Go to Appearance > Menu to set "Primary Menu"

Bringing you the latest in Gigabit Networks, broadband usage, wireless and more

Category archive

Wireless - page 2

Broadband Roundup: Baltimore Fiber, T-Mobile Throttling, and Cybersecurity Legislation Concerns

in Fiber/Mobile Broadband/Net Neutrality by

WASHINGTON, July 3, 2014 – Leaders of the Baltimore Broadband Campaign are saying that Comcast has a monopoly over fast internet services in the city of Baltimore. Over a course of two years, Comcast customers pay about $1,000 for standard “triple play service, write Philip Spevak, Stan Wilson and Anthony Gill in an Op-Ed in the Baltimore Sun.

Instead, the authors want fiber to be widely deployed to homes and businesses, and they say 14 communities in north Baltimore have partnered to facilitate a more competitive environment: there want to entice one of the more than 800 fiber optic providers to invest in Baltimore.

Their two-phase process begins with a grassroots crowdfunding campaign to convince providers of the existing demand for fiber-based broadband. Informing local residents of the possibilities of and need for new fiber broadband providers is vital, they say, given that “20 to 40 percent of Baltimore residents are not even connected to the internet, slow or otherwise.”

The second phase would engage city and state officials in “proactive public policy” preventing barriers to municipal-owned broadband, they said.

“Many other cities throughout the nation are making rapid progress installing fiber broadband infrastructure and services. It’s time for the citizens of Baltimore City to stop paying more money for less and work together to bring faster and cheaper Internet to our homes and businesses,” they concluded.

Public Knowledge called out T-Mobile for what it called efforts to “disguise” its data-throttling activities for users that exceed their monthly data quota. By exempting the Ookla speed test and other speed testing applications from throttling, the company effectively prevents “consumers from learning exactly how slow their throttled connections are” when they exceed their data caps.

This move will “exploit online data caps, harm online innovation, and violate the spirit of online openness,” the advocacy group said. Previously, the company said that it would also exempt its own online music service from throttling activities, raising a potential net neutrality violation.

The company “has argued that its Music Freedom program is not a violation of net neutrality because no money has exchanged hands and it offers only benefits to its customers. As with T-Mobile’s music program, however, this new ‘speedtest exception’ only applies to selected speed testing applications blessed by T-Mobile,” said Public Knowledge. “There really is no reason that ISPs should be in a position to bless individual services over others.”

The Senate is currently considering the Cybersecurity Information Sharing Act, which is under heavy fire from critics who claim that it exposes net neutrality loopholes, according to InfoWorld.

While the law is intended to let companies share information about potential cyber threats with the government, technology and civil liberties groups wrote in a letter wrote in a letter that Internet service providers could use the provision as an excuse to discriminate against content providers like Netflix under the guise of a cyber security threat.

“Net neutrality is a complex topic and policy on this matter should not be set by cybersecurity legislation,” they wrote.

Sponsors Sens. Dianne Feinstein, D-Calif., and Saxby Chambliss, R-Ga., argued that the bill “responds to the massive and growing threat to national and economic security from cyber intrusion and attack, and seeks to improve the security of public and private computer networks by increasing awareness of threats and defenses.”

Broadband Roundup: With Aereo off the Air for Now, Alternatives Seek Advantage, and Legislators Advocate for Municipal Broadband

in Broadband Roundup/Copyright/Wireless by

WASHINGTON, June 30, 2014 -Following the Supreme Court’s blow last week against Aereo, the video streaming service has shut down indefinitely as it drags back into the lower courts. Aereo CEO Chet Kanojia wrote a letter to consumers explaining the decision.

“We have decided to pause our operations temporarily as we consult with the court and map out our next steps,” Kanojia said. “All of our users will be refunded their last paid month…the spectrum that the broadcasters use to transmit over the air programming belongs to the American public and we believe you should have a right to access that live programming whether your antenna sits on the roof of your home, on top of your television or in the cloud.”

Aereo lost last week’s case because the Supreme Court ruled that the service was violating network television providers’ copyright by streaming their programming without paying royalties.

With Aereo gone for now, The New York Times said other streaming companies are scrambling to fill the void by luring former traditional TV customers with their own offers. Hulu, Amazon, Google and Netflix are all developing cheap alternatives.

Roku, Sling Media, TiVo, Mohu and Simple.TV are selling hardware that lets viewers stream television to digital services or view web video on TV sets.

Simple.TV lets users buy their own antenna and the $199 Simple.TV box, which records programs on a connected hard drive. Premium service features automatic recording and remote access from around the globe. And unlike Aereo, The Times said Simple.TV customers capture signals in their homes, which consequently “fits squarely into fair use,” said Simple.TV CEO Mark Ely.

Eight Democratic congressmen led by Sen. Ed Markey, D-Mass., and Rep. Mike Doyle, D-Penn., are vigorously defending municipalities’ rights to build broadband networks. In a letter to Federal Communications Commission Chairman Tom Wheeler, the group wrote that “local communities should have the opportunity to decide for themselves how to invest in their own infrastructure.”

The group called on the FCC to use its “full arsenal of tools” to pre-empt state laws that prevent city-owned broadband.

Speaking of the FCC, Wheeler scheduled a vote in July on rules for closed captioning online video clips for improved accessibility, according to The Hill. While the rules would only apply to online clips of video of video programming that aired on television with closed captions, Wheeler wants all online videos closed captioned in the long run.

The Digital Media Association, which represents Amazon, Apple, Microsoft and Google’s YouTube, warned that “the time and cost of enabling captions is not substantially less for a 2-minute clip than for a 2-hour full-length movie.”

The National Association of Broadcasters voiced similar concern: ““the FCC must shy away from unreasonable demands that would have adverse consequences for viewers by forcing video clips off the Internet.”

Lastly, Akamai Technologies released its 1Q State of the Internet report. It revealed that global Internet speeds have increased by 24 percent over the last year and almost two percent in the last three months.

Broadband Roundup: Klobuchar and Lee Question Comcast-Time Warner, Less Rural Wireless, and Mayors Seek Net Neutrality

in Broadband Roundup/FCC/Wireless by

WASHINGTON, June 25, 2014 – Sens. Amy Klobuchar, D-Minn., and Mike Lee, R-Utah, have raised concerns over the proposed Comcast/Time Warner Cable merger in a letter to the Federal Communications Commission, according to Broadcasting & Cable.

At issue is the potential for a reduction in outlets for traditional video programming, innovation in broadband, and price increases.

“Because this transaction will materially increase the buying power of the largest buyer in the market for programming, it is important for your agencies to carefully assess the impact of this transaction on the ability of viable content providers of all types to obtain distribution of their content,” the senators wrote, according to Broadcasting & Cable.

The latest of many small carriers that have left the wireless market, reported Telecompetitor, noting that rural communications service provider Plateau Telecommunications is selling its wireless operations in eastern New Mexico and West Texas to AT&T.

Plateau CEO Tom Phelps was quoted by Telecompetitor as saying that “while the wireless part of the business has certainly been important to us, we are pleased to be in a position to focus more on our other quality telecommunication services provided through our extensive fiber network.”

The deal, which is expected to close in the second half of 2014, requires regulatory approval.

The National Conference of Mayors urged support for the FCC’s network neutrality rules, according to Multichannel News, calling for a ban on paid prioritization and other practices that it referred to as discriminatory. It also sought the end of state laws blocking municipal broadband.

“Paid prioritization under a commercially reasonable standard allows paid prioritization that has heretofore been understood to be unjust and unreasonable; and unreasonable paid prioritization is antithetical to a neutral internet, and nondiscrimination is an inherent and indivisible characteristic of net neutrality,” the mayors wrote, according to Multichannel News.

Regarding net neutrality, Google was paid a visit at its headquarters Tuesday by Occupy Oakland protesters who called for the protection of the open internet, according to SilliconValley.com

“We are here to call on Google and all its employees to stand up and join us in the fight for a free and open Internet,” the group said on its web site.

The American Library Association wrote on District Dispatch of its support for the FCC as it moves forward with E-Rate modernization. It thanked the agency for simplifying the application process for schools and libraries.

The association said that the FCC’s $2 billion “down payment” to the E-Rate program is not enough funds; broadband access should be “fully funded for eligible applicants.”

“Wi-Fi without adequate broadband—which is the case for the majority of the nation’s libraries that have internet connections of less than 10 Mbps [Megabits per second]—does not come close to adequately serving the education, employment, entrepreneurship, empowerment and civic engagement needs of our communities. ALA urges the FCC to incorporate a portion of the down payment to high-capacity broadband—that is, to priority one services—in this first order.”

FCC Releases Latest Report on Measuring Broadband; Gap Between Actual and Advertised Speeds is Closing

in Broadband Data/Broadband's Impact/FCC/Wireless by

WASHINGTON, June 18, 2014 – Most internet service providers are delivering upload and download broadband speeds as advertised, according to the Federal Communications Commission, although there is room for improvement in consistency of speed.

In its “Measuring Broadband America” report released Thursday, the FCC said that, on average, ISPs are delivering 101 percent of advertised download speeds, as compared to 97 percent last year.

That compares to results from an August 2011 study, which found that most broadband providers included in the part delivered 80 percent of advertised speeds during peak usage periods.

A senior agency official said the report aims to promote transparency and ensure that consumers can make informed decisions about broadband choices, the official said.

Ten out of fourteen ISPs showed slightly improved download performance since last year, the FCC said. Qwest/CenturyLink showed the most successful, experiencing a 16 percent performance increase.

Although fiber-optic technology is driving advancements with several carriers, those with large digital subscriber line footprints, on the other hand, experienced lags in performance improvement. In fact, Verizon Communications, which offers DSL to some customers – in addition to its Fios fiber-optic service in some markets – was the only ISP to show slower results versus last year.

Consumers are also electing by themselves to gradually migrate to higher speed tiers, the report said.

Nationwide, the “average subscriber speed is now 21.2 [Megabits per second] Mbps, representing an average annualized speed increase of about 36 percent from the 15.6 Mbps average of 2012,” said the FCC.

As for upload speeds, ISPs offering broadband via fiberhad the highest speeds.Internet congestion was also frequently discovered at interconnection points.

The FCC officials said the report was not indicative of any agenda to regulate broadband. The official did say, howeverinternet congestion is being investigated for potential harm to the marketplace and consumers.

“We expect to have instituted additional testing methodologies providing more information on network congestion and peering by winter 2014,” the official said.

Details of the FCC report are available at Measuring Broadband America.

Broadband Roundup: Wireless Data Exploding, Will Sprint Succeed with T-Mobile, Cybersecurity Bill

in Broadband Roundup/Media ownership/Mobile Broadband/Wireless by

WASHINGTON, June 18, 2014 – A new study by Wireless Association CTIA reported that between 2012 and 2013, mobile traffic and data increased by 120 percent. That’s 383 times the data usage from 2008. The result was $331 billion worth of investments into wireless networks last year, according to the association.

On the communications merger front, AT&T Chairman and CEO Randall Stephenson said Tuesday that he expects Sprint’s attempt to acquire T-Mobile to suffer the same doomed fate of AT&T’s attempt to acquire the wireless carrier, The National Journal reported.

Regulators won’t budge, he said, because in their minds, a colossal merger would reduce competition in the wireless industry from four major carriers to three.

“There were not other major issues. That was the issue, and that’s what they came after,” he said during an interview with David Rubenstein, CEO of the Carlyle Group, during an event hosted by the Business Roundtable, according to National Journal. “As you think about Sprint and T-Mobile combining, I struggle to see how that is not four going to three.”

Softbank Corp CEO Masayoshi Son, on the other hand, expressed more optimism about Sprint’s proposed merger, according to Reuters. Softbank owns majority share in Sprint.

“We can make it more effective by getting bigger scale,” he said at Tuesday’s interview, conducted jointly with former U.S. Secretary of State Colin Powell who is attending SoftBank-sponsored events in Tokyo. “Us becoming a more credible competitor in scale is something good for American consumers and citizens.”

Additionally, a Senate press release said that Senate Intelligence Chairwoman Dianne Fernstein has drafted a bill that allows companies to more easily share information about cyberattacks.

A counterpart bill to a similar House bill, the measure offers “liability protection to companies that participate  in the program.”

Broadband Roundup: AT&T Won’t Block Internet, Google and Vodafone Working to ‘Seal Cracks’ in Net

in Broadband Roundup/Broadband's Impact/FCC/Net Neutrality/Wireless by

WASHINGTON, June 9, 2014 – In a blog post on Friday, AT&T gave its assurance that paid prioritization was not part of the telecommnications gianits plans.

“Not a single [internet service provider] has asserted a desire or right to engage in any of these practices to create ‘fast lanes and slow lanes.’  AT&T certainly has no plans or intent to change its position on this,” said Jim Cicconi, senior executive vice president and top lobbyist for AT&T.

Even if AT&T were to want to separate people into fast and slow lanes, the company would be obliged to follow the 2010 open internet order from the Federal Communications Commission, as well as its statement of broadband practices, not to violate net neutrality commitments. Comcast made a similar commitment as part of a merger agreement.

AT&T remains vociferously opposed to reclassification of broadband services under Title II of the Communications Act, said Cicconi. Doing that would “strangle broadband investment just as it did investment in wireline telephony.” Such a move would punish America’s most successful global internet companies.

“We’re with the innovators,” Cicconi said. “We’re with those who see the internet as a liberating technology.  We’re with those who want to challenge the status quo, and those who simply want to entertain.  And, importantly, we’re with those who use the internet to bring the accumulated knowledge of mankind to every single person on the planet.   We’re determined to keep expanding the opportunities the internet creates.”

In other news, The New York Times reported that Google is taking measures in “sealing up cracks” in its systems since Edward Snowden revealed the National Security Agency’s widespread telephone and internet surveillance.

Google is encrypting and encoding data – and helping consumers to do the same. The activity is not just to protect people from the NSA, but from surveillance by foreign governments like China. Facebook, Microsoft, and Yahoo are following suit, according to The Times.

On a similar note, the Associated Press reported that Vodafone has disclosed government surveillance of customers in 29 nations. Most of those 29 nations requested cooperation from the wireless provider, but in at least six countries, security agencies asserted direct access to company phone records without legal process.

Too often, Vodaphone itself is left “in the dark” on surveillance activities by governments, wrote AP.

No specific nations were mentioned, but the AP noted that in an 88-page appendix to documentation released by Vodaphone, five countries – Albania, Egypt, Hungary, Ireland, and Qatar – were identified as having laws allowing authorities to “demand unfettered access.”

Bloomberg reported that many governments explicitly forbid the disclosure of electronic snooping. According to Bloomberg, Vodafone’s steps toward transparency encouraged carrier Deutsche Telekom AG to disclose more information.

Broadband Roundup: Sprint and T-Mobile Proposal, Mobile Broadband Rising, Media Ownership Rules

in Broadband Roundup/Broadband's Impact/FCC/Wireless by

WASHINGTON, June 5, 2014 – Another significant telecommunications merger proposition is underway between Sprint and T-Mobile. The Wall Street Journal reported that the acquisition would cost Sprint $32 billion, or about $40 per share in cash and stock.

Sprint and T-Mobile are the third and fourth largest wireless operators in the United States, respectively. The merger could present serious competition for market leaders Verizon Communications and AT&T.

“In order to compete against the big two, AT&T and Verizon, scale is essential,” said Satoru Kikuchi, an analyst at SMBC Nikko Securities Inc. in Tokyo told Bloomberg. “The mobile-phone industry is an industry that needs business investment, so the larger the better.”

This isn’t the first time a telecom company has tried to acquire T-Mobile. AT&T courted T-Mobile three years ago, but the marriage was blocked by regulators, citing antitrust concerns that would leave consumers too few choices in wireless carriers.

In other news, consumers spent more than $113 billion this year on internet access, USA Today reported. That number is expected to rise to $174 billion by 2018.

The report was filed by consulting firm PricewaterhouseCoopers’ Entertainment & Media Outlook 2014-2018.

Mobile Internet expenditures comprised “$53 billion of the total $102 billion [interet] access pie,” USA Today reported, while home broadband made up the lesser share of $49 billion. In four years, the PwC projects that 86 percent of the U.S. population will have mobile service as opposed to the 85.6 percent with home broadband.

Demand for music, movie, and video game streaming services is expected to increase the demand for internet access.

Also, the House Energy and Commerce Subcommittee on Communications and Technology scheduled a hearing for Wednesday June 11, 2014 entitled “Media Ownership in the 21st Century.”

Witnesses have yet to be announced. The hearing will examine the FCC’s “inaction on the statutorily required 2010 quadrennial review of the media ownership rules as well as the continued relevance of the media ownership regulatory framework in general.”

The hearing also aims to review the commission’s institution of new rules on joint sales agreements, plus various media ownership changes undertaken without the quadrennial review.

In a form filed with the Securities and Exchange Commission, AT&T told investors Tuesday that its proposed merger with DirecTV would help building out the company’s “ultra-fast fiber connections to consumers’ homes and compete better with the major cable providers.”

Savings up to 20 percent would result through fewer programming costs. This would allow the company to make additional investments in expanded broadband coverage, the company said.

Broadband Roundup: Germany Rebuffs Surveillance for Repression, Wearable Technology in the Body and Cyber-Attacks

in Broadband Roundup/Broadband's Impact/Cybersecurity/Wireless by

WASHINGTON, May 21, 2014 - ABC News reported that Germany plans to limit their exports of surveillance technology to states “that fail to respect their human rights.” The action is a response to recent allegations made against intelligence agencies, claiming that surveillance programs have been unwarranted and non-transparent.

Economy Minister Sigmar Gabriel said he wanted to keep German spy software from being used for repression, said ABC. He’s seeking to persuade all 28 members of the European Union to conform to “common standards” for the export of surveillance technology.

The Guardian reported on a breakthrough in wireless technology allowing for embeddied wearable technology within the human body.

The technique is referred to as “mid-field wireless transfer,” which transfers power to very small electronic devices. In addition to better health tracking tools, the Guardian reports that the new benefit will not need large, long-life batteries that need replacing through more surgery. It would also enable “electroceutical” devices –such as medical implants to treat pain or alleviate the symptoms of diseases like Parkinson’s through deep brain stimulation.

The technology has been proved to work in animals but still requires years of scrutiny from safety regulators and medical professionals, the paper reports.

Reuters reported that U.S. military experts are clamoring for new ways to clamp down on cyber attacks against U.S. methods as current acquisition rules make quick responsiveness difficult.

Kristina Harrington, director of the signals and intelligence directorate at the National Reconnaissance Office, that acquisition programs can take up to two years to “initiate and execute.” The wire service reported that Harrington deemed this to be unacceptable in light of the ever-changing nature of cyber threats.

Forbes reported that Google has acquired startup Divide, a New York-based company that “offers a bring-your-own-device solution for corporate environments.” The goal for Google is to make its Android devices more “enterprise-friendly” by reducing concerns regarding privacy in the work space.

“We’re thrilled to announce that Divide is joining Google! The company was founded with a simple mission: Give people the best mobile experience at work. As part of the Android team, we’re excited to continue developer solutions that our users love,” Divide stated on its website.

Broadband Roundup: AT&T-DirecTV Merger and its Impact on the Marketplace

in Broadband Roundup/Broadband's Impact/Media/Media ownership/Net Neutrality/Wireless by

WASHINGTON, May 19, 2014 – AT&T announced that it would acquire DirecTV in a $48.5 billion deal, according to multiple sources. The agreement may allow AT&T to position itself in a way to rival cable firms. AT& would acquire about 20 million of DirecTV’s customers. The Washington Post recounts that the stated goal of the merger is to gain more customers in the high-speed internet, phone, and pay-TV subscriptions market.

Reuters reports that little overlap is shared between AT&T and DirecTV, permitting the telephone giant to tap into the video market more than ever before, including all of DirecTV’s programming. DirecTV, on the other hand, would be able to offer its customers enhanced broadband internet service.

The New York Times speculates that AT&T’s bid is likely in response to Comcast’s announcement of its intent to purchase Time Warner Cable in February for $45 billion. It’s not the first time either that AT&T has attempted this big of a merger: three years ago, the company tried to acquire T-Mobile for $39, only to have the deal fall apart because of antitrust concerns.

“The media chessboard is moving more this year than it has in the past decade,” The Times quotes Richard Greenfield, a media analyst with the brokerage firm BTIG “You’re seeing major shifts. Everyone is jockeying for position.”

The merger first needs approval from federal regulators, who may be unlikely to approve out because of concerns about the possibility of higher prices in the face of less choices. The Post further reports that “in 2012, U.S. cable-TV bills increased 5.1 percent, to an average of $64 a month, triple the rate of inflation, according to a government report.”

The advocacy group Public Knowledge criticized the proposed merger, with senior staff attorney John Bergmayer saying, “The industry needs more competition, not more mergers. The burden is on AT&T and DirecTV to show otherwise…to explain how this merger wouldn’t harm wireless competition, and how whatever new services it plans to offer by combining with DirecTV would offset any harms to wireless and video competition.”

USA Today said that AT&T’s proposed merger with DirecTV would be different from Comcast’s merger with Time Warner Cable, in that the former eliminates a competitor in AT&T’s U-Verse market. In in the aftermath of the FCC’s proposal on net neutrality, concerns have been raised that the “increased concentration of power among the few who provide broadband would give AT&T more leverage if… ISPs are ultimately allowed to charge for “fast lanes” of the Internet for content providers that are willing to pay for them.”

Additionally, Recode reports that Cisco Systems CEO John Chambers recently sent a letter to President Obama requesting that the National Security Agency “curtail” its surveillance activities.

This comes in the wake of recent documents leaked by former NSA contractor Edward Snowden claiming that the NSA “intercepted equipment from Cisco and other manufacturers and loaded them with surveillance software.” Cisco has stated that this was not voluntary cooperation on its part.

“We simply cannot operate this way; our customers trust us to be able to deliver to their doorsteps products that meet the highest standards of integrity and security,” Chambers wrote. “We understand the real and significant threats that exist in this world, but we must also respect the industry’s relationship of trust with our customers.”

Building a Legal Case for Net Neutrality Rules, FCC’s Wheeler Hopes Courts Will Look Favorably on His Logic

in Broadband's Impact/FCC/Net Neutrality/Wireless by

Editor’s Note: Federal Communications Commission Chairman Tom Wheeler is attempting to craft legally unassailable rules promoting net neutrality. But he’s run into trouble from all sides. Communications providers aren’t happy. His fellow commissioners aren’t happy. And the “netroots” activists aren’t happy, either.

BroadbandBreakfast.com posts three articles on Thursday’s action at the FCC. First, the scene at 12th Street SW. Second, the reaction from interested parties. Third, what the details of the agency’s order says.

WASHINGTON, May 19, 2014 – The D.C. Circuit Court of Appeals struck down the Federal Communications Commission’s last two efforts to enshrine network neutrality. So what makes current chairman Tom Wheeler feel as though he can succeed where two of his predecessors failed?

The answers lie in the details of the 85-page order – called a “Notice of Proposed Rulemaking” in the legalese of Washington telecommunications bureaucrats – released late on Thursday.

At its core, Wheeler aims to regulate broadband providers without having to treat them as regulated entities.

There are three conceptual building blocks for this maneuver: (1) the transparency requirement in his proposed network neutrality rules; (2) a “no blocking” requirement; and (3) enforcing a “commercially unreasonable” standard against potentially discriminatory practices by internet service providers.

The First Building Block

The transparency requirement was upheld by the court in its January 2014 decision in Verizon v. FCC. In Wheeler’s mind, the transparency requirement will give the agency insight into the possibility that “a network [might] take an action that would affect a content provider’s access.”

The agency seeks to enhance the transparency rules put in place when former FCC Chairman Julius Genachowski introduced it as part of the Open Internet Order of 2010.

The Second Building Block

The “no blocking” requirement is largely uncontroversial: almost all broadband providers are publicly committed to the proposition that they will not block access to a content service, even if it they are competitively adverse to such a service – for example, Comcast hasn’t blocked access to Netflix, even though the cable company’s movies-on-demand feature competes with the internet streaming video company.

Yet finding legal grounds for that rule has been challenging.

While the court struck down the “no blocking” ban, the FCC said that the court accepted the FCC’s reasoning for its “no blocking” ban, if only the agency had justified the rule on firmer legal grounds.

Here’s the FCC’s logic on what the court meant in Verizon v. FCC:

On January 14, 2014, the D.C. Circuit ruled on Verizon’s challenge to the Open Internet Order. …[T]he court upheld the Commission’s reading that sections 706(a) and (b) of the Telecommunications Act grant the Commission affirmative authority to encourage and accelerate the deployment of broadband capability to all Americans through, among other things, measures that promote competition in the local telecommunications market or remove barriers to infrastructure investment. The court further held that the Commission could utilize that section 706 authority to regulate broadband Internet access service.  It concluded that the Commission had adequately justified the adoption of open Internet rules by finding that such rules would preserve and facilitate the “virtuous circle” of innovation, demand for Internet services, and deployment of broadband infrastructure and that, absent such rules, broadband providers would have the incentive and ability to inhibit that deployment.

If the D.C. Circuit is so open to the FCC’s reasoning, why did the agency lose in the Verizon case? Because the FCC made the argument that broadband providers were, effectively, a common carrier.

If it were a common carrier, a broadband company would have to provide internet service in a non-discriminatory manner; common carriers aren’t allowed to discriminate. Private communications providers are permitted to differentiate in their service offerings.

Moreover, in the last decade, prior to struggle for net neutrality rules, the FCC has been moving to deregulate rather than to regulate the provision of broadband.

Historically, telephone connections were classified as “telecommunications services” under Title II of the Communications Act. Broadcast television and radio services were classified under Title III of the law, and cable television services were lumped into yet another section, Title VI.

The 1996 revisions to the Telecommunications Act put telecommunications services subject to regulation under Title II; and information services not subject to such regulation. The agency chose to make fiber-optics exempt from common carrier regulation; then it took the same path for cable-modem service, and for digital subscriber line (DSL) service over copper wires The section is largely deregulatory, if ambiguous in its direction to the FCC.

The 1996 law also added an unusual new section, referred to as Section 706, regarding “advanced telecommunications incentives.”

If the agency determines, as a result of its regular inquiries into the deployment of broadband, that Americans are not being adequately served by high-speed internet, the law stipulates that “it shall take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment and by promoting competition in the telecommunications market.”

What is this “immediate action” that the agency proposes? The “no blocking” provision of the net neutrality rules.

The Third Building Block

The third pillar on which the agency builds its new net neutrality rules is a new standard, that of “commercially unreasonable.”

Overcoming this hurdle will be Wheeler’s biggest obstacle in sustaining the legality of Thursday’s proposed rules.

Previously, Genachowski had attempted to ban all “unreasonable” discriminatory actions of broadband providers. The court didn’t look kindly on this argument, saying that the FCC was now treating broadband providers as common carriers. This it was not allowed to do.

Now, instead of barring “unreasonable discrimination,” the agency seeks to bar only “commercially unreasonable” discrimination. The agency stumbled into this standard in a most accidental manner: in a separate 2012 case, the D.C. Court of Appeal upheld the agency’s data-roaming rules on the grounds that to violate them would constitute “commercially unreasonable” discrimination.

So here’s how, in his remarks on Thursday, Wheeler contends that the building blocks would work:

I want to get to rules that work like this:

  • If the network operator slowed the speed below that which the consumer bought (for reasons other than reasonable network management), it would be a commercially unreasonable practice and therefore prohibited,
  • If the network operator blocked access to lawful content, it would violate our no blocking rule and be commercially unreasonable and therefore doubly prohibited,
  • When content provided by a firm such as Netflix reaches the consumer’s network provider it would be commercially unreasonable to charge the content provider to use the bandwidth for which the consumer had already paid and therefore prohibited,
  • When a consumer buys specified capacity from a network provider he or she is buying open capacity, not capacity the network can prioritize for its own profit purposes. Prioritization that deprives the consumer of what the consumer has paid for would be commercially unreasonable and therefore prohibited.

Simply put, when a consumer buys a specified bandwidth, it is commercially unreasonable – and thus a violation of this proposal – to deny them the full connectivity and the full benefits that connection enables.

Will the argument work? Legally, it’s closer than the FCC has ever been to sustaining net neutrality rules. But politically, that’s another story entirely.

Drew Clark is the Chairman and Publisher of the Broadband Breakfast Club, the premier Washington forum advancing the conversation around broadband technology and internet policy. You can find him on Google+ and Twitter. He founded BroadbandCensus.com, and he brings experts and practitioners together to advance Better Broadband, Better Lives. 

Go to Top