Remember me telling you that a FCC managed neutral net would by anything but in practice?

Yet now that the FCC has formally issued draft net neutrality regulations, they have a huge copyright loophole in them — a loophole that would theoretically permit Comcast to block BitTorrent just like it did in 2007 — simply by claiming that it was “reasonable network management” intended to “prevent the unlawful transfer of content.”

You heard that right — under these conditions, the new proposed net neutrality regulations would allow the same practices that net neutrality was first invoked to prevent, even if these ISP practices end up inflicting collateral damage on perfectly lawful content and activities. (EFF)

And then there’s how this could impact Netflix subscribers:

….include a potentially nasty loophole, Netflix warned—the “managed services” category that the Commission created in its Notice of Proposed Rulemaking back in October.

“Netflix is concerned that network operators will use so-called managed services in a way that harms unaffiliated content or service providers that compete directly with services provided by the network operator,” the company told the FCC earlier this month. “In short, if left unchecked, the ‘managed services’ category could engulf the Commission’s open Internet policies altogether” and let ISPs end run any regulations. (Ars Technica)

The loophole being discussed clearly enables your broadband provider the power to discriminate in the realm of content distribution. Of course both cable and telcos are very keen on protecting their own closed content distribution business.

Want a neutral net? I’ve got news for you: There isn’t one. Never has been. Never will be. Networks can not work correctly if they are not managed. The only fix is to open the market to competition. That way if Comcast noodles with your downloads, you’ll have more than one alternative provider. An open local loop could yield dozens of providers vying for your dollar. This is what the FCC should address. So called net neutrality is nothing more than a distraction for the real problem: a broadband duopoly.

That is what a 3 judge panel of the first District Court of Appeals just did in the case of Comast vs FCC. The Panel offered the ruling as memorandum, not binding, but telegraphing the Courts observations and if affirmed by the full bench sets the FCC on its ear. –

Federal appeals court gave notice Friday it likely would reject the Federal Communications Commission’s authority to sanction Comcast for throttling peer-to-peer applications.

The U.S. Court of Appeals for the District of Columbia Circuit suggested as much during oral arguments with the FCC and Comcast. The Philadelphia-based cable concern is appealing the agency’s 2008 decision ordering it to stop hampering the peer-to-peer service BitTorrent as a traffic-management practice.

The order was in response to complaints Comcast was sending fake signals to users of BitTorrent, a bandwidth-heavy protocol often used to pirate copyright content.

“You have yet to identify a specific statute,” Judge Raymond Randolph told an FCC lawyer regarding the legal authority to ding Comcast.

To be sure, Friday’s reaction to the appellate court hearing made it increasingly clear the Obama administration’s FCC has been preparing for a defeat concerning net neutrality (.pdf), one of the largest issues surrounding internet freedom.

The upshot of this memo? —

* Net Neutrality as it has been proposed since Chairman Martin’s tenure may not survive in its current form if it survives at all.

* That the FCC may not even have the authority to regulate in this area as no controlling regulatory clause has been found by the court.

* That the 30% rule fostered by the FCC on the cable industry is willful and capricious. The panel summarily vacated that baseline without standing in current rule making by the FCC itself.

* Has political implications beyond the scope of this blog.

In many ways we are right back to 2004 in regards to carriers regard to traffic management, FCC’s role in this issue and the very nature of Net Neutrality.

Linky.
Full Finding here.

Or should I say the channel selector? You still might want to keep the cable for data transport — to get TV. –

So say you skip the Boxee Box and go with the Zino. One of the frustrations of internet TV is finding what you want, when you want it. This show is only on Hulu, that show is only on the network’s portal, and you’re on the web…what do you care which network produced what show? Can’t someone else keep track of that?

Well another launch yesterday was Clicker, a programming guide for internet TV. What’s nice about Clicker is that it only offers full episodes of content, so you won’t get dozens of hits that lead to 15 second clips. Clicker catalogs content from both free and paid sources, such as Netflix Instant Streaming and Amazon Video-on-Demand, but it marks paid content clearly so you can skip over it if you wish. You can set up Playlists, and Clicker also offers some social features, such as Trends and connecting your Clicker account to your Facebook account.

With each passing month it seems like cutting the cable cord becomes a more viable alternative, but yesterday in particular seemed to be a Big Day for internet TV (most of these launches were probably due to the NewTeeVee event that took place in San Francisco, CA). So are you ready to ditch cable? Or have you already? Please share your thoughts in the comments!

That is from IT World. Not exactly a CES oriented publication.

But the question is, is next year, THE year more users cut out the channel side of the cable connection? It could be if things remain stable as in near free. Or that Hulu does go to a paid service that’s like $20/year and includes premium offerings at that price. Sadly for the TWC and Comcast’s of the world, whether that happens or not is out of their hands.

The deep question is could Comcast survive as a data only transport provider?

Well the Net Neutrality rules have been codified by the FCC. All that is left is the wrangling about peripheral details. As a recap the prime components are —

The rules codify four old principles and introduce two new ones. Broadband providers must not block users from sending legal content on the net. They must let users run the applications and services they like and connect whatever devices they care to. And providers must not harm competition among ISPs or online services. The new principles require that broadband providers not discriminate against content services (i.e. block Skype because it competes with an ISPs voice service) and that they disclose to users and the feds how they manage their networks.

The rules would also explicitly extend beyond so-called wireline providers such as DSL and cable and apply to wireless internet services, such as 3G, satellite and WiMax. Providers would have leeway to shape or throttle traffic for network management purposes or to help police or “homeland security.”

The full rendering is here.

Couple of observations/effects now that this have been issued –

• Figure that the Telcos will now move to push congress for fiscal relief. The most likely move being a tax recapture modification for a period of years so they can accelerate the depreciation of the PSTN netowrks. 18 year depreciation rules need not apply anymore in telecom.
• Is ‘carrier of last resort’ now a dead duck? The new rules are not clear. But you can bet the Telcos will wish it so.
• This could be liberating for the Telcos as well, were they to play their cards right. Sure the PSTN will shrink. Were I Telco I would foster it. Partner with a Skype or other VoIP or their own captive and get the last of the user base on VoIP. Gut the CO of the old switch gear. Work with folks like Akami and turn the free space into network edge data centers. Lower costs, new services, lower cost per user. What’s not to like?
• Just because you can attach it does not mean the provider can’t shut you off. The new rules have ‘network manageabiltiy’ aspects attached. That folks includes bandwidth throttled or outright port closure.
• End of walled garden video channels? When the consumer can now get any device they want (within reason), the restrictions on say HBO having to be a channel line up partner with Comcast or TWC no longer exist. An example would be the Roku folks lining up HBO, FBN, NFL and other content as either free or pay ala-carte. Roku just does the cross billing to/for the consumer.

  Oddly the Comcasts of the world don’t need to be left out of this game. They could switch over what they currently carve out of their baseband to broadband and play the same game with the providers they already have.

• The handset race will heat up. With proven chipsets to support network access without concerns for interoperability the universe of devices and device types are going to skyrocket. Some old main stays like Motorola and Nokia might find themselves outclassed. The rate of change may become so fast that brand manufacturing may become a lost art.

In many ways the edges are going to be a new game. A great deal more diversity in product selection is on the horizon.

Linky.

Yes I told you so. More than once. Net neutrality is a paper tiger. The duopoly is seeing to that handily. Rules written by the revolving door insiders at the FCC will never be a positive agent of change.  AT&T is using Google as the boogeyman in its quest to twist the new rules to effectively rub out any potential competitor. We may very well get new “net neutrality” rules that will only make the situation worse.

In a letter to the FCC (PDF) this week, AT&T went on the attack to portray Google as a big powerful company that’s trying to fool the FCC into believing that the rules shouldn’t apply to it. In the letter, AT&T is still trying to cover all of its bases. That means that, at times, it’s hard to follow which arguments it’s trying to make - the one about Google Voice or the one about net neutrality. And it doesn’t help that it stooped a little too low by referencing a convent of Benedictine nuns in a list of those who were handicapped by having calls to their numbers blocked to and from Google Voice numbers.  (ZDnet)

There are problems with AT&T’s posturing that could more permanently lock us into duopoly dominance. Since Google has gottten big and scary,  it’s an easy target, but there more to this. If enacted, net neutrality rules should ONLY apply to companies who have last mile right of ways and / or wireless spectrum. If the holder of spectrum will provide equal network access to competitors it should be exempt. Google owns no spectrum, no right of ways and does not charge for Google voice which does not even directly connect a telephone call. Calling it a competing phone service is like saying Colgate in in the dentistry business. The real reason behind AT&T’s attack on Google is to have rules written that will force providers of virtual services into the same regulatory framework that governs entities that have monopolies in last mile access or wireless spectrum. The net effect of the regulations AT&T wants would impair the ability of every VoIP, online entertainment and interactive online service to compete against a protected monopoly. There probably  are anti  competitive  issues in the way Google is doing business. They should be considered on their own merit and not used a lever to enslave us to a duopoly for the next several decades.

The only way to get open networks is with an open market. If a duopoly must exist. the only fix is to require it to divest from non access businesses.

This blog has been saying that voice channels on mobile is a anachronism. With the largest chunk of CPE now being smart that supports both a voice and data channel, the reality is the voice channel is passe. Well it looks like AT&T saw the handwriting –

Bowing to openness pressure from the FCC, AT&T renounced on Tuesday its opposition to internet telephone calls that use the iPhone’s 3G data connection.

In short, Skype on the iPhone is now OK by AT&T, the company said in letters to Apple and the FCC.

AT&T’s change of heart comes just after the FCC controversially announced that it was planning to extend internet openness rules to mobile networks. The wireless carriers are fighting back, arguing that wireless networks are not robust enough to operate without intense network management.

AT&T made no mention of the FCC in its announcement, crediting the change instead to a routine examination of its policies.

Now the result we applaud. Though we are left with a bad after taste considering that AT&T was dragged there kicking and screaming. But that is not a panacea either. Consider that in certain markets like NYC the 3G bandwidth is overburdened and drops are a given with the average iPhone user. So having a Skype call dropped could be annoying. Especially since 1/3 of iPhone data calls are dropped daily.

We are 2 steps forward, one step back. We now have some open light on open access. But we are hindered by the lack of bandwidth coupled with a reduced revenue of the providers to fund the upgrades for more bandwidth.

Linky.

A lot more of your monthly wireless spend will be going to Washington DC this year. The biggest players in the wireless cartel want to keep their cartel privileges.

In the most radical neutrality program ever outlined in the US, the new-look FCC is insisting that wireless carriers should account for their open policies in the same way as their wired broadband counterparts.

The proposed policy outlined this week would allow the FCC to monitor cellcos’ policies and rule on how well they conform to guidelines on neutrality. Genachowski also plans to toughen up the rules for the big phone companies such as Verizon and AT&T.

He has reaffirmed the 2005 broadband principles that consumers are entitled to access any legal internet content, and run any apps, from their choice of legal device, and with the right to competition among operators and providers of services, content and applications. These principles will now be formalized by the FCC and extended to mobile broadband.

Genachowski has also added two extra principles. Access providers will be barred from discriminating against particular internet content or apps, and they must be transparent about the network management practices they adopt. (The Register)

If we must have a wireless cartel, regulation is necessary. Unfortunately, many of the practices our new FCC chair seeks to end were originally enabled by regulations. For wireless there is simply too much spectrum licensed to to few providers to have a competitive market. With so much money involved, we can count on any new rules performing less well than advertised. Acts of Congress can and will undo any regs that the cartel cannot manipulate at the FCC level.

We need to rethink and retool how we allocate spectrum. Too little is available to the masses and too much is in the control of a very few companies. If there were robust competition , net neutrality would be a non issue.

New FCC chair Julius Genachowski is getting ready to do a little showboating. If you want to insure that a provider delivers descent service, you need to make the potential loss of business real. The only way to do this is with open and robust competition. Then there’s net neutrality as created by the Washington bureaucracy. If enacted, it will be require truly impartial network management like the pile in the picture makes a nice christmas tree.

Meet Rep. Ed Markey. You can call him Mr. Net Neutrality if you like.He’ll like that because of you call him that, you’ve bought into his spin.  Mr Markey loves trumpeting “net neutrality” legislation in place of open market competition. Unfortunately, he’s doing nothing to help or protect you. This time around he’s even playing up the duopoly story loudly to make his con even a little more convincing.

The bill goes out of its way to beat the “lack of competition” drum, noting that “the overwhelming majority of residential consumers subscribe to Internet access service from 1 of only 2 wireline providers: the cable operator or the telephone company.” Given this limited choice, the bill warns that ISPs “have an economic interest to discriminate in favor of their own services, content, and applications and against other providers.”

And thus… this bill, which defines US policy as anti-discrimination and pro-capacity upgrades, even for “applications and services that require substantial downstream and upstream bandwidth.” Rulemaking and enforcement of network neutrality would be given to the Federal Communications Commission, which would also be given the unenviable job of hashing out what constitutes “reasonable network management”—something explicitly allowed by the bill. Such management must be “narrowly tailored” and the techniques used must be “the least restrictive, least discriminatory, and least constricting of consumer choice available.” Detailed rules are left to the FCC.Neutrality would also not apply to the access and transfer of unlawful information, including “theft of content,” so a mythical deep packet inspection device that could block illegal P2P transfers with 100 percent accuracy would still be allowed.If enacted, the bill would allow any US Internet user to file a neutrality complaint with the FCC and receive a ruling within 90 days. If an ISP is found to be in violation, damages may have to be paid to “the complaining party,” which sounds like an excellent way to deputize Internet users into probing their ISPs for discriminatory practices. (Ars Technica)

Unfortunately, Mr Markey’s latest proposal does nothing to open the market. It does nothing to protect the you from the duopoly. There is plenty of protection in the legislation, but only in the form of federal micro management. As a rule of thumb,  micro management by the feds only suits those who have the means to buy access and a monopoly to protect.

Comcast, the net provider that it seems everyone loves to hate is being quizzed by the FCC on their yet again mode of network management. This time it lies in the fact that Comcast sent a letter of compliance earlier last year only to be contradicted by their very own website on the matter. FCC letter here

Now Comcast has had a reputation for being contentious to the FCC and arrogant to their customers. So this is no surprise. However it does go to show the depths of stupidity swirling around that Corp. This whole issue would not have arisen had somebody in Public Affairs reviewed their website for contradictory statements to their regulatory positions. Would it be airbrushing? Sure. But damn. If you are going to steal or lie at least make a good faith effort.

Linky.