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The FCC's net neutrality rules are a sham

Comment Loopholes the ISPs will drive tanks through
Fri Jan 29 2010, 19:35

GRAB YOUR WAR PAINT, the Electronic Frontier Foundation (EFF) has issued a call to arms to stop the Federal Communications Commission (FCC) net neutrality proposals, which could allow US Internet service providers (ISPs) to block or degrade all Bittorrent file transfers with impunity.

The draft FCC regulations have a gaping legal loophole that could permit US ISPs to prevent all of their customers from using the Bittorrent protocol under "reasonable network management" practices, as long as those are intended to "prevent the unlawful transfer of content".

The reply comment deadline date on the FCC's net neutrality draft (PDF) is March 5 this year, but if it goes unchallenged it could be signed off to become official FCC regulations, or even included in future legislation by the US Congress.

The amusing irony of the proposed "reasonable network management" loophole is that it could give ISPs enough rope to carry out the same Internet policing practices the net neutrality draft was designed to vanquish. Laugh? We nearly cried.

Channeling well known Scottish actor, Mel Gibson's bravado call to action in Braveheart, EFF's Richard Esguerra said, "Carving a copyright loophole in net neutrality would leave your lawful activities at the mercy of overbroad copyright filtering schemes, and we already have plenty of experience with copyright enforcers targeting legitimate users by mistake, carelessness, or design."

There are a couple of key issues to consider here.

A large ISP has already been half-nelsoned for arbitrarily and surreptitiously blocking and restricting peer-to-peer Internet traffic on its network, which is in part what had prompted the FCC to launch its net neutrality regulation action in the first place. Back in 2008, the FCC ordered Comcast, the largest ISP in the US, to redress the way in which it was handling Internet traffic. This blossomed into a class action lawsuit in December 2009. Comcast was ordered to cough up a massive $16 million settlement because it was caught delaying transfers of large media files.

Part of Comcast's remit from the FCC and local authorities in its service areas is to offer punters full and unencumbered access to the Internet. But the FCC's current draft net neutrality proposals could allow Comcast and other ISPs to get away with blocking Bittorrent activity again, despite the fact that the FCC's net neutrality regulations ostensibly are being drawn up precisely to put a final halt to such egregriously abusive practices.

The other key point here is that the Big Music and Big Movie media companies, through their trade associations the RIAA and MPAA, are pushing an aggressive agenda to impose draconian copyright enforcement laws, and the large ISPs like Comcast are coming under increasing pressure from those media interests, which we prefer to call the MAFIAA for obvious reasons. Only two weeks ago the RIAA insinuated that the FCC was aiding so called 'piracy' by not green-lighting regulations allowing ISPs to block their subscribers from filesharing. In fact, the RIAA was actively encouraging the FCC and ISPs to become Internet rozzers.

The RIAA wrote in part that, "ISPs are in a unique position to limit online theft. They control the facilities over which infringement takes place and are singularly positioned to address it at the source. Without ISP participation, it is extremely difficult to develop an effective prevention approach."

On top of being pressured to act as content protection enforcers by the RIAA and MPAA, ISPs in the US are using the excuse of constricted network bandwidth to plead for full license to do whatever they might damn well please to their often captive Internet access subscribers. In the original lawsuit against Comcast, the ISP said that the reason it was restricting Bittorrent traffic was because of network congestion issues rather than any potentially illegal copyright infringement activity.

Naturally, the RIAA concurs and in the same letter to the FFC it gives the impression that the US - one of the earliest adopters of broadband cable, DSL and fibre-optic technologies - has only narrowband dial-up Internet bandwidth, circa 1999.

It wrote, "Piracy wastes scarce network resources and crowds out legitimate uses of the network. It costs more to bring broadband to additional areas because of this inflated bandwidth usage."

So not only is illegal online traffic responsible for practically bringing the Internet to a standstill, but it's also responsible for the increase in price tariffs levied by ISPs on their customers. Despite the fact that Bittorrent traffic makes up only 20 per cent of traffic on the Internet, the RIAA hysterically claims that it's all the fault of a burgeoning criminal underclass of dodgy, copyright infringing 'pirates' that the ISPs have increased their prices. As opposed to the rampant greed of the ISPs themselves in soaking their punters for all they can extract.

With the various vested interests pulling in different directions, a fair resolution doesn't look all that likely in the foreseeable future. We'll track progress on the FCC's regulations as they come and keep you updated. This technological and political dustup over net neutrality is one that looks to run and run.

If the EFF's urgent call to the ramparts in defense of Internet freedom and true net neutrality in the US rouses you to take action, you can sign the petition here. µ


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