Net neutrality in court

The FCC order is based on a misunderstanding of the Internet

The so-called FCC Internet Freedom Restoration Order, which repealed the Net Neutrality Rules, is based on a misunderstanding of how the Internet works. The FCC based its order on the belief that certain functions inherent in the operation of an Internet Service Provider qualify Internet Service Providers for information services within the meaning of the Communications Act, and not telecommunications services. The courts have already held that the rules of internet neutrality can only be applied to telecommunications services.

As Kevin Russell explains, the lawyer representing the public interest groups on the plaintiff side, the FCC has absurdly attempted to separate Internet access from the features needed to provide that access , including caching and domain name services (DNS). These technologies are details of implementing the operation of the Internet and not separate services. The FCC's insistence that DNS lookups constitute a distinct clbad of services is dishonest. Previously, the telephone companies asked operators to manually connect users for long distance calls, which could also provide information to callers. This did not mean that Bell provided an "information service" above the telecommunications layer. Operators, like DNS, are there because they have to allow users to make telecommunications work seamlessly. The mere fact of being able to provide information does not make them either a fundamental part of the technical implementation. As we have already pointed out, the FCC's false distinction between "Internet access service" and "separate transmission service" is quite ridiculous.

There is simply not enough competition for most users to have a real choice.

As more than 190 engineers point out in their comments of July 2017, "customers simply expect their ISPs to route their traffic as part of the Internet access service to their customers." broadband ". because it's a necessary feature for data transmission in any modern network. "The FCC intentionally misinterpreted the law (which is necessary for its repeal efforts) led a judge today composed of three judges to ask the agency if it described a" service " telecommunication via a telecommunication service ", which is detrimental to the game. to incorrectly interpret the law to fill an industry program.

Competition alone will not save net neutrality

Throughout the dismantling of the Open Internet Order, the FCC has argued that avoiding its responsibility to protect the neutrality of the internet will have no negative effect on Internet users. they can simply switch to another provider.

This is not true. For one thing, There is simply not enough competition for most users to have a real choice. As Mozilla's lawyer, Pentelis Michalopoulos, has pointed out, more than half of Americans have only one choice of broadband provider. A judge insulted him on this point, pointing out that many Americans had chosen to stick to the slow pace of wireless internet. But this observation only highlights the argument of the FCC: due to a serious lack of competition, the market has failed to offer most Americans access to broadband Internet and competitive price.

Given the lack of serious competition in high-speed broadband Internet and, in practice, extreme difficulties experienced by users in trying to change service, consumer pressure will not prevent service providers Internet to engage in unfair practices. As the plaintiffs' lawyer, Kevin Russell, noted, a small group of ISPs with concentrated market power can effectively dictate everyone's terms of service.

In the words of Michalopoulos,

The FCC has ignored evidence that the [ISPs] to encourage harm to high-tech service providers and to do so with impunity. […] There is ample evidence on the record that they are getting away with impunity [because] subscribers can not leave when they do a bad thing. They can block, strangle and degrade and nobody leaves.

The FCC argues that in the absence of the Open Internet Decree, the Federal Trade Commission can still punish the unfair practices of Internet service providers. But in today 's argument, FCC lawyer Tom Johnson has exposed the flaw of this reasoning: when asked whether discriminatory practices such strangling and blocking sites would still be "misleading" if the ISPs revealed them, he replied that they would not do it. come under the jurisdiction of the FTC. Specifically, the court asked if the FCC or the FTC would be allowed to prevent Comcast from letting Hulu pay for the priority. and then the ranking of its competitors, as long as the ISP discloses the agreement. The FCC has recognized that these abuses are now possible as part of the restoration of freedom on the Internet. In other words, the FTC can not replace the FCC as responsible for net neutrality, and the FCC knows it.

Finally, the antitrust legislation in force does not deal with the other real problems presented by Internet service providers that put the content at a disadvantage. US antitrust law is primarily an economic doctrine that gives little or no weight to non-economic values. Without significant changes, it is poorly suited to treat the threat that discriminatory practices of ISPs pose to freedom of expression.

Do not prevent states from protecting consumers

Following FCC recommendations Extremely unpopular decision to repeal net neutrality, states all over the country began to take into account their own proposals to protect users in the absence of FCC rules. At the heart of the debate within the continuous distribution channel is whether the FCC has the authority to prevent states from regulating broadband companies.

The FCC can not claim that it does not have the power to regulate ISP practices and simultaneously claim that it has the power to preempt states to do so.

Attorney Stephen Wu, who represented the states, argued that state legislators have always played a role in regulating the sector and that the FCC has overstepped its limits. As Wu points out, the FCC can not claim that it does not have the power to regulate the practices of ISPs, but at the same time has the power to preempt states to do so: "These two propositions can not exist at the same time." In short, Mr. Wu said, "What the Commission said is," We have the power to suspend freely in the absence of legal power "." This is a dangerous statement. by an unelected body.

Why does the FCC think it can preempt states when it does not have the legal power to do so? It comes from one last-minute request from Verizon and other major wireless service providers: the wireless industry wanted the FCC not to stop state laws on network neutrality, but states could not protect the privacy of their citizens from internet service providers. The FCC did not go so far as to say that state privacy laws were also pre-empted (which would be extremely difficult), but it stipulated that "anything that was inconsistent" with the Restoring Internet Freedom Order was preempted. This decision allowed the industry to take the time to block the adoption of California's Net Neutrality Act, which could have been essential.

Do not strangle public safety

The dangers of an unguarded world on the part of the FCC were blatant last year, when Verizon shut down wireless broadband service for firefighters in the midst of an emergency. the FCC has continued to ignore Verizon's conduct to date – probably because without its authority under Title II, it can not do anything.

The major Internet service providers already have enough benefits without the federal agencies managing them even more.

Santa Clara County lawyer Danielle Goldstein told the court that the FCC simply could not give up its obligation to regulate the broadband industry because it had an affirmative obligation to ensure that the industry protects public safety. According to the FCC's vision for the future, if there are public safety issues, these local government agencies can complain after the fact. As Goldstein pointed out, it is not rational to expect public security entities to appear before the FCC. after an emergency rather than relying on the oversight of the agency when the emergency occurs.

The judges asked the FCC very specific questions about why the agency would not regulate broadband companies for public safety purposes. Johnson rebuffed and said the board saw no evidence of concrete damage. The court responded by asking why local authorities had to prove that there were threats to public safety when the protection of public safety is part of the agency's work. Or, as Goldstein says, "the burden is not on us to demonstrate that someone is already dead."

Today's arguments testify to the fact that the vast majority of Americans have long recognized that the FCC is wrong in technology, economics, and politics. Clear protections for internet neutrality are essential for an Internet where everyone can express themselves and participate. The major ISPs claim that the protections of Internet neutrality somehow harm the competition between ISPs, but their smaller competitors know that the opposite is entirely true. . The major Internet service providers already have enough benefits without the federal agencies managing them even more.