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Opinion: Net neutrality is a myth, and the FCC changes aren't what you think


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No matter where you turn on the internet (unless you visit FCC.gov or a carrier’s website), you’ll see netizens screaming, “You can’t take the net from me!” Since the dawn of the internet, it has been almost a matter of gospel that a free and open internet is essential for the ecosystem to succeed.

But now, newly appointed Trump administration FCC chairman Ajit Pai wants to take it all away. Or so it would seem, if you read the blogs and watch the YouTube videos.

But nothing is as simple as the hype would make you believe. For the past week, I’ve been trying to get a handle on exactly what Chairman Pai is proposing, what that proposal would mean, and what would change.

TechRepublic: The smart person’s guide to Net Neutrality

To that end, I’ve skipped past all the blog posts, all the well-meaning tech explainers, and all the forceful, yet sincere videos. I’ve gone straight to the source. I’ve been reading the law. The actual Code of Federal Regulations, and the actual documents that describe the changes proposed by the FCC.

Let me be clear. This has not been fun. I’m doing this for our future — and because I couldn’t figure out what the heck was really happening, and I wanted to know. Read on, because everything you think you know about the current (and possible future) state of net neutrality is probably wrong.

Oh, and before I get into this, I have a request: Please no hate mail or death threats this time. I love the internet and our freedoms as much as any of you. I’m describing the result of a long, careful analysis. I’d really rather not see nastiness in my inbox and feeds before coffee tomorrow morning. Think of me as a guide and explorer, not a partisan. You all know I have very little regard for either political party or their games. Thanks. Now, let’s get started.

Politics is ugly

Our journey begins exactly how the FCC’s current leadership wanted it to begin: With a press release [PDF]. On Nov. 21, the FCC issued what’s called an FCC Statement to announce Chairman Pai’s circulation of a draft order, entitled Restoring Internet Freedom Order.

Nothing in this seven-paragraph announcement mentioned “net neutrality” by name.

Instead, the release was almost entirely political theatre.

For example, the headline for the release included the phrase “heavy-handed internet regulations.” In fact, the phrase “heavy-handed” was used three times in the 317-word announcement. It also uses other politically charged phrases including “bowed to pressure,” “failed approach,” “micro-managing,” and more.

Rather than focusing on the specifics of a considerable change in how the internet is governed in the US, it gripes and pushes hot buttons that seemed designed to encourage divisiveness.

None of this is particularly helpful for an intelligent discussion of a nuanced issue, but it is business-as-usual for politicians. In this article, I’m going to drill past the hype and political grandstanding to the actual nuts and bolts of the proposal.

Surprisingly enough, my conclusions don’t entirely find against Chairman Pai’s recommendations. His proposals have some validity. Unfortunately, the way they were communicated — and the way the opposition is also communicating — seems designed to foster disagreement, rather than constructive problem solving.

What is net neutrality?

Net neutrality is more concept than rubric. The general idea, well-described by the Electronic Frontier Foundation, is: “Internet service providers (ISPs) should treat all data that travels over their networks fairly, without improper discrimination in favor of particular apps, sites or services.”

This is messy. There have been some attempts to clarify the key components, and, in fact, if you dig through the FCC documents I’ll present to you in this analysis, you’ll find there are three main concepts: No blocking, no throttling, and no paid prioritization.

No blocking

The idea of no blocking means that, for example, an ISP can’t decide that you’re not allowed to see certain websites just because they compete. Verizon, for example, owns Oath, the bizarre new name for their acquisition of AOL and Yahoo. AOL owns, among other internet properties, MapQuest. The no-blocking idea means that Verizon shouldn’t be allowed to block, for example, Google Maps, just because it owns MapQuest and wants to boost MapQuest’s business.

This also extends to the idea that ISPs can’t block content (except for certain illegal content) just because of a political perspective. For example, no-blocking says ISPs can’t block this article, even if they don’t want their customers to see it. And no-blocking also means they’re generally not allowed to replace content (for example, replacing the ads this site sells to support its services with ads that provide revenue to the ISP).

Blocking is bad. No blocking is good. That makes sense.

No throttling

No throttling is the idea that ISPs can’t slow down certain classes of traffic. For example, we all know that most of the bits that travel over the internet originate on Netflix and YouTube. Video is not only hugely popular, but also requires (especially 4K video) a lot of data.

Early on, some ISPs were shocked by how much data some customers were consuming when they started streaming video. They hustled to try to limit that, as much out of fear that their networks would implode as over a competitive desire to promote another streaming service.

The no-throttling idea is that ISPs can’t intentionally slow down certain classes of internet traffic, particularly video and torrents. AT&T, for example, owns the streaming service DirecTV Now. The no-throttling concept says that AT&T can’t slow down (and thereby diminish the watchability) of services like Netflix in order to to push customers to use its own streaming service instead.

Paid prioritization

Paid prioritization is, essentially, a mix of the previous ideas. The idea of paid prioritization is that if you want your service to travel over someone else’s lines, you pay for that privilege. In theory, Netflix doesn’t have to pay AT&T to cover its extreme bandwidth usage. But, in practice, the huge internet streaming providers need to provide servers near the edge just to make it all work.

See also: How a net neutrality rollback could create a tiered internet | FCC chairman calls Twitter the real threat to an open internet | While India protects net neutrality, an Indian-origin American seeks to destroy it | Deep packet inspection: The smart person’s guide

So, really, what paid prioritization is meant to do is allow a new startup to compete against a firm like Netflix and not have added carrier fees assessed to reach viewers or readers. The fact that starting a new service, whether video or text, has a vast array of other costs really makes paid prioritization less of a hot button.

A variation of paid prioritization is what’s called “zero-rating.” The idea here is that some vendors can pay carriers to not charge for their data. If you’ve ever seen the T-Mobile ads where certain video services don’t count against your data cap, you’ve seen zero-rating in action. We’ll come back to this when we talk about the FCC’s changes and what they may (or may not) mean.

What is Chairman Pai trying to do?

Recall that Ajit Pai is the FCC chairman and that he’s issued a draft order that proposes changes to how the internet is governed in the US. If you’ve read this far, you’re up to speed on the blue sky ideas of net neutrality, but you haven’t seen a single line of what the Chairman Pai is actually proposing.

OK, then. Here’s the single line: “Repeal and reserve Section 8.11.”

That’s pretty much it. There are some changes in the definition of mobile services, but the whole net neutrally argument going on all over the internet is circling the drain around that one line.

Let’s explore what that line means and where it comes from.

The real start of this whole discussion is a document called FCC 17-60, Notice of Proposed Rulemaking, WC Docket No. 17-108. It is 75 pages of exciting reading, the bulk of which is not the proposed changes, but discussion about the changes, requests for comments on the theory, politics behind the changes, as well as supporting statements by some FCC commissioners about the proposed changes and a fire-and-brimstone dissenting opinion by another FCC commissioner.

If you want to read the whole document, here it is [PDF]. It took me quite some time to track it down, because most links from the FCC (and everyone else) led back to the press release, not the actual proposal.

The actual proposed changes occur on page 40 (and only page 40), where the FCC proposes to amend 47 CFR Part 8 and 47 CFR Part 20.

For the uninitiated, CFR is the Code of Federal Regulations, and Chairman Pai is proposing deleting one entire section (section 8.11) and amending another section. The 47 in the previous sentence refers to Title 47, the chapter of the CFR that deals with telecommunications.

I’m first going to focus on section 8.11 of Title 47, because that’s the core of the net neutrality argument. The Part 20 discussion is about mobile communications, which I’ll cover later in this analysis.

Coders may notice that the CFR and all this legal stuff seems to be a lot like “includes” in coding. Essentially, what Pai is proposing is to stop including the header file that’s identified as Section 8.11. It’s like deciding you no longer want to link in a library. If you’re a developer, you know that changing what libraries you link in can have huge ramifications for the final product, and in the legalese of the CFR, that’s also true.

To understand what’s being proposed, we have to dive into 47 CFR Part 8.

What does 8.11 specify?

For those of you who want to read along, here’s the relevant part of the CFR [PDF]. 8.11 has the title of “No unreasonable interference or unreasonable disadvantage standard for internet conduct.” The specific text is one long paragraph, but there are really three main elements.

The first element is common to many elements of Part 8, the part of the CFR that deals specifically with “protecting and promoting the open internet.” It reads:

Any person engaged in the provision of broadband internet access service, insofar as such person is so engaged,

It doesn’t appear that the FCC’s proposed changes will impact net neutrality in much of any way.

Now, recall that corporations are people, so this really states that 8.11 applies to broadband internet providers. Since mobile broadband providers have specific issues discussed in Part 20 of the CFR (and are subject to a different set of FCC changes), these clauses first and foremost apply to broadband delivered to homes and offices, but might also include wireless devices.

Note that since this clause is included in nearly all the Part 8 sections, the FCC’s proposal to delete 8.11 will not change this particular element.

The meat of 8.11 is the second element, which reads:

shall not unreasonably interfere with or unreasonably disadvantage end users’ ability to select, access, and use broadband internet access service or the lawful internet content, applications, services, or devices of their choice, or edge providers’ ability to make lawful content, applications, services, or devices available to end users.

At first glance, this would seem problematic if removed. After all, we don’t want our ISPs to interfere or disadvantage our ability to access content and services. But here’s the thing: There are other sections in Part 8 [PDF] — particularly 8.3 Transparency, 8.5 No Blocking, 8.7 No Throttling, and 8.9 No Paid Prioritization — that appear to, if you’ll pardon the expression, trump anything in 8.11.

Frankly, my read is that 8.11 seems redundant, given that the no-blocking, no-throlling, and no-paid-prioritization elements of the CFR are not being removed. In this context, it doesn’t appear that the FCC’s proposed changes will impact net neutrality in much of any way.

On the other hand, there is a final element of 8.11 that is also common to the no-blocking and no-throttling subsections. While it would be removed in 8.11, this following element will remain, as it has for years, in the rest of Part 8. That element is:

Reasonable network management shall not be considered a violation of this rule.

Reasonable network management. That’s a very big loophole for any broadband provider. It allows almost anything to be blocked or throttled if it’s too much of a pain, too expensive, too difficult to maintain service levels, or has too many calories.

The thing is, this loophole, which could reasonably be used to block or throttle streaming video (and a lot of other things) has been in the CFR since before the Obama administration and will remain in the CFR. Nothing about Chairman Pai’s proposal changes that.

What about the mobile changes?

For this next section, we’re going to talk about changes to how the government regulates mobile devices. To be clear, we’re looking at radio-based devices. That could mean your iPhone, or it could mean an old VAX mounted to a pickup truck bed, if that VAX happened to be able to connect via radio to cell phone carriers.

The point is, the regulation is about the way of connecting, and what’s governed by devices that connect using radio, rather than the devices themselves.

Before I go into my best interpretation of the changes, it’s important you see what we’re working with. Here’s a screenshot of the proposed rule change:

fcc-17-60a1rcd-pdf-2017-12-02-15-51-08.jpg

The FCC’s mobility rule changes. (Screenshot: FCC)

As you can see, it doesn’t specifically replace certain language with other language. Instead, it’s a short summary of paragraphs. I’ve been doing my best to interpret what appear to be the three main changes, by correlating them against what I know of previous FCC changes. But don’t take my interpretation as gospel. Feel free to do your own research, reach out to lawmakers, and explore on your own.

Redefining commercial mobile radio service

All these are definition changes. If you change the definition of something, you change how it’s treated in the law. So, first up is the change in the definition of what is a “commercial mobile radio service.”

The FCC has control over radio communications, so if something fits as a commercial mobile radio service, it’s governed by the FCC. This is where all the “Title II vs. Title I” stuff that you may have read about comes into play. Briefly, communications that fall under Title II can be regulated as a public utility. Communications that fall under Title I are treated as information services.

The interesting thing about this is that many of the blog posts you read that talk about Title II vs. Title I imply that these apply to all internet services. As best as I can tell, they don’t. They only seem to apply to stuff your phone uses: Wireless services. Despite all the yelling, the actuality of the Title II vs. Title I changes appears to have never been about net neutrality as it pertains to your home or office wired connection.

Assuming I’m reading all this correctly, it’s understandable that most of the commentators, bloggers, and reporters may have got this wrong. Reading the CFR and detailed FCC proposals is very time-consuming. It’s much easier to repeat what others say, adding rage or sincerity as feels appropriate. That’s why I do these deep dives. I really want to share with you (and learn for myself) what is actually happening beyond the normal internet echo chamber.

The big argument is that by moving mobile internet communications to Title II in 2015, under the Obama administration, such communications were better protected from corporate intrusion and blockage. By contrast, other arguments state that by keeping internet activity under Title I, the FTC (the Federal Trade Commission, not the FCC) can regulate privacy and commerce with greater latitude.

I submit to you (and will show you shortly) why both of those arguments appear to be pretty much useless, and carriers will always find a way to do what they want. But let’s get back to Chairman Pai’s proposed changes.

In the definition of “commercial mobile radio service,” he proposes to drop the phrase “including a mobile broadband internet access service as defined in §8.2 of this chapter.”

Here’s another example of how the law uses political versions of include statements. To fully understand what’s being dropped, we need to look at the definition [PDF] in 8.2, which is, “A broadband internet access service that serves end users primarily using mobile stations.”

So, essentially, by removing these statements, Chairman Pai is removing mobile internet service from the purview of the FCC. This approach is continued in the two other definition changes in Part 20.

Redefining interconnected service

The first changes the definition of “interconnected service” by, this time, adding one word. Here’s the original Part 20 definition [PDF]:

That is interconnected with the public switched network, or interconnected with the public switched network through an interconnected service provider, that gives subscribers the capability to communicate to or receive communication from other users on the public switched network

Here’s how Chairman Pai proposes changing it. Can you find the extra word?

That is interconnected with the public switched network, or interconnected with the public switched network through an interconnected service provider, that gives subscribers the capability to communicate to or receive communication from all other users on the public switched network

The word added is “all,” and it’s used in the context of “all other users on the public switched network.” What this means is that for an interconnected service governed by FCC regulations to be considered as such, it has to be able to talk to all users on public networks. That means that private networks, or networks that limit interconnection, by definition then are no longer under the jurisdiction of the FCC’s rules for carrier behavior.

Redefining public switched network

The final change proposed is the definition of a “public switched network,” and this change is very interesting, indeed. Here’s the original wording:

The network that includes any common carrier switched network, whether by wire or radio, including local exchange carriers, interexchange carriers, and mobile service providers, that uses the North American Numbering Plan, or public IP addresses, in connection with the provision of switched services.

Here’s the revised wording:

Any common carrier switched network, whether by wire or radio, including local exchange carriers, interexchange carriers, and mobile service providers, that use the North American Numbering Plan in connection with the provision of switched services.

Two things are happening here. First, it eliminates the idea of a network of networks, by removing the phrase “the network that includes.” Second, it removes the idea that a public switched network (which is how the FCC refers to the phone system) is something that can be VoIP-based, because it removes the phrase “or public IP addresses” from the definition.

Now that we know what the chairman of the FCC proposed, the issue is whether it’s bad, good, or just business as usual. Let’s look at that, next.

Will the FCC changes kill net neutrality?

Strap in kids. The ride is about to get bumpy.

I submit to you that no, these changes will not kill net neutrality for two main reasons: First, the proposed changes don’t really touch the so-called net neutrality provisions. Second, net neutrality is more an ideal than reality, and even with the 2015 Obama administration changes, net neutrality wasn’t really real. Before you freak out, I’ll explain what I mean by that in a minute.

I don’t need to spend too much time on the first point. As I’ve shown, Chairman Pai’s proposals don’t touch the no-blocking, no-throttling, or no-paid-prioritization elements of the CFR. This is important, because almost everything you read will tell you that’s what the draft order is doing. That is simply not true. Those sections remain in Part 8 of the CFR, and they remain untouched.

Second, even though Chairman Pai is tweaking the definition of what constitutes a mobile provider, and thereby what falls under FCC jurisdiction, none of that deals with blocking or throttling of services either.

No doubt, some carriers will find a way to make millions based on these changes, and no doubt some of us will be inconvenienced or charged more in some way, but that doesn’t mean you won’t be able to watch your Netflix or read articles like this — articles that may question official policy.

So, after days of digging, I’m reasonably confident in concluding that Chairman Pai’s proposed changes will not eliminate net neutrality. That said…

Net neutrality is a myth

There is no such thing as free and unfettered internet communication. It wasn’t better before the Obama administration changes. It wasn’t better after those changes. The Trump administration’s almost pathological need to undo Obama administration changes won’t change anything substantive, at least based on the draft order I’ve been analyzing.

That’s because net neutrality isn’t real. The FCC isn’t going to kill net neutrality. Net neutrality isn’t going to get taken away. It’s not going to be destroyed.

Each of these articles would seem to imply that we’ve only had good net neutrally since 2015, when Chairman Wheeler classified certain traffic as Title II. If that were the case, actions that would seem to violate net neutrality wouldn’t have been possible in the last four years. Even the EFF, the nonprofit world’s most visible proponent of net neutrality, doesn’t believe the FCC can make it possible.

For example, there was a huge battle over the practice of zero-rating some services in some plans, but even after the changes in 2015, the FCC allowed it.

Here’s another example: There’s been some idea that the 2015 regulations kept consumer prices under control, especially when it comes to streaming services like Netflix. The general storyline is that before the 2015 regulations, Netflix fought constant battles with broadband providers and was required to pay premiums to keep itz traffic flowing.

We ran reports about both Comcast and Verizon behaving in a non-neutral way, charging Netflix or slowing down service. You would think then that Netflix prices to consumers would have gone up because of Comcast and Verizon’s unregulated actions. And they did, for new customers. In 2014, Netflix raised its streaming prices to $9.99 per month for new customers.

On the other hand, after the Obama administration’s changes to Title II, you’d then think that net neutrality (if it really existed) would have kept prices under control. But you’d be wrong. In 2016, Netflix removed the grandfathering of older prices, effectively raising prices on all its long-term customers by nearly 25 percent. Then, just a few months ago, prices went up again.

Some would argue that perhaps Netflix pricing doesn’t belong in an argument about net neutrality, because that’s not about blocking or throttling a service, even if Netflix does have to purchase servers and services near the edge, near consumers. But if prices can go up, and if we can still get our services, are we really talking about communications neutrality any more? No, it’s just business.

Another example is even more far afield from the net neutrality discussion, but it shouldn’t be. I can’t play my Apple Music playlists on my six Alexa devices. That’s because Amazon doesn’t have a deal with Apple (and probably never will).

An argument might be made that this isn’t a net neutrality issue, but my Alexa service is delivered over my broadband, as is my Apple Music service. Shouldn’t I be able to get any service I want on any device I have connected to my broadband?

The fact is, that’s not how things work. The government can’t (and shouldn’t) be able to force a company like Apple to code its proprietary service for a competitor. It would probably be good business for Apple, because Alexa compatibility makes Spotify far more compelling than Apple Music, but we’re talking a business issue here, not a communications issue.

I could keep going with story after story or corporate workaround after corporate workaround, but we’ve spent enough time here for today. It all brings me back to the final nail in the coffin of whatever we might think net neutrality means. Since the CFR allows for blocking and throttling for “reasonable network management,” the regulations leave a giant loophole open for any carrier or broadband operator who needs to block or throttle services.

My final analysis

After days and days digging through all this, I am reasonably certain that Chairman Pai’s actions will not kill, destroy, or take away net neutrality. Most of the core traffic protections we have (weak as they are) will still exist and remain unchanged.

Whether mobile internet service is classified as information or telecommunications will probably neither increase nor decrease what you spend or what you can access — at least not any more than it has in the last few years.

I am not saying that I support Chairman Pai’s proposed rule changes. Frankly, I think they’re a waste of everyone’s time, and everyone’s rage. I also don’t see much in them that are nearly as dire as reporting would have you believe. For those dire reports to be true, we would have to have had far broader protections, with far fewer loopholes, already.

So, settle down. Write your congress-critters if you wish. But the internet is what it is. No one is taking it away from us, at least this time.

As for the politicians and their staff who read this column, I have a message: Please, for the love of God, tone down the hyperbole. We don’t need all the heavy-handed political gamesmanship for much of what you’re doing. Can’t we all just get along?

You can follow my day-to-day project updates on social media. Be sure to follow me on Twitter at @DavidGewirtz, on Facebook at Facebook.com/DavidGewirtz, on Instagram at Instagram.com/DavidGewirtz, and on YouTube at YouTube.com/DavidGewirtzTV.



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