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    Court Won’t Rehear Net Neutrality Challenge While FCC Plans to Roll Back Rules

    Court Won’t Rehear Net Neutrality Challenge While FCC Plans to Roll Back Rules

    FCC Commissioner Ajit Pai recently unveiled plans to dismantle the net neutrality rules.

    On early Monday morning, the U.S. Appeals Court decided not to rehear a challenge to its decision to uphold the net neutrality rules, known as Title II, from former President Barack Obama.

    Its decision comes right after FCC Chairman Ajit Pai made it known he will continue with his plan to roll back these net neutrality rules.

    Obama’s rules do not allow broadband users to slow or block “rivals’ content.” Netflix and Apple enjoy Obama’s rules, but AT&T, Verizon, and Comcast cannot stand them because those companies want “to slow or even block the transmission of disfavored content.”

    USTelecom filed a lawsuit because it believed “the FCC had overstepped its authority in creating the net neutrality rules.” A partial panel of the D.CC Circuit of Appeals rejected this lawsuit.

    So USTelecom “requested a review by the full court.” The Hill continued:

    “En banc review would be particularly unwarranted at this point in light of the uncertainty surrounding the fate of the FCC’s Order,” the decision reads. “The agency will soon consider adopting a Notice of Proposed Rulemaking that would replace the existing rule with a markedly different one.”

    “In that light, the en banc court could find itself examining, and pronouncing on, the validity of a rule that the agency had already slated for replacement.”

    The judges provided their reasons why they voted not to rehear the case or why they disagree with the rules. The Associated Press reported:

    Judge Sri Srinivasan, who helped write the original opinion in favor of net neutrality, said reconsidering the case would be “particularly unwarranted at this point in light of the uncertainty surrounding the fate of the FCC’s order.” He noted that the agency would soon consider replacing the policy with a different one.

    But Srinivasan said the earlier ruling should stand even apart from the move to repeal net neutrality. He said the rules assure that broadband providers “live up to their promise to consumers of affording them neutral access to internet content of their own choosing.”

    In separate dissents, Judges Janice Rogers Brown and Brett Kavanaugh said the FCC took action that should have been left to Congress. Kavanaugh also said the rules violate the First Amendment.

    Pai Will Continue Plans to Dismantle the Rules

    The ruling did not surprise Pai, but it also has not affected his desire to continue with his plan to end net neutrality.

    Last week, Pai unveiled his plans to roll back the net neutrality rules. Pai wants to give back the “regulatory jurisdiction of broadband providers” “to the Federal Trade Commission (FTC).” From The Hill:

    Pai’s proposed reforms will tackle one of the most controversial portions of net neutrality: the reclassification of broadband providers as “common carriers,” which gives the FCC the authority to regulate them. Broadband service providers such as AT&T, Comcast and Verizon have hammered these rules, arguing they are unnecessary and that the FCC should not regulate them.

    The Republican chairman appears to be taking that argument to heart.

    Pai argued how Title II has decimated the market:

    “So what happened after the Commission adopted Title II?” he asked.

    “Sure enough, infrastructure investment declined,” Pai continued. “Reduced investment means fewer Americans will have high-speed internet access. It means fewer Americans will have jobs. And it means less competition for consumers.”

    “It’s basic economics: The more heavily you regulate something, the less of it you’re likely to get.”

    Democrats and others have passed on comments to the FCC in an attempt to keep the rules. But will that be enough to change the commissioner’s mind? From The Hill:

    But in a call with reporters on Thursday, senior FCC officials said they would not give much weight to an influx of comments in support of net neutrality, suggesting they intend to move full steam ahead.

    “The comments process does not function as the equivalent of a public opinion survey or poll, and what matters is the quality of the argumentation presented, the facts that are entered into the record, the legal arguments that are placed into the record,” an official said.

    Pai plans to visit more conservative media outlets this week to sell his plan. The FCC commissioners will vote whether to keep the rules or not at an open meeting on May 18.

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    Comments


     
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    RodFC | May 1, 2017 at 1:54 pm

    Delaying ruling makes sense.

    Too bad Pai really does not.

    Is he going to bring back Interaccess, Mindspring, Earthlink, RoadRunner etc to create competition.

    The basic fact is taht AT&T, Verision, and Comacast did not create the internet. They were given it in 1995. They discovered that the internet was the content not the pipes, and that the money was in the content. So they want people to get content from them rather then from the real content providers.

    If they get all they want be prepared for the internet equivalent of rented, black, rotary dial telephones. After all they’ve taken the US from #1 in internet to what? 25? 35?


       
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      ndshiba in reply to RodFC. | May 1, 2017 at 2:52 pm

      If consumers wanted AOL, Mindspring, Earthlink and Interaccess, they would have supported those product offerings with their dollars. Indeed, it was specifically because those ISP’s did not keep pace that caused their absorption or demise.

      You’ve bent over backwards twisting history to imply that a free market would take us back to the equivalent of rented rotary phones. It was precisely because of federal regulation that telecom innovation suffered for decades.

      Just curious, by what measure are you suggesting that the US has moved from #25 to #35

        The “percentage” of individuals with “broad-band” access, and the speed of that access, has been surpassed in many countries, which is usually what the “ranking” is based upon.

        What it DOESN’T account for is geography. The countries that have “surpassed” the United States are the size of postage stamps compared to the US. It’s easy to get “nationwide” coverage in South Korea, or Sweden, or Switzerland. The cost per person is tiny, compared to the United States, with huge populations, and giant geography.


           
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          ndshiba in reply to Chuck Skinner. | May 1, 2017 at 6:55 pm

          Measuring the type of “access” consumers have to the Internet based on speed is a silly way measure where the US does or doesn’t rank compared to other countries. Speed does not equal access, nor the quality of content available. RodFC argued that Comcast and Verizon figured out that the “Internet” was content and not the pipe. If that’s your argument, you surely don’t rank the value of the “Internet” based on speed alone.

      RoadRunner doesn’t have to “come back.” It still exists as “Spectrum” (having been rebranded).


     
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    Gunstar1 | May 1, 2017 at 4:18 pm

    Um, just no. It is all about the pipes. People will pay more money for a faster connection to get to someone else’s content. No one would dream of Netflix or Youtube on a 56k modem.

    Broadband was a hardware change. It came along and people gladly paid for faster pipes. The content not being unique to any of the modem isp’s meant that once the need to connect via a modem was not longer necessary, they had no way to compete.


     
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    VaGentleman | May 1, 2017 at 4:29 pm

    From the consumer’s view, the INTERNET is not a free market. Even if you have competing providers (Comcast and Verizon in my area), once you choose one you give that provider the monopoly on the wire providing service to your home. Everything you get comes through their wire. Comcast (etc) offers services that compete with non ISP companies (phone service that competes with OOMA or Vonage), streaming video service that competes with Netflix, and so on. Currently, all data coming across the wire is treated the same. Nothing is shown preference – there is no priority routing. A Netflix video is delivered with the same speed as a video I get from Comcast. Under the proposed rules, Comcast could give its phone calls priority over OOMA’s calls. More likely, they would charge OOMA to not de-prioritize its calls. The same for Netflix. If OOMA / Netflix don’t pay, their calls / video would become choppy with lost or delayed data frames. Thus, Comcast will have the ability to control the quality of the service provided by its competitors. Obviously, this gives them an unfair advantage.

    If this change goes through, I expect that Comcast et al will use it to raise fees and stifle their competitors.

      No matter what happens, Comcast will use it to raise fees and stifle competition.


       
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      ndshiba in reply to VaGentleman. | May 1, 2017 at 5:19 pm

      Suggesting that the “Internet” is not a free market is factually and demonstrably not true, at least not for the vast majority of people. Are you familiar with wireless? How about satellite?

      If you choose Comcast in your area and they throttle services that you deem a priority, such as Netflix, why would you stick with Comcast? Do you really think that Verizon wouldn’t take advantage of Comcast throttling Netflix and get you to switch by offering non-throttled or a tier of service that didn’t negatively impact your Netflix experience? Perhaps a bit of research into the cable and telco financials might suggest how customer churn can cord cutting is threatening their business model. Throttling a service that you demand, like Netflix, would no doubt send you and tens-of-thousands of others shopping for a new source of bandwidth.

      Further, using voice calls or OOMA as an example of a service that Comcast or Verizon might reasonably degrade based on selectively throttling bandwidth suggests a lack of understanding of the technology. Typical voice calls use far less than 100k of bandwidth. It’s a non-issue.

      A free and open market has dramatically increased the options for and speed of consumer connections to the Internet. If the Federal Government’s “management” of Telco in the past is any indication, the existing net neutrality rules will slow investment (already happening) while stifling innovation.

        The problem with this argument (at least from my perspective) is that I literally cannot get the level/size of “pipeline” that I need by anything other than physical cable for a lot of the work that I do for both my consulting business and my law practice.

        Satellite tops out at 25-Mbps as near as I can tell, with an upload speed of 10-Mbps.

        Wireless Peak tops out at 50-Mbps, but most of the time runs about 15-Mbps, unless I’m in a spotty area, where I don’t get ANYTHING.

        My service through spectrum on coax is currently running at 350-Mbps (14x faster), and uploads at 23-Mbps (2x+ faster).

        I keep getting approached by Satellite/DSL/Wireless individuals whenever I go shopping at Walmart / Sams Club/ Target. The Conversation goes something like this

        Salesman: “how much are you paying?”

        Me: “do you offer a 350-Mbps package?”

        Salesman: “No.”

        Me: “It doesn’t matter how much I’m paying, you can’t compete with what I HAVE to have for a pipeline.”

        If / When any other medium of telecom data transmission can catch up with the pipeline size I need, THEN and only then will there be competition. Till then, whomever is willing to build a physical connection to my home wins.


         
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        VaGentleman in reply to ndshiba. | May 2, 2017 at 8:56 am

        ndshiba,

        Suggesting that the “Internet” is not a free market is factually and demonstrably not true, at least not for the vast majority of people. Are you familiar with wireless? How about satellite?

        It doesn’t matter who my isp is. The monopoly comes from only having one wire which they control.

        If you choose Comcast in your area and they throttle services that you deem a priority, such as Netflix, why would you stick with Comcast? Do you really think that Verizon wouldn’t take advantage of Comcast throttling Netflix and get you to switch by offering non-throttled or a tier of service that didn’t negatively impact your Netflix experience? Perhaps a bit of research into the cable and telco financials might suggest how customer churn can cord cutting is threatening their business model. Throttling a service that you demand, like Netflix, would no doubt send you and tens-of-thousands of others shopping for a new source of bandwidth.

        For years, customers have wanted al a carte pricing where you can choose the channels you want – where is it? Cable companies offer what they want to offer. If Comcast delays Netflix’s data while passing their competing data, customers are more likely to switch to Comcast’s Netflix alternative than switch cable providers – it’s easier. Especially if there is a contract. In any case, giving Comcast the legal right to delay Netflix’s data creates an unfair advantage that destroys any fair market argument. I’m surprised you favor it.

        Further, using voice calls or OOMA as an example of a service that Comcast or Verizon might reasonably degrade based on selectively throttling bandwidth suggests a lack of understanding of the technology. Typical voice calls use far less than 100k of bandwidth. It’s a non-issue.

        Actually, you’re showing your lack of understanding of the technology. These are PRECISELY the type of data most vulnerable to degradation. (FYI – My understanding of the technology comes from a decade as [lead] programmer on engineering teams that built hardware and software used in packet switched networks / telco. I’m very familiar with ITU-T, SS7, IPv4, IPv6, T1, E1, VoIP, etc.) A delay of 1/10 second in transmission during a phone call is noticable. A call is not a single transmission. Each second is broken down into dozens of tiny data packets. For VoIP calls, the data is carried in IP packets over the internet. Each packet determines its own route to the destination (per the IP protocol). Each packet is sequentially numbered. If a packet is delayed or missing, everything waits for it to arrive or be retransmitted. Delaying any packet causes the call to become choppy with gaps and pauses while waiting for the missing data. The fact that the total call is small is immaterial. It’s the delay in transmitting any of the thousand of packets that make up the data that degrades the quality of service. Under the new rules, Comcast could legally do that. Allowing that is, itself, a violation of free market principles.

        A free and open market has dramatically increased the options for and speed of consumer connections to the Internet. If the Federal Government’s “management” of Telco in the past is any indication, the existing net neutrality rules will slow investment (already happening) while stifling innovation.

        So, why allow Comcast, et al, to make it less free? Comcast wants to own the wire. The burden should be on them to have enough bandwidth to handle the data requirements of its customers equally, without preference. What’s being proposed is legalized extortion.


           
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          ndshiba in reply to VaGentleman. | May 2, 2017 at 3:48 pm

          It doesn’t matter who my isp is. The monopoly comes from only having one wire which they control.”

          That is a specious argument. Even the FTC Net Neutrality rules acknowledge that Internet Connectivity is most certainly not limited to cable. If there’s a monopoly over Internet service in your home, it’s self-imposed.

          “For years, customers have wanted al a carte pricing where you can choose the channels you want – where is it? Cable companies offer what they want to offer. If Comcast delays Netflix’s data while passing their competing data, customers are more likely to switch to Comcast’s Netflix alternative than switch cable providers “

          It sounds like you’re arguing that because Comcast won’t let you purchase precisely the channels you want, the FTC should regulate them and force them to sell you what you want – no doubt at the price you want – regardless of their cost to bring that nasty wire to your home. Hasn’t the open, competitive market provided you with exactly the choices for which you opine? I know you’ve heard of Hulu, Apple TV, Sling TV, Amazon Prime, Netflix, etc. These business models are all about ala carte pricing. These new services exist in response to consumer demand and without the FTC imposing 1930’s utility regulations.

          “Actually, you’re showing your lack of understanding of the technology. These are PRECISELY the type of data most vulnerable to degradation. ”

          To be clear, with your technical expertise in VOIP, you’re suggesting that even miserable connectivity to the Net, say 10MBPS down and 2MBPS up, that the measly <100KBPS requirements of Vonage or other VOIP service would be at risk? If you say so.

          More relevantly, however, the VOIP argument is the weakest for Net Neutrality as the acceleration of Cell Phone-only phone service has reached critical mass. Households are hardly relying on VOIP for their phone service. Rand.org puts the cell-phone only number of households at over 52%. I'd posit that VOIP is not high on Comcast's list of services to throttle.

          “So, why allow Comcast, et al, to make it less free? Comcast wants to own the wire. The burden should be on them to have enough bandwidth to handle the data requirements of its customers equally, without preference. What’s being proposed is legalized extortion.”

          First, there has to be acknowledgement of the reality that the wire to your home is NOT the only way to have a broadband connection to the Internet. If you’re unwilling to concede that you could choose ATT over your twisted pair, or Verizon via wireless, or Dish by satellite, for your Internet connectivity, there’s no point in debating.

          If you acknowledge that you could purchase connectivity from a company other than Comcast, then you’re not being extorted, you’re making a choice.

          Rather than just spitball about what havoc the free market might wreak on Americans without FTC regulation, let’s look what actually has or is occurring as a result of investments planned and made well before Net Neutrailty. In the past 12 months, according to Speedtests Market Report, cell phone Internet speeds have increased 30% with major carriers now averaging over 19MBPS downstream. Better yet, broadband speed to the home (all forms) increased 42% to an average of 55MBPS down and 18MBPS up.

          Is this a marketplace that is screaming for 1930’s era utility regulation to protect consumers? I don’t think so.


             
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            VaGentleman in reply to ndshiba. | May 3, 2017 at 6:30 am

            ndshiba,

            “It doesn’t matter who my isp is. The monopoly comes from only having one wire which they control.”

            That is a specious argument. Even the FTC Net Neutrality rules acknowledge that Internet Connectivity is most certainly not limited to cable. If there’s a monopoly over Internet service in your home, it’s self-imposed.

            I clearly stated that it doesn’t matter who the isp is. I thought that you would realize that wire in that context referred to the connection, regardless of type (copper, fiber, radio). (Then again, maybe you didn’t want to. See my next reply.) In any event, your argument fails because type of service is not a determinant in the monopoly of access, and throttling works over any type of connection. Your argument that it is self imposed is specious since there is no alternative way to connect to the internet – you have to go through an isp to get there, and that becomes your single point of access.

            “For years, … than switch cable providers “

            It sounds like you’re arguing that because Comcast won’t let you purchase precisely the channels you want, the FTC should regulate them and force them to sell you what you want – no doubt at the price you want – regardless of their cost to bring that nasty wire to your home. Hasn’t the open, competitive market provided you with exactly the choices for which you opine? I know you’ve heard of Hulu, Apple TV, Sling TV, Amazon Prime, Netflix, etc. These business models are all about ala carte pricing. These new services exist in response to consumer demand and without the FTC imposing 1930’s utility regulations.

            Your use of this argument is troubling for 4 reasons. First, because my statement was in rebuttal to your argument that any throttling of content be one would be met by competition from another. I showed that that doesn’t necessarily happen. Second, because the services you mention are the types susceptible to throttling. Their success is imperiled by the rules you support, making your argument self defeating. Third, because I made no such argument. Lastly, and most troubling, because you chose to selectively quote my reply. You omitted:
            In any case, giving Comcast the legal right to delay Netflix’s data creates an unfair advantage that destroys any fair market argument. I’m surprised you favor it.

            You ignore my real argument and attempt to replace it with a distortion. If you can rebut my argument, do so – quit with the rhetorical tricks.

            “Actually, … degradation. ”

            To be clear, with your technical expertise in VOIP, you’re suggesting that even miserable connectivity to the Net, say 10MBPS down and 2MBPS up, that the measly <100KBPS requirements of Vonage or other VOIP service would be at risk? If you say so.

            More relevantly, however, the VOIP argument is the weakest for Net Neutrality as the acceleration of Cell Phone-only phone service has reached critical mass. Households are hardly relying on VOIP for their phone service. Rand.org puts the cell-phone only number of households at over 52%. I'd posit that VOIP is not high on Comcast's list of services to throttle.

            I not only said it would be at risk, I proved it. Dismissing the argument is NOT rebutting it. You do, however, give us an insight into yourself. Apparently, if only the 48% who want VoIP are screwed, that’s OK with you, since the number is declining. BTW, if it is such a valueless service, why do Comcast, et al, spend so much $ to advertise it, bundle it to attract business, and pay for the hardware and connections into the telco system they need to have to offer the service? Throttling the competing services (of any type) has nothing to do with bandwidth and everything to do with revenue.

            “So, why allow Comcast, … What’s being proposed is legalized extortion.”

            First, there has to be acknowledgement of the reality that the wire to your home is NOT the only way to have a broadband connection to the Internet. …
            If you acknowledge that you could purchase connectivity from a company other than Comcast, then you’re not being extorted, you’re making a choice.

            Answered in my first point.

            Rather than just spitball about what havoc the free market might wreak on Americans without FTC regulation, let’s look what actually has or is occurring as a result of investments planned and made well before Net Neutrailty. In the past 12 months, according to Speedtests Market Report, cell phone Internet speeds have increased 30% with major carriers now averaging over 19MBPS downstream. Better yet, broadband speed to the home (all forms) increased 42% to an average of 55MBPS down and 18MBPS up.
            Is this a marketplace that is screaming for 1930’s era utility regulation to protect consumers? I don’t think so.

            I have been discussing only the throttling provision of the new rules. As Mary reported in the OP:
            Obama’s rules do not allow broadband users to slow or block “rivals’ content.” Netflix and Apple enjoy Obama’s rules, but AT&T, Verizon, and Comcast cannot stand them because those companies want “to slow or even block the transmission of disfavored content.”
            That is the poison pill here, and it is legalizing their ability to control the delivery of competing content.


     
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    ndshiba | May 1, 2017 at 7:06 pm

    I hope you’d agree that someone who actually needs 350Mbps downstream and 23Mbps upstream for their business is (1) not a “consumer” in the sense used by proponents of Net Neutrality, (2) an unusually large consumer of bandwidth and (3) someone whom the FTC regulations were not primarily intended to protect.

    Your own statements suggests that there is competition out there (Walmart, Sams Club et. al) for consumer business but your unique BUSINESS needs persuade you to pay more for a higher level of service.

    Seems like the free market is working to me.

      No. I would not agree that a 350-Mbps downstream is not a “consumer.” A consumer, is a consumer, is a consumer. Period. That’s the point. By-the-by, the 300-Mbps package I have is the high-level personal consumer package in Dallas offered by Spectrum..

      If it was ALWAYS drawing at 350-Mbps, that might be considered a a “large” consumer. However, I’m not drawing constant. I need the pipeline at irregular times and for specific purposes. Consider: having a pipeline that size is the difference between my clients being able to send me a 1GB+ file and being able to receive while I’m on the phone consulting with them in real time (24 seconds), rather than having to call them back later (11 Minutes). This is especially important when they’re in another time zone (or, occasionally, on the other side of the PLANET, as sometimes happens).

      when you start getting into the 4+ Gbps range, THEN you’re beginning to talk about large consumers. I’ve worked for some of those, too. The ones that have a dedicated incoming fiber-trunk from the big Telecoms.

      I didn’t say the free market wasn’t WORKING. I said the free market DOESN’T APPLY, because there is only one provider that meets my particular needs. It’s kind of like health-care for me as well: I require a certain number of services which are outside the normal spectrum of standard health services due to factors that are fairly rare. It’s not that the market doesn’t exist, it’s just that there is only one provider that is really going to meet the particular needs I have.

      There’s no “barrier” to entry into the market for someone else to provide, other than capital to fund the physical expansion of the network.


         
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        ndshiba in reply to Chuck Skinner. | May 1, 2017 at 10:17 pm

        You’re kidding, right? You don’t see any difference between a business “consumer” of bandwidth and an individual household consumer of non-business bandwidth?

        It’s simply amazing how you can complain because you are too frugal/cheap to purchase the level of service you WANT for you business at “consumer” rates that you would impose government control over the entire country’s pipeline.

        It sounds like you’e got a very successful business. Congratulations! If the “consumer” level services don’t meet your needs I’d be happy to recommend any number of COMMERCIAL alternatives to give you the speed you want, but not necessarily need..

        My goodness, is it really necessary for consumers across the country to be subject to FCC regulations that increase the cost and stifle innovation of their service because your profit-making business needs to save a few dollars . . . or minutes.

        Let me help you. Here’s a link to over 40+ bandwidth providers in your area. They’re all vying for your business with, by my count, over ten that can provide you with over 1,000 MBPS peak download capacity.

        http://broadbandnow.com/Texas/Dallas

        Don’t be cheap. Don’t be lazy. Do your homework. I’d have more sympathy if you were in a rural area, but clearly you are not.

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