copyright notice
link to the published version: IEEE Computer, March, 2016

accesses since January 25, 2016


Hal Berghel

Regarding the recent FCC ruling on net neutrality, Yogi Berra said it best: “It ain’t over ‘til it’s over.”

There seems to be a considerable amount of confusion about the meaning of the recent FCC ruling on net neutrality ( ). Technically, the Internet Service Providers (ISPs) are discouraged from discriminating against content providers in terms of preferential allocation of bandwidth and differential charges. Foremost among these considerations is the ISP's use of bandwidth throttling – or slowing down delivery-based content or source. ( ) That's one of the things that the FCC is trying to regulate. It is by no means obvious that they will ultimately prove successful.

Net neutrality is a core component of an open Internet concept where services are equally available to all users and content providers, irrespective of the nature of connectivity, content or connectivity charges. Net Neutrality is actually a manifestation of the “dumb pipe” concept of data liberation on the Internet. Few claim that data liberation should apply to illegal activity and bad actors, so the presence of either is irrelevant to the issue of whether and to what extent the Internet needs to be controlled. As Edward Snowden showed, the defense of dumb networks is strongly motivated by historical experience: those who seek more control over the Internet tend to deserve less trust. Of course, there might be a middle ground - defenders of open networks could probably live with some traffic shaping if it could be conclusively demonstrated that such shaping was done in the open, transparently and without bias toward content, source and profit. However that compromise doesn't seem likely.

So the bottom line is that net neutrality is opposed by those who favor corporate prerogatives, and supported by those who hold an idealistic attachment to principles like an open Internet or a hysterical attachment to free speech. Net neutrality is as much anathema to telecom companies as net energy metering is to investor-owned energy companies: demand-side independence reduces profits. Period. But even if societal considerations really don't figure into the regulatory statutes, logic should. The State of Nevada Public Service Utilities Commission offers an illustration of how illogic may be used to buttress corporate interests through regulation.

In 2015 the rooftop solar industry lost their battle with the investor owned utility NV Energy (Berkshire Hathaway) to preserve the statutory rate agreements for homes with solar installations for net energy metering (NEM). A serious lobbying effort was launched by the utilities to have the advantage to the homeowner lowered by increasing utility connection fees for them alone while lowering metering rates for solar homeowners. The Public Utilities Commission assuaged the utilities by ruling that “it was in the public interest to develop a new tariff that establishes separate rate classes for NEM ratepayers and non-NEM ratepayers, in part because non-NEM ratepayers should not be required to subsidize NEM ratepayers.” ( ; sec. 68) Think about this for a while. Following this rococo logic, the connection fees should be charged on the basis of the actual cost of the individual hookup. On this basis, there wouldn't be many electrified family farms in America, and utilities subsidies to the poor, aged and infirm would be illegal, for serving family farms and the disadvantaged just isn't very profitable. This is just silly. Public utilities have always negotiated connection fees with developers and property owners on the basis of a balance between cost of doing business and public good (read: not likely to produce blowback to regulators and elected officials) and not actual expenses. The “infrastructure cost” argument is just a smokescreen to cover the fact that the clean energy was cutting into the profits of a private monopoly. On this matter, the Nevada Public Utilities Commission seems to be stuck on stupid. Since this tactic was successful in Nevada, we'll probably be seeing it reapplied elsewhere.

The situation is even more complicated with net neutrality, since it involves the quest for some measure of both demand-side and supply-side independence from investor-based providers and their desired profit structure. The content/information providers (Netflix, Disney, Google, etc.) want an egalitarian (e.g., dumb) pipe to isolate them from throttling and bandwidth surcharges. The end-users want bandwidth control over their portion of cyberspace without hassle and pricing based on the nature of use. Neither community is on the same page as the broadband providers.

The narrow 3-2 FCC ruling in 2015 that supported net neutrality should not be seen as a victory, but rather a opening salvo. The moneyed forces behind Congress will rally behind legislation to overturn this decision. Further, it is by no means clear that the Supreme Court will uphold the current FCC ruling. Either way, the big money is behind reversal.


The FCC made an earlier attempt to guarantee some net neutrality in 2010 when it tried to subsume “ancillary jurisdiction” over broadband providers' network management practices. The FCC claimed that this authority derived from section 4(i): “The Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions.” Comcast claimed that the FCC had no such authority over broadband information providers as they did not fall under Title 1 of the Communications Act of 1934 that governed common carriers. The D.C. Court of Appeals agreed with Comcast and vacated the 2010 FCC ruling (($file/08-1291-1238302.pdf ).

In Comcast v. FCC, the U.S. Court of Appeals held: “The Commission . . . may exercise ancillary jurisdiction only when two conditions are satisfied: (1) the Commission's general jurisdictional grant under Title I [of the Communications Act] covers the regulated subject and (2) the regulations are reasonably ancillary to the Commission's effective performance of its statutorily mandated responsibilities.” The problem, the court held, was while the FCC did indeed have subject matter jurisdiction [section (1)], it failed to satisfy the ancillary jurisdiction [section (2)] by showing that the FCC's ancillary jurisdiction included Comcast's network management policies.

In response to the Comcast decision, the FCC issued the 2010 Open Internet Order (OIO) to specifically require bandwidth management transparency and prohibit blocking and throttling by broadband providers. This time, Verizon sued the FCC claiming that the OIO could only apply to Title II common carriers. Once again the D.C. Court of Appeals ruled against the FCC and vacated the anti-blocking and anti-throttling provisions. ($file/11-1355-1474943.pdf )

That set the stage for the recent 2015 FCC decision. At issue was whether the Internet is a telecommunications service (and hence a common carrier under Title II) or an information service (under Title I). This most recent FCC policy change has been to bring broadband under the rubric of Title II/common carrier provisions so avoid the Comcast and Verizon judicial obstacles to net neutrality. Immediately after the FCC ruling, a new judicial strategy emerged from the broadband providers to the effect that the FCC acted arbitrarily and capriciously in subjecting broadband access to Title II authority. ( ). This will wind its way through the courts in 2016.

A good summary of these issues, including legal nuances, may be found in Kathleen Ann Ruane's article provided by the Congressional Research Service ( ). A good overview of the technical issues may be found in a recent issue of Wired ( ). At this point the future of net neutrality remains uncertain as the Supreme Court and Congress have yet to weigh in on the issue.


No one knows. At this writing, net neutrality has received a temporary show of support from the FCC in concert with the Obama administration. However, Congress, the Supreme Court, and the outcome of the 2016 national election can individually or collectively negate this gain. Are there alternative paths to achieve net neutrality?

Some have suggested that a solution might lie in having municipalities offer the broadband. This is highly unlikely for the same reason as the Nevada net energy metering program generated corporate opposition. Public networks will continue to be vigorously opposed by the telecom industry ( ; ) and pro-business legislatures. Further, any government attempt to introduce broadband competition will be strongly opposed at both the state (( ) and federal ( ) levels. In its 2015 ruling, the FCC indeed voted by the same 3-2 majority to preempt state laws that would prevent municipal broadband access ( ), but this policy stands on the same weak footing as the net neutrality policy – in fact they're both part of the same ruling. There is no reason to think that the public networks option won't be contested as fiercely as net neutrality. One just has to follow the money trail to see where the power lies. Some things are axiomatic in the broadband world:

  1. The broadband industry will oppose any regulation that stifles their potential for profit, and they will do so under the banner of equal opportunity, civil rights, freedom. ( Lobbying groups are already working the judicial system ( ). The only reason why net neutrality isn’t prohibited at this point is that there are two conflicting business categories on opposite sides of this issue: content providers vs. ISPs. Were it the ISPs, lobbyists, and industry sycophants in Congress against the public, net neutrality would already be dead.
  2. •  Government encouragement of competition in broadband access will be met with fierce opposition. The broadband industry is characterized by mergers and acquisitions, not genuine competition. The Supreme Court opined in 2004 in Nixon v. Municipal League that states may indeed prevent municipalities from offering telecommunications services ( ). So the standard before us is that states may not interfere with business interests, but may have a free hand with subdivisions. As long as the Nixon decision stands, public networks cannot succeed in states heavily influenced by business interests.
  3. Municipal broadband service represents the same threat as municipal utilities and state banks – and the trend is definitely toward federal and state opposition to community controlled services as a threat to business profits. When you hear such discussions, think about the Nevada net energy metering experience.

The opponents of net neutrality are not going to remain inactive while their lobbying efforts and court contests are in gestation. They'll look for ways around the FCC policy. That's exactly what T-Mobile did with their Binge On service.

Binge On is a T-Mobile feature that takes an interesting approach to throttling. Instead of slowing the transmission speed for some video content providers it ostensibly reduces the bandwidth demand by lowering the video resolution of the content. ( ) The 2015 FCC ruling specifically states that internet providers “ “shall not impair or degrade lawful Internet traffic on the basis of Internet content, application, or service, or use of a non-harmful device, subject to reasonable network management.” (#16, p. 7) Since T-Mobile reduces the resolution of the video content, and as a result the bandwidth, even in the absence of network congestion, it would appear to be in violation of the ruling. That is certainly the position of the Electronic Frontier Foundation (EFF). ( ) The EFF conducted some tests and determined that T-Mobile is indeed throttling streams and downloads to 1.5Mbps by default. If this throttling involved streaming video from providers that can't deliver lower video resolutions, EFF found that the result was A/V stuttering. EFF concluded that there was “no optimization, and everything gets throttled.” EFF called for an FCC investigation.

But T-Mobile claims that Binge On is actually a feature. (How many times have we heard that?) On their account, the throttling is user-controlled: the user may elect to accept Binge On with throttling where the traffic does not count against high speed data limits, or decline Binge on and pay for it through the allocated bandwidth. Into this mix is another Binge On feature that gives data cap exemption to “partners” like Netflix and Hulu, but not others (e.g., YouTube). The response from T-Mobile's CEO to EFF was priceless. ( ) Binge On might well be renamed “Game On,” because it portends future aggression against the FCC.


In what may be the definitive analysis of Net Neutrality, Evgeny Morozov describes then destroys the “Google Doctrine” that has become fashionable with politicians lately.[MOROZOV] “The Google Doctrine - the enthusiastic belief in the liberating power of technology accompanied by the irresistible urge to enlist Silicon Valley start-ups in the global fight for freedom – is of growing appeal to many policymakers.” (p. xiii) While Morozov easily disposes of this naïve and unstudied doctrine, it is useful to place it in an historical and political context to see its full effect. The Google Doctrine is but another case of foolish technopomorphism that seeks to imbue technology with human qualities like intention. Technology is no more liberating than a spoon is nourishing: technology is always value-neutral. Tribalists who claim otherwise do so from the perspective of ignorance. Technopomorphisms are silly concepts that should never be advanced in erudite company.

It is important to recognize that the Google Doctrine speaks volumes about the politicians' deceptive use of catchphrases and buzzwords to manipulate public opinion. When politicians use the phrase Internet technology they are not referring to thousands of interconnected networks bound by a common family of protocols. Rather they are referring to “magical communication and information technology that the public can be duped into believing can mysteriously solve intractable problems.” To the uninitiated, invoking technology as a solution has an appeal similar to invoking sorcery, religiosity, and alchemy – most people do not expect concomitant testable empirical hypotheses, so they tend to let opinions pass unchallenged. This stuff has to be taken on faith, we are told. However, unlike sorcery et al, the Internet has instant credibility because of its tangible value to people (email, web, etc) and is known to serve humanity well. So if we know it works well in some areas, there is a temptation to assume that it might well work well in others – like freeing people from tyranny. Of course technologists fully understand that the Internet (qua technology) is no more likely to set people free than a philosopher's stone will turn lead into gold. But the public doesn't think in these terms, and there aren't enough computing technologists giving talks on the subject to civic groups to inform them of techno-reality. Thus, the agenda-touting ideologue is allowed to pander technopomorphism at will to manipulate public opinion. Technologists need to get the word out: the Google Doctrine is better named the giggle doctrine : it's good for laughs, but that's about all.


Morozov's book is precisely titled: people that think that the Internet is going to thwart government intrusion into our private lives, become a wellspring for new democracies, or make it possible for the oppressed to overthrow tyranny are delusional! In Morozov's terms, the belief that information technology will serve the liberator rather than the oppressor is irrational exuberance and immature triumphalism. He's right on target: technology tends to serve its most powerful masters.

Many computing professionals of my age became acquainted with the punched card concept by writing our programs on Hollerith (IBM) cards. (Never was there a way to more substantiate a computer program than on a job deck! Today's computing students cannot fully internalize the concept of correcting Damerau-type data entry errors without mastering the use of the DUP button on a keypunch machine. - But I digress.) We learned that Herman Hollerith learned about the punched card from Charles Babbage, who in turn learned about it from Joseph Jacquard (of loom fame). In that context one recalls that the social effects of Jacquard's proposed technological panacea loomed large with the Luddites in anticipation of massive job displacement of textile workers. That led to the Luddite attack on mill machinery, which in turn led to military suppression. At one time more British soldiers were fighting the Luddites than Napoleon. A further consequence was legislation like the Destruction of Socking Frames Act of 1812 that made destruction of mechanized looms a capital crime.

There are several lessons to be learned from this experience. First, technology like the Jacquard loom was ethically neutral. While it displaced mill workers (a societal loss), it also lowered the price of textiles and increased the profitability of the industry (a societal gain). Second, the experience of “automating” looms led to many machinery advances in the industrial revolution that in turn further contributed to human convenience and increased quality of life. Third, the Luddite movement did nothing in the end to control the power elite over the lives of the workers. The military suppressed the dissenters just as earlier militias had suppressed agrarian reformers. There was nothing new in this result. Finally, we note the Luddite focused put too much emphasis on the technology, rather than the political system of which they were a part, as the target of opportunity. And, to be sure, there were millwrights of the time that saw Jacquard's creation as the ultimate solution to rising labor costs. This was the giggle doctrine of England in 1800 that displays the same lack of understanding of the effects of technology that Morozov mentions over 200 years later.

Flash forward to the Iranian Twitter Revolution of 2009. As Morozov documents, media hysteria resulted from the bogus claims that no bullet could stand up to billions of bits. The illiterati proclaimed that tweets were game changers: Iran would experience another revolution as radical as that of 1979. The power elite prevailed as it usually does. Mir-Hossein Mousavi was not elected president of Iran, the Green Movement went dorment, dissidents were suppressed violently, and authoritarianism prevailed. Tyranny, not Twitter, won the day. If one were to look for key contributions to such popular uprisings, it is more likely to be found in samizdat materials and open-minded university students than any identifiable technology. Those who believe that underground movements will necessarily make better use of technology than oppressive governments are halucinating. In fact, Morozov suggests that the Internet may have actually hindered Green Revolution more than helped it (p. 17ff).


So that's the lay of the land. Big money is behind net neutering, not net neutrality. These forces overlap with those who support the Trans-Pacific Partnership over increased regulation for food safety, job security, transparent capitalism, and national sovereignity. ( ) The current pro-business majorities in Congress and the Supreme Court are unlikely to oppose these interests. The prevailing view in both is that government must avoid intrusion into the business objectives of the broadband industry even if so doing would be counter to the public interest. As far as I can tell, only the FCC and the Obama administration are holding the dissenting view.

As an aside, I call attention to Dan Kaminsky's network normalization engines, Nooter and RotoNooter, that expose bandwidth differentiation by ISPs in his 2011 Chaos Computer Conference talk ( @53:50). The Nooter design is not unlike that of the testbed used by EFF in its analysis of the T-Mobile Binge On program. It is this sort of noirware [BERG] that will keep net neuterists in check, if it is possible.

It is incumbent on all computing professionals and information technologists and innovators to stay informed on this important issue and keep the pressure on politicians to prevent further erosion of net neutrality, both for the sake of our professional futures and the public interest


[BERG] Berghel, Hal, Noirware, Computer, March 2015, pp. 102-107.

[MOROZOV] Morozov, Evgeny, The Net Delusion: The Dark Side of Internet Freedom, Public Affairs, 2011.