Is “Goodbye Net Neutrality” going to mean “hello” to Comcast throttling BitTorrent and other file-sharing sites again?
That’s one predicted scenario surrounding next month’s expected reversal, by the Republican-majority Federal Communications Commission (FCC), of the Net Neutrality regulations that took effect in June 2015 under President Obama.
Nilay Patel, writing in The Verge, noted this past week that FCC Chairman Ajit Pai thinks it was a mistake for the FCC to prevent Internet Service Provider (ISP) Comcast from blocking (or significantly slowing) traffic from the file sharing service BitTorrent in 2008.
Indeed, within a 188-page “declaratory ruling, report and order” titled “Restoring Internet Freedom [PDF],” Pai noted that he’s not the only one who thinks that – a federal appeals court threw out an FCC order that stopped Comcast from throttling BitTorrent content, a move that Comcast called “managing” its network.
In 2010, the U.S. Court of Appeals for the D.C. Circuit rejected the Commission’s action, holding that the Commission had not justified its action as a valid exercise of ancillary authority.
That, of course, is just one contentious issue in what has become a political firestorm over the Trump administration’s effort to eliminate FCC regulation of the internet, which took effect in June 2015, at the urging of President Obama.
But it is also a prime illustration of the fundamentals of the arguments on both sides, with voting on the rollback set for 14 December, and a national day of protest set for a week earlier, on 7 December.
For Net Neutrality advocates, that kind of government regulation is the only way to ensure that everybody gets equal access to the internet –the sites they want at the same speed as everybody else, and with all sites competing on a level playing field. It includes the expectation that there will be no “fast lanes” for the rich/elite and “slow lanes” for everybody else, and that ISPs won’t be able to block access to content, applications or websites that subscribers want.
The fear is that if Net Neutrality is revoked, Comcast and other ISPs will be free to go back to choking certain content and sites.
As Save the Internet puts it:
Without Net Neutrality, cable and phone companies could carve the internet into fast and slow lanes. An ISP could slow down its competitors’ content or block political opinions it disagreed with. ISPs could charge extra fees to the few content companies that could afford to pay for preferential treatment – relegating everyone else to a slower tier of service.
In reply, Pai insists that what he is proposing will be much better for average consumers. In a speech last spring at the Newseum in Washington, DC, he repeatedly emphasized the bipartisan support of the pre-2015 internet. Pai hailed the internet as the “greatest free-market success story in history,” thanks to:
…a landmark decision made by President Clinton and a Republican Congress in the Telecommunications Act of 1996. In that legislation, they decided on a bipartisan basis that it was the policy of the United States “to preserve the vibrant and competitive free market that presently exists for the internet… unfettered by Federal or State regulation.
And he said Net Neutrality, which classified broadband as a “Title II telecommunications service” instead of a “Title I information service,” created the kind of “heavy handed” regulation that was designed in the 1930s “for the Ma Bell monopoly,” and has stifled broadband investment and innovation.
Among our nation’s 12 largest internet service providers, domestic broadband capital expenditures decreased by 5.6% percent, or $3.6 billion, between 2014 and 2016, the first two years of the Title II era… the first time that such investment has declined outside of a recession in the internet era.
Pai contended that when investment in broadband declines, it is “low-income rural and urban neighborhoods” that suffer the most, since they generate the most marginal returns on investment.
Beyond that, back in 2007 when the Associated Press did its own investigation of Comcast slowing or blocking peer-to-peer (P2P) file sharing, CBS reported that the argument from Comcast and other ISPs for what they called “traffic shaping” was that a relatively small number of subscribers who were intense users of file-sharing services like BitTorrent, eDonkey and Gnutella, were hogging 50% to 90% of all internet traffic, slowing it down for everybody else.
In 2009, Comcast agreed to pay $16m to settle a class action lawsuit over the throttling of P2P connections. But, as Ars Technica reported at the time, that amounted to all of about $16 to those who submitted a valid claim for damages.
Pai insists that “transparency rules” under his proposed regulation will require ISPs to disclose any disparities in treatment of its customers, and that subscribers who think they are being treated unfairly can complain to the Federal Trade Commission (FTC) under antitrust and consumer protection laws.
But, as Patel pointed out, in today’s broadband market, “51% of Americans only have one choice of broadband provider.”
The rollback of Net Neutrality, “is not how the internet should work,” he wrote, closing with the exhortation: “Call Congress.”
Tom
Here is the true $100 Million Question:
If my ISP at home says that we are going to honor the status quo and not do any bandwidth management, what about the long-haul ISP that they contract with? (Level3, XO Communications, TACA, etc.)
As I see it, it takes one in the chain to process bandwidth management, then the internet is all screwed up!
Paul
Well since Trump appointed Mick Mulvaney in charge of the Consumer Protection Bureau, there will be no one to complain too, since he will destroy the Bureau as we know it now
Max
In all these talks and arguments I still haven’t quite gotten one question answered. What is it exactly that ISPs want to do, but can’t do under the current regulation, and that isn’t throttling others? Seems to me that Ajit Pai guy is of the opinion ISPs won’t do any “funny business”, so what exactly is he expecting them to do that they can’t do now, that isn’t what everyone says they would do, and that’s also increses “investment in broadband”? To be honest I haven’t heard a single real reason why the current regulation is bad, or why the new regulation would be good for customers.
shanedk
People act like not having Net Neutrality wasn’t the norm for 24 years!
Title II was precisely what allowed the FCC to give AT&T monopoly power in the 1930s. I REALLY don’t get what they think this is going to save us from!
Max
You seem to be informed, can you answer my questions? What can’t ISPs do under the current regulation that they want to do? And what real benefit would customers have under the new regulation? And how would the current regulation give anyone a monopoly?
delayedthoughtengineering
Q1: What can’t ISPs do under the current regulation (Title II) that they want to do?
A1a: Block sites (could be a nasty porn site… or an informative sex education site)
A1b: Slow down traffic to undesirable sites (could slow down gaming traffic during a crisis in which news outlets get more play… or it could slow netflix down and leave amazon prime streaming unaffected – refer to Comcast’s throttling controversy in 2007)
A1c: Prioritize traffic to desirable sites (Netflix can work flawlessly now with less pixelation at the beginning of the movie… or it could speed up traffic to biased news articles that support its claims)
Q2: What real benefit would customers have under the new regulation?
A2: Theoretically, this freedom will allow ISPs to shape traffic to more important websites at critical times, and would theoretically further encourage more investment in the internet infrastructure, especially for those highly desirable “lanes”. Presumably, less regulation will lead the free market to reduce prices for consumers.
Q3: How would the current regulation give anyone a monopoly?
A3: Theoretically, the current (Title II) regulation stifles innovation and makes it harder for new, small ISPs to succeed. However, this is a non-issue in the 51%+ around the country, where a single ISP already has an internet-provider monopoly, or where two or three ISPs have a non-monopoly “oligarchy” which is simply a monopoly with a few companies who have come to an agreement.
Max
Ok, so all of what they want to do is exactly what people fear they would do and what that Ajit guy says they won’t do. I’m still a bit fuzzy on the part where being able to “shape” traffic encourages investment in the infrastructure. How exactly? If you can shape traffic however you need it, isn’t it less likely that you need to expand your infrastructure? As opposed to now, if you want to sell high speed to someone you need to expand the area to guarantee it and can’t just throttle others for it. I really don’t get the argument there, at all. And I also don’t quite see how the current regulation hinders smaller ISPs from succeeding. Is the argument here that smaller ISPs need to be able to sell “high speed lanes” to certain companies in order to succeed? Can’t they just make their overall prices cheaper as to be competitive? Or does Title 2 prevent them from having different prices (for the whole connection, not for single services)?
delayedthoughtengineering
You are not alone in your confusion! I have been reading extensively, and I just don’t see any real proof that Net Neutrality has affected infrastructure investment. Ajit looked at overall infrastructure investment going down in the same year that Net Neutrality was put into place, and insisted that there was a connection. However, multiple telecom chiefs have denied this connection, saying that Net Neutrality has definitely not affected investment. So from my point of view, the whole infrastructure-encouragement argument for abolishing net neutrality is a false argument altogether.
This is a personal guess: I’m guessing that the argument is that investment would be sparked by the “fast lane” if net neutrality is eliminated. Example theory: If Netflix is paying for premium access, the ISPs would theoretically be investing in infrastructure to make that fast lane just as blazingly fast as possible, and then some. That’s where I’m guessing the impetus for investment is supposed to come from.
As for smaller ISPs, Ajit suggests that the burdensome regulations of the current net neutrality rules are overwhelming these smaller ISPs, which would theoretically have a much easier time at being competitive if they didn’t have to work under the pressure of so many regulations. This also strikes me as incorrect, or at least overblown.
The whole argument can be very confusing, because Ajit and those like him actually interpret facts incorrectly. One big definition that they seem to be getting wrong is that the ISPs actually store and serve data, which is technically true due to page caching and other small optimizations, plus their own internet utilities, such as e-mail and internet front-page portals (which, without net neutrality rules, could be served to customers at a much higher speed than other, competing internet utilities like Google’s various utilities or the user’s favorite newspage). The opponents of net neutrality use this re-definition to argue that ISPs should fall under Title 1 instead of Title 2. In reality, the ISPs are -primarily- a utility service, providing the connection between consumer and data, which makes them more appropriately listed under Title 2, with the “burdensome” restriction that they must provide an equal connection between the consumer and all internet data. All the data caching and other “data processing” that the ISPs perform are there to service the -primary- function as a service utility.
If a ISP wants to be able to serve up internet utilities, such as e-mail and newspages, that’s fine, and should be covered separately. That way, the ISP can compete, rather fairly, with other internet utilities. If the regulations are removed, then the ISP can give their own offerings an unfair advantage, such as making the ISP e-mail run faster, or plastering complex ads all over a competing website’s front page.
By the way, earlier this week, one of the major ISPs, Comcast, quietly dropped their promise not to throttle and shape their internet traffic if net neutrality were to be revoked.
Max
So Ajit just saw a correlation and assumed a causation. And went nuts on it, without giving it a proper thought, or having any sort of evidence that and how removing Net Neutrality would encourage more investment. Sounds like the thing a typical lobbied politician would do.
John
This will add a whole new layer of cost that will get passed along to the consumer.
MelH
You are absolutely right. My Comcast bill just went up 15%, $10 short of $200 gets me slow internet, a landline phone and bare-bones TV, IF I don’t access 411, which is $7 more each call. I MUST find an alternative.
shanedk
It isn’t about that! It’s about not wanting government to have the power to regulate the Internet, like they’ve been trying to get all along! Nothing in Title II has anything whatsoever to do with Net Neutrality. It basically lets them do whatever they want. Right now, they SAY they’ll just use it for Net Neutrality and never anything else, really, honest, trust us. But when has it worked that way with anything else?
Max
Ok, different question then. What is it you think the Government will do if ISPs stay under Title II? And I don’t mean any vague “whatever they want” statements. I mean, what is your concrete fear that makes you want to get rid of Net Neutrality. Maybe then we can look at the worst case scenarios on both sides. I already know the worst case if Net Neutrality gets lifted. ISPs will dictate what you can and can’t look at on the internet depending on who pays them more. Netflix doesn’t pay enough? No more highspeed Netflix for you. (Of course this is worst case scenario, but not an unrealistic one)
Mahhn
Censorship.