NY Tech Companies Visit FCC, Support Net Neutrality

When you visit the Federal Communications Commission, you are supposed to file a letter explaining what you told the FCC.

Members of the NY tech community (including Kickstarter, Tumblr, Meetup, and the NY Tech Meetup) visited the FCC last Friday and so I am sharing parts of that letter. Other members of that community, including Fred Wilson and Alexis Ohanian, have also taken the lead on fighting for network neutrality.

We encourage you to read and share the letter if you are concerned about the future of innovation and free expression on the internet.

Here is a Ex Parte NYTech of the complete letter.


On Friday, May 2, 2014, representatives of the companies Kickstarter, Meetup, and Tumblr, along with representatives of the New York City Tech Meetup and Engine Advocacy, met with FCC staff to express their strong opposition to the FCC Chairman’s draft proposal concerning network neutrality.

We explained that if the Chairman’s proposal were adopted as a rule, it would stifle innovation and entrepreneurship in the New York City tech sector that is at the center of the city’s recent and future economic growth. We explained that the city’s entire tech community is paying attention to the Chairman’s proposal and is deeply concerned.

While the Chairman’s proposal may look good on paper, it provides no certainty or effective remedy for smaller entrepreneurs building real businesses on the internet.

We urged the Commission to consider a different path: to ban rather than bless a world of paid fast lanes and unpaid slow lanes; to abandon pursuit of a “commercially reasonable” standard and to impose a rule against “unreasonable discrimination,” that clearly defines which discriminatory conduct is prohibited and bans all application-specific discrimination (i.e. discrimination based on criteria related to the application or class of application); and to extend this strong rule to mobile as well as fixed service.

We also invited the Commission to New York City to hold an official FCC hearing on network neutrality, so that the Commission can hear directly from those in the New York tech sector affected by this proposal.

Organizations and Companies Represented

New York Tech Meetup is a nonprofit organization that convenes the world’s largest meetup group. The group includes almost 40,000 people who are involved in technology in New York. While the organization generally focuses on convening the tech community to encourage entrepreneurial and economic activity, it has been involved in policy when there is a grave threat to the community, such as the proposed Stop Online Piracy Act two years ago.

The company Meetup is a social platform that enables people to start a group or join an existing group in order to get offline and meet in person to pursue a common interest or activity. It gained its initial fame during the 2004 elections, because of Meetups for political candidates.  Today, there are over 300,000 monthly Meetups for 140,000 groups, with over 15 million members. These Meetup Groups bring together people across a wide range of interests, from stay-at-home mothers to hardware engineers and soccer teams. Meetup has over 110 employees. As noted, the largest Meetup Group, which is now incorporated as a nonprofit, is the New York Tech Meetup. (About Meetup)

Kickstarter is a funding platform for creative projects.  All kinds of new ideas — from films, games, and music to art, restaurants, and technology — have been brought to life through the direct support of Kickstarter users. Since launching in 2009, 6.1 million people have pledged $1 billion to projects on Kickstarter, successfully funding 61,000 creative ideas. Thousands of projects are raising funds on Kickstarter right now. (About Kickstarter)

Tumblr is a network and platform for creators, and hosts over 184 million blogs, ranging from the blog of singer and actress Beyoncé to a blog about the fictional text messages of Hillary Clinton. Tumblr was founded in 2007 in New York City by its CEO David Karp, and now has over 250 employees throughout the United States. (About Tumblr)

Engine Advocacy is based in San Francisco but advocates for startups based all over the nation. With 500 startup members, Engine has been involved in copyright, patent, and immigration policy. A member of Engine’s Board lives in New York City and advises several New York startups on how to recruit, vet, and hire engineers to build their technical teams as their businesses expand. 

NYC Tech Entrepreneurs Are Concerned and Talking

Because of Chairman Wheeler’s draft proposal, many in the NYC tech community are deeply concerned for the future of their businesses and their jobs.

The government of New York City has undertaken a wide range of initiatives to encourage the New York technology sector, which has become the second-largest tech hub in the nation behind the Bay Area. Partly because of the city’s technology initiatives, between 2007 and 2012, “the number of private sector jobs in NYC rose by about 4 percent, compared to a 3 percent decline nationally,” a surprising 7 percent difference. (See Michael Mandel,Building a Digital City, Bloomberg Technology Summit, Sept. 30, 2013.) Indeed, during the same time period, the city’s tech sector added 26,000 jobs, or $5.8 billion in wages, and has accounted for 2/3 of the growth in the city’s private sector wages in that time. (Id.)

Jessica Lawrence, the Executive Director of NYT Meetup, explained that the tech community is deeply concerned about the Chairman’s proposal and is discussing it with her constantly. These expressions of concern come to her through all of her social media feeds, in direct emails, and in almost every conversation at social events that she has attended recently.

We are not aware of the Chairman consulting with any businesses in the New York tech sector before proposing to authorize paid priority and technical discrimination. 

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3 Ways the FCC Chairman is Reversing the 2010 Rules

There’s been a lot of talk about how FCC Chairman Tom Wheeler’s proposal for net neutrality will be a reversal of the FCC’s 2010 rules that were thrown out in court in January. Generally, the Chairman is claiming that he is doing the same rules just on more solid authority. In fact, he’s actually using the same weak authority (it’s called Section 706 of the Telecommunications Act) and watering down flat out reversing the rules.

It’s important to note that the Chairman is proposing reversing the good parts of the FCC’s 2010 rule, not the bad parts. Because the last FCC Chairman negotiated a compromise for the 2010 rule, there’s some good stuff in there and some terrible stuff. This Chairman is keeping the bad stuff.

Here are a few positions he has taken, which are a reversal from the good stuff in the FCC’s 2010 order.

  1. Permitting discrimination. The 2010 order had a rule against unreasonable discrimination for home internet access, but the Chairman is proposing enabling cable and phone companies to discriminate and provide fast and slow lanes and charge fees for them.
  2. Authorizing access fees. The 2010 order explained that cable and phone companies want to be able to charge every website on the planet lots of money for reaching users or for priority service noting: “Although broadband providers have not historically imposed such fees, they have argued they should be permitted to do so.” The 2010 order prohibited the cable and phone companies from charging web companies fees merely to access users (and did so under the no-blocking rule) and also rejected fees for preferences (under the nondiscrimination rule), as the court thought important to note. Of course, the Chairman is now proposing access fees. He also has spoken at some length about why Netflix might be “allowed” to pay fees (as though Netflix wants to pay these fees, which is also how carriers wrongly talk about it) for priority and why he thinks it would be a good thing (based on assumptions rejected in the 2010 order–that the marketplace will sort it out). (Barbara van Schewick has written a more detailed explanation of this point, and it will be worth reading.)
  3. Only targeting anticompetitive actions or those causing consumer harm. The Chairman has been defending himself by claiming that “behavior harmful to consumers or competition by limiting the openness of the Internet will not be permitted.” Apparently, FCC officials told media the same thing: FCC officials “say that proposed priority deals wouldn’t be allowed if they harm consumers or decrease competition.” That sounds nice, but is exactly what AT&T, Comcast, Verizon want. It’s too limited. In fact, the FCC’s 2010 order specifically rejected this argument (paragraph 78): “We also reject the argument that only ‘anticompetitive’ discrimination yielding ‘substantial consumer harm’ should be prohibited by our rules.” Couldn’t be clearer. The order explains why.

We are persuaded those proposed limiting terms are unduly narrow and could allow discriminatory conduct that is contrary to the public interest. The broad purposes of this rule—to encourage competition and remove impediments to infrastructure investment while protecting consumer choice, free expression, end-user control, and the ability to innovate without permission—cannot be achieved by preventing only those practices that are demonstrably anticompetitive or harmful to consumers. Rather, the rule rests on the general proposition that broadband providers should not pick winners and losers on the Internet—even for reasons that may be independent of providers’ competitive interests or that may not immediately or demonstrably cause substantial consumer harm.

At the same time, the Chairman isn’t reversing the bad stuff in the 2010 order.

Mobile. For example, the 2010 order thought it was too early to adopt nondiscrimination rules for mobile access to the internet. Since 2010, mobile use has exploded, and there have indeed been violations of net neutrality on the mobile side, around the world and in the US. If anything, the Chairman should be making the 2010 order stronger–and filling this key gap. But all reports point to ignoring this problem with the order.

Startups Reject FCC’s Net Neutrality Proposal

Engine Advocacy, an organization that advocates for startups filed comments today with the FCC. They believe the Chairman’s proposed rule would crush startups:

According to recent news reports, the Commission is considering adopting a rule that authorizes discrimination by ISPs and permits them to charge terminating access fees to technology companies. We believe such a rule, if adopted, would crush startups,and therefore undermine American technology entrepreneurship, innovation, and job creation.

Engine posted on its blog about the important issue here. You can read the full comments here.

I’m proudly on the board of Engine.

Net Neutrality: A Solution to an Existing Problem

While AT&T, Comcast, and Verizon have argued—with incredible message discipline—that network neutrality is “a solution in search of a problem,” that’s not true.

There are many concrete examples of network neutrality violations around the world. These network neutrality violations include ISPs blocking websites and applications, ISPs discriminating in favor of some applications and against others, and ISPs charging arbitrary tolls on technology companies.

We have seen network neutrality violations all over the world.

Even in the U.S., there have been some major violations by small and large ISPs. These include:

  • The largest ISP, Comcast secretly interfering with peer-to-peer technologies, including some of the most popular basic technologies used to distribute online TV and music (2005-2008);
  • A small telephone ISP called Madison River blocking Vonage, a company providing competing telephone service online (2005);
  • Apple blocking the application Skype on the iPhone, subject to a secret contract with AT&T, a company that competes with Skype in providing telephone service (2008-2009);
  • Verizon, AT&T, and T-Mobile blocking the functionality of Google Wallet on Nexus devices, while all three of those ISPs are part of a competing mobile payments joint venture called Isis (late 2011-today);
  • and Comcast’s disputes with Level 3 and Netflix over termination fees and the appearance that Comcast is deliberately congesting its network connections to force Netflix to pay Comcast for an acceptable connection (2010-today).

In other countries, including democracies, there are numerous violations. In Canada, rather than seeking a judicial injunction, a telephone ISP used its control of the wires to block the website of a union member during a strike against that very company in July 2005. In the Netherlands, in 2011, the dominant ISP expressed interest in blocking against U.S.-based Whatsapp and Skype.

In the European Union, widespread violations affect at least 1 in 5 users. That is the conclusion of a report issued in June of 2012 by the Body of European Regulators for Electronic Communications (BEREC), a body composed of the regulatory agencies of each EU country. Most of these restrictions were on online phone services, peer-to-peer technologies (which are used not only by copyright pirates, but also in a variety of well-known technologies, including Skype and several Amazon cloud services), as well as other specific applications “such as gaming, streaming, e-mail or instant messaging service.”

ISPs block and discriminate against applications and websites even in countries that require disclosure of the violations and even in countries with far more competition among ISPs than the US. A recent Oxford dissertation on the topic explores the wide-scale blocking and discrimination in the United Kingdom, a market with both considerable competition among ISPs and robust disclosure laws.

Essentially, a specific rule that would be upheld in court is necessary protect network neutrality and address a major, global problem.

* Footnote: Thanks to Stanford professor Barbara van Schewick, whose recent letter to the FCC inspired my thinking in this post.

Interconnection Disputes Are Network Neutrality Issues (Of Netflix, Comcast, and the FCC)

A lot of people have been talking about the “interconnection” deal between Comcast and Netflix and whether that deal is related to network neutrality. (It is.) This question comes partly because the FCC’s 2010 Open Internet Order (also known as the network neutrality order) was recently struck down. So network neutrality lands back at the FCC, with a new Open Internet proceeding, at the same time Netflix starts working so poorly on Comcast that Netflix had to cut a special deal with Comcast.

Several people have argued that interconnection issues should be considered in the new Open Internet proceeding. These people include Reed Hastings, the CEO of Netflix, the Internet backbone providers Cogent and Level 3, Consumers Union, and the Internet Association (Google, Facebook, eBay, Amazon, Airbnb, LinkedIn, etc.)  On the other hand, the FCC Chairman Tom Wheeler has stated“[p]eering and interconnection are not under consideration in the Open Internet proceeding,” apparently because interconnection is “not a net-neutrality issue.” My friend Harold Feld at Public Knowledge has said, “Wheeler is right, this is not a ‘network neutrality’ issue.”

Actually, I believe Chairman Wheeler and Mr. Feld are wrong, and I hope this post persuades them otherwise. Interconnection has always been a network neutrality issue.

I have two arguments on principle and one response on politics. First, on principle, interconnection has always been part of the open Internet proceedings, as evidenced by several major FCC and congressional orders. Second, ISPs can block traffic, discriminate, or impose access fees either once traffic is within their network (through “deep packet inspection”) or when the traffic is at the edge of their network (through interconnection). There is no reason to think the technical distinction should matter. Third, if the Chairman and Mr. Feld are taking politics into account, separating out interconnection from the Open Internet proceeding is an even worse idea, though it may not seem like it now.

First, the major “network neutrality” orders place interconnection front and center.

Among the FCC’s most important statements on network neutrality is a well-known Internet Policy Statement adopted in 2005. It included four principles, including that consumers should be able to access the content, applications and services, and devices of their choice. All four principles were adopted with this goal in mind, repeated four times on page 3: “To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet.” Open and interconnected.

This Policy Statement became a two-year enforceable merger condition in both the AT&T/SBC merger and the MCI/Verizon merger. 

The AT&T/BellSouth merger also included a commitment to the Internet Policy Statement and a “neutral network” offering no service that “privileges, degrades or prioritizes any packet transmitted.” In addition to accepting the Policy Statement rooted in interconnection, this network neutrality condition extended “up to and including [not excluding] the Internet Exchange Point closest to the customer’s premise, defined as the point of interconnection that is logically, temporally or physically closest to the customer’s premise where public or private Internet backbone networks freely exchange Internet packets.”

In 2008, in the FCC’s seminal Free Press-Comcast decision, concerning Comcast’s blocking of peer-to-peer applications, the FCC justified its decision in part based on ensuring interconnection. The Commission concluded that section 256, a section authorizing the FCC to set technical standards for interconnection, authorized the FCC’s action. Essentially, by blocking peer-to-peer traffic within its network through deep packet inspection, Comcast obviously undermined seamless interconnection amongst networks. The Commission concluded (on page 12): “It is therefore a reasonable exercise of the Commission’s authority ancillary to section 256 to promote the ability of Comcast customers and customers of other networks, including public telecommunications networks, to share content and applications with each other, without facing operator-erected barriers, i.e., to ‘seamlessly and transparently transmit and receive information.’”

Additionally, in 2009, Congress defined the FCC’s Internet Statement as imposing “nondiscrimination and interconnection” obligations. Congress imposed these obligations on any networks built with stimulus funding, stating “non-discrimination and network interconnection obligations that shall be contractual conditions of grants awarded under this section, including, at a minimum, adherence to the principles contained in the Commission’s broadband policy statement.” So even Congress considered network neutrality to include nondiscrimination and interconnection.

Finally, the Commission’s 2010 Open Internet Order relied partly on section 251, the section requiring interconnection of telecommunications networks. The FCC stated (on pages 69-70) that: “Section 251(a)(1) of the Act imposes a duty on all telecommunications carriers ‘to interconnect directly or indirectly with the facilities of other telecommunications carriers.’ … To the extent that VoIP services are information services (rather than telecommunications services), any blocking or degrading of a call from a traditional telephone customer to a customer of a VoIP provider, or vice-versa, would deny the traditional telephone customer the intended benefits of telecommunications interconnection under Section 251(a)(1). … To the extent that VoIP services are telecommunications services, a broadband provider’s interference with traffic exchanged between a provider of VoIP telecommunications services and another telecommunications carrier would interfere with interconnection between two telecommunications carriers under Section 251(a)(1).”

Said another way, ensuring interconnection has always been at the core of the FCC’s “Open Internet” mission, and explicitly so in all the FCC’s major Open Internet orders. In 2005, the FCC stated that mission in terms of consumers’ ability to access the content, applications, or devices of their choice. It first applied that mission in the Free Press-Comcast case, which involved the use of deep packet inspection to block uploads from Comcast’s own users. So the Commission simply did not have occasion in that case to address blocking and discrimination (or access fees) through interconnection with other networks. The Commission’s repeated emphasis on ensuring interconnection—including relying on it as a basis for jurisdiction twice—makes it clear that interconnection is part of the Open Internet proceedings.

Sure, the FCC’s involvement with interconnection is much older than the Open Internet orders—but that’s why the FCC knew to be concerned about interconnection from the very first of the Open Internet orders.

Second, it does not matter if carriers engage in blocking, discrimination, or access fees through deep packet inspection or through interconnection. Either way, consumers and edge providers would be affected, and innovation and free expression stifled. The Commission has generally sought to exclude agreements among backbone and transit providers that do not have termination monopolies over users, as such providers appear to operate in a competitive market. ISPs with termination access monopolies, such as Comcast, AT&T, and Verizon, were the target of the open Internet proceedings, and the DC Circuit found it reasonable for the FCC to impose rules on them because of this termination monopoly. There was no exception allowing these carriers to engage in abuse (undermining the open and interconnected Internet) if that abuse was through interconnection, not deep packet inspection or domain name blocking.

The evidence for excluding interconnection disputes is thin. The primary evidence is footnote 209 of the 2010 Open Internet Order: “We do not intend our rules to affect existing arrangements for network interconnection, including existing paid peering arrangements.” That statement, however, seems to apply only to then-existing arrangements. As a result, it seems that the Commission may have meant to address all future agreements. Moreover, this footnote attaches to a paragraph, in fact, that explicitly forbids termination access fees:  “Some concerns have been expressed that broadband providers may seek to charge edge providers simply for delivering traffic to or carrying traffic from the broadband provider’s end-user customers. To the extent that a content, application, or service provider could avoid being blocked only by paying a fee, charging such a fee would not be permissible under these rules.” Since the Commission says charging the fee would be impermissible, we should consider how an ISP would assess such a fee. It would do it by threatening to block edge provider either through deep packet inspection or some other means—perhaps congestion in interconnection links or domain name blocking. It would be illogical for this footnote somehow to permit access fees for discriminatory treatment, as the Commission concluded (page 43): “it is unlikely that pay for priority would satisfy the ‘no unreasonable discrimination’ standard.” The footnote therefore is pretty weak evidence, in the face of the rest of the order and the string of FCC Open Internet decisions rooted in interconnection.

Third, the politics of separating interconnection from other network neutrality disputes is deeply flawed. Mr. Feld’s blog post suggests that the Chairman, whom he believes wants to address interconnection, is brilliantly avoiding the term “network neutrality” because he understands that this term brings political heat. The Chairman is playing chess, making a strong opening move, getting some political breathing room to analyze interconnection disputes, according to Mr. Feld. If the Chairman wants to set interconnection rules not only for Comcast (in their merger request), but also on Verizon and AT&T, he will need some political finesse.

But a great chess player also has to plan an endgame. When the end comes for interconnection, the carriers will bring overwhelming political heat. Their armies of lobbyists and lawyers will not be fooled by terms. They will know that interconnection, like network neutrality, might cost their bosses money, and one does not easily take money from Comcast, Verizon, or AT&T. When the Chairman faces this political heat, he would love to have a broad coalition and the American public on his side. During nine years of public discussion, the American public has shown over and over that it supports network neutrality. Most of the public does not know the term “interconnection.” Tech executives and lawyers who support network neutrality need to be educated on interconnection (or told it’s always been part of the same proceeding) before supporting it. And the broad coalition of companies active in D.C. might have to split resources, as Netflix, Cogent, and Level 3 perhaps focus on interconnection while other companies focus their resources on the Open Internet proceeding. I have trouble seeing a political endgame where the Chairman can rule for the public on a term that even readers of Reddit, Wired, and Ars Technica don’t understand, when the carriers will bring their usual full-frontal attack. It’s better to keep the broader coalition together and use the term that the public and tech companies understand.

Plus, network neutrality has always been about interconnection.

(Aside, if you’re wondering why anyone would avoid the term “network neutrality” in D.C., even though it is popular among the public, keep in mind some things that are popular in D.C.: telecom lobbyists, oil companies, mass surveillance, contractors that build stuff like healthcare.gov, and investment banks. Network neutrality is popular outside of D.C. but it’s sometimes hard for folks in D.C. to remember that so they talk of interconnection.) 

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Very Troubling Copyright Ruling on Innocence of Muslims

The Ninth Circuit issued a very troubling ruling ordering that the infamous “Innocence of Muslims” video be taken down based on one actress’s claim to copyright based on her presence in five seconds of the video. (Order here. Read more: here, here, here.)

Last year, I wrote a book on Internet freedom. In that book, I discussed the threat that over-broad copyright law poses to free expression online (among other threats). This case is a perfect–and unfortunate–example of how copyright law can sometimes censor more speech than any other law.

In the book, I discussed how the US government could not censor “Innocence of Muslims,” even though it was an inflammatory, juvenile, deeply offensive “film” that sparked riots around the world. It actually wasn’t illegal in the US under the existing precedent of the Supreme Court, which would protect a video (speech) unless it incited imminent lawlessness or was a direct threat against specific people. The trailer was therefore protected under the First Amendment–even if the creator was foreign, and lacked First Amendment rights, we Americans had the right to receive the speech and watch it.

That trailer was available on the largest video platform, YouTube, owned by Google. So the U.S. State Department reportedly contacted the folks at Google and YouTube and asked them to take down the film. Google determined that the video wasn’t illegal in the US, didn’t violate Google’s terms of service, and therefore wouldn’t be taken down globally. It disabled access in only a few countries, where the video was illegal or the circumstances were considered special. Google received a mixture of praise and sympathy from free speech advocates for favoring freedom of speech in the face of a difficult situation; after all, it’s easy to be committed to free speech only when it’s not difficult.

Now, years later, the video has finally been ordered taken down by a US court. The order, however, formally has nothing to do with the movie’s offensiveness. It has everything to do with copyright law. An actress in the trailer had received death threats for being in the trailer. She also was conned by the film’s producer; she had no idea the plot or that the producer would dub over the actors’ lines. She’s very sympathetic. This feels like a case where “good facts could make bad law”–and it is. The court ruled that she had a copyright interest only in her own acting (no other part of the film) and largely because the producer lied to her about the part.

The greater stakes of this ruling are disastrous for free speech for a few reasons. People who are merely in 5 seconds of a video and had no control over its script, shooting, or editing, shouldn’t have a copyright interest to take down a video. If that were the case:

  1. Lots of people will be able to sue to takedown videos.
  2. Lots of people will not even need to sue–they’ll just send DMCA takedown notices to take down videos.
  3. Governments could likely work with potential copyright-holders to get videos taken down that they couldn’t otherwise have taken down.
  4. Legitimate movie producers and actors would face increased uncertainty about who has copyrights in a movie.
  5. Oh, and did I mention you can remove speech, really important speech from a historical perspective? This movie in particular is a historical record of the protests it spurred and of the free speech debate it catalyzed.

This would create what law professors call a “tragedy of the anti-commons“–a situation where a lot of people have multiple competing pseudo-property rights over the same work.* You need permission from a huge number of people to use the work. Any one of them can veto the use. So, in the end, works aren’t available–a problem when those works are speech.

Even though the US government failed to remove this video for its offensiveness, copyright law can do the trick.

*(It’s the flip-side of the problem called the tragedy of the commons–when nobody has a property right in a piece of property.)

**I do legal work for Google, particularly on free speech and copyright issues. (See here and here.) I didn’t work on this case.

Some further points on my network neutrality article in Wired

I published a piece in Wired today called “We’re About to Lose Net Neutrality — And the Internet as We Know It.” It is apparently #1 on Wired, front-paged on Reddit, and receiving many thousand views at the same time. 

I’ll use this space to expand on some points. This won’t make sense unless you read the Wired article probably, or know the issues.

1. The legal mumbo jumbo

The court will likely uphold the FCC’s authority to regulate the Internet in many ways (perhaps to do mischief or help out the telcos and cable companies) but likely strike down the FCC’s authority to do one thing: enforce network neutrality. I wrote the piece because I didn’t want people to be confused by language like this: “The FCC has authority under 706 of the Telecom Act to regulate the Internet, and to forbid blocking of websites, but lacks authority under 47 USC s. 153 (forbidding applying common carrier rules to a Title I service) to enforce an anti-discrimination principle.” Translation: net neutrality is dead. Don’t be confused.

2.   How can anyone predict the court’s decision?

You can’t be sure. But the oral argument went on for 2 hours, an hour longer than scheduled, and the judges weren’t hiding their thoughts. The media in the room reported that the court would likely make the decision I described above–regarding 706 and 153. Many just wrongly thought that was a “split the baby” decision when it was a complete loss for all of us. I wrote the article partly to clear up that misimpression.

Also, many people are afraid of predicting decisions, should they end up with egg on their faces if wrong. I’m willing to take that chance here.    

3. EFF’s worst nightmare.

Many great tech advocacy groups support adopting network neutrality rules by law–Free Press, Public Knowledge, and others. The EFF (which is also great) is a partial exception: it generally supports network neutrality as a concept but has been worried about giving the FCC the authority to do any meddling in Internet regulation, including net neutrality. That’s because the FCC is an agency often beholden to telecom and cable companies.

The court will likely decide that the FCC has authority regulate the Internet broadly under one provision (706 of Telecom Act) but not to do network neutrality under another (found at 47 USC s 153). So the FCC will be empowered to meddle, perhaps to do mischief to benefit the carriers, but forbidden to help Internet users through anything like net neutrality. (My friends at EFF should just let me if I’m wrong.)