back to article Net neutrality is heading to the courts (again): So will the current rules stand or be overturned (again)?

The rules over what companies selling internet access to folks are allowed to do are heading to America's law courts yet again. Yep, it's net neutrality round three – and with all the legal briefs now filed, we have dug through the competing arguments to try to discern which way it will go. The Washington DC Court of Appeals …

  1. Duncan Macdonald

    Hoping for sanity from the US Government

    Is like hoping to win the top prize on EuroMillions (except that the chance is much higher with EuroMillions (1 in 140 million not 1 in a googolplex)).

  2. ma1010

    Yes, this will happen

    ...Congress create a new set of laws that will allow the United States to thrive for the next couple of decades without being dragged down by regulatory arguments.

    This will happen the same day a flock of pigs go singing, flapping their wings as they fly past my window.

    1. bombastic bob Silver badge

      Re: Yes, this will happen

      actually, according to the U.S. Constitution, it's CONGRESS that makes the laws, NOT the bureaucracy nor the courts. ESPECIALLY NOT the courts.

      1. Mark 85

        Re: Yes, this will happen


        You are correct. However until Congress gets it crap together and becomes functional, the only way to deal with regulatory issues is via the courts. Per the Constitution, the laws, regulations can be pursued through the courts based on constitutionality and legality so yes, the courts could rule to kill the law or provisions and then it's up to Congress to fix it.

        1. Anonymous Coward
          Anonymous Coward

          Re: Yes, this will happen

          NN was not imposed via the courts, or by Congress. It was imposed by the Executive via executive orders. These EO's are essentially by fiat, and are thus vulnerable to removal by fiat. However, now part of the judiciary is attempting to override the second fiat, based on a subjective determination that said fiat was not "well reasoned" or some such, while supposedly the first one was.

          It's a purely partisan battle over policy, nothing more. Majorities and voting have little to do with it.

      2. CrazyOldCatMan Silver badge

        Re: Yes, this will happen

        U.S. Constitution, it's CONGRESS that makes the laws

        Then maybe, just maybe, they should get their collective fingers out and actually do something?

        Other than partisan name-calling of course.

      3. strum

        Re: Yes, this will happen

        >according to the U.S. Constitution, it's CONGRESS that makes the laws

        The great weakness of the US Constitution derives from the very thing left-pondians crow most about - the separation of powers.

        The problem with separation of powers is that it also separates responsibility. One branch of govt can always blame another. And it can block any other branch that tries to push things forward.

        1. Anonymous Coward
          Anonymous Coward

          Re: Yes, this will happen

          No, it doesn't separate responsibility. Congress makes the laws, the executive branch enacts the laws, the courts interpret the laws. The problem is that laws are passed for a given set of circumstances, then things change - a lot in the case of technology. If there isn't enough agreement in congress on changes to the law, or the president vetoes, then the executive branch is left to try to figure out how to do the job on their own using authority given to them by congress in those outdated laws (or they imagine/hope is given to them) If someone with standing sues, then the courts decide if they overstepped their authority or not.

          We are seeing this play out in multiple domains, it isn't just net neutrality. We are long overdue for an updating on immigration law but we've got the same problem there, and the same thing is resulting - Trump has been trying to act via executive order and the courts have mostly been shooting him down.

          Congress was not able to pass anything even with republican majorities in both bodies, and the upcoming democratic house is certainly not going to be willing to pass anything Trump wants on the immigration front, so immigration is dead until 2021 at least. Maybe net neutrality is something we can see bipartisan cooperation on. Trump has made some statements that sound like he might be amenable to something less than Pai's hard line on this front, but if the democrats won't get everything they want so they'd have to give a little too.

  3. eldakka

    The other option

    is to let it remain with the states, as it effectively is now, and let the ISPs have to navigate the 50 different sets of regulations they will now have to navigate, since that is the fruit of their labours.

    1. James 51

      Re: The other option

      The big networks are hobbling small communities that are trying to organise and setup their own infrastructure. They have the resources to capture the lawmakers and regulators and when needs be drive the price of their product down long enough to drive the local competition out of business and then put the prices back up.

  4. Pascal Monett Silver badge

    Don't you just love

    how the Free Market is working out so well ?

    1. James 51

      Re: Don't you just love

      'Free markets' always tend towards abusive monopolies. That is why you need regulators.

      1. CrazyOldCatMan Silver badge

        Re: Don't you just love

        'Free markets' always tend towards abusive monopolies. That is why you need regulators.

        I think that was Pascal's point..

        (And regulators don't really help when they are being run solely for the profit of the industry that they are supposed to regulate..)

        1. Jellied Eel Silver badge

          Not a free market, and there's detailed devilry

          So picking up on one point:-

          So if an ISP like Comcast does decide to start throttling, say, Netflix because Netflix refused to pay it the amount of money it demanded, then Comcast will be required to state that publicly on its website.

          Problem is, well, definining the problem, and then definining legislation to solve that problem. So there's technical measures.

          If Comcast implements traffic shaping to give any Netflix sourced traffic a lower IP precedence/DSCP value so it's dropped when there's congestion, then that's clearly treating Netflix's traffic differently.

          If Comcast gives it's own video traffic a higher priority than Netflix, or general Internet traffic, then it's clearly treating it's own traffic differently.

          So Comcast could state it's traffic policy, ie Comcast video/voice is EF, everything else is best efforts, it would comply with disclosure. The rest is politics, and existing legislative powers to force equality of access. Which is fun in the US because it traditionally believes in the 'free market' and relatively light touch regulation. Users are free to seek alternative Internet providers, even though that may not be entirely practical. Legislating such that Comcast and Netflix traffic both has to have the same priority is arguably not 'free market' as it's forcing Comcast to help a competitor.

          Where it gets murkier is with understanding typical disputes. So Comcast and Netflix are seperate networks. Connections are needed for trafffic to flow. So suppose there's a 10Gbps link between the two and 15Gbps of traffic. Some traffic would get dropped, or 'throttled'. Upgrading the connections obviously costs, so who pays? Netflix is generating the traffic, so you could reasonably argue that they should pay. Delivery is a cost of doing business.

          That case is where marketing comes in, and why one side of the 'Net Neutrality' holy war is heavily stacked with content providers. They obviously want to minimise their costs.. Which is back to the old 'free rider' problem, and the cost differential between traffic delivery at the content provision level vs on access networks. It's a lot more expensive for the access providers to upgrade than to run a couple of fibres between 2 ports in a data centre.

          Disclosure in that case gets more problematic. Comcast would be the one required to disclose, and obviously could put it's own spin on the dispute. 15Gbps traffic down a 10Gbps port won't fit, and Netflix won't pay. One option might be to allow a right of reply, so a Netflix statement displayed with Comcasts.

          Problem won't be solved though, and 5Gbps traffic will still end up in the bit bucket. The FCC could step in as a mediator in those kinds of disputes and set rules around interconnect charges. That's fairly normal for telco regulators to avoid 'anti-competitive' or predatory pricing. It could rule that charges should be port + cabling costs + x% of a router/switch +10% is a reasonable interconnect cost. If Netflix doesn't want to pay that, such is business.

          That still wouldn't solve the rest of the 'free rider' problem, ie the incremental cost of carrying 5Gbps of traffic between Netflix's customers and the interconnect point, for which Comcast wouldn't get any carriage fees.

          Personally I still think traffic classification should be permitted, but by need rather than $$$. So VoIP gets to be EF because that can be a safety of life issue.

          1. Keven E

            Re: Not a free market, and there's detailed devilry

            "The idea then is that the market will determine what is acceptable or not. If people love Netflix and hate that Comcast is throttling it, they will simply drop the ISP and give their money to a different ISP."

            We've been down this road before... in most cases, there aren't *different ISP's available.

      2. Anonymous Coward
        Anonymous Coward

        Re: Don't you just love

        'Free markets' always tend towards abusive monopolies.

        That's ridiculous. This is really only a problem where you have barriers to entry, or other laws that aren't being enforced. We don't have abusive monopolies in grocery stores, just as an example, without any need to apply special regulations to prevent Kroger or Winn Dixie from taking over the market.

        Back when ISPs were dialup, there wasn't much of a barrier to entry - just setup a bank of modems, buy a bunch of phone lines from the local telco, and add a network link and you are in business. When we moved to broadband then the owners of the wires become defacto monopolies since in most areas there is a single wireline owner and a single cable company serving a given address. You don't get much competition where consumers have only two choices.

        Maybe this will all work itself out when fixed wireless 5G becomes a thing - there won't be anything stopping multiple different companies from offering service to a given address, thus weakening the wireline monopoly. The problem will be if they are mostly the same players like AT&T and Verizon, and the smaller players will still have to buy from the big ones. So a "wait and see" attitude isn't going to cut it, but regulations should be enacted with this future in mind rather than trying to fight yesterday's wireline battle.

  5. Rich 2 Silver badge


    Here in the UK, we complain (a lot) about BT, EE, Vodafone, the government, OFCOM, etc etc.

    It's only when you read something like this that you realise the it could be worse. A LOT worse!

  6. Anonymous Coward
    Anonymous Coward

    It will eventually be sorted

    Due to all the sandbagging by the corporations and government, there will not be enough sand left for the citizens of the US to hide their heads.

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