In Which I Disagree With Reason

Ex-Leaguer James Hanley asked me for my opinion on this piece.  Facebook being Facebook, it doesn’t like the length of my comment.  Since others may be interested, I’ll address it here at OT.

First and foremost: in certain respects, he’s not wrong.

I’ll wholeheartedly agree that a lot of the rhetoric around Net Neutrality has been hyperbolic and destructive to the conversation. However, I think it’s… an interesting decision… to open his piece with his top paragraph-and-a-half if part of his main point is that there’s unnecessary rhetoric coloring the issue.

“veritable state of hysteria”, “incensed supporters”, “so-called ‘net neutrality” “It’s a nasty state of affairs”.

None of those are entirely inaccurate, but it only applies to some folks who are pro-Net-Neutrality and it’s a pretty clear well poisoning for the rest of his article.

Passing that…

“In truth, the Obama administration-era “Open Internet Order” (OIO) that the FCC is overturning has little to with “net neutrality” at all. In fact, the OIO would still allow internet service providers (ISPs) to block content—to say nothing of the many non-ISP tech companies that can and do openly suppress access to content.”

The first half of this isn’t very accurate, and his ending clause is irrelevant to the question at hand.

OIO does have quite a bit to do with Net Neutrality

Now, I’ll readily admit I’m just asserting this, but I don’t really have time to dissect all several hundred pages of the OIO today.  For those curious, I’d suggest folks actually read it and come to their own conclusions.  But while there are indeed carve-outs for ISPs to block content in the OIO, that’s unsurprising given that there’s actual hazards out there on the Internet and one would find it… odd… to suppose that (for example) an ISP couldn’t block a site that was engaged in actually attacking its customers with a known exploit.

As to the end clause… whether or not Google or Facebook can do content curation is completely irrelevant as to whether common communication carriers can/should.

People need to stop hauling this argument out; it’s like saying automobile dealerships aren’t subject to the same regulations that manufacturers of cars are.  That’s (at best) a banal point and at worst a clear distraction.

“Furthermore, repealing the OIO does not mean that the principles of “net neutrality” will not be upheld, nor that ISPs will be “unregulated.” Rather, the RIF will rightly transfer oversight of ISPs to other regulatory bodies in an ex post fashion.”

This is… somewhat factually correct, but it in-and-of-itself isn’t interesting.

One, there’s an argument to be made that oversight of ISPs belongs elsewhere, but you have to make that, not just assert it (“rightly” tips your hand, here).

Two, there’s definitely an argument to be made that removing one set of regulations will in fact result in *some* “principles of net neutrality not being upheld”.

I mean… that’s the ostensible point of revoking the regulation, right? Why would Time Warner be advocating for the removal of this regulation if the regulation had no effect? One can argue that the results are better the other way, but it’s a serious misdirection to claim that “everything’s going to be okay/better this other way” without engaging in that conversation.

Three, there’s an argument to be made (more on this later) that the FCC is in fact the *rightful* place for this to be regulated, not elsewhere.

“One of the biggest misconceptions of the OIO saga is that it achieved “net neutrality.” It didn’t. While proponents like to spin a lot of rhetoric about “treating all traffic equally,” the actual implementation of the Obama administration’s regulations did nothing of the sort.

As my Mercatus Center colleague Brent Skorup has tirelessly pointed out, the OIO did not require all internet actors—ranging from ISPs to content platforms to domain name registrars and everything else—to be content-blind and treat all traffic the same. Rather, it erected an awkward permission-and-control regime within the FCC that only affected a small portion of internet technology companies.

Not even ISPs would be truly content-neutral under the OIO. Because of First Amendment concerns, the FCC could not legally prohibit ISPs from engaging in editorial curation.”

This is a *fascinating* interpretation of the court case that he links to in the sentence immediately following.

And by “fascinating” I mean “clearly is contradicted by the plain text in the court finding”

From the court finding’s majority decision, a few tidbits:

“The upshot of Brand X with regard to the FCC’s congressionally delegated authority over broadband ISPs is unmistakable and straightforward. All nine Justices recognized the agency’s statutory authority to institute “common-carrier regulation of all ISPs,” with some Justices even concluding that the Act left the agency with no other choice. 545 U.S.at 1011 (Scalia, J., dissenting).”

— editorial —

For clarity, this was (at the time) one of those moments where I called out Scalia for agreeing with him; I disagreed with the majority in Brand X and agreed with Scalia, that the law as written made it more or less impossible to distinguish ISPs as anything *other* than a common carrier, and that discretion shouldn’t be left to the regulatory agency (amusingly, if everyone had just signed onto Antonin’s decision we wouldn’t even be having this conversation now because the FCC wouldn’t have the discretion to drop the rule).

And this is why I think the FCC is, in fact, the correct place for this regulation to occur.  The Brand X case is described more fully here.  Scalia’s dissent is here, if you want to skip directly to it.

— close editorial, resume court quotation —

“An ISP has no First Amendment right to engage in those kinds of practices. No Supreme Court decision suggests
otherwise. Indeed, although the two dissenting FCC Commissioners objected to the agency’s adoption of the rule
on multiple grounds, neither suggested the rule poses any First Amendment issue. Similarly, the principal parties
challenging the Order in this court, who collectively represent virtually every broadband provider—including all of the
major ISPs—bring no First Amendment challenge to the rule.”

“Notwithstanding the arguments presented by Alamo and Berninger—and now also our dissenting colleague
—the consensus view is correct: the net neutrality rule raises no issue under the First Amendment.”

I mean, you can go read the decision yourself.

Back to the article:

“But importantly, the OIO still allowed the vast majority of internet companies to filter and block away to their heart’s content. Indeed, one could argue that content aggregators and search engines, like Facebook and Google, have proven to be much more draconian in their censorship of controversial but legal content than the ISPs over which so many agonize.”

But this is again just a bait and switch. The heart of the FCC case doesn’t have anything to do with Google or Facebook, because neither Google nor Facebook is a common carrier (with the exception of Google being a common carrier where it actually is one).

You *can* argue that the regulations on Google or Facebook should be more stringent (for the record, I wouldn’t), or you can argue that the ISPs can’t compete with Google or Facebook for reasons that are tied to the content curation capabilities that Google/Facebook have (I wouldn’t, and I would find it a nonsensical argument anyway because ISPs provide a fundamentally different service than Google/Facebook), but it’s (IMO) spurious to be comparing regulations on common carriers to regulations on content providers.

“This hypocrisy is relevant for more than just ideological inconsistency. It’s about economic power. By encouraging harsh regulation of ISPs that effectively controls the rates that major tech companies can be charged for bandwidth, these companies are engaging in a kind of regulatory capture. “

I (a) first don’t agree that the regulations are harsh. Secondly, this is still a bad comparison. Why?

An ISP is perfectly capable and able, under existing regulations, to create its own web site that does content provisioning just like Google does, and there is nothing to prevent that ISP from curating content *on that site*. What they can’t do is use their underlying control of the bits going down the pipe to curating content *from everywhere else*.

And neither can Google/Facebook!

Google can certainly curate content on Google’s site, but they can’t affect what you see at Yahoo, nor can they change your ability to interact with Yahoo.

I’ll agree that these companies are seeking regulatory *protection*, but whether or not you’d call that capture depends upon whether or not you classify *all* regulations as capture by default, I guess.


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Patrick is a mid-40 year old geek with an undergraduate degree in mathematics and a master's degree in Information Systems. Nothing he says here has anything to do with the official position of his employer or any other institution. ...more →

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48 thoughts on “In Which I Disagree With Reason

  1. I do like the reoccurring theme (not in the piece, but in the Reason comments) about how “We never had net neutrality before, and it worked fine“.

    That’s…true. But that’s because filtering packets was technologically not feasible until around Obama’s Presidency, and as soon as it could be done feasibly ISP’s cheerfully started doing it. Which is why Net Neutrality popped up as an Obama era issue in the first place.

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  2. Found an interesting web site that tells you want ISP’s provide service by zip code.https://decisiondata.org/internet-providers-by-zip-code-plus-tv/
    Checking a few cities you find the cable and the wireline phone operation at a minimum, plus the satellite providers, In more rural ares you may find fixed wireless as well. (more of that is coming because the more rural the region the more whitespace (i.e. no off air tv signal) channels there are on the tv bands which works good for wireless ISP use. In addition 5G wireless is supposed to provide speeds similar to broadband today (also wireless internet was never subject to Net Neutrality so the provider can choose to not charge for bandwidth for their services)
    The main point I want to make is there appears to be more of a duopoly/ oligarchic structure to the ISP market than a pure monopoly structure.

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    • Near the end of my time with a giant cable company, we tried. TTBOMK, we were the only large cable company that tried. The ISPs were… unreasonable, to be polite. Largely ignorant of the RF and regulatory realities of a hybrid fiber-coax plant operating under FCC requirements for providing cable TV service, to be somewhat less polite. “Dumb f*cks” to quote several of the engineers involved in the project.

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  3. I mean… that’s the ostensible point of revoking the regulation, right?

    This is the point that conservative articles routinely miss. Comcast doesn’t want this change to preserve the status quo, It wants the change so that it can make more money (almost certainly by monetizing the right to discriminate at the packet level).

    Why on earth would Comcast not try to extract additional rents from the porn sites/video streaming services/etc that hog “their” bandwidth if they are allowed and able to do so?

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  4. As I’ve written before here… The FCC can choose to regulate ISP service in one of two ways: as an information service, or as a communications service. 20+ years ago they opted to regulate as an information service. At the time I said it was the wrong decision, and argued loudly at the giant telecom/cable company where I worked that it was better to be a communications service and negotiate terms then, than to have terms imposed on us at some point ten or 20 years down the road. Those of us making those arguments lost all around. I do understand why the FCC made the (short-sighted) decision that they did.

    When the Obama FCC decided to reverse that long-ago decision and regulate ISP service as a communications service, they opened a huge can of legal worms. They attempted to get around certain problems by promising that they wouldn’t enforce tariffing or last-mile leasing of shared facilities (coax, wireless, and in some cases fiber). At least that part of the decision was going to go to court eventually, and when it did, the FCC was almost certainly going to lose, with possibly nightmarish results.

    Congress came close to doing the right thing at that time: bills were introduced that would leave internet access as an information service, but would add conditions that were essentially net neutrality. The bills were introduced by Republicans, but I argued that the Democrats ought to jump on the bandwagon immediately. It’s still the simple answer, and if the big ISPs (Comcast, AT&T, Verizon, et al) were smart they’d be pushing that. Net neutrality will eventually be imposed, and this is the point where those big ISPs can get the best terms.

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  5. I confess to being more than a little bit confused, as I look into the nuts and bolts of this described in the OP, why exactly so many people on teh Internets are convinced the sky is falling.

    Seems to me that even if it’s every bit as awful as we’re told, there is a market for an ISP that advertises “We offer open access to every site in existence, on equal terms, for a flat monthly fee.” And when that ISP attracts enough customers its competitors will, well, compete.

    Prices may go up. While I don’t welcome that, it’s pretty rare for them to go down.

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    • I think that the thing that is most likely is something like the “not collusion but, seriously, it’s collusion” thing where multiple companies say “we’ll give you 100 anytime minutes, unlimited weekend and nights minutes, 2 gigabytes of data for one low fee. For an additional $7.99, we’ll give you unlimited youtube, twitter, and facebook that won’t count against your data!” and we’ve got this OPEC thing going on.

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      • Yeah, I suppose, but… I’m not morally offended by this.

        If it leads to Google (which owns Youtube) merging with Facebook and becoming an ISP itself and then doing a hostile takeover of Netflix, and that megaentity then using its power to engage in anticompetitive behavior to squeeze every last penny out of every internet user, well, I should hope that President Gillibrand’s Department of Justice will have a robust antitrust department that will step in and get a Court to play goalie in a no-longer-really-free market.

        This just strikes me as an unlikely result at the moment.

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        • Aren’t most ISPs a near-monopoly already?
          And aren’t they a natural monopoly anyway?
          In theory, telephony, cable television, and internet access are separate things, but technology is pushing them together; And since they need a hard cable connection that runs under public streets, they need a common carrier to do that.

          I mean, are we really going to see a world where 12 houses on a block could have 12 competitive providers?

          What is the advantage of this change, and to whom?

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        • I am not morally offended by it either… but my internet usage is almost entirely desktop based rather than phone based.

          I understand that there are people out there whose internet usage is almost entirely phone based. This is the demographic that I expect will experience moral offense.

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      • There’s at least five ways I know of right now:

        1) Telephone lines.
        2) Cable TV lines.
        3) Fiber optic lines.
        4) Satellite transmissions.
        5) Cellular transmissions (which is really a form of radio).

        Some of these are better than others, and some are not available in all localities. I’d argue that the fewer of these options are available in your area, the greater scrutiny should be given to the marketplace behavior of the ISPs that have the physical abilities to service you. If the service plans on offer to you in a limited market are the same as those offered by that provider in more competitive markets, that’s evidence that you’re being treated fairly despite the lack of actual competition in your market. (Cognates and converses apply as well.)

        But chances are, unless you’re in a very rural area, you have more than one option.

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        • 1, 2 and 3 are, basically, utilities. Unless they’re regulated as common carriers, then barriers to entry are too high for any competition to evolved. The only people that can possibly afford it is government, and lobbyists have cheerfully been getting state level laws passed that prevent them from doing it.

          Satellite is a non-starter. It’s awful, and will always be awful, due to simple physical limits. (You know, speed of light). It’s not and will never be a competition for broadband. High latency can’t ever be conquered.

          Cell phones are similar to 1, 2 and 3 — build price is less but the barriers to entry are still really high, but there’s the problem with limited available frequency ranges and some really nasty problems inherent in dealing with heavy use. Ever tried to send so much as a text message in a crowded enough venue?

          Not to mention the ridiculously easily hacked nature of it. Police already have fun with that — so non-secure, frequency and bandwidth limited, and again — super high barriers to entry.

          Competition isn’t going to fix this, anymore than it’s going to fix the cost of water or electricity. Because nobody is building a new set of pipes or wires to your house, and all other methods of delivery are….massively suboptimal and will that’s unlikely to change in the next few decades even with moon-shot money.

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      • This. Go play around with the link Lyle posted earlier. Some places are lousy with broadband coverage, others have 1 cable company, & maybe a crappy DSL provider.

        A lot of those places have governments that have signed exclusivity deals with a major carrier, others are passively resisting other players by holding up permits, etc.

        I’m fine with NN going away, as long as there’s serious movement to break local monopolies.

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        • Here, here.

          I also think there ought to be further rules about transparency and contracts. If I sign a 2-year deal laden with early termination fees and am told at the time that they won’t throttle Netflix… and 3 months later they throttle Netflix…

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        • So like when a cable company wants to run their cables under the city streets that we the public own, maybe we the public should set terms for that permission or cut them off and tell them to beam their shit from the sky.

          But then again, would that result in a benefit to the public?

          The advantage of the internet and cable and cell phone is that it is the same everywhere as a “common carrier”; Amazon in Tennessee is the same as Amazon in Seattle, HBO in Miami is the same as HBO in New York, a phone call from Arizona is the same as one from LA.

          Wouldn’t a “free market” in these services actually yield a wonderfully diverse world where HBO didn’t exist in Nevada, or your cell carrier only worked in the Pacific Northwest, and people in Texas couldn’t access the Ordinary Times blog.

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          • So like when a cable company wants to run their cables under the city streets that we the public own, maybe we the public should set terms for that permission…

            In almost all cases, we do. Every time the cable company opens a street, they pay fees. Every time a telephone company runs poles along a public right-of-way, they pay annual fees. When the cable company or the electric utility wants to run wires on poles installed/owned by the phone company, there are connection fees and the local government gets a cut. When any one of them installs ductwork under a street, chances are good that they will be required to share it with others at prices set by the local government. In Manhattan, fees to open trenches for new ductwork runs something over a million dollars per mile.

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              • My overall point — if there is such a thing — is that the phrase “should be a utility” is almost meaningless.

                Authority over my internet access service is regulated by the FCC, within restrictions imposed by Congress (ie, the information vs communication choice, sans authority to create something new). If the wires used to provide that service are also used to provide voice telephony service, the state gets a big role. If the wires used also provide cable television service, the FCC has another set of rules. If instead of wires licensed wireless spectrum is used, the FCC has a huge but different role. If I’m a geosynchronous satellite company, the FCC and at a high level the ITU is involved. Local government has a big voice in the placement and costs of the physical wires (NYC was one of the last urban areas to get cable TV, despite millions of customers who were desperate for it, because the city government overreached).

                My opinion only, but it will take at least another 20 years to get Congress — where the job must be done — to straighten out the regulatory mash-up from the last 85 years.

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                • In architectural design, we are keenly aware of what is a consumer item versus a commodity.

                  The faucet in the bathroom is the consumer item that reflects the diverse tastes and status demands of the marketplace; So there are a jillion makes and models in a highly competitive marketplace arrangement.

                  The pipes in the wall are the commodity, that no one cares about, so there are only 2 or 3 types available in a near-monopoly arrangement.

                  So in this analogy, ISPs are the pipes, and content is the faucet.

                  No one except tech geeks really care about how ISPs work, since no one really wants an ISP. What we want is HBO, Facebook, and text messaging.

                  So yeah, I am not overly adamant on how ISPs deliver my Facebook, as I am adamant that my choice of content is unrestricted.

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                  • The problem, though, is the analogy you’re using here is not allowed under the regulatory structure currently authorized by Congress. I said it 20+ years ago, and stand by it today: IP-based packet-switched content-neutral access to the internet, particularly over a shared medium, is something fundamentally new and requires a new regulatory schema.

                    To complicate things further, many consumers want some traffic shaping. Everyone wants their telephony-over-IP packets to be given priority in order to reduce latency and drop-outs. Ie, my neighbors can accept somewhat greater buffering of their video stream so that I can talk to my Mom clearly and without latency.

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                    • I will have to yield your point, if only because I don’t understand it.
                      There may in fact be a need to completely rethink the regulation of how internet access is provided.

                      Which only then emphasizes the bigger point that we need a political consensus that the consumers of content, not the providers of it, are the intended beneficiaries.

                      This political regime doesn’t hold that view.

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                      • The problems are upstream, and latency (delay). IP telephony packets should, in a sane world, be granted priority over all of the ACKs generated by your neighbors’ video streams. The local cable company can “cheat” on this: the DOCSIS standard includes an IP telephony priority class, but it’s hidden, off to the side, and is only available to the network operator.

                        4G and 5G LTE cellular does the same thing. LTE moves everything, including voice, in IP packets. But the network operator’s voice packets are given priority over data, and a VOIP app (Skype, say) running on the phone will not get the same priority bump.

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        • I’m fine with NN going away, as long as there’s serious movement to break local monopolies.

          The economics are terrible. DSL shows a profit because so much of the infrastructure [1] was installed to support voice on copper pairs. Cable modem service shows a profit because so much of the infrastructure [1] was installed to support television services. Ditto for satellite. Cell service shows a profit because crappy mobile service commands a premium (cellular voice quality today would be rated unacceptable by the standards used in the Bell System 50 years ago). Fiber-to-the-home is hideously expensive, and people are still working on new technology (eg, passive dense wavelength-division multiplexing) to try to make it affordable.

          If the only service a company is going to sell is broadband internet access at $50/mo, exactly none of the technologies are profitable, even if you capture the entire customer base. Split that base across multiple companies and it looks even worse.

          [1] Infrastructure here including things like in-ground conduit and ductwork, poles, and power, all of which are remarkably expensive to install.

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          • Yeah, I’ve looked at my city’s ordinance and there is no bar to another cable company obtaining a license to build their own service using the city-controlled utility easements. Most of the conditions were what one would expect in relation to excavation and avoiding damage to property and other utility lines. But the license also contained standard utility obligation of universal service to “all comers.” A new company couldn’t just pick the most profitable part of the city to offer service. When Google fiber was introduced in KC, they appear to have negotiated a cap on a duty of universal service. I don’t know that a city couldn’t remove such requirements, but it’s not a particularly egalitarian approach to issues of net neutrality.

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          • Right. So cities wanted to provide it themselves because on that scale the losses aren’t too bad and it can spur innovation. States started to make that illegal for lobbyist $$$.

            Now we have what we have, which is way worse internet than most advanced countries.

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            • As I’ve mentioned before, my neighborhood owns it’s own fiber ISP. It was all laid down during construction, and everyone pays into it for maintenance. It’s superb service. They don’t prevent other ISPs from operating, but it’s kinda nuts to not use them.

              I expect that if things progress as I expect, we’ll see more community owned ISPs.

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  6. None of those are entirely inaccurate, but it only applies to some folks who are pro-Net-Neutrality and it’s a pretty clear well poisoning for the rest of his article.

    Given the sheer volume of chicken little takes on this issue, not mentioning them would be an unusually high bar to expect anyone who supports light touch regulation of the ISPs to hurdle. If anything, shouldn’t the proponents of net neutrality be doing more to call out the more hyperbolic takes coming from that side of the argument? That would certainly do more to convince me; although I and it that I’m likely not the median voter or median consumer of internet opinion pieces. I do agree, however, that if you’re going to argue against the OIO, then you ought to do more to make an affirmative argument in its favor.

    I am ambivalent on this issue for the simple reason that I don’t know enough to have a well-informed opinion. Here is what I would like to see from those against the FCC’s current actions: tell me what’s going to be different about how the ISPs do business a year from now and five years from now and twenty years from now. The farther out we get, the more theoretical this gets, but hearing opinions on what happens a year from now will at least give me some measure by which to gauge the actual results, a year from now.

    Also, I put a lot more weight on the the things were not that different pre-IOI argument. Technological advances aside, how much can or will the ISPs do when the FCC’s stance is likely to flip flop back and forth every time it’s membership changes composition? And that question just brings me back to wanting to know people’s best guess as to the what the new status quo will look like.

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    • if you’re going to argue against the OIO, then you ought to do more to make an affirmative argument in its favor.

      That’s fair.

      By the same token, though, someone should explain why the telecoms are spending so much money and effort to make this change, and why we should think this is for our benefit, not theirs. [insert obligatory Adam Smith quote about businesses conspiring together]

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      • Do note that “net neutrality” got enacted pretty much the moment that it became technologically possible for the big players to start playing packet games.

        Like it went from “Hey, we suddenly can do this on the router level” to “Stuff getting blocked and throttled” practically instantly. Clearly the big players felt there’s a ton of money there, because doing it isn’t free and they jumped on it like starving wolves on a crippled deer.

        Which is why the FCC acted in the first place to protect it.

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    • I expect within the first year major bandwidth hogs will be throttled (or pay not to be) within a year. Some of those won’t be politically sensitive (e.g. porn sites/P2P file sharing). Others will be (e.g. Netflix).

      I expect within 5 years you’ll see a lot more a la carte internet service offerings (low cap, pay to exempt Netflix, etc.)

      I also expect in that timeframe you’ll see lawsuits saying ISPs are now complicit for illegal traffic they throttle but don’t block, leading to a massive freakout by all involved.

      I also expect in that timeframe that you’ll see no significant innovation, improvement, or other benefits the telecoms suggest are tied to this policy, but the same terrible internet will cost more.

      There are my markers.

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