Regulating the Internet "Like a Utility" Won't Yield an Open Internet

by
in legal on (#2TGT)
Many of the millions of comments in the net neutrality proceeding, urge the FCC to impose net neutrality rules by regulating the Internet "like a utility." It won't work. Simply reclassifying ISPs as (Title II) common carriers will trigger a vast flood of litigation, but bring little relief to consumers who simply want unfettered access to the Internet. We can't find a way to write a net neutrality rule in a manageable number of words, and still leave only minimal discretion to the ISP. An ISP with a good lawyer - and they all have good lawyers - could plausibly argue that the rule allows almost any activity at all.

There is a way to solve this problem: a rule that requires the ISP to open its channels (cable or phone line or fiber) to competing ISPs. Under this approach, a consumer dissatisfied with the performance of one ISP could easily switch to another with no change to the household wiring - an impossibility in today's system. We know this approach works because it did work, very well, all through the Internet's dial-up days. A set of FCC rules called Computer III required just the kind of shared access to those lines that we propose here. That is the only practical way to bring about net neutrality.

In the early 2000s, following the advent of broadband, the FCC made a colossal two-part error. First, it declined to apply Title II and Computer III shared access requirements to cable broadband delivery. Second, a few years later, it removed those same existing requirements from telephone company DSL broadband. The result today is Internet monopolies, or duopolies at best, in nearly every U.S. market.

http://www.commlawblog.com/2014/10/articles/internet/regulating-the-internet-like-a-utility-wont-yield-an-open-internet-unless-/
Reply 8 comments

Apples and Oranges? (Score: 1, Interesting)

by Anonymous Coward on 2014-10-20 16:50 (#2TH1)

You seem to know more about this than I, but isn't it unfair to compare a nationwide network of AT&T and later RBOC maintained telco copper, on which POTS ISPs ran freely, with allowing/imposing competition on local evil cable company monopolies who all ran their own infrastructure and connected to each other and the Internet per se only as an afterthought to delivering TV?

It would be great if competition were there (and in a few cases there are things like Earthlink over Time Warner cable, thanks to legal settlements related to that merger) but it doesn't seem like the same thing as saying "there's already a national voice network and you can use modems on it to talk to the ISP of your choice". There just IS NO similar national network of cable infrastructure on top of which to run all these theoretical competing ISPs.... No?

Re: Apples and Oranges? (Score: 2, Insightful)

by evilviper@pipedot.org on 2014-10-20 18:33 (#2TH5)

isn't it unfair to compare a nationwide network of AT&T and later RBOC maintained telco copper, on which POTS ISPs ran freely, with allowing/imposing competition on local evil cable company monopolies who all ran their own infrastructure and connected to each other and the Internet per se only as an afterthought to delivering TV?
Nationwide versus local doesn't make any difference... You wouldn't want to do long-distance dial-up, with the high rates being charged, and couldn't ever do long-distance DSL, so only local really ever mattered for internet access.

As far as who ran what, cable companies got government granted benefits, in the form of monopoly/franchise rights, eminent domain and right-of-way access. They've really had just as much help from the government as telcos when they built-out the POTS, DSL and fiber infrastructure.

Remember, as mentioned, DSL was originally open access, too. You could have Earthlink as your DSL provider, just as easily as Verizon/ATT/etc. That is why SBC (now ATT) DSL was $15/month while cable internet was still usually $50/month. SBC had to directly compete with 3rd party ISPs (like Earthlink) offering DSL over SBC's own lines, and they drove the price down in order to get those customers. It was only a mid-2000s FCC rule change that allowed them to lock things up all over again, after-the-fact.

Finally, cable companies wouldn't be asked to give away their lines for free if the rules were changed... They'd still be charging ISPs a reasonable connection fee and line service/maintenance charges. The cable companies can still continue to provide their own internet service directly, too. They just wouldn't be able use their monopoly to FORCE vertical integration of all their services upon their customers. Would it be okay if cable companies took it a step further, blocked Netflix and Magic Jack, and only allowed their own streaming video and VoIP service to travel over the internet service they provide? Would the fact that they built it out be sufficient justification for their desire to make more money at their customers' expense? It's shades of the same issue.

And did you notice that Time Warner, who has to compete with Earthlink, is among the only ISPs with low-priced internet service plans? You can get internet service from them for $15. Charter doesn't offer anything under $40. Comcast's lowest tier is $40. Cox starts at $48. I'm specifically excluding 12/24-month contract promotional prices for new customers.

Re: Apples and Oranges? (Score: 0)

by Anonymous Coward on 2014-10-21 02:34 (#2THJ)

Have a look at Australian ISP prices. They all compete in this way. DSL 20/1 for around $50 a month from a range of ISPs.

Now they are competing with each other to install fibre. This is the kind of environment we need to get 90% of Australians on broadband. Pity the NBN is flawed and trying to take everything down with it.

Re: Apples and Oranges? (Score: 0)

by Anonymous Coward on 2014-10-23 01:09 (#2TKX)

Private ISPs are no longer competing with each other to install fibre. The government is laying down fibre with the NBN.
They're not so stupid to compete with NBN.

Argument is Baloney (Score: 2, Insightful)

by Anonymous Coward on 2014-10-21 16:04 (#2TJC)

Okay I finally RTFA. They give up on the idea of common carrier immediately, without a fight, and their reasons make NO SENSE AT ALL. They compare how "easy" it was to require common carrier for telco traffic but somehow the Internet is "vastly more complicated". Their argument is bullshit.

"Congress enacted Title II in 1934 primarily to regulate telephone service. Telephones of that era delivered exactly one functionality: real-time voice transmission. Non-discrimination meant that everybody got a dial tone on equal terms. That was easy to regulate. Enforcement was easy, too, since one company handled local service in nearly every city and town, and was also the country's only long-distance provider.

The Internet is vastly more complicated, with astronomical numbers of providers and services. A simple rule saying nothing more than ISPs "shall not discriminate" would be meaningless. An ISP's capacity is, after all, finite. At peak times it may not be able to accommodate 100% of all potential content - email, Facebook posts, Netflix video, VoIP calls, people working from home, casual browsing. At those times, some discrimination must necessarily occur in allotting access to providers. The question, then, is how to ensure that the discrimination is "fair". An effective non-discrimination rule would give an ISP managing a traffic overload clear guidance on which bits to send on and which to hold back in every possible situation. More than that, a proper rule would let the ISP program in algorithms that make these decisions automatically, on the fly."

What, there was never a capacity limit on the ability of a local CO switch to handle voice traffic? Everybody gets a dial tone, no matter how many highrises suddenly appear? Let's see, where would that capacity come from... from the provider (AT&T in that scenario) PROPERLY MAINTAINING THEIR NETWORK. The ISP business is exactly NO different. They should keep their network maintained and upgraded to allow the traffic that they are actively selling to business and consumer. "An ISP's capacity is, after all, finite." As if 1930 AT&T's capacity was magically infinite.

What a load of hogwash. The entire article is a waste of time. You can tell it was written by lawyers and not technologists.

Even their "solution" reeks of magic non-techie thinking. Oh, the miracle of competition will suddenly mean that congested hybrid coax-fiber infrastructure and leased lines will be able to deliver higher capacity just by changing a bill-to address. Have these people ever SEEN a cable modem?? You're on Time Warner's cable infrastructure, you get the capacity of Time Warner's cable infrastructure, no matter who is branding it and collecting the checks.

Re: Argument is Baloney (Score: 0)

by Anonymous Coward on 2014-10-22 16:51 (#2TK8)

No rebuttals? I figured I must have gotten at least something wrong in my little screed. (For example, while competitors have to share the same cable plant, they don't necessarily have to use the same modems and certainly not the same upstream links. Though as far as I know Earthlink does.)

Re: Argument is Baloney (Score: 1)

by evilviper@pipedot.org on 2014-10-22 21:11 (#2TKK)

The article serves as a perfectly good rebuttal to everything you've said. But I guess I could point-out a few specifics:
What, there was never a capacity limit on the ability of a local CO switch to handle voice traffic?
For phones, you either got a dial-tone and your call connected, or it didn't. There was no equivalent to throttling a phone call. You weren't placing hundreds of calls at once, to services of different quality and needs. So policing the equal access with telephones was vastly more obvious and straight-forward than with internet.
They should keep their network maintained and upgraded to allow the traffic that they are actively selling to business and consumer.
Your ISP doesn't run a line to Netflix. Netflix's ISP doesn't pay your ISP a standard amount for every packet "connected". There is no single ISP for each geographic area to take responsibility. etc. Peering arrangements are very complex, and aren't just a matter of your ISP expanding its capacity to deliver what they sold you.
You can tell it was written by lawyers and not technologists.
The topic is laws and FCC regulations. The lawyers (that deal with technology) are the only ones with any insights to the topic. A "technologist" doesn't know jack about Title II.
the miracle of competition will suddenly mean that congested hybrid coax-fiber infrastructure and leased lines will be able to deliver higher capacity just by changing a bill-to address.
The problems Netflix and others are having has NOTHING to do with congestion over the last-mile... Net neutrality in general, similarly has little or nothing to do with last-mile congestion. The problems to be addressed are all past that point, in the respective backhauls, and peering points onto each ISP's network. Those would be completely different if you switched your ISP. Presumably, with several ISPs competing for customers, the one that throttles something like Netflix the worst, will lose many customers to competitors, and will changes their behavior if they want to keep them.

Re: Argument is Baloney (Score: 0)

by Anonymous Coward on 2014-10-23 01:27 (#2TKY)

Except that in practice Earthlink over TWC performs exactly as TWC itself performs. When TWC makes changes they affect ELN customers, from throttling to port blocks to network upgrades. You can disregard and pooh pooh the last mile all you wish, but that's where we live and it's where effects are felt. It would be great if what you said were true, and it made a difference, but it's simply not true, not in present reality. Thanks for the response.