Ars Technica: Internet cut-offs, website censorship about to drop on UK

"Wash-up" might sound homely, conjuring visions of a family scrubbing up after a cheerful dinner as the evening descends. But it's also the name of a UK legislative process in which bills can become law through a quick process that bypasses normal debate. Wash-up happens at the end of a parliamentary term, just before new elections, and it is designed to finish non-controversial outstanding business.

But is it appropriate to use wash-up to make major changes to UK Internet access, giving copyright holders tremendous new power to go after P2P pirates and even block entire websites?

The UK's current Labour government thinks so. It is intent on jamming the "Digital Economy" bill through Parliament in the next couple of days by means of the wash-up process after calling a general election for May 6. Chris Marsden, a senior lecturer in the University of Essex's law school, calls the process "an absolute insult to Parliament, to Internet users, and to democracy." He goes on to "add for overseas readers that this Bill is not just anti-digital economy, but very obviously anti-net neutrality as well as against basic rights."

Anti-Digital Economy voters: count the Tories and Labour loyalists

Question put forthwith (Order, this day), That the Bill be now read the Third time. The House divided: Ayes 189, Noes 47. Division No. 132 11.03pm

AYES Afriyie, Adam Alexander, rh Mr. Douglas Allen, Mr. Graham Anderson, Mr. David Austin, Mr. Ian Bailey, Mr. Adrian Bain, Mr. William Baird, Vera Barron, rh Mr. Kevin Battle, rh John Bayley, Hugh Beckett, rh Margaret Benton, Mr. Joe Berry, Roger Betts, Mr. Clive Blackman, Liz Blizzard, Mr. Bob Bradshaw, rh Mr. Ben Brennan, Kevin Brown, rh Mr. Nicholas Browne, rh Des Bryant, Chris Buck, Ms Karen Butler, Ms Dawn Byrne, rh Mr. Liam Caborn, rh Mr. Richard Cairns, David Campbell, Mr. Alan Cawsey, Mr. Ian Chapman, Ben Clapham, Mr. Michael Clark, Paul Clarke, rh Mr. Charles Clelland, Mr. David Clwyd, rh Ann Coaker, Mr. Vernon Coffey, Ann Cohen, Harry Connarty, Michael Cooper, Rosie Cooper, rh Yvette Creagh, Mary Cryer, Mrs. Ann Cunningham, Mr. Jim Cunningham, Tony Davidson, Mr. Ian Davies, Mr. Quentin Dean, Mrs. Janet Dobbin, Jim Dobson, rh Frank Doran, Mr. Frank Eagle, Angela Eagle, Maria Efford, Clive Ellman, Mrs. Louise Fitzpatrick, Jim Flint, rh Caroline Follett, Barbara Foster, Mr. Michael Foster, Michael Jabez Francis, Dr. Hywel Gapes, Mike Gardiner, Barry George, rh Mr. Bruce Gilroy, Linda Goggins, rh Paul Goodman, Helen Hall, Mr. Mike Hamilton, Mr. David Hanson, rh Mr. David Harman, rh Ms Harriet Havard, Mr. Dai Hayes, Mr. John Healey, rh John Henderson, Mr. Doug Hendrick, Mr. Mark Hesford, Stephen Hill, rh Keith Hillier, Meg Hodgson, Mrs. Sharon Hoon, rh Mr. Geoffrey Hope, Phil Hopkins, Kelvin Hosie, Stewart Humble, Mrs. Joan Hunt, Mr. Jeremy Hutton, rh Mr. John Iddon, Dr. Brian Illsley, Mr. Eric Ingram, rh Mr. Adam Irranca-Davies, Huw Jackson, Glenda James, Mrs. Siân C. Johnson, rh Alan Johnson, Ms Diana R. Jones, Helen Jones, Mr. Kevan Jones, Mr. Martyn Jowell, rh Tessa Keeley, Barbara Keen, Alan Keen, Ann Kelly, rh Ruth Kemp, Mr. Fraser Khan, rh Mr. Sadiq Kidney, Mr. David Ladyman, Dr. Stephen Lammy, rh Mr. David Laxton, Mr. Bob Lepper, David Levitt, Tom Lewis, Mr. Ivan Linton, Martin Lucas, Ian Mackinlay, Andrew MacShane, rh Mr. Denis Mann, John McAvoy, rh Mr. Thomas McCabe, Steve McCarthy-Fry, Sarah McDonnell, John McFadden, rh Mr. Pat McFall, rh John McKechin, Ann McNulty, rh Mr. Tony Merron, Gillian Michael, rh Alun Milburn, rh Mr. Alan Miller, Andrew Moffatt, Laura Mole, Chris Morden, Jessica Mountford, Kali Mudie, Mr. George Mullin, Mr. Chris Munn, Meg Naysmith, Dr. Doug Norris, Dan O'Brien, rh Mr. Mike O'Hara, Mr. Edward Osborne, Sandra Owen, Albert Pearson, Ian Pope, Mr. Greg Prentice, Bridget Primarolo, rh Dawn Purchase, Mr. Ken Purnell, rh James Raynsford, rh Mr. Nick Reed, Mr. Jamie Reid, rh John Robertson, John Ruddock, Joan Salter, Martin Seabeck, Alison Sharma, Mr. Virendra Sheridan, Jim Simon, Mr. Siôn Skinner, Mr. Dennis Smith, Ms Angela C. Smith, rh Angela E. Spellar, rh Mr. John Stewart, Ian Stoate, Dr. Howard Strang, rh Dr. Gavin Straw, rh Mr. Jack Sutcliffe, Mr. Gerry Tami, Mark Thomas, Mr. Gareth Timms, rh Mr. Stephen Touhig, rh Mr. Don Trickett, Jon Ussher, Kitty Vaizey, Mr. Edward Watts, Mr. Dave Whitehead, Dr. Alan Wicks, rh Malcolm Williams, rh Mr. Alan Williams, Mrs. Betty Wills, rh Mr. Michael Wilson, Phil Winnick, Mr. David Winterton, rh Ms Rosie Woodward, rh Mr. Shaun Woolas, Mr. Phil Wright, David Wright, Mr. Iain Wright, Dr. Tony Wyatt, Derek

Tellers for the Ayes: Lyn Brown and Kerry McCarthy

NOES

Abbott, Ms Diane
Amess, Mr. David
Barrett, John
Beith, rh Sir Alan
Breed, Mr. Colin
Burgon, Colin
Burstow, Mr. Paul
Carmichael, Mr. Alistair
Cash, Mr. William
Challen, Colin
Chope, Mr. Christopher
Corbyn, Jeremy
Davey, Mr. Edward
Davies, Mr. Dai
Davis, rh Mr. David
Dismore, Mr. Andrew
Drew, Mr. David
Fallon, Mr. Michael
Featherstone, Lynne
Foster, Mr. Don
Gerrard, Mr. Neil
Grogan, Mr. John
Hancock, Mr. Mike
Harris, Dr. Evan
Hoey, Kate
Howarth, David
Howarth, rh Mr. George
Hughes, Simon
Jones, Lynne
Joyce, Eric
Keetch, Mr. Paul
Kilfoyle, Mr. Peter
Lazarowicz, Mark
Love, Mr. Andrew
Marshall-Andrews, Mr. Robert
Mitchell, Mr. Austin
Öpik, Lembit
Paisley, rh Rev. Ian
Palmer, Dr. Nick
Price, Adam
Reed, Mr. Andy
Russell, Bob
Simpson, Alan
Thurso, John
Todd, Mr. Mark
Truswell, Mr. Paul
Watson, Mr. Tom
Tellers for the Noes: John Hemming and Mr. John Leech

Question accordingly agreed to. Bill read the Third time and passed, with amendments.

Digital Economy Act 2010 and Comcast denouement

It is done - 47 MPs voted against the DEBill but it passed its 3rd Reading and will become law. Its marginally more palatable than it was but I direct you to the utter negation of responsibility by the Conservative front bench. Maybe they all worked out that the Pirate Party (for whom this was the biggest win ever!) will split votes and prove good for incumbents?
Elsewhere, Marvin Ammori celebrates the FCC losing the Comcast case big-time - as he says, the Appeals Court left nothing to chance based on his and FCC arguments - its Title II or a new Telecoms Act now, no room to wriggle. He'll never die wondering...

A Conversation with Ivan Seidenberg (Verizon CEO)

Via Dave Burstein:
QUESTIONER: Hi. It's Jose Maraillon (ph), from Telefonica...  I think that we will agree here in the sector and out of the sector that we are going to have this explosion of data; you know, (people ?), video. But the real challenge for operators like you or like us is how are we going to monetize that explosion. Because people are used to flat rates. I'm not sure people are -- well, I'm sure they are not willing to pay, or to pay more. So I would like to see or to hear from you the strategy you are putting in place to monetize that explosion of data.

SEIDENBERG: This is -- thank you for the question. Thank you for your comment. This goes to my investors so they don't think we're crazy. So when you look at this question -- so let's look at the dichotomy between a carrier and the Silicon Valley types. So most people think a carrier wants to charge for every minute on a linear basis in perpetuity, infinity. That's what you guys think, right? You're right, when we do that. We don't really want to do that. What we want to do is give you a chance to buy a bundle, a session of 10 megabits or a session of 30. The problem we have is 5 or 10 percent of the people are the abusers that are chewing up all the bandwidth. That's what happened with music and all that kind of thing. So what we will do is put in reasonable data plans, and we've done this. We've just introduced a $30 data plan that does with every one of our BlackBerrys or smart phones, a 10 (dollar) or a $30 data plan that covers the majority of people who feel that's a fair price. I get to use it for 30, 40 hours and I pay a certain rate. But when we now go after the very, very high users, the ones who camp on the network all day long every day doing things that -- who knows what they're doing -- those are the --

MURRAY: It's video, right? I mean, it's video.

SEIDENBERG: But those are the people we will throttle and we will find them and we will charge them something else. Now, the dilemma we have is that government will come in and say well, I'm not sure we want you to do that.

MURRAY: Net neutrality. We want --

SEIDENBERG: Net neutrality could be used against that. So the issue is, to answer the question is we don't want to have a linear pricing scale. We do want to find a way to give the majority of people value for bundles, but we have to make sure we find a pricing plan that takes care of that 10 percent that's abusing the system. And it's that simple. And therefore you have to have rules, give us discretion to run our business. Net neutrality could negate the discretion to run your business, and -- if you take it to its ultimate extreme. So that's just an example.

More on Comcast v. FCC

Chris already posted about the DC Circuit's decision in the Comcast case yesterday. However, after a careful read this morning I think there are some comments to add to Chris' initial take. Judge Tatel's opinion can be downloaded here (.pdf).

Now, in any case the Court's decision is a clear kick in the nuts for the FCC. But not a kick the FCC couldn't have seen coming, as already during the oral arguments it seemed clear which way the DC Circuit was leaning. What's interesting is what the Commission will do next. In an immediate press release the FCC has already vowed to plow on ahead with net neutrality "on a solid legal foundation."

But what legal foundation? I agree with Kevin Werbach that the Court's opinion does leave the FCC and Congress with some room to wiggle:

In short, the Court holds that the FCC's Comcast order (.pdf) does not meet the standards for ancillary authority over an (in this case) Title I service of the Communications Act, as the order does not meet the test of Library Ass'n (.pdf) to determine ancillary jurisdiction. Of main importance is the second prong of the test, as the first one is not contested. Focus is thus on the question whether the FCC's "regulations are reasonably ancillary to the Commission's effective performance of its statutory mandated responsibilities." Based on the arguments presented on appeal the Court decides this second prong hasn't been met—but not without offering suggestions on how the FCC could satisfy the required conditions after all.

[I've changed the order of the Court's reasoning below, for the sake of clarity]

1) The Court acknowledges the Commission's delegated authority under §706 of the Communications Act to

encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans [with] measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment

Even though this leaves the FCC with a direct mandate, the court wryly remarks that the FCC stated in its own Wireline Deployment Order (.pdf) that section 706 as such does not function as a grant for direct authority. Therefore, if the Commission were to overrule the Wireline Deployment Order, it could theoretically base its ancillary jurisdiction claim over Title I services on §706 after all.

2) The Court notes that the Commission pursued ancillary authority via §201 of the Communications Act in the original Comcast order. According to §201, "[a]ll charges, practices,
classifications, and regulations for and in connection with [a common carrier] service shall be just and reasonable." Comcast's blockage of P2P traffic has in fact—as the Court acknowledges—increased traffic and congestion for other ISPs, some of which operate under common carriage requirements. So, in a roundabout way, the Commission could justify interfering with Comcast's network management to ensure just and reasonable common carriage regulation. This seems like a bit of a stretch, but the Court appears to find this approach legitimate. However, as the Commission has abandoned the original §201 route during oral argument of the case, the Court does not consider it anymore.

3) Most elaborately, the Court repeatedly argues throughout the opinion than ancillary authority for the Commission can only have effect in relation to an express delegation of authority according to the Communications Act. In other words, ancillary jurisdiction should actually be ancillary to something else, instead of acting on a standalone basis. Ergo, the FCC's Policy Statement of 2005 (.pdf) in and of itself cannot constitute a delegation of regulatory authority. In all of the previous ancillary jurisdiction cases (Southwestern Cable; Midwest Video I and II; NARUC II) the FCC always relied on authority ancillary to (for instance) Title II or Title IV of the Communications Act.

Implicit in the Court's reasoning here is that if broadband would fall under Title II of the Communications Act, the Commission's Policy Statement would enjoy ancillary authority after all. This is not a novel idea at all—in fact, many have argued that the shift of broadband from Title II to Title I created the whole network neutrality conundrum that lead to the present Comcast case. What is interesting here is that the Court seems to challenge the FCC to bring broadband back into the fold of Title II.

Thus, this opinion leaves the Commission with three strategies: overturn the Wireline Deployment Order to pursue a §706 approach; an indirect Title II approach through §201; or to transplant broadband back under Title II authority entirely. The first option is a relatively quick fix, yet rather patchy and likely to be contested in court again. The second option seems like a roundabout way that won't solve the underlying problem: all Comcast needs to do is (happily) compensate common carriers. The third option is the most expansive regulatory approach possible—and also the hardest. Title II for broadband will be a tough sell for the FCC, yet would solve most problems of authority. I've already heard rumors that the Commission is seriously considering to completely Title II the sucker. In that case, we've got an interesting few months and a fascinating uphill battle ahead of us.

Anti-Digital Economy Bill: cabal of major parties to push it through

Tweeting while watching the disgraceful 'wash up' Second Reading debate - there will be a mass vote-through stitch-up of amendments tomorrow, after the Election was called this morning. Its an absolute insult to parliament, to Internet users, and to democracy.
Austin Mitchell MP describes Lords scrutiny as 'Peer-to-vested-interest' - very nice. He also has quoted at length this wonderful post titled 'Imbeciles'. One of the few honest men in Parliament.
I should add for overseas readers that this Bill is not just anti-digital economy, but very obviously anti-net neutrality as well as against basic rights.

Appeals Court demolishes FCC legal argument for ancillary jurisdiction without Title I argument in Comcast

As I was saying, it'll be years before the US has any hard-and-fast net neutrality regulation...This case [Comcast v. FCC (2010) No. 08-1291] is a terrible battering the FCC appeal took, and seems to point to a need for net neutrality legislation: 'The Commission is seeking to use its ancillary authority to pursue a stand-alone policy objective, rather than to support its exercise of a specifically delegated power'. I'll post more as I read US cyberprofs' take on it, but for now see Crawford and Frieden's views.
'Two decisions, like the many we have already discussed, upheld the Commission’s exercise of ancillary authority because, unlike here, the Commission had linked its action to a statutory delegation of regulatory authority. See United Video, Inc. v. FCC, 890 F.2d 1173, 1182–83 (D.C. Cir. 1989) (upholding rules that, like those upheld in Southwestern Cable, limited the ability of cable companies to import programming into a broadcaster’s market); GTE Serv. Corp. v. FCC, 474 F.2d 724, 729–30 (2d Cir. 1973) (upholding Commission regulation of “data processing activities of common carriers” based on the Commission’s concern “that the statutory obligation of the communication common carrier to provide adequate and reasonable services could be adversely affected”). In another case, we rejected the Commission’s argument, similar to the one it makes here, that it could exercise ancillary authority on the basis of policy alone. Motion Picture Ass’n of Am. v. FCC, 309 F.3d 796, 806–07 (D.C. Cir. 2002) (finding the Commission’s “argument that [its] video description rules are obviously a valid communications policy goal and in the public interest” insufficient to justify its exercise of ancillary authority.'