DC Circuit Court

The U.S. Court of Appeals for the District of Columbia has ruled the Federal Communications Commission has no authority to tell the nation’s largest cable operator to stop throttling broadband traffic crossing its network.  In a widely anticipated 36-page unanimous decision, the Court found the Commission exceeded its authority when it censured Comcast in 2008 for interfering with BitTorrent traffic.

The implications of the ruling could derail Commission plans to enforce Net Neutrality and implement the wide-ranging National Broadband Plan announced in March.

Judge David Tatel, writing for the court, found the Commission erred when it relied on policy statements issued by Congress as the basis for its authority to regulate broadband service:

The teaching of Southwestern Cable, Midwest Video I, Midwest Video II, and NARUC II—that policy statements alone cannot provide the basis for the Commission’s exercise of ancillary authority—derives from the “axiomatic” principle that “administrative agencies may [act] only pursuant to authority delegated to them by Congress.” Policy statements are just that—statements of policy. They are not delegations of regulatory authority.

Tatel

The seed for today’s authority-stripping ruling was first planted by the Bush Administration, which favored telecommunications deregulation.  When the FCC was tasked with finding a way to regulate fast-growing broadband, the Republican majority on the Commission was receptive to industry arguments that over-specific broadband regulation could hamper broadband development and have unintended consequences on private investment.  Urged instead to develop a general policy towards broadband, then FCC Chairman Michael Powell presided over the development of an “Internet Policy Statement” containing four informal principles the agency would rely on when assessing broadband:

1. Consumers are entitled to access the lawful Internet content of their choice.
2. Consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.
3. Consumers are entitled to connect their choice of legal devices that do not harm the network.
4. Consumers are entitled to competition among network providers, application and service providers, and content providers.

The Commission’s often vague Internet Policy Statement was fatally flawed from day one, according to some legal experts.  First, the Statement was never codified by the Commission’s own rulemaking procedure.  Second, the Commission framed the broadband policy as a set of “guidelines,” a term considered legally vague.  Third, the FCC relied on the concept of “ancillary” authority — borrowing regulatory authority from so-called “policy statements” coming from Congress, to claim jurisdiction.

Even though some in the industry favored total deregulation of broadband, most providers agreed to adhere to the Four Principles, until Comcast decided it had the right to throttle down the speed of customers using file swapping software.  That violated Principle #2, and the Commission censured Comcast for purposely interfering with network traffic.

Comcast sued, claiming the Commission lacked the authority to regulate its network management policies.  Comcast first denied it was throttling broadband traffic, but later admitted the company was purposely governing the speed available to such software applications to protect their other customers.  Comcast argued that certain file swapping software does in fact harm its network (Principle #3) because the software utilizes as much broadband capacity it can find to move files back and forth.  Since Comcast customers in a neighborhood share a limited amount of bandwidth, a small number of customers ‘maxing out their connections’ running such software could potentially slow down everyone  else in the neighborhood.

Ultimately, today’s court decision agreed with Comcast — the Federal Communications Commission lacks authority over broadband.

It also did the industry one better by warning any regulatory authority the Commission believes it has over broadband better be backed up with specific authority granted by Congress, or the court may find those policies vulnerable as well.

In short, the court just fired a warning shot suggesting the FCC has no authority to enact Net Neutrality protections or the National Broadband Plan, at least not under Kevin Martin’s flawed approach.

The ruling comes as no surprise.  The attorney for the FCC found a hostile reception from the court during oral arguments back in January.  Where was the specific authority, granted by Congress, to oversee broadband policy they asked?  Why is the Commission relying on general principles to govern broadband?  By the end of the session, the FCC’s lead attorney was foreshadowing the imminent loss of his case by asking the court to make the decision against the FCC a teachable moment — giving advice in the ruling as to how to write policies that -will- survive a court test.  The court wasted no time telling the attorney that wasn’t their job.

Public interest groups and others advocating Net Neutrality and the National Broadband Plan issued statements warning about the implications of an industry freed from regulatory oversight.

S. Derek Turner, research director for Free Press:

“The decision has forced the FCC into an existential crisis, leaving the agency unable to protect consumers in the broadband marketplace, and unable to implement the National Broadband Plan. As a result of this decision, the FCC has virtually no power to stop Comcast from blocking Web sites. The FCC has virtually no power to make policies to bring broadband to rural America, to promote competition, to protect consumer privacy or truth in billing. This cannot be an acceptable outcome for the American public and requires immediate FCC action to re-establish legal authority.

“This crisis is not a result of a weak congressional law, but a direct consequence of the previous two Commissions’ misguided and overzealous attempts to completely deregulate America’s communications networks. Past FCC actions created a huge loophole in the law that leaves the agency unable to protect consumer privacy or promote universal broadband access.

“The FCC must have the authority to carry out its consumer protection and public interest mission in the 21st-century broadband marketplace. The current Commission did not create this existential crisis, but it now has no choice but to face these tough jurisdictional questions head on, and do what is necessary to protect consumers and promote competition.”

Ryan Singel – Wired Magazine:

A broadband company could, for instance, ink a deal with Microsoft to transfer all attempts to reach Google.com to Bing.com. The only recourse a user would have, under the ruling, would be to switch to a different provider — assuming, of course, they had an alternative to switch to.

Companies can also now prohibit you from using a wireless router you bought at the store, forcing you to use one they rent out — just as they do with cable boxes. They could also decide to charge you a fee every time you upgrade your computer, or even block you from using certain models, just as the nation’s mobile phone carriers do today.

While this might seem like a win for the nation’s broadband and wireless companies, the ruling could be so strong that it boomerangs on them. For instance, if the FCC is left without the power to implement key portions of the National Broadband Plan — a so-far popular idea — then Congress or the FCC may have to find a way to restore power to the commission. That could leave the FCC stronger than it was before the ruling.

Gigi Sohn, Public Knowledge:

“Today’s Appeals Court decision means there are no protections in the law for consumers’ broadband services. Companies selling Internet access are free to play favorites with content on their networks, to throttle certain applications or simply to block others. In addition, as of now, the Federal Communications Commission’s (FCC) ambitious National Broadband Plan to help boost the economy is in legal limbo. The ability of the FCC to support broadband through universal service is in jeopardy, as is the agency’s ability to protect consumer privacy, ensure access to broadband-based emergency communications or promote access to broadband for the disabled. In our view, the FCC needs to move quickly and decisively to make sure that consumers are not left at the mercy of telephone and cable companies.

“If it chooses, the Commission can continue to roll the dice and let the courts decide each time it wants to try to put some consumer protections on a broadband service. The court decision left open that option.

“We have a different idea. The FCC should immediately start a proceeding bringing Internet access service back under some common carrier regulation similar to that used for decades. Some parts of the Communications Act, which prohibit unjust and unreasonable discrimination, could be applied here. The Commission would not have to impose a heavy regulatory burden on the telephone and cable companies, yet consumers could once again have the benefit of legal protections and the Broadband Plan could go forward. The American public deserves no less.

“We need to emphasize that no one is talking about regulating ‘the Internet.’ No one is talking about regulating search engines or Web sites. We are talking about re-applying policies to a telecommunications service that the FCC incorrectly abandoned. That is the most simple solution and it’s the correct one.”

The FCC, despite the decisive loss in court, claims it will carry on.

“Today’s decision invalidated the prior commission’s approach, but in no way disagreed with the importance of preserving a free and open Internet,” FCC spokeswoman Jen Howard said in a statement.

Nick Summers, writing for Newsweek’s ‘Techtonic Shifts’ blog, believes FCC Chairman Julius Genachowski is likely to aggressively respond to today’s court decision by employing the “nuclear option,” reclassifying broadband Internet as a communication service just like the nation’s phone system, bringing it fully under FCC regulation.

Would Genachowski go that far, undoing virtually all of the Bush-era FCC’s policies? Yes. In September, he gave a major address about net neutrality without ever actually uttering the phrase. But he concluded with these strong words:

“We are here because 40 years ago, a bunch of researchers in a lab changed the way computers interact and, as a result, changed the world. We are here because those Internet pioneers had unique insights about the power of open networks to transform lives for the better, and they did something about it. Our work now is to preserve the brilliance of what they contributed to our country and the world. It’s to make sure that, in the 21st century, the garage, the basement, and the dorm room remain places where innovators can not only dream but bring their dreams to life. And no one should be neutral about that.”

The importance that Genachowski et al. place on net neutrality has never remotely been in doubt. In February 2009, months before he was confirmed as FCC chairman, at a private dinner in Manhattan, Genachowski spoke about the Internet’s role in the election of President Obama and in America’s future. He was circumspect about details, but Genachowski spoke unreservedly about the need for certain core protections if the country was to remain at the fore of the Internet revolution. It’s just that important.

[flv]http://www.phillipdampier.com/video/CNBC FCC Loses Comcast Case 4-6-10.flv[/flv]

CNBC reports the FCC’s loss in court could open the door to metered broadband service in the United States.  (2 minutes)

[Article Correction 4/15/2010: The original piece laid blame for the classification of broadband as an “information service” on former FCC Chairman Kevin Martin.  In fact, the classification was made by former FCC Chairman Michael Powell, who served during the first term of the Bush Administration.  We regret the error.]

FCC Headquarters in Washington, D.C.

America’s broadband blueprint could wither on the vine of good intentions if some of America’s largest telecommunications companies prevail in efforts to derail the parts they dislike.  This morning, Reuters reports Julius Genachowski, the chairman of the Federal Communications Commission, and his circle of advisers are weighing options to try and keep the Obama Administration’s broadband policies on track.

They have their work cut out for them.

Net Neutrality vs. Restraint of Trade

In January, the Federal District Court of Appeals for the District of Columbia gave a hostile reception to the Commission’s argument it had the authority to order Comcast to stop throttling the speeds of their broadband customers.  Although Comcast complied, they also filed suit claiming the FCC overstepped its boundaries when it interfered with the company’s business practices.

A favorable court ruling for Comcast could create major problems for the Obama Administration’s Net Neutrality plans and broadband industry oversight in general.

Those monitoring the DC Circuit suspect the court will find for Comcast, but to what degree is unknown.  A narrow ruling could simply find the FCC erred in how it censured Comcast.  A broader ruling could require the Commission to seek more explicit authority from Congress to oversee broadband.  A sweeping ruling could wipe away the Commission’s ability to involve itself in broadband oversight, period.

Plan B: Regulate Broadband Under Existing Telephone Rules

One way around a court ruling unfavorable to Commission oversight powers would be to regulate broadband services under the existing rules governing phone service.  The most controversial aspect of those rules are found in “common carrier” provisions — including those that could potentially force open the broadband networks offered by cable and telephone companies to third party competitors.

While telephone companies have grudgingly accepted their more regulated status under the Commission’s regulatory service model, broadening it to also cover broadband will start World War III, according to Susan Crawford, former special assistant to President Barack Obama for science, technology, and innovation policy.

With billions in profits at stake, large telecommunications companies from AT&T and Verizon on the telephone side to Comcast and Time Warner Cable on the cable side would likely file lawsuits demanding such regulatory policies be deemed unconstitutional or also exceed Commission authority.

One warning sign that Obama’s FCC is not the same as the one in place under President Bush arrived in last week’s approval of a merger between Skyterra, a satellite company planning a nationwide 4G mobile network, and private capital equity firm Harbinger.  The FCC included provisions in the approval permitting the agency to review any plans by SkyTerra to lease or provide wholesale access of its spectrum to AT&T Mobility or Verizon Wireless.  In effect, the Commission can veto moves by the two mega-carriers to become even larger through SkyTerra.

AT&T and Verizon Wireless called the FCC’s approval terms “flawed” and “manifestly unwise and potentially unlawful.”

Congressional Action: Reopening the Telecommunications Act of 1996

The presidential signing ceremony for the 1996 Telecommunications Act

Another possible option for the FCC is to seek expanded authority with the passage of new telecommunications laws enacted in Congress.  The last wholesale review of telecom policy was during the second term of the Clinton Administration.  The 1996 Telecommunications Act was a gift to the industry, delivering sweeping deregulation, allowing increased consolidation and reduced oversight.

Opening the door to a 2010 Telecom Act would bring millions of dollars in lobbying by large players to preserve, protect, or expand their positions in the marketplace.  Many providers still favor telecommunications reform that would further deregulate their businesses.

Amit Schejter, professor of telecommunications policy at Penn State University, told Reuters he doesn’t believe Congress can pass such legislation at this time, especially with a divided, partisan Congress.

Not everyone is concerned that the FCC’s position between a rock and a hard place is all that unusual.  The last administration’s FCC rarely tangled with the telecommunications industry.  That Chairman Genachowski may be leading the Commission in a different direction is welcome news for some.

“The only reason this looks new and shocking is that for so long the FCC hasn’t made a decision opposed by a major company,” Ben Scott, policy director for Free Press told the Washington Post. “The FCC has spars with companies on a regular basis and this is good news.”

Martin

The former chairman of the Federal Communications Commission under President George W. Bush says the FCC doesn’t have as much authority over broadband as it might think, and cannot tell service providers not to implement policies designed to limit broadband consumption.

Kevin Martin, speaking last week in Seattle at the Mobile Broadband Breakfast told attendees he doubts the Commission has the authority under current law to implement the full scope of the National Broadband Plan, and probably cannot control what providers do with the marketing and pricing of their broadband services.

“The further it is pushed out the more difficult it is for the commission to address it,” Martin said. “The FCC’s core regulatory authority is on wireless and carriers, so its direct authority is less and less the further out you go.”

Martin is especially skeptical about controlling classic Internet Overcharging schemes like usage caps and usage-based billing.

Broadcast Engineering notes Martin doesn’t believe the Commission has any authority to stop the recent efforts of carriers and ISPs to introduce metered wired broadband, except in instances where price discrimination occurs.

Of course, Congress can grant additional authority to the Commission at any time, and with decisions looming in several broadband-related legal challenges in federal court, what authority the FCC believes it has today may not actually exist should court rulings find otherwise.  That could result in explicit increased authority granted by Congress.

Martin believes broadband improvement will ultimately come from increased deployment of fiber optics, which can also improve wireless network backhaul connections used in mobile broadband.

The United States has a goal of 100Mbps ubiquitous broadband service by 2020.  Hong Kong residents already have access to speeds up to 1Gbps, leaving many unimpressed with the American broadband goals established in the FCC’s National Broadband Plan.

City Telecom CEO William Yeung called out the current state of American broadband, noting many Americans are still stuck with megabit speeds in the single digits, while 100+ megabit access is widely available across most of Hong Kong from fiber optic networks.

Yeung thinks 100Mbps service will be considered slow by the time 2020 rolls around, noting an insatiable demand for enhanced broadband speeds.

Google’s Think Big With a Gig project underlines Yeung’s beliefs as hundreds of American communities clamor to be among those chosen for a demonstration project that will deliver up to 1Gbps speed to homes and businesses on an all-fiber network.

Yeung rejects the notion that wiring Hong Kong was a natural for super-fast fiber optic broadband just because of its dense population, reducing potential costs.

“I think it’s a matter of short term vs. long term thinking,” Yeung told Bloomberg News.

According to Yeung, American broadband providers are afraid constructing super-fast broadband lanes threaten to cannibalize their existing revenue streams, especially from cable television.  That’s because Americans could end up dropping their cable packages in favor of watching everything online.  Yeung also thinks Wall Street is preoccupied with short-term Return on Investment, making it difficult to upgrade to fiber service despite the enormous potential long term revenue, even in rural areas.

For Yeung, it’s all about marketing the benefits of fiber.  His company, City Telecom, is busily signing new subscribers despite the fact the island already enjoys near-universal broadband access.  Offering faster speeds and better service will drive customers to switch providers, Yeung believes.

[flv width=”640″ height=”500″]http://www.phillipdampier.com/video/Bloomberg Yeung Says Hong Kong Broadband 10 Years Ahead of U.S 3-19-10.flv[/flv]

Bloomberg News talked with City Telecom CEO William Yeung about fiber-optic broadband and the fact Hong Kong is well ahead of the United States on broadband speed and service.  (4 minutes)

[flv width=”600″ height=”500″]http://www.phillipdampier.com/video/City Telecom Promo.flv[/flv]

City Telecom’s HKBN service has a history of running bizarre advertising.  One recent example is included here, along with a short promotional video touting the company’s accomplishments in constructing an all-fiber network.  (4 minutes)

The Federal Communications Commission is catching on to a long-known telecommunications industry secret — always provide top quality, showcase service in areas where the movers and shakers of power and politics can make your life easy or hard.  Early results from the Broadband.gov national speed test project confirm this is still the case.  After a few weeks of testing, the FCC reports America’s best broadband speeds are available in and near two cities – Washington, DC and New York, NY.

In Virginia and Maryland, where most of DC’s workers-by-day commute home to at night, average download speeds topped out at 11-13Mbps.  Upstream speeds were, on average, best in the nation at around 3.6-4.3Mbps.  In New York and Massachusetts, where Verizon, Comcast, and Time Warner Cable predominate, average downstream speed was 11.6-13.6Mbps, but upstream speed in the northeast suffered more thanks to upstate New York and western Massachusetts dragging the numbers down.

Several critics have joined Stop the Cap!‘s concern that the two speed tests, provided by Ookla and M-Lab, are providing widely different results.  The FCC plans to expand the available speed test options shortly to attempt to get a wider sampling of broadband speeds.

Despite this, Jordan Usdan, an attorney-advisor to the Broadband Task Force, claims the group is happy with the results:

87% of test takers are home users, which is the FCC’s target audience with this application. Additionally, a clear trend is visible across business sizes, high bandwidth connectivity for community institutions, and lower bandwidth for mobile connections. Again, these results are non-scientific extrapolations from the Beta version of the Consumer Broadband test. Additionally, about 98% of user submitted addresses are geo-coding correctly, which is a very good rate.

Thus far, Californians have taken the most speed tests, but their results are less impressive than those enjoyed on the Atlantic seaboard — average downstream speeds in the state are 10.1 to 11.5Mbps; upstream speeds are 2.1 to 2.6Mbps.

Where are the worst speeds?  In the Northern Plains states, where rural populations predominate.  Idaho, Wyoming, and Montana delivered the worst combined upload/download speed results.  But speeds are only marginally better in the midwest and southeast — with lots of low scores in the Carolinas, Tennessee, and Mississippi.  Customers in northern New England stuck with FairPoint Communications also have little to celebrate.