Oh the humanity!

Last week, advocates for an Open Internet were up in arms over a report in the Wall Street Journal indicating FCC chairman Thomas Wheeler was about to solve his Net Neutrality problem by redefining it to mean the exact opposite of its intended goal to keep Internet traffic out of provider-established toll lanes.

Former FCC chairman Michael Powell created the current definition of the Internet as “an information service” that has been repeatedly invalidated by the courts. Today he is the president of the nation’s largest cable industry lobbying group, the NCTA. (Image: Mark Fiore)

“Regulators are proposing new rules on Internet traffic that would allow broadband providers to charge companies a premium for access to their fastest lanes,” said the report, quoting an unnamed source.

Wheeler’s proposal follows the agency’s latest defeat in the courts in its latest effort to define net policy. The D.C. Court of Appeals objects to the FCC’s rule-making powers under the current “light touch” regulatory framework introduced by former FCC chairman Michael Powell. Since the first term of the Bush Administration, the FCC has avoided reclassifying broadband as a “telecommunication service,” which would place it firmly under its regulatory authority. Instead, it has continued to define the Internet as “an information service,” under which there is little precedent to support Net Neutrality rules.

The Wall Street Journal reported Wheeler was planning to introduce a new Net Neutrality policy that would ban blatant attempts to censor or block access to Internet websites, but would allow providers to monetize access to its broadband pipes by giving preferential treatment to traffic from certain content providers. Wheeler’s proposal would allow any company to pay for faster access to customers, so long as providers charged an undefined fair price to all-comers.

Wheeler said the FCC would have the authority to deal with providers unwilling to maintain a level playing field for content companies willing to pay extra, but was much more vague about how the regulator would protect websites unwilling to pay extra for traffic guarantees.

Net Neutrality proponents contend Wheeler’s proposal is exactly what Net Neutrality was supposed to prevent – an Internet toll lane only affordable to deep-pocketed giant corporations. For everyone else, including startups and smaller companies, customers could experience the type of slowdowns Netflix users experienced earlier this year — congestion-related buffering that disappeared almost instantly once Netflix signed a paid contract with Comcast for a more direct connection.

“With this proposal, the FCC is aiding and abetting the largest ISPs in their efforts to destroy the open Internet,” said Free Press CEO Craig Aaron. “Giving ISPs the green light to implement pay-for-priority schemes will be a disaster for startups, nonprofits and everyday Internet users who cannot afford these unnecessary tolls. These users will all be pushed onto the Internet dirt road, while deep-pocketed Internet companies enjoy the benefits of the newly created fast lanes.”

“For technologists and entrepreneurs alike this is a worst-case scenario,” Eric Klinker, chief executive of BitTorrent Inc., a popular Internet technology for people to swap digital movies or other content, told the Wall Street Journal. “Creating a fast lane for those that can afford it is by its very definition discrimination.”

It’s even worse than that for consumer groups like Free Press.

Charging another fee to get content on your broadband connection represents a massive business opportunity for broadband companies. But Free Press’ Craig Aaron says it would be a bad deal for Web companies, especially those that can’t afford to pay more for premium service. National Public Radio’s Morning Edition reports. Apr. 24, 2014 (1:58)
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Providers love the idea of monetizing the use of their Internet pipes. (Image: Mark Fiore)

“This is not Net Neutrality. It’s an insult to those who care about preserving the open Internet to pretend otherwise,” said Aaron. “The FCC had an opportunity to reverse its failures and pursue real Net Neutrality by reclassifying broadband under the law. Instead, in a moment of political cowardice and extreme shortsightedness, it has chosen this convoluted path that won’t protect Internet users.”

Wheeler, a former industry insider that presided over both the wireless and cable industry’s largest lobbying groups had a friendlier reception from his former colleagues.

One top cable executive admitted, “I have to say, I’m pleased.”

The cable industry claims they need to attract more investment to manage upgrades of their broadband networks now coming under strain from the online video revolution.

“Somebody has to pay for this, and if they weren’t going to let companies pay for enhanced transport and delivery…it just seemed like this was going to come back to the consumer,” said the cable executive.

So far neither Wheeler or the FCC has released the draft proposal for Net Neutrality 2.0 and won’t until just before it votes on it next month.

A day after the story leaked, Wheeler wrote a damage control blog post to correct what he called “misinformation” about the proposed rules:

Wheeler is keeping the exact language of his Net Neutrality proposal to himself until just before holding a vote on it.

To be very direct, the proposal would establish that behavior harmful to consumers or competition by limiting the openness of the Internet will not be permitted.

Incorrect accounts have reported that the earlier policies of the Commission have been abandoned. Two points are relevant here:

1. The Court of Appeals made it clear that the FCC could stop harmful conduct if it were found to not be “commercially reasonable.” Acting within the constraints of the Court’s decision, the Notice will propose rules that establish a high bar for what is “commercially reasonable.” In addition, the Notice will seek ideas on other approaches to achieve this important goal consistent with the Court’s decision. The Notice will also observe that the Commission believes it has the authority under Supreme Court precedent to identify behavior that is flatly illegal.
2. It should be noted that even Title II regulation (which many have sought and which remains a clear alternative) only bans “unjust and unreasonable discrimination.”

The allegation that it will result in anti-competitive price increases for consumers is also unfounded. That is exactly what the “commercially unreasonable” test will protect against: harm to competition and consumers stemming from abusive market activity.

But Wheeler ignored one glaring change his proposal would make – permitting providers to monetize the performance of select Internet traffic. Currently, customers choose from a menu of available Internet speeds. Under Wheeler’s definition of Net Neutrality, a provider selling “up to” a certain amount of speed is under no obligation to actually deliver that speed. But that same provider could sell “insurance” to content producers promising certain network packets will have a better chance of reaching the customer on a timely basis, while non-paying content might not. That could make all the difference between a watchable streaming movie and one constantly pausing to “buffer.”

As long as everyone is free to pay Comcast, Time Warner Cable, Verizon and AT&T the same (more or less) for preferred treatment, all is well in Wheeler’s world.

Tim Wu, a law professor at Columbia University, coined the phrase “Net Neutrality.” He discusses how the Federal Communications Commission’s proposed changes could affect the average consumer and it’s not good news. From NPR’s All Things Considered. Apr. 24, 2014 (3:51)
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The New York Times editorial page wasn’t fooled:

Dividing traffic on the Internet into fast and slow lanes is exactly what the Federal Communications Commission would do with its proposed regulations, unveiled this week. And no amount of reassurances about keeping competition alive will change that fact.

[…] In this new world, smaller content providers and start-ups that could not pay for preferential treatment might not be able to compete because their delivery speeds would be much slower. And consumers would have to pay more because any company that agrees to strike deals with phone and cable companies would undoubtedly pass on those costs to their users.

The F.C.C. proposal claims to protect competition by requiring that any deal between a broadband company and a content provider be “commercially reasonable.” But figuring out what is reasonable will be very difficult, and the commission will struggle to enforce that standard. The rules would also prohibit broadband companies from blocking content by, for example, making it impossible for users to access a service like Skype that competes with their own products.

[…] Mr. Wheeler is seeking public comment on this option, but he is not in favor of it. Even though the appeals court has said the F.C.C. has authority to reclassify broadband, the agency has not done so because phone and cable companies, along with their mostly Republican supporters in Congress, strongly oppose it.

Michael J. Copps, a former FCC commissioner confirmed big telecommunications companies are spending millions to lobby for rules that would allow them to tilt the scales in their favor.

Wheeler’s “is a lot closer to what they wanted than what we wanted,” Copps told the New York Times. “It reflects a lot more input from them. The courts did not tell Wheeler to take the road that he is reportedly taking.”

That Wheeler would take an approach that coincidentally follows a model heavily favored by the telecommunications companies he used to represent should come as no surprise. Stop the Cap! repeatedly warned Wheeler’s appointment as FCC chairman would likely lead to disaster for consumers. A lifelong industry lobbyist (and investor) is unlikely to develop a world view that strays too far beyond the industry’s groupthink on telecom policy.

Wheeler may actually believe his policies represent the best way forward for the telecommunications industry he now oversees. A lot of supporters of Zeppelin Luftschiffbau used to believe blimps were the future of aviation, until May 6, 1937 when the Hindenburg burst into flames and crashed in Lakehurst, N.J.

[flv]http://www.phillipdampier.com/video/Fiore Goodbye Net Neutrality Hello Gilded Age Internet 2-14.flv[/flv]

Mark Fiore uses animation in his editorial cartoon explaining the demise of Net Neutrality and the beginning of the Internet’s Gilded Age. (1:53)

[flv]http://www.phillipdampier.com/video/Bloomberg Who Wins and Loses on Net Neutrality 4-25-14.flv[/flv]

The Cost of Internet Fast Lanes: Bloomberg News confronts James Cronin, chief technology officer for Venda, with the industry view that telecom companies need more investment to upgrade and expand their broadband networks. Cronin thinks eliminating Net Neutrality would be a real mess. (5:11)

[flv]http://www.phillipdampier.com/video/PBS Will dismantling net neutrality stymie innovation 4-24-14.flv[/flv]

The Federal Communications Commission is on the brink of changing the Net Neutrality principle, which allows consumers unfettered access to web content, and limits the ability of Internet service providers to block or filter material. New guidelines would allow some companies to charge more for faster service. PBS’ Gwen Ifill talks to Cecilia Kang of The Washington Post about what’s at stake. (6:40)

Meredith Attwell Baker is moving on up…

Meredith Attwell-Baker, former FCC commissioner and high-level Comcast lobbyist has been named the new president of the CTIA – the wireless industry’s chief lobbying group and trade association.

“I am thrilled to have this opportunity to use my experience in both the public and private sectors to help the vital and fast-growing wireless communications industry,” Baker said in a press release. “CTIA should be in the center of discussions about how wireless is reshaping our economy, our society and our culture.”

Baker has cashed in on her two-year stint as a Republican commissioner at the FCC after resigning in the middle of her term to accept a high-paying lobbying job at Comcast only months after voting in favor of Comcast’s merger deal with NBCUniversal. Criticism of her hiring by one Seattle youth advocacy group almost cost it financial support when Comcast initially threatened to yank its funding.

The revolving door between the private sector and those that regulate it has rarely been as clear than at the Federal Communications Commission. Baker will assume a position once held by current FCC chairman Thomas Wheeler. Another former chairman of the FCC, Michael Powell, now runs the National Cable & Telecommunications Association, the cable industry’s lobbying group.

Baker will be well-compensated at the CTIA with a salary likely to approach $3 million a year. Baker is the daughter-in-law of former secretary of state James A. Baker.

The New Jersey Board of Public Utilities today voted unanimously to approve a Verizon-friendly settlement that lets the phone company off the hook for its 1993 commitment to offer broadband service to every resident in the state who wants it.

Critics call the decision a “total capitulation” by state regulators that proved “very amenable to Verizon’s agenda.”

Verizon will now be allowed to substitute its costly, usage-capped, high-speed 4G LTE wireless service in rural areas instead of expanding DSL or its fiber optic network FiOS.

Verizon won deregulation two decades ago in an agreement known as “Opportunity New Jersey” in return for a commitment to expand high speed Internet access to all of New Jersey by 2010 — a deadline long missed. Critics charge Verizon collected as much as $15 billion in unregulated service revenue it would have otherwise never received, yet stopped its fiber optic rollout more than two years ago.

A number of rural New Jersey communities including Hopewell, Alloway and Pilesgrove townships opposed Verizon’s settlement proposal because it would let the company walk away from its earlier commitments and leave parts of southern New Jersey without any broadband service. Now those communities may eventually be served by Verizon Wireless, but at a significant cost starting at $50 a month for up to just 4GB of broadband usage.

Verizon gets to keep its current deregulation framework in place as part of the settlement.

The New Jersey Board of Public Utilities consists of five commissioners all appointed by the governor and confirmed by the state Senate for six year, staggered terms. Gov. Chris Christie’s appointees now dominate the BPU, and critics charge he uses the regulatory agency as a political patronage dumping ground. Earlier this year, he faced criticism for appointing the wife of a longtime Christie ally to lead the board. Dianne Solomon served on Christie’s transition team and brought a very thin resume to the position — serving as a paralegal and an umpire certified by the United States Tennis Association.

The House Energy and Commerce Subcommittee on Communications and Technology has approved a draft bill that could effectively render current CableCARD technology obsolete  by allowing cable operators to encrypt channels and introduce new security measures that only work with the cable company’s set-top box.

If you look closely inside your cable set-top box, chances are good a CableCARD similar to this is installed inside. But perhaps not for long.

With strong support from the cable industry, the House Subcommittee approved the reauthorization of the Satellite Television Extension and Localism Act (STELA) with language that would end the Federal Communications Commission’s ban on built-in descrambler set-top box equipment unavailable to competitors.

Section 629 of the 1996 Telecommunications Act requires that consumers have adequate access to alternative equipment to view multichannel video programming. In 2003, the FCC adopted the cable industry-developed CableCARD standard that would let customers view encrypted channels without leasing a traditional set-top cable box.

In fact, if you own a cable set-top box manufactured after 2007, chances are you already have a CableCARD without realizing it. It is built-in to your set-top box and decrypts and authorizes your cable television lineup. The cable industry never saw any need to incorporate CableCARDs into set-top equipment because it was designed to handle those functions without needing the extra card. But the FCC’s “integration ban” has insisted cable companies use the CableCARD with hopes it would stimulate universal support of the technology and help facilitate a breakup of the leased set-top box monopoly.

The cable industry has itself largely to blame for the FCC’s actions. Prior to 1992, some cable operators were notorious for saddling customers with expensive set-top boxes that were large and unwieldy. Cable companies regularly raised the rental price of the mandatory equipment in rate increase maneuvers and charged huge penalties when boxes were lost, stolen, or damaged.

Many cable customers never wanted the boxes, preferring “cable-ready” service, which let the television sort out the television lineup without any extra equipment.

But “Cable-ready” televisions were an impediment to the revenue-enhancing possibilities offered by digital cable television that became common in the 1990s. Existing television sets could not receive the digital channels without a set-top box and many customers avoided upgrading service because of the extra costs and equipment requirements. In other areas, signal theft pushed the industry towards encrypting more than just a few premium movie channels. In high theft areas like New York City, cable operators won permission to scramble most, if not all the cable television lineup. Customers needed boxes to receive those encrypted channels.

As early as January 2005, the National Cable & Telecommunications Association told the FCC that independent alternatives like the CableCARD were in direct “conflict with cable’s own market imperatives,” adding there was no economic incentive to support third-party equipment and adopting it would result in increased cable bills.

Powell

Now that CableCARD technology is with us, most cable companies rarely mention it unless customers directly ask. Even CableLabs, the industry engineering group that develops and markets a variety of cable industry technology, has also avoided the subject.

Without any significant backing from the cable industry, most customers never realized they had another option when the cable technician arrived with a leased set-top box in hand. Television manufacturers dropped support for the little-known technology as well.

Cable industry advancements like on-demand viewing don’t work with the standalone CableCARD, creating a disadvantage that further hurt the technology’s chances.

The cable industry argues times have changed and consumers don’t generally want CableCARDs.

NCTA president Michael Powell told Congress that more than 45 million CableCARD-enabled set-top devices are now sitting in customer homes, but only 600,000 of them were requested by cable customers for use in third-party devices. Powell argues supporting CableCARD technology means customers with a leased box are paying for redundant technology. One large cable operator claimed the average set-top box now costs an extra $40-50 to support CableCARD technology.

“Additionally, based on EPA figures, cable subscribers collectively foot the bill for roughly 500 million kilowatt hours consumed by CableCARDs each year,” said Powell. “By all measures, the costs of this misguided rule clearly outweigh its benefits.”

In the end the subcommittee agreed to a compromise by eliminating the “integration ban” that effectively keeps cable companies from switching on new security technology that might not work with CableCARDs but also gives the FCC the authority to create or authorize new independent set-top box technology ‘when needed.’

This means either the cable industry could develop a next generation of CableCARDs that work with advanced security measures or more likely the ongoing advancement of IP-delivery of television programming could make the matter moot. As the cable industry moves towards online streaming of cable channels, various third-party devices like Roku could be used to access much of the cable lineup without worrying about a CableCARD. Recording such programming for later viewing will likely require agreements with copyright-obsessed programmers, the cable industry, and manufacturers, however.