<html><head><meta http-equiv="content-type" content="text/html; charset=utf-8"></head><body dir="auto"><div><br><br>sent from <a href="http://eddan.com">eddan.com</a></div><div><br>Begin forwarded message:<br><br></div><blockquote type="cite"><div><b>From:</b> Chris Riley <<a href="mailto:mchris@mozilla.com">mchris@mozilla.com</a>><br><b>Date:</b> January 15, 2014 at 9:38:59 AM PST<br><b>To:</b> Netpolicy <<a href="mailto:Netpolicy@mozilla.org">Netpolicy@mozilla.org</a>><br><b>Subject:</b> <b>Fwd: Net neutrality decision is "alarming for all Internet users" - Summary</b><br><br></div></blockquote><blockquote type="cite"><div>
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Here's my longer writeup on the net neutrality decision and
surrounding posture and opportunities.<br>
<br>
Thanks,<br>
Chris<br>
<br>
<div class="moz-forward-container"><font face="Helvetica, Arial,
sans-serif"> - - -<br>
<br>
On Tuesday, January 14th, the U.S. Court of Appeals for the
District of Columbia Circuit struck down the core of the Federal
Communications Commission's 2010 Open Internet order. The FCC's
order, while not nearly as complete as Mozilla and other net
neutrality advocates had sought, included fundamental
protections against blocking and discrimination in modern
broadband services that are now no longer effective. The result
is significant risk of severe harm to innovation and user choice
on the Internet. Over the coming months, expect to see many
efforts to push the FCC to respond. Mozilla's public policy team
intends to play a major role in these efforts.<br>
<br>
The history of this decision goes back many years. The core of
the D.C. Circuit's decision rests on three FCC orders from the
early-mid 2000's that categorized cable modem, DSL, and wireless
data services as "information services" (the same broad
regulatory category, for FCC purposes, as, say, email and search
engines), and distinctly not "telecommunications services" (such
as traditional phone services). The court upheld the FCC's
authority to adopt open Internet rules despite this
classification decision, but said that authority ends if the FCC
imposes "common carrier" rules on the information services, as
is the case with the 2010 Open Internet order.<br>
<br>
On the good side, the D.C. Circuit blatantly upheld the FCC's
policy justification for its rules. In no uncertain terms, the
court said that net neutrality is important for broadband
development and the Internet ecosystem, and that the FCC has
general authority to oversee Internet access services. On the
(much bigger) bad side, the court held essentially that any rule
proscribing neutral treatment for network traffic - including
any rule that prohibits blocking - was barred as a common
carrier protection. More subtly, but also concerning, the
opinion declares unequivocally that broadband providers have
cognizable relationships with all edge providers - regardless of
whether they interconnect with them. This assumes that the
Internet is, in fact, a two-sided market, with potential
repercussions for a range of future pricing and interconnection
practices.<br>
<br>
As many have noted (see, e.g., GigaOm), the biggest losers are
individual Internet users, because consumer choice of Internet
websites and services will be greatly affected by future
behind-the-scenes deals for prioritization (or even blocking).
The second category of losers in the wake of this decision are
startups and investors. Innovators and new entrants in the
Internet applications and services market will face an uphill
battle if incumbents have established deals for preferential
treatment. But big tech will almost certainly find itself far
worse off as the political power balance shifts, as broadband
providers will be able to give their vertically-integrated
competing offerings every advantage.<br>
<br>
In the worst-case scenario, "Internet" to consumers means access
to only a few chosen partner sites, in the vein of this
well-known graphic. In a more likely outcome, ISPs sell or give
prioritized routing to some service providers, placing a huge
thumb on the competitive scale in favor of a select few - a
major factor when some studies have shown that 1 second of delay
can lower traffic by 11%. Perversely, the value of priority
deals increases along with congestion, creating disincentives
for future investment in broadband capacity, making it seem
likely the United States will fall even further than its current
rank of 16th in global rankings of broadband services. To some
extent, this is a competition policy problem, but its severity
rises to the level of an innovation and user choice problem, for
which there is no adequate competition law remedy.<br>
<br>
The options for next steps to advance net neutrality are many,
but none are easy. En banc D.C. Circuit review is possible, but
unlikely; the same is true of Congressional action to adopt net
neutrality law or grant FCC clear authority. The FCC may appeal
the decision to the Supreme Court, which would take quite some
time and presents uncertain prospects. The two most likely
outcomes are that the FCC may reclassify broadband services as
telecommunications services, undoing the orders of the early
2000s and allowing for the adoption and enforcement of common
carrier protections, or the FCC may do nothing for now, and take
future case-by-case actions to curtail specific bad practices
and slowly build precedents, a tactic that has failed in the
past but may work in theory going forward, if in each individual
case the FCC can argue that the practice is harmful to broadband
service deployment generally.<br>
<br>
Net neutrality has often been a hugely divisive political issue,
but the principles of openness, innovation, and user choice on
the Internet are very widely endorsed. Both the FCC Chairman and
President Obama released quick statements of support for the
open Internet after the court's decision. And the legal context
is fairly straightforward, for a change - the D.C. Circuit was
reasonably clear what arguments would need to be made
successfully to uphold case-by-case actions, and signaled
strongly that a reclassification order would be upheld in court
review.<br>
<br>
Mozilla is uniquely positioned to be a leader in the push to
restore net neutrality and protect the open Internet, through
advocacy and coalition building. Mozilla can work alongside
civil society groups engaged in grassroots organizing, while
simultaneously recruiting technology companies, investors, and
others from the private sector to join the fight. Without a
unified front of public and corporate support, net neutrality
may indeed be dead. But the FCC's new Chairman Wheeler has
indicated a willingness to preserve the open Internet, and if we
on the outside can provide ample political pressure (and cover),
victory is ultimately within reach.<br>
<br>
Additional, select reference articles:<br>
<br>
GigaOm overview:
<a moz-do-not-send="true" class="moz-txt-link-freetext" href="http://gigaom.com/2014/01/14/breaking-court-strikes-down-fccs-net-neutrality-rules/">http://gigaom.com/2014/01/14/breaking-court-strikes-down-fccs-net-neutrality-rules/</a><br>
GigaOm wrapup of commentary:
<a moz-do-not-send="true" class="moz-txt-link-freetext" href="http://gigaom.com/2014/01/14/what-you-need-to-know-about-the-court-decision-that-just-struck-down-net-neutrality/">http://gigaom.com/2014/01/14/what-you-need-to-know-about-the-court-decision-that-just-struck-down-net-neutrality/</a><br>
Ars Technica:
<a moz-do-not-send="true" class="moz-txt-link-freetext" href="http://arstechnica.com/tech-policy/2014/01/how-the-fcc-screwed-up-its-chance-to-make-isp-blocking-illegal/">http://arstechnica.com/tech-policy/2014/01/how-the-fcc-screwed-up-its-chance-to-make-isp-blocking-illegal/</a><br>
Washington Post:
<a moz-do-not-send="true" class="moz-txt-link-freetext" href="http://www.washingtonpost.com/business/technology/court-creates-new-game-for-web-access-in-america/2014/01/14/539c9a2a-7d3e-11e3-95c6-0a7aa80874bc_story.html">http://www.washingtonpost.com/business/technology/court-creates-new-game-for-web-access-in-america/2014/01/14/539c9a2a-7d3e-11e3-95c6-0a7aa80874bc_story.html</a><br>
CNET:
<a moz-do-not-send="true" class="moz-txt-link-freetext" href="http://news.cnet.com/8301-13578_3-57617199-38/appeals-court-strikes-down-fccs-net-neutrality-rules/">http://news.cnet.com/8301-13578_3-57617199-38/appeals-court-strikes-down-fccs-net-neutrality-rules/</a><br>
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