obvious move for the FCC would have been to reclassify broadband access as a Title II "telecommunications service," which is the same way the agency regulates wireline phones, and ISPs would have suddenly found themselves in a regulatory nightmare. However, the FCC's charter says it's supposed to regulate the internet as little as possible, and a Title II approach seemed like a major overreaction with severe consequences for everyone involved. Hence, the "third way" announced today.
Got all that? Okay, so here's the "third way" plan FCC chairman Julius Genachowski and FCC general counsel Austin Schlick laid out this morning. It's what you might call a hybrid approach: the FCC will say that broadband transmissions -- the flow of data -- are subject to Title II regulations, while broadband "computing functionality" -- the data itself -- remains at most under Title I. (Interestingly, this idea of splitting broadband into components comes from Justice Scalia, who is not the first person who comes to mind when discussing Obama administration policy decisions.) What's more, the FCC says it plans to officially excuse broadband transmissions from many Title II regulations -- it only wants to impose specific provisions of Title II. According to Austin Schlick, that list could be just six provisions long:
- Sections 201, 202, and 208: Together, these provisions "forbid unreasonable denials of service and other unjust or unreasonable practices," and major players like AT&T, Comcast, Sprint and Verizon have all voiced support of them in the past.
- Section 254: This is the Universal Service provision, and it requires the FCC to pursue policies that provide "[a]ccess to advanced telecommunications and information services . . . in all regions of the Nation." Since broadband transmission would be classified as a telecommunications service under the new plan, the FCC could promote universal broadband access under this provision -- something both AT&T and the cable industry have argued for in just the past few months.
- Section 222: This section would require service providers to protect confidential information they receive while providing service.
- Section 255: This section says service providers must make their services and equipment accessible to people with disabilities, unless it's not "reasonably achievable."
Now, those are just the six on the list right now -- the FCC could decide it needs more or less as this process wears on, although it's promising not to regulate pricing. In any event, it's clear that the agency's goal is to impose as little regulation as possible while still trying to achieve the basics of net neutrality, and there's some serious precedent for success with that approach, as it's essentially the same way the FCC regulates wireless services. According to the Commission, this plan would avoid red tape, allow ISPs to operate under clear federal rules without worrying about inconsistent state laws, and generally be amazing and legally-rock solid. It's definitely a good sales pitch, but the next step is for the FCC to invite public comment and have its commissioners vote, and a lot can happen between now and then, so we'll be tracking this one closely.
Back before Reagan, government regulation was a good thing, with regulatory agencies run by people who WEREN'T vested members of the industry to be regulated. To see the FCC make even this modest move towards keeping the net free gives me some hope.
Left to their own devices, the telecoms wouldn't be taking care of the consumer, just their stockholders and the secret agenda they have with the right wing control freaks.
@thedudeabidz
You're first paragraph is somewhat correct. Your second is somewhat correct too. However, replace right with left. The right lies closer to the constitution than the left does. The left is all about "controlling" and "regulating" and "social justice" and "economic leveling".
While I think all men are equal, they are not guaranteed to be equal. Just because Bill Gates, Steve Jobs, or Jerry Yang have a wealth of money doesn't mean that I feel entitled to have an equal amount of money that they do. With that money came great ideas and innovation. They worked for it, and now they can enjoy it. Just because I have high-speed internet in my house doesn't mean everyone can get it. You have to pay for it. It is not a right.
What the FCC is doing is not making the net free, it is regulating the internet, which give the government the open door to modulate, regulate, and for lack of a better term decide who and what can use it and how they use it. Just like apples and oranges the internet is a product, a product which is paid for by most to use. Services on the internet are paid for to use. With the government regulating the internet, they can in turn generate legislation governing who can post blogs, websites, run companies, etc. Imagine having to get a license and take a class on how to run a website. Just like your drivers license.
As for your "Right wing control freaks", who take to their "secret agenda". Any company can fail. If all they do is meddle with their devices and say, "Screw the customer!" then they will see profits fall, numbers drop and they will lose their customer base. People will not be satisfied with their service and take their business elsewhere. That is the wonderful thing about this country, is that you don't have a rule that says you must use Comcast or Verizon as your subscriber. Understand this though, unless this country changes course, we are heading in that direction.
So sir, I ask you to reevaluate your thoughts and really think, do you want the government to regulate everything that you do?
To everyone out there screaming "free market!" or "let the consumer decide!" please take 5 minutes and do some research. The reason these large ISPs want to throttle your internets is because the consumer decided. They decided they didn't want to pay outlandish prices for cable television when 9 out of the 10 shows they wanted to watch were available on the internet. Cable subscription growth has died and the providers (Comcast for one) are painfully aware of that.
@grayskul Bah, hit submit too early.
The throttling is in direct response to that. Lose money here, make it up there.
All Comcast did was piss the FCC off, they are going to get their way no matter what
Wow. I don't comment very frequently, but this series of comments definitely warrants my input.
None of you (who support net neutrality) have ANY concept of capitalism, its always the BIG BAD COMPANY TOOK MY MONEY. Ok, fine. Let us take a look at what happens when the government decides to step and say, "Yea, we can handle it, and make it alllllll better."
So you want to run a tech blog, gadget blog or whatever. It has to be neutral and fair to the entire oblivion of the internet and the US Government says, "Look, we have too many tech blogs, and you are taking all of the traffic away from [other genre of blog] blogs. We have to shut you down. It is in the interest of net neutrality." Or you want to start a website. Instead of just registering a domain name, you'll have to fill out a myriad of forms, waivers, contracts, etc. Trust me, I know. You should see how the government does things now. Have you ever been to the DMV? Social Security Office? Post Office?
Everyone thinks that because a website charges a fee that its bulls&&t. I don't. They provide a service that is useful or entertaining then go ahead and charge a fee. You don't like that? I am sure someone else will come along who can do it better and cheaper than the last guy. That's the glory of capitalism. Sure, there are companies who lure in unsuspecting customers and suck them into ridiculous contracts and such paying obscene amounts of money but that's called being unethical (i.e. not the right thing to do). There are lots of quality services that will continue to remain free because they are ad supported and others that charge a fee and will probably no longer have ads.
The reason everything is starting to cost so much is because there are so many fees and taxes levied on the companies that provide these services to us that they have to make up for the loss. And you, the customer relieve that increasing tax burden. So yea, your taxes don't go up but corporate taxes, capital gains, etc. all start to go skyward and thus get passed onto you in the form of increased subscriber fees, more constricted data plans, etc.
I'll leave you with this. If taxes were decreased that would leave companies with more profit. More profit means more flexibility (every GOOD CEO knows this). Sure you will have a few companies that just suck in all the cash but this will be evident, when other companies make a comparable product or provide a comparable service, and people start buying the cheaper comparable product or service. When a company has more flexibility, they can hire more people, innovate with research and development, lower consumer pricing, offer more services, etc. The difference between the government and a company is black and white. When a company is not doing well, there is a person who is accountable for that fact, and the company if it does poorly enough, gets bought or dissolves (i.e. Palm). When the government does poorly enough, no one person is accountable. It is usually a group of people and those are the people who can just change the rules so that they don't have to be accountable (i.e. President, Congress, FCC, EPA) When you have a gripe with a company, you could (it may be difficult) physically contact an accountable person. And a company doesn't want unhappy customers because they make noise, and that's bad for business, sales, etc. (Look at AT&T and all the noise that has been made about their 3G coverage). Bad PR is bad for a company. But if you have a gripe about the government, who do you contact? The President? A member of congress? Yes, this may work sometimes but often, you get no response. Plus, they can just change the rules because they are the ones who make them. Not the companies, they fail.
@LT1FirebirdSLP And maybe you shouldn't comment because your comprehension of this is criminally stupid.
The government isn't saying to Comcast/Verizon/etc, "hey, too many people use your service." They are saying, "hey, you can't throttle service based on content." If Comcast had their way, they would put a choke hold on your bandwidth to sites like Hulu, Netflix, etc and would the very next day make their cable service available online without such restrictions. Guess what that is? It starts with anti and ends with competitive.
@LT1FirebirdSLP
Very nice summary of the issues at hand. It is somewhat disconcerting that capitalism must be explained like it is some foreign/nutty concept, but the current generation of Americans are so dumbed down and ignorant it has to be done.
Of course, we are all pretty much screwed due to the fact that the Federal Bank (and in turn all of the major US banks) is not held accountable to anyone, and is in bed with the IMF/world banking institutions. This means our country is essentially a slave to the world financial/banking institution. If we don't clear out the thugs who are currently in power, our freedoms and our standard of living is going to come down like a house of cards.
@grayskul Why can't they throttle your service? They clearly cannot provide. It isn't anti-competitive. Everyone thinks capitalism is a free ride, and it isn't. You pay for what you get. Now, if a different ISP can handle the traffic and massive amounts of bandwidth required for such internet applications then I am POSITIVE that they would attract a better user base than Comcast or Verizon. Especially, if they didn't throttle download speeds. It would be anti-competitive if they were the ONLY internet provider and said you have to use only our stuff. There are multiple ISP's that give users varying amount of freedom to do what they wish. No one is saying you have to use Comcast or Verizon. Go with another provider. If enough people feel the same way you do then Comcast will say, "Hey, our user base and profits have fallen and there must be a reason. We need to fix that." If they don't, then they will fail, and trust me, Brian Roberts doesn't want to fail.
@New Reformation
Apply the model I just presented to GM. GM provided sub-par service and equipment. It was cranking out SUV's and Trucks when there was no demand for them. GM ended up going south and instead of the way capitalism was supposed to work by letting them fail, we ended up having our government buy them out and placing millions of dollars of debt on the US taxpayer's shoulders. Now instead of a bad corporation failing, (trust me I am loyal to GM, look at my username) we now have a bad corporation as a sinkhole for taxpayer money.
@LT1FirebirdSLP
What you are arguing for is what you are arguing against, albeit on a different scale.
"So you want to run a tech blog, gadget blog or whatever. It has to be neutral and fair to the entire oblivion of the internet and the [Comcast] says, 'Look, we have too many tech blogs, and you are taking all of the traffic away from [Comcast's] blogs. We have to shut you down. It is in the interest of [our profits].'"
I changed some of your words, but your point is still there. How does that make sense? Because they are a corporation and not the government?
@grayskul
The (valid) fear is that this plan puts the perceived authority to regulate the internet in the hands of the government. This means that an equivalent to the fairness doctrine could be imposed on the internet (LT1FirebirdSLP's argument). This legislation might not explicitly do that BUT it establishes the authority for the full regulation of information by the federal government.
@grayskul
You have completely adulterated what I said. But, I will entertain what you said and give you what I believe Comcast's perspective is.
Comcast says, "We have our own tech blog and would like to entice users to read our tech blog and not yours. So we are going to throttle everyone down for all services with the exception of Comcast service. Things such as BitTorrent, Hulu, YouTube, GMail, etc. are not constituent services of ours and we would rather you use our services, because that is how we make money. (They provide email, video [through Fanacast], file sharing [albeit very limited].) We are going to throttle down bandwidth to your website because we want customers to use ours."
Ok, no problem. The website takes their business elsewhere. Customers will learn of the throttling and take their business elsewhere. Comcast Triple Play isn't the only package of three that is offered by an ISP. Comcast is going to notice the drop in numbers and do one of three things. 1) Stop or decrease throttling because the customers don't like their service and want to use other services. 2) Improve their own services because they are getting the point that they aren't very good at providing what the customer wants. 3) Fail because they refuse to change and everyone has taken their business elsewhere.
With net neutrality means that the government can step in and say that even though Comcast is offering poor service, we can keep them afloat with tax payer money and help them keep providing service (albeit horrible). It also means that once Comcast takes a dime of the government's money, the government steps in and says you have to filter this this and this, throttle this, and half of your staff is fired (extreme scenario, yet plausible, look at China.)
@LT1FirebirdSLP
And there we have it, the basis of your argument. The fear of having your tax dollars go towards another government bailout.
@New Reformation
If the government wanted to censor the internet, they already would have. They wouldn't need this to do it.
@grayskul
And you want your tax dollars to go into another corporation, that you might not even endorse, because their executives did a piss poor job at running the company? My friend, you are a true liberal. I am sorry, tax dollars are not meant nor were they intended for keeping failing enterprises afloat.
@LT1FirebirdSLP
Ideally, yes that is how it would work. Unfortunately, Comcast is a multi-billion dollar company, and in many regions is the only ISP available. So where else is anyone going to take their business? And in many areas that they do not currently hold a monopoly in, they can afford to lower the prices enticing people to come to them, then once the competition isn't making any money and closes shop, Comcast jacks the rates up. Then they can start throwing that money around to places that have resources to help start another ISP and bribe them not to. Bribe elected officials not to. The power of money and monopoly is a terrible thing.
@LT1FirebirdSLP
The fact that you can articulate what you do brings me hope that common sense is not dead, just endangered.
@LT1FirebirdSLP
I'm not going to respond in detail to your posts, as what I've found is that most right-wing supporters generally have a lot to rant about, but very few facts to back them up.
It's much easier to point out that post-WWII and pre-Reagen was the US's greatest era of growth in its history. Regulation was used for the common good, and in the long run even businesses benefited.
Clinton brought the US a great deal of wealth, and yet he would rightly be considered an effective *Republican* president by pre-Reagen standards.
When the '96 Telecom Act was passed we experienced 5 years of massive growth and budding competition in the broadband industry. A Republican FCC and Congress gutted the act and we've ended up with the increasingly barren wasteland that we have today. It's time to end this deregulatory experiment and use the government to provide for the people's common good. That's why we elect leaders to government: to serve for our benefit.
@sonicmerlin
I am pretty sure that what I wrote is mainly opinion/common-sense but everything I wrote can also be backed up factually.
The post-war era gave us the Baby Boom and a large amount of economic growth (about 4% to 4.5% per year for the better part of the 40's and 50's.) Then things started to decline, with more and more progressive policies being enacted and largely progressive ideologies making their way into the economy, such as unions and big labor. You had PATCO founded in 1968 until 1981 when Reagan fired them all (because they were on strike). SEIU in 1968. It goes on. You had the decline of Steel and the Oil crisis of 1973 when oil prices soared causing a panic. Jimmy Carter, very left, even by today's standards managed to drive the unemployment rate up to 7.5% prior to his departure from his office. Want one better. GDP growth in the United States slowed to a staggering 1.4%, its lowest since before the war. When Reagan stepped in, employment did waver and did head north to almost 9.5% but he managed to get policies into government and deregulate enough to get unemployment down to 5.4% when he left office in 1989. Bailouts also didn't start 2 years ago with the $787 billion dollar bailout we handed all the major banks and auto companies in the United States. Jimmy Carter signed the Chrysler Corporation Loan Guarantee Act of 1979 bailing out Chrysler Corporation.
I wouldn't say Clinton brought the US a great deal of wealth, and he certainly isn't Republican by Pre-Reagan standards. Clinton is at best a Moderate Republican/Blue Dog Democrat. Regardless, I will give credit where it is due and Clinton managed to balance the budget, cut the defecit (albeit small) and generate a government surplus.
1996 Telecommunications Act did not foster any competition (or very little.) Small companies began to fail because FCC licenses were practically unobtainable. A lot of broadcasting outlets started to consolidate (This is right around the time that AT&T started gobbling up all the smaller Telcoms.) The amount of arguments against the bill far outweigh the arguments for the bill. In 1983, there were 50 major media outlets. In 2005, there were 6.
So my liberal friend, there I present you my facts. You can point the finger and smear all you want just blabbering on about how the right is crazy and goes on a rant. But, I saw not one fact in your rant. Maybe actually reading some factual information will enlighten you to the dangers of excessive government, excessive regulation and over legislation.
I hope it is enough facts for you. I bid you good day and farewell.
@LT1FirebirdSLP
I hope there* are* enough facts for you.
@LT1FirebirdSLP
What the HECK are you talking about? You cited absolutely nothing. Half of your "facts" are inane references to union groups, to which you show a disturbing an unjustified distaste for. Part of what you say is just plain false.
The period from the end of World War II to the early 1970s was a golden era of American capitalism. From wiki: "President John F. Kennedy passed the largest tax cut in history upon entering office in 1961. $200 billion in war bonds matured, and the G.I. Bill financed a well-educated work force. The middle class swelled, as did GDP and productivity. The U.S. underwent a kind of golden age of economic growth. This growth was distributed fairly evenly across the economic classes, which some attribute to the strength of labor unions in this period. The government financed some of private industry's research and development throughout these decades, most notably ARPANET (which would become the Internet)."
What I am most disturbed by is your attempt to defend Reagen's economic agenda.
During the Reagan Administration the federal debt tripled from $930 billion in 1981 to $2.6 trillion in 1988, reaching record levels. Though debt almost always increased under every post-WWII president, it declined as a percentage of GDP under all Presidents after 1950 and prior to Reagan. In addition to the fiscal deficits, the U.S. started to have large trade deficits.
Under Reagen we were told "we'll all benefit." I.e., "trickle-down" economics. The result has been vastly different.
The gap between those in the upper socioeconomic levels and those in the lower socioeconomic levels has increased significantly. The top 10% of income earners have increased their share of every dollar of taxable income from 34% to 46%. Within that 10%, the results are even more startling. The increase went largely to the top 1% who doubled their share from 9% to 19%. And, the gain was even more greatly concentrated with the top one-tenth of 1% who tripled their income to about 9%.
The top 100th of 1% (about 15,000 individuals) quadrupled their share of the national income to 3.6%.
Of each dollar people earned in 2005, the top 10 percent got 48.5 cents. That was the top tent's greatest share of the income pie since 1929, just before the Roaring Twenties collapsed into the Great Depression. In 2005, the 300,000 men, women and children who comprised the top tenth of 1% had nearly as much income as all 150 million Americans who make up the economic lower half of our population.
In 1980, Ronald Reagan asked "are you better off today than you were four years ago?" He got elected and proceeded to make income taxation less progressive. The result has been as described above.
Your entire view of history is twisted. I seriously recommend reading something other than right-wing talking point sites.
this just turned into a heated debate over political views & personal opinion..... alot of comments strayed from the original topic!!! net neutrality!
@Eroded Fallacy
Unfortunately, Net Neutrality is a topic heavily based in politics.
Mmm you don't want the internet data transmission to fall under a title 2, ie phone company regs, it would make it impossible for any home grown ISP to get in the market. Imagine being stuck with a totally open network with high prices and the same crappy company you hate. As said in the story of course the big boys will support it. Meanwhile your data on the otherhand would fall totally in the hands of the fcc for regulations the exact thing most people are against. Please read more about facts. The fcc doesn't have you in mind, its a regulatory agency not a freedom fighter. Putting data transmissions as a title 2 would take it out of current regulatory laws that state if your a person and you want to start an ISP and want to gain access to bandwidth the 'big boys' they have to give you access even if they own the lines. Hate your ISP? Build your own, p.s. that access that they give you as an ISP through their network... totally open unregulated access why? Its the law.. Its been up to the ISP discretion because they can be held responsible for not following the law since they are a service, they do get the option to do with that bandwidth what they want. .. you don't have to have that service, it isn't life or death yet. If the fcc would of and should have amended the current law to contain a one line provision that says end user access is to remain open. We wouldn't even be commenting. They could do it in a day. With that said having a title 2 for data transmission just leads me to bleve the fcc is going after content and actions they have trouble regulating. .. trust me you don't want the fcc having any long term authority over your data. It isn't needed and totally a fluke if anyone thinks this way will end well when there are legal actions that don't open us users up to that type of regulation.
Liberals are nanny state, cradle to grave loving, morons
So now Nelay deletes any posts that he disagrees with? Welcome to net neutrality comrades. What a dbag he is.
@metric
If he really did delete those posts, that is disturbing, considering all the mean-spirited flame wars/trolling that goes on around here that doesn't get deleted.
"And major players like AT&T, Comcast, Sprint and Verizon have all voiced support of them in the past." Them being the sections? Or them being Unreasonable practices?
@metric lolz just choose a different site there are other informative websites like this one
@kratos2029 Oh really? Private companies are solely responsible for the recession are they? Well my uninformed friend, did you know that Greenspan came out and said that it was government policy that played a large role in the sub-prime mortgage disaster? You honestly think that a private bank, on their own, would make loans that wouldn't be paid back? You think that there would then be a market for those sub-prime loans to sold again to anyone else when they probably wouldn't be paid? There was government pressure for banks to make loans to people who wouldn't normally qualify for them because of some ridiculous belief that it's a right to own a home. Give me a break. Have you never taken an econ class? What private industry would make such a catastrophically stupid investment unless their was pressure to do so? I have several relatives in the banking industry who confirmed this. Don't take my word though, look it up! No one is promoting anarchy here, but the more you grow government the more power and corruption you find. Where do you think private companies get their exemptions from? Their special deals? Capitalism works great, we have America as proof, but when you mix it with bloated government, self-serving regulation, and socialist policies then you create an environment for corruption from every corner. That is why our founders wanted the smallest most efficient government possible with the majority of power in the states, closest to the people. We sure as hell don't have that now. So for all of you who ridicule those of us who are sounding the alarm at the rapid expanse of our government, you sure are ignoring a lot of history with your condescending dismissal of our fears. But hey, maybe we'll be the one exception in history...or maybe not.
@Persalsum
Our founding fathers didn't all want there to be a small government that is why we have the bill of rights because there were arguments about how big the government should be. This has always been a problem and probably always will be
Fourth way: FCC opens a can of Shaq-fu on those big cable companies.
Corporate power, like any other resource, is not intrinsically evil, but it can be used for seriously misguided purposes. And while it is our responsibility as people to limit that power to prevent it from being used against us, it is much easier for individuals to hold the government accountable than it is for individuals to hold individual corporations accountable. That said, neither is particularly easy. The bottom line is that I feel it's our responsibility as citizens to pressure the government to keep corporations accountable, since it's a LOT easier for the government to keep corporations accountable than it is for us as individuals to keep corporations accountable. They don't do much of a job of doing so as it is, but that's our fault for not keeping the reigns tight. Sorry for the mixed metaphor, but we need to use our government as a lever to move corporations in the direction we want. Corporations are only any good when they serve the public interest. Because of the power invested in corporations, they should not (even though in the U.S., they legally do) have the same powers as humans.
The short version of this is that we as people should use our rights to leverage government authority to channel corporate power to benefit the world. If you genuinely believe that the people currently in control of any given corporation--even the Corporation for Public Broadcasting!--would act in the best interests of anyone but the corporation and themselves, then you need to consider the Ford Pinto, the Union Carbide plant in Bhopal, India, the current BP/Transocean drilling platform explosion disaster in the Gulf of Mexico, the entire book "The Jungle," Listerine's repeated false advertising campaigns, and scores of other cases.