FCC rules on Internet access

Dec 21, 2010

Matt Wood, associate director of the Media Access Project, will be online Tuesday, Dec. 21, at 2 p.m. ET to discuss today's FCC vote to approve its first ever Internet access regulation, which ensures unimpeded access to any legal Web content for home Internet users.

Media Access Project is a non-profit, public interest law firm dedicated to promoting the public?s First Amendment right to access a diverse marketplace of ideas in media.

Hi, this is Matt Wood from Media Access Project, a public interest law firm that works on media, telecom, and Internet issues.  Happy to take your questions and chat about today's FCC net neutrality order.

The FCC states that the new rules don't regulate coffee shops or bookstores that offer Internet access, but only regulates service providers. If a business makes Internet access available, who other than that business is the service provider? And is wi-fi considered a wireless broadband service or is that limited to cell phones and other wireless devices?

Good questions.  The service provider is the company that provides the underlying access to the coffee shop.  Not a perfect analogy, but its kind of like watching sports at a bar -- the bar is not the provider of the telecast, but they do let you have access to it.  Wi-fi is a wireless technology, but likely to be considered a wireline service because it just amplifies wirelessly the DSL or cable modem service you already have. 

I was blown away to read how poorly some of the national articles distinguish this issue. If you allow someone to pay for better speed, doesn't that invalidate the whole idea of net neutrality? I can just set the "base' speed at something relatively slow, and then unthrottle everything that gives me money. This isn't net neutrality, this is a political "victory" that accomplishes very little for the end user. Either do it right, or wait for someone else to do it right.

Well, letting end-users like consumers pay for different speeds or capacities might be a problem, but that's not what my organization and others are most worried about here.  We're concerned about ISPs discriminating against certain types of content or speakers -- against the Washington Post or Facebook, e.g. -- rather than simply differentiating among types of service plans based on capacity or speed.  Today's order might prohibit such paid prioritization, but we're concerned it's not strong enough.

I get the opinion from reading convervative blogs and posts on sites and boards that there'a not a lot of understanding on the right of what a "non-neutral" net means. If there's no net neutrality, I envision ISPs like Comcast slowing or severely impeding connection speeds to non-NBC media sites as soon as they can get away with it. Do you think that people who are against net neutrality really understand the issues regarding tiered access, or are they looking at the issue from some other perspective?

I think you are right that some people who oppose this concept do not really understand it in some respects.  For instance, they are worried about regulating the content of websites, which is most definitely not on the table, and is something that my organization would oppose strongly.    Misunderstanding is not limited to the right wing, but I guess I'd say there does seem to be a lot of it there, yes.

....is already occurring...this is analogous to cable companies having premium/non-premium packages that include/exclude channels. If you want more channels, pay for more....if you want more speed, pay for more.

Exactly.  Which is why I'd say it's not a net neutrality issue, and not something we'd oppose on those grounds.  We have concerns about tiered pricing for other reasons,  like if consumers aren't aware of what they are paying for or aren't getting promised speeds.  But it's not discriminatory in this same sense, you are right.

If the FCC has not made a finding that there is market power in the last-mile broadband access market, then why should the FCC get involved? If Comcast blocks access to a Web site, the user can switch to Verizon. Doesn't this dynamic provide an incentive for Comcast not to discriminate?

I guess I'd turn the question around and ask if Comcast blocks your access to one website,  how likely are you to go to the time and expense of switching to Verizon -- assuming for the moment that you live in an area with two viable providers?  FiOS is not going everywhere, so would you switch to a slower speed DSL?  In any event, consumers shouldn't be asked to make these choices. 

Please explain, if you will, what net neutrality is to the layman and what today's vote by the FCC means to my Facebook account, my use of Google and Skype, for example.

Net neutrality means that the ISP  providing your broadband connectivity should not control what websites you visit, or how fast you can get there.  Today's vote means that there are some protections in place for you, but my organization thinks the rules are too weak -- meaning that you might in the future have to pay more for using Skype or Facebook, or else those companies may have to pay more to reach you.

Did the Obama FCC just cave in to the telephone companies, like Obama caved on public option and everything else?

I am not going to put it in those terms, but I would agree that the FCC had a chance here to adopt strong and meaningful rules, and instead it sought out a middle path that would be seen as more moderate.  It hopes.  The trick is that while some big companies like AT&T may have been appeased by today's compromise, congressional Republicans and the 2 dissenting commissioners at the FCC sure were not.  So much for compromise approaches.

What about activating state public utility commissions and energizing consumer advocacy at the state and local levels?

Not a bad idea, but a tricky one to implement perhaps.  Without getting too lost in the weeds, there are legal questions about whether states have the ability to regulate so-called "interstate" services like Internet access.  Typically, states had oversight for local phone service only -- calls that didn't go out of state.

I thought recent court cases had called into question the FCC's ability to regulate broadband services (because they are not strictly telephone or television). Will the Congress have to give the FCC more regulatory powers before these rules can be enforced?

My opinion - though not that of the FCC chairman - is that the FCC could move forward on stronger grounds right now.  This opinion is shared and was voiced today by the other two Democratic commissioners, Copps and Clyburn.  It remains to be seen how the particular legal theory adopted by Chairman Genachowski will do in court, but my organization is not optimistic about its chances.

What is the need for this regulation now, when the Internet has worked fine without it for about 30 years? Is there any significant number of examples of ISPs actually attempting to restrict access? This sounds to me like a power grab by the increasingly-irrelevant FCC, which is desperate for new reasons to justify its existence.

The Internet works under a common carriage principle for dial-up -- like when the ISP (like AOL) was different from the company that provided the underlying line  (like Verizon or AT&T).  So it's not a new approach.  Some people argue that deregulation spurred broadband growth, but others note that the U.S> has slipped in broadband rankings during this deregulatory era.  Anyway, your power grab language is a nice talking point, but if you really believe that Comcast and AT&T and others should have the "freedom" to determine where you go on the Internet or how fast you get there, I guess you and I have to differ on that one.

I read an editorial in WaPo from a Republican FCC member who says the policy is unnecessary, and apparently a Democratic FCC member is going to vote to let the policy go forward, but it's not a "yes" vote - more of an "I have no objection to this but I am not enthusiastic" vote. Does the FCC not see the writing on the wall?

Not sure exactly what you mean, but if you are pointing to the fact that there does not seem to be as much consensus at the supposed center as the FCC would like, I think you're right.

McDowell seemed upset that his alternative was not given profile. Given his solid pro-telecom industry positions, is there any public interest merit in his proposal?

Another question that I'm not sure I get.  Commissioner McDowell has a deregulatory bent for sure.  I wouldn't say there is no merit to his sincere concerns, but I do disagree with almost all of his analysis on this.  Yet I fear he and Baker may be correct on their analysis of somewhat shaky legal authority adopted today. Like Commissioners Copps and Clyburn, I thought the FCC had a better path available to it to adopt these rules and undertake other broadband inititaitives.

I think you misunderstood my earlier question. The rules would prohibit Internet providers from arbitrarily blocking or slowing delivery of online services, but they could strike business deals in which a company might pay extra for faster access to consumers. If a company can pay for its speed to be higher than a competitor, this is the exact opposite of net neutrality. This ruling is a farce. I am really starting to doubt that any politicians understand this at all. I don't think they understand it at a basic level, without getting into all the security exceptions that have to be allowed, such as an ISP throttling a certain port to stop a botnet. This is going to be a disaster that only benefits corporations.

Yes, you are right -- if a content company is allowed (or required) to pay a higher price in order to reach end-users faster, then that is a net neutrality violation, and a huge dampener for innovation and free expression online.  And you are right that, based on reports, today's order may not do enough to prevent this from happening.

How can this distinction between fixed and mobile be made in the dawning era of 4G wireless? Is there a true technological difference between the two? How about in a scenario in the near future where I have a "fixed" 4G LTE receiver/modem in my home with wifi but also have devices like iPhones or netbooks with built in 3G/4G modems that can seamlessly transition from the "fixed" network in my house to the "mobile" network in the outside world? What do the fixed rules cover?

Excellent questions all.  There are some technical distinctions between wireline and wireless, but you are exactly right to note that those distinctions can be pretty insubstantial as we move to 4G.  Haven't seen order text yet, but it seems clear that the stronger rules for wired service will cover wi-fi in your home but not 3G/4G.  We see that as a problem, and it's one of the reasons we are so disappointed.

Please describe in clear language how "outside of enforcement questions” the wireline Internet will be harmed by this order.

If paid priority is not clearly banned or allowed, that's not just an enforcement question.  It's about the structure of the rules, and that kind of basic question should not be left to enforcement.  Also, reports are that the wireline broadband definition is too narrow, in ways that may allow ISPs to exclude their services from the rules altogether.

So basically as I have read it this will allow for ISP's to throttle your speed the same as mobile companies are starting to do? For an individual who uses the Internet heavily, this will be impeding their access to content right?

Yes, but they could do that today.  It seems a lot of attention has been paid to price caps and throttling based not on the content you access, but just generally based on your overall usage.  Companies can do this today, though I hear the order makes that more explicit.  Let me be clear: my organization is NOT in favor of this practice, but we also don't necessarily see this as a net neutrality issue.  I discussed this in response to an earlier question, but am happy to elaborate again if it's still unclear.

In what ways do the provisions regarding wireless protections fall short? What principles of wireline would apply to wireless?

There is no non-discrimination principle that applies to wireless networks, meaning that mobile ISPs can't block websites but they may be able to charge different amounts to access different websites.  Also, there is a prohibition on blocking competing voice applications (think Skype), but not other apps -- so AT&T or Verizon Wireless *could* choose to block a PayPal, Facebook, or Netflix app.

Isn't it sad that the public interest lobby still doesn't understand that premium transport services are necessary on an Internet in which most traffic is video streaming? To hear these hollow complaints that all packets are equal you'd think this was 1998 and people were only using Internet services for Web browsing. Why are public interest groups so invested in lawyers rather than technologists?

So post 1998, discrimination became cool, huh?  No one here is saying that "all packets are equal" -- but some types of discrimination are clearly anti-competitive and clearly restrict free speech.  And yes, I'm a lawyer -- but if you want to talk to some technologists who are truly upset about the weakness of today's order, try the folks at New America Foundation, for one. 

Will this new rule (regulation/legislation?) cause ISPs to charge more for the amount of data a person downloads? For intance, I read recently that the FCC is considering letting ISPs charge more for people who stream a lot of video content. I dropped my cable years ago, and only use Netflix streaming through my Roku box. Will this new rule allow the ISPs to charge me more money?

The new rule could allow that, yes.  We feel that ISPs probably should be allowed to charge more for people who use more bandwidth -- as long as the pricing is fair and transparent.  We feel strongly, however, that ISPs should not be able to charge you more for video because you use Netflix and I use Comcast Xfinity, for example.

Do you think that the order addresses the issue of Comcast charging Level 3 more to send Netflix traffic to Comcast subscribers? If Comcast charges Level 3 the same regardless of the traffic sent by Level 3, it would seem to not (there would be no discrimination). Do you think this hole in the rules is a problem?

The Comcast  - Level 3 dispute is complicated.  There might be net neutrality implications there, but then again there are other ways to understand it too.  That's more of a transparency and competition problem than strictly speaking a net neutrality problem; so no, I don't think this order addresses it entirely, nor could it probably.

Opponents claim that regulations will somehow prevent them from paying for improvements to their networks, presumably because their revenues will somehow decline. Are there any specific rules governing pricing of Internet services in these new regulations?

No, there are no rules governing pricing.  Commissioners McDowell and Baker (wrongly) accused the order of addressing only speculative problems, but then they themselves speculate and say that a future FCC "could" -- to use Cmmr Baker's favorite word -- price regulate.

Matt, you missed the point of my earlier comment. The Post's article clearly says that providers can allow a company (aka Google or Netflix) to pay more for faster access. This is the exact opposite of NN. Passing off this solution as NN is really a fraudulent move by the FCC.

I really don't think I am missing the point.  Maybe our messages are crossing here.  Lots of good questions.  I agree that the result you describe would be bad.  If the Post article says these rules "clearly" allow that, I think it won't be that clear -- but I too fear that these rules could allow that.

Do you agree with the FCC's decision to treat differently fixed wireline and mobile wireless broadband providers?

No, because there should be one Internet; because the technical distinctions between the two types of networks are overblown, and could be accounted for without having disparate principles; and because wireless is such an important on-ramp and is the only broadband option for many people in rural areas, lower income households, and typically marginalized communities.

Will this issue have to go to Congress or is this it at this point?

It won't *have* to go to Congress, but the fight probably will continue there and in the courts.

What is the point of regulating on Internet access? It's been doing fine since it started. Is this is a beginning to an agenda?

Internet access historically was regulated as a common carrier service.  In the "broadband era" it has been less so, but we've had these Internet principles in place for some time warning ISPs off of abuses.  If you are happy to trust that Internet access is "open enough" today and will always stay that way, even as ISPs like Comcast start to acquire more content like NBC, then you and I have different levels of trust.  ISPs have a duty to their shareholders, not the general public.  If discriminating against some content would improve their bottom lines in the absence of rules, why wouldn't they do it?

According to a Web site that Ii won't mention, the new rules include a rule that Internet providers can charge per the amount of bandwidth used. Didn't they already have that freedom? Did the new ruling give them new rights to do this?

No new rights in my view; perhaps just clarified the current status.

Is it your opinion that the Internet needs to be regulated at all? The FCC regulates broadcast TV but doesn't regulate cable TV. Is that good? Is too much regulation too much?

Yes, "too much regulation is too much."  And too little regulation is too little.  Don't you agree?  It's not true that the FCC doesn't regulate cable, but it's not as comprehensive a set of regulations as for broadcasters.  But is that a good thing?  Hands up everybody -- who here feels like they pay too *little* for cable?

What is "wireline." I'm not techy enough to understand.

It just means that it comes through a wire, like a phone line, DSL, or cable, as opposed to wirelessly (like for a cell phone).

Can someone ask the tough questions instead of saying YAY NN got passed? If companies can pay for access, then how, outside of blocking a Web site did consumers benefit? Blocking a major Web site already leads to oodles of bad press and most consumers are not bright enough to realize they are getting throttled. The Tcoms made out pretty well with this though. It's easy to see why they love the plan. Obama's people failed us again, but like always they put a pretty ribbon on it.

I'm not sure I understand all of your points or premises in there, but I do agree that this order will be touted as a victory for the administration and the FCC.  But we see it as not strong enough, and as a missed opportunity.

Is there an opportunity for the FCC to revisit this if it becomes a problem, or is this "final" in some sort of way?

I have 3 o'clock now, but I am going to stay on and at least answer the questions already submitted if I can.

So, is this final?  No, the FCC can revisit it -- but that may prove difficult to do politically and legally as the ramifications of this decision play themselves out -- at the FCC, in Congress, and in the courts.

If that happens, what is the likelihood that those companies would set up mirror sites to evade the blocking, like the Net equivalent of money laundering?

Not sure about the likelihood.  The big content companies will have lots of money invested and lots of contracts with the carriers, so might be unwilling to do what you suggest.  I think some technologists have sort of said we don't need rules because the technology can circumvent blocking, but I'm not looking forward to or advocating for that kind of arms race.  

So, just to be clear - In a scenario where somebody cancels their fiber or cable service and transitions to Verizon 4G LTE home service, the 4G wireless signal that is broadcast by the tower that is received by a home modem is considered fixed but the 4G wireless signal that is received by a device in your home with a built in 4G modem is considered mobile? And the FCC distinguishes between the two?

I'm not entirely sure about the right answer.  Still need to see the order, and would have to know more about the different types of 4G devices to assess whether any could be considered "fixed wireless" as opposed to mobile.  You are right to think that there may be some pretty arbitrary seeming distinctions in play here.

I like my flat $8 for unlimited Netflix streaming. I watch all of my TV through Netflix streaming. I don't want my ISP or Netflix to start charging me more. This regulation looks like it will allow them to raise prices. How is that good for consumers?

I don't think it is.  Some companies might say, and Commissioner McDowell indicated today, that if you don't make Netflix pay more then the higher costs for building out the network will be borne by everyone else.  But there are ways for ISPs to recover and spread costs fairly without discriminating against certain websites or certain types of applications.

Apologies if this is a dumb question - are Net providers currently regulated at the state level by the same commissions that regulate phone, cable and power utilities?

Not a dumb question at all.  The ability of states to regulate broadband access has been in question since at least 2004, if not earlier, and the FCC's half-measures and refusal to answer some tough questions leave it in doubt today.

Why are you now worried about "paid prioritization." Isn't the right of a free-market economy for one to charge more for that service? It seems now that's guaranteed? Sounds a bit autocratic, if you ask me.

I don't mean to be too provocative, but that's the same kind of argument that Senator-elect Rand Paul made about racial discrimination laws, right?  So sure -- one can posit absolute free market "rights" to discriminate, at least when it's economically beneficial to the person doing the discriminating.  But one can also argue the contrary and say that certain types of discrimination or prioritization are harmful to the network or to society as a whole.   People often point to the Fedex vs. the Post Office example, but here's why that's problematic.  Sure, you should be free in a free market to pay more for better service -- but does that mean Fedex should be "free" to charge more to deliver Amazon packages than it charges to deliver Sears packages?

A bit past 3 o'clock, I am going to answer two or three more.  My apologies if I don't get to your question.  I am going in order here - no prioritization, I SWEAR!

Wouldn't getting the FCC to start regulating the Web ultimately a bad idea? What's to stop them from regulating content as well? I see a lot of people stating that this will mean eventually now that the FCC has their foot in the door, they be able to control content.

What stops them is that the FCC always has regulated the transmission paths, not the content -- other than in the broadcast realm, where my organization has fought the FCC on 1st amendment grounds several times and won.

Are you afraid that the passage of these weak rules could do irreparable harm to the FCC as an institution? Between Sen. Hutchison's threat to block FCC funding and a very real risk that another loss in court would the figurative "strike 3" against FCC authority over the Internet, could these rules do more harm than good?

Possibly, but not necessarily for the reasons you posit.  I think there are too many variables and balls in the air here to know for sure, but we do worry that these rules will fall in court and that their substance is too weak regardless of their chances in a lawsuit.

What will this mean for small telcos, with a limited amount of bandwidth to the Internet? It seems like this will only cause the small operations (i.e. rural telcos) to increase their costs, while seriously limiting control of their own networks. In the meanwhile, wireless providers get off scott-free. I think I have seen this movie before.

Well, we agree that there should be no discrepancy between wired and wireless, though I think you and I might disagree about the benefits and/or costs of such rules for wired ISPs.  But I can see the rural telcos raising a ruckus here for sure.

Some people and business can receive fixed wireless service, can they not? So isn't the distinction between wireline and wireless really a misnomer as the key term is actually "mobile"?

Yes, that's right.  People usually use wireless as shorthand for mobile wireless, but you've gotten the distinction right.

In terms of the media reform community, what is likely to happen next? Will there still be a focus on this issue as it moves through the courts, or are activists going to move to other issues, like Michael Copp's "Value Testing" for broadcasters?

I hope we can walk and chew gum at the same time, staying focused on this issue but continuing to advocate for good public policy in others as well.

Hi Matt. Thanks for hosting this discussion helping to explain the ruling. My question is What's the worst-case scenario?. I hear that an ISP could charge more for content coming from, say Netflix than Xfinity, but how much more given market forces? So, would Netflix get boxed out of competition by having to pass along the cost? I'm looking for something like - Netflix would have to charge $3 for movies, whereas if you got them from Xfinity with lower costs, it would only be $2. Would it put a company like Netflix at that much of a competitive disadvantage?

I have to confess that I cannot provide a lot of certainty on the numbers.  We feel like the rules here could cause a competitive disadvantage, and not just in terms of cost increases but with windows of exclusivity too.  But I'm sorry, I can't tell you whether it's $3 instead of $2, or 25% more expensive, or what.

My point was that Obama can say he passed a NN thing, but consumers got t0 benefit from this, while the telecoms got a huge boost (through the wireless rules). The odds of a website being outright blocked/ denied are very slim due to the public relations backlash, so that's really not a victory for consumers.

Yes, that's right.  The ISPs willing to sign on or at least not squawk here must feel like they've not given up a lot.  What's the old DC cliche -- sleeves off of their vests, right?

That's it for me.  Thanks so much for the questions and lively debate.

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Matt Wood
Matt Wood is associate director of the Media Access Project.
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