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Court Unfriendly To FCC's Internet Slap At Comcast 215

Posted by ScuttleMonkey
from the unchecked-authority-generally-bad dept.
Several sources are reporting that federal judges have been harsh in their examination of the FCC's action against Comcast in 2008 for the throttling of Internet traffic from high-bandwidth file-sharing services. "'You can't get an unbridled, roving commission to go about doing good,' said US Court of Appeals for the District of Columbia Circuit Chief Judge David Sentelle during an oral argument. The three-judge panel grilled FCC General Counsel Austin Schlick on the parts of communications law it could cite to justify the Comcast punishment. The FCC argues that it was enforcing an open Internet policy implicit in the law. Judge A. Raymond Randolph repeatedly said the legal provisions cited by the FCC were mere policy statements that by themselves can't justify the commission's action. 'You have yet to identify a specific statute,' he said. The judges' decision in the case could throw into question the FCC's authority to impose open Internet rules."
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Court Unfriendly To FCC's Internet Slap At Comcast

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  • Just Pass a Law (Score:5, Insightful)

    by jimbolauski (882977) on Friday January 08, 2010 @04:51PM (#30699788) Journal
    So all that needs to happen is a law must be passed. I can't wait to see how many pages it will take to say NO THROTTLING!
    • I could be way off but I believe net neutrality did go through recently. That said, it wasn't in place at the time, and since it isn't legalizing criminal invasions of privacy this means it isn't retroactive.

      • I could be way off but I believe net neutrality did go through recently. That said, it wasn't in place at the time, and since it isn't legalizing criminal invasions of privacy this means it isn't retroactive.

        It wouldn't affect this anyway, because the "net neutrality" you're referring to is not a law (passed by congress) - it is another set of policy rules issued by the FCC. If the judges rule in favor of Comcast in this case, it could serve as precedent to throw out the entire rule. If they can't point to a statute that points to their actions against Comcast, they won't be able to point to a statute giving them the authority to issue those rules, either.

    • Re:Just Pass a Law (Score:5, Insightful)

      by FlightTest (90079) on Friday January 08, 2010 @04:55PM (#30699872) Homepage

      After all the unrelated pork-barrel is added? Thousands of pages, I'm sure.

    • Re:Just Pass a Law (Score:5, Insightful)

      by DoofusOfDeath (636671) on Friday January 08, 2010 @04:56PM (#30699890)

      I can't wait to see how many pages it will take to say NO THROTTLING!

      I'm curious too. Let me go ask the lobbyists who draft our legislation.

    • Re:Just Pass a Law (Score:4, Interesting)

      by maxume (22995) on Friday January 08, 2010 @05:00PM (#30699962)

      What if I want to pay for a 'lazy' broadband package, where I agree to be throttled when the network is loaded, in exchange for better throughput when things are less busy?

      • Re:Just Pass a Law (Score:4, Insightful)

        by NickFortune (613926) on Friday January 08, 2010 @05:17PM (#30700192) Homepage Journal

        What if I want to pay for a 'lazy' broadband package, where I agree to be throttled when the network is loaded, in exchange for better throughput when things are less busy?

        Cool. What were you going to do if you wanted a package where your packets don't get throttled by third party providers with whom you have no direct financial agreement relationship?

        • Re: (Score:3, Insightful)

          by HeckRuler (1369601)
          Well, you could have a second ISP/account for that. It is a worry that once the preferred packed for ISPs becomes tiered, non-neutral, or otherwise funky that the telcom companies would offer only a minor discount for low quality connections and bend you over and rape you for high-quality connections similar to the "standard" internet service we have now. And if the pricing structure for text messeging is any example, then I wouldn't trust the telcom companies with any power at all. In a perfect world, char
        • by Ichijo (607641)

          What were you going to do if you wanted a package where your packets don't get throttled by third party providers with whom you have no direct financial agreement relationship?

          Switch to an ISP with a different upstream provider. Or subscribe to a VPN tunneling service.

          • Switch to an ISP with a different upstream provider

            Which works as long as we only have one "bad guy" ISP trying to supplement their legitimate peering income with arbitrary surcharges on third party traffic. It doesn't mean that allowing those surcharges is a good idea, but it's a viable strategy as long as only ISP decides to charge for services for which they're already being paid.

            The trouble is that once the principle is established that this is acceptable behaviour, every cable owner on the planet w

            • Re: (Score:3, Funny)

              by Ichijo (607641)

              The trouble is that once the principle is established that this is acceptable behaviour, every cable owner on the planet will want a piece of the action. When that happens, your internet fees go up.

              In a free market, a seller cannot increase his or her profit margin without attracting other sellers. The profit margin disappears as they compete by lowering their prices or improving their service. Which reminds me of a third option: setup a community broadband cooperative.

              And they're not going to shape SSL tra

              • by Kalriath (849904)

                Your ISP can't shape SSL traffic because they can't inspect the contents. They would have no way of knowing which bytes are going to which web site.

                So they shape all of it. Problem solved. Generally speaking they could choose to just penalise any sustained encrypted connection, as a standard HTTP over SSL connection will be relatively short lived. And also, that gets those pesky encrypted torrents as well! Win/Win! Well, for them.

      • Re: (Score:2, Insightful)

        by Shakrai (717556)

        What if I want to pay for a 'lazy' broadband package, where I agree to be throttled when the network is loaded, in exchange for better throughput when things are less busy?

        If it works the same way as the health care reform legislation then you'll be limited to choosing a list of internet packages that were pre-approved by the FCC or some other Federal bureaucracy. This may or may not include one that meets your needs and provides you with the most value for your hard earned money.

        • If it works the same way as the health care reform legislation then you'll be limited to choosing a list of internet packages that were pre-approved by the FCC or some other Federal bureaucracy. This may or may not include one that meets your needs and provides you with the most value for your hard earned money.

          No. If it works the same way as proposed health care reform legislation, an additional 20% of your packets will be stolen from any transaction you initiate and they will be used to support others' zombie connections that just wont die. All network engineering (choosing which packets live and which ones die) will be handled by the largest operators in the game and highly politicized, mostly by Pelosi. Also, if you opt not to buy service, you will have to pay an extra fee.

          And you thought running out of IPv4 a

        • If it works the same way as the health care reform legislation then you'll be limited to choosing a list of internet packages that were pre-approved by the FCC or some other Federal bureaucracy.

          This sounds bogus, do you have a reference for it?

      • by spun (1352)

        If you do agree to be throttled, please take precautions to make sure you don't end up like David Carradine.

        Too soon?

    • Re: (Score:3, Informative)

      by TheReverandND (926450)
      What Comcast did isn't throttling. They engaged in willful packet tampering, by replacing seed packets with reset packets, and that IS already illegal.
  • No Suprise here (Score:5, Insightful)

    by Anonymous Coward on Friday January 08, 2010 @04:51PM (#30699796)

    Both Judges have a history of defending big buisness. This comes as no suprise that they would rule in favor of corporate interest.

    • Re:No Suprise here (Score:5, Insightful)

      by calmofthestorm (1344385) on Friday January 08, 2010 @04:55PM (#30699862)

      Well, depends on the corporate. Media companies love neutrality because then they don't have to pay ISPs to get full speed. ISPs hate it becuase they don't want to be dumb content providers, and want more money.

      Consumer interest is pretty obviously on the neutrality side*, but there are corporate interests on both sides. Think Google.

      * The real solution is actual competition on the part of ISPs but that'll be a cold day in Hell before it happens in the US.

      • Re:No Suprise here (Score:5, Insightful)

        by dkleinsc (563838) on Friday January 08, 2010 @05:03PM (#30700000) Homepage

        Actually, the real real solution is probably a publicly owned utility handling telecom and ISP, because publicly owned utilities have a history of giving better prices and service than their private counterparts for doing similar jobs.

        Yes, there are corporate interests on the side of Net Neutrality, but they probably aren't media companies, for a couple of key reasons:
        1. A lot of media companies have business ties to ISPs. Time Warner in particular is guilty of this.
        2. If they pay the extra to ISPs, they gain an advantage over any upstart competitors. It produces a significant barrier to entry for, say, a successful blogger or independent news site.

        • Re: (Score:3, Informative)

          by jgtg32a (1173373)

          Do you have any citations on Publicly Owned is better?
           
          Because IPL does a damn good job at keeping the lights on.

          • by copponex (13876) on Friday January 08, 2010 @06:40PM (#30701278) Homepage

            The reason corporations are a terrible idea for basic services is because of two issues: incentive and accountability.

            When a corporation owns a basic service, the question is, "How much is the customer willing to pay?" The question when run by a local (meaning, city or county) government is, "How much does it cost to provide?" The incentive for a corporation is always to make the most amount of money possible. If there were no regulation or public utilities, America would look like South America, where a company can make a good profit providing services to the rich, and ignore everyone else. This leads to widespread poverty and income inequality, since you can't do any self-investment when most of your day is spent lugging water or kerosene or wood around for cooking, cleaning, etc.

            The second question is of accountability. Corporations simply don't have to have any accountability towards individual customers. Sure, you can sue a company - if you happen to also employ dozens of lawyers and have a few million stashed away, you may have a fighting chance. When a very local entity is running the show, chances are you know the person in charge. They aren't hundreds or thousands of miles away in the top floor of some high security skyscraper - they're downtown, and you know some of the people who know them.

            This method breaks down in large metropolitan areas if they aren't further divided into neighborhood councils. They work best when the board members running the utility can be voted out directly by the local populace.

            The decision on what is and what is not a utility is an important one. Competition gives us good results in luxuries and commodities, since there are so many customers, and getting screwed on a dozen eggs or a TV isn't the end of the world. However, when the customers have no other options, and it's too expensive to duplicate services, locally controlled organizations are a great option. Better to make the internet a utility with 100% saturation - just like roads and electricity - and allow competitors to provide services over that platform.

            PS All your privacy concerns are moot when the NSA is building NOCs inside of corporate datacenters already.

            • The GP was asking for citations, not opinions.

              As much as I disagree with the "government is bad at everything" crowd, it doesn't really help to counter that sentiment with "business is bad at everything, too".

              • by copponex (13876) on Friday January 08, 2010 @09:24PM (#30703170) Homepage

                I can cite dozens of studies for either side, but most are older and not publicly available - just summarized in reports. Or you could order copies of the Journal of Regulatory Economics if you're really into it, and read such fascinating works as "24/7 Hourly Response to Electricity Real-Time Pricing with up to Eight Summers of Experience," which is actually not bad, and shows how realtime pricing information affects electricity usage in a positive way for conservation and usage. Then the author is labeled a socialist or a nazi, organizational bias is claimed, and everyone slings mud until no one can see.

                The larger point to get across is that you need to start from scratch when considering the philosophical implications of something as major as the next communication platform, and also be mindful of real world examples.

                Business isn't bad at everything. It's just poorly suited to provide necessary services. This is why democratic governance exists - it' supposed to be an entity based on the will of the populace based on the merit and moral nature of their arguments, not on the size of their wallets. It's why the legal system isn't (well, supposed to be) based on class or birth. It fails to be perfect, but you'll notice that the closer a government is to these ideals, the better the society is in general. Once you get close to the line of basing access to basic needs on dollars alone, you are stating that a human's only value is monetary.

            • by Solandri (704621)

              When a corporation owns a basic service, the question is, "How much is the customer willing to pay?" The question when run by a local (meaning, city or county) government is, "How much does it cost to provide?" The incentive for a corporation is always to make the most amount of money possible.

              You either have a fundamental misunderstanding of economics, or you're blatantly pretending a corporation doesn't ask itself how much it costs to provide a service. All corporate entities ask themselves both questio

          • by dkleinsc (563838)

            Well, here's a pretty good example from near where I currently live: Cleveland Public Power (publicly owned, as the name suggests) versus FirstEnergy of Ohio (a private utility). These two companies serve a very similar customer base in roughly the same region, practically overlapping in places.

            During the 2003 Northeast blackout (caused by FirstEnergy), CPP had its customers' power on about a full day ahead of FirstEnergy. The municipal power company in a different town where I was living at the time had my

        • Actually, the real real solution is probably a publicly owned utility handling telecom and ISP, because publicly owned utilities have a history of giving better prices and service than their private counterparts for doing similar jobs.

          Just ask any Russian about the public hot water, they shut off hot water in the summer for matience.

          • Re:No Suprise here (Score:4, Informative)

            by spun (1352) <loverevolutionaryNO@SPAMyahoo.com> on Friday January 08, 2010 @05:36PM (#30700436) Journal

            Nice anecdote. Perhaps it's even true. But the vast majority of publicly owned utilities do in fact provide better service at lower rates. Look at the TVA. [wikipedia.org] Look at what happened in South America when water was privatized. [alternet.org]

            In general, privatization only works when there is a robust and competitive market. In the case of public utilities, they are a natural monopoly [wikipedia.org], and therefore, a competitive market is impossible. Cooperatives and other forms of public ownership are the most efficient way to run any form of natural monopoly.

            • Re: (Score:3, Interesting)

              by Ironsides (739422)
              Also, look at [wsj.com] Venezuela [circleofblue.org].

              Oh, and the TVA?

              One such considered above criticism, sacred as motherhood, is TVA. This program started as a flood control project; the Tennessee Valley was periodically ravaged by destructive floods. The Army Engineers set out to solve this problem. They said that it was possible that once in 500 years there could be a total capacity flood that would inundate some 600,000 acres (2,400 km2). Well, the engineers fixed that. They made a permanent lake which inundated a million acres (4,000 km). This solved the problem of floods, but the annual interest on the TVA debt is five times as great as the annual flood damage they sought to correct. Of course, you will point out that TVA gets electric power from the impounded waters, and this is true, but today 85 percent of TVA's electricity is generated in coal burning steam plants. Now perhaps you'll charge that I'm overlooking the navigable waterway that was created, providing cheap barge traffic, but the bulk of the freight barged on that waterway is coal being shipped to the TVA steam plants, and the cost of maintaining that channel each year would pay for shipping all of the coal by rail, and there would be money left over.

              from the wiki article.

              • Re: (Score:3, Informative)

                by spun (1352)

                Ooh, an early Reagan quote. Sounds more like a criticism of the Army Corps of Engineers, though, doesn't it? And the criticism could be leveled against any hydro-electric program. As for the debt, it was payed off years ago, (the quyote was from 1966) yet the project continues to protect against floods.

                As for the articles on Venezuela, yes, I agree that climate change has caused some terrible tragedies already, tragedies that affect public and private concerns alike, but how does that relate to my point?

            • by Kalriath (849904)

              Cooperatives and other forms of public ownership are the most efficient way to run any form of natural monopoly.

              Don't make me laugh. Here in New Zealand, the government owns the largest two electricity generators, and the national power grid. A trust owned by the residents of our largest city owns the municipal power grid within that city.

              Generated prices are increased for no reason once every 3 months or so, with an increase in transmission costs added on by the grid operator, plus an additional increase by the municipal grid (sure, they issue dividend cheques to half the region they charge once every year, but wo

        • because publicly owned utilities have a history of giving better prices and service than their private counterparts for doing similar jobs.

          Aren't "publically owned utilities" basically financed with tax dollars? No wonder they can give "better prices and service." They get my money somehow else.

          Not saying it's not an option... just saying that the price you pay for a public utility isn't just the price on the sticker. Or ad. Or whatever.

          • by brkello (642429)
            You do realize that the whole infrastructure of the Internet was already paid for through tax dollars, right? When there is a lack of competition (like in this market) yes, publicly owned utilities are a lot better (as in cheaper for you and run more efficiently).
        • by Shakrai (717556)

          because publicly owned utilities have a history of giving better prices and service than their private counterparts for doing similar jobs.

          They also have a history of paying excessively above market wages/benefits to their employees. Their unions have a history of corrupting the political process to benefit their few members at the expense of everyone else. Just look at the states that are deepest in the red right now (New York and California come to mind) and compare the compensation packages of the public and private sectors in those states. Then look at how any politician brave enough to stand up to these special interests is immediately

    • Re:No Suprise here (Score:4, Insightful)

      by Anonymous Psychopath (18031) on Friday January 08, 2010 @05:18PM (#30700202) Homepage

      Both Judges have a history of defending big buisness. This comes as no suprise that they would rule in favor of corporate interest.

      Actually, they are ruling in the favor of law. Just because you happen to agree with the FCC doesn't make what they did right.

      Imagine the FCC thought throttling was fine, and created policies that punished content providers who didn't properly mark their high-bandwidth traffic. You'd be begging the court for relief for this exact same decision instead of calling them corporate shills.

      Even though throttling is bad, the FCC making up their own rules as they go along is worse.

    • Re: (Score:2, Insightful)

      by gangien (151940)

      AH oh, here we go again.

      You're right, big government is the solution. Government in control is what we need. This is perfect. Instead of letting competition decide who wins, we let government hurrah!!!!

      Do people not understand how capitalism works? And no, we don't have a capitalistic system in the US, we have big corporations and unions who get legislature passed, that is the exact opposite of capitalism. But the solution isn't to just go hogwild with stupid regulations that hinder improvement and inn

      • by jedidiah (1196)

        > AH oh, here we go again.
        >
        > You're right, big government is the solution. Government in control is what we need. This is perfect. Instead of letting competition decide who wins, we let government hurrah!!!!

        +...and who EXACTLY is "competing" for YOUR broadband business.

        In my case it is two natural monopolies.

        Great "market forces" at work there...

        • Re: (Score:2, Interesting)

          by gangien (151940)

          there's a few companies with DSL, there's satalite, there's dialup and there's the option of not having internet. quite a few options for me.

          Of course, i live in a suburb of seattle, not everyone has as mayn options. But they still have choices. And if people like me make the right choices, they'll soon have better choices to make anyways, as I'll reward the companies doing the right thing.

  • by JoshuaZ (1134087) on Friday January 08, 2010 @04:52PM (#30699806) Homepage
    Just because something is good policy doesn't mean a given implementation of it is legal. This is the reverse of the common rule that stupid laws aren't necessarily unconstitutional. The solution here is to get Congress to pass explicit net neutrality legislation. Unfortunately, the last such attempt died a gooey death.
    • Re: (Score:3, Insightful)

      by unity100 (970058)

      if there is no precedent regarding a policy, it is not only legal tradition but global practice to rule in favor of public interest.

      this is what precisely those fscking judges should have done. they have not. their approach little different than parroting corporate interests' statements.

      • by Attila Dimedici (1036002) on Friday January 08, 2010 @05:07PM (#30700058)

        if there is no precedent regarding a policy, it is not only legal tradition but global practice to rule in favor of public interest.

        this is what precisely those fscking judges should have done. they have not. their approach little different than parroting corporate interests' statements.

        In the U.S., if there is no law authorizing the Administration (the FCC is part of the Administration) to take an action, it is illegal for the Administration to take said action.

        • There is a huge body of law in the U.S. that protects the consumer from unfair or deceptive trade practices. How is what comcast doing a fair trade practice? You most often see this with credit cards and banks. IANAL, but I imagine there is something similar for ANY regulated corporation.
          • by sgtrock (191182)

            Right. And if the FCC had simply cited that law, then the judges hearing the case in question would at least have to make a determination as to whether it applied or not. The complaint from the judge was that they failed to do so. If true, then the counsel for the FCC didn't do his job.

          • As another poster mentions, the FCC failed to cite such a law. Now there are two possibilities. One, there is no law that the FCC believes applies to this case. Or, two, the FCC is not empowered to enforce any laws that Comcast was violating and knows it.
        • by pfleming (683342)
          The FCC regulates communication. The ISP is deemed to be providing communication services. The FCC, as my brother would say, regulated their ass. Not everything has to be explicitly written in law.
          • TNot everything has to be explicitly written in law.

            There are two points I want to make. First if not everything has to be explicitly written in law, then how does a business know if what it is doing is legal? Corollary, who gets to decide what is illegal? What if they are your political enemy?
            Second, just because a company is an ISP doesn't mean that the FCC is responsible to enforce the relevant laws.

      • I think most people in the US would prefer that government NOT be given the power to interfere in how any business runs its affairs in the name of 'public interest' just because there isn't a law either giving them said power or expressly revoking it. The 'policy' is fine, the FCC can make all the policy it wants. But it needs to have a law voted on by our elected representatives to give them the power to enforce it before it can go around punishing and fining companies.
    • by natehoy (1608657)

      Unfortunately, the last such attempt died a gooey death.

      That's one of the best and most concise descriptions of the lawmaking process I've seen to date. Well done.

      "Laws are like sausages. You might like 'em, you might dislike 'em, but you do not want to know what went in to making 'em."

  • arent there already customer satisfaction laws in place ? guarantees for the product/service sold ?

    wont wrongfully advertising X bandwidth/month and then curbing the user's usage despite charging full charge, a violation of these laws ?

    or, arent falsified advertising, and hiding critical information in footnotes and smallprints illegal ? well it is such in turkey. if you want to sell something you have to make any kind of footnotes and small print big enough, and in bold text. especially in credit card cont

    • But the FCC does not have the power to enforce any consumer protection laws.
    • by Dynedain (141758)

      False advertising regulatory powers belong to the FTC, not the FCC. Different agency.

    • Which is why if you listen to the advertisements, it is always "up to" X speed, never stating a minimum, just a maximum, or if they show a number on the screen, there will always be some real tiny print at the bottom which basically says the likes of "advertised speeds are not indicative of actual speeds in your area, just a potential theoretical speed that can be reached in ideal circumstances".
  • by Adrian Lopez (2615) on Friday January 08, 2010 @05:03PM (#30699988) Homepage

    A proper net neutrality law is long overdue. I don't want ISPs to ever be allowed to block any content, cripple any protocols, or artificially slow down any kind of traffic beyond whatever is necessary to ensure reliable service for all customers alike. A ruling against the FCC on its own ruling against Comcast would cause significant injury to US broadband users, and that's why we need some kind of legislation outside of FCC rules that will ensure ISPs such as Comcast can't cripple customers' connections. Pro-corporate judges then won't have a leg to stand on.

    • As much as I'm for net neutrality, I have to side with the Judges on this one. All the Judge is saying is the FCC can not create and enforce laws that seems pretty reasonable to me.
    • Re: (Score:2, Informative)

      by undecim (1237470)

      Any net neutrality law that could make it through congress would be worthless.

      Comcast justifies throttling bittorrent traffic by saying that bittorrent traffic slows down other users' connections making their service unreliable, and the politicians don't know any better.

      Unless it's either written or enforced by completely unbiased technicians (with the assistance of a few legislators), a net neutrality law would only give companies like Comcast a new place to dig up loopholes and lies.

    • I don't want ISPs to ever be allowed to block any content, cripple any protocols, or artificially slow down any kind of traffic beyond whatever is necessary to ensure reliable service for all customers alike

      Yeah, that's the job for the government. As long as the censorship or restrictions has the label "democratic" attached to it, it's usually acceptable, right?

      On that token, net neutrality would forbid speeding up or giving priority to certain packets, as well--and "beyond whatever is necessary" is conven

      • Yeah, that's the job for the government. As long as the censorship or restrictions has the label "democratic" attached to it, it's usually acceptable, right?

        Net neutrality is the opposite of censorship as it bars ISPs from blocking or crippling those network connections the customer chooses to open.

        ... net neutrality would forbid speeding up or giving priority to certain packets ...

        Nonsense. It depends on how the law is written. If speeding up certain kinds of packets can help guarantee reliable service wit

      • Sure, just show the evil ISP by forgoing Internet, right? Because the local government has seen fit to grant a monopoly to a certain corporation and will back up threats against would-be competitors with force.

        It's the interplay between corporations and government that is the real danger. Corporations are creations of government, so you get positive feedback loops, legislation that strongly favors incumbents of new market entrants, regulatory capture, etc.

        There's a good reason that the US did without corp

        • Because the local government has seen fit to grant a monopoly to a certain corporation and will back up threats against would-be competitors with force.

          Yes, you are very correct, and this is where the problem lies.

    • Re: (Score:3, Insightful)

      by bill_mcgonigle (4333) *

      I don't want ISPs to ever be allowed to block any content, cripple any protocols, or artificially slow down any kind of traffic beyond whatever is necessary to ensure reliable service for all customers alike.

      Neither does nearly anybody else. In a real market, the likes of Comcast's blocking would be quickly eliminated by competition. The problem is the governments grant monopolies, forcing certain corporations upon pockets of citizenry.

      So, we need to stop patching bad law with more bad law and start fixin

  • Better Article Link (Score:2, Informative)

    by Anonymous Coward

    For those who don't want to disable noscript, there's a better version of the article at http://www.nasdaq.com/aspx/stock-market-news-story.aspx?storyid=201001081217dowjonesdjonline000464&title=update-court-unfriendly-to-fccs-internet-slap-at-comcast

  • by Coolhand2120 (1001761) on Friday January 08, 2010 @05:07PM (#30700060)
    So the FCC can't rule by fiat? They should ask the EPA how they get to rule by fiat! Only seems fair.
  • You can't get an unbridled, roving commission to go about doing good

    Yes, god forbid someone in the government actually try and help people. We must put a stop to this at once! The U.S. government should only work to protect the corporate profit, as it has been for the last thirty years.

    I mean really, why don't these judges just go out and admit they're on comcast's payroll already? Somebody should tar and feather those judges. Gah, I'm so sick and tired of regulatory capture [wikipedia.org]. When will it all end?

    • by kevinNCSU (1531307) on Friday January 08, 2010 @05:31PM (#30700380)

      Because who defines 'good'? Giving a branch of government unbridled power to do 'good' one day gives them that same unbridled power to do something you vehemently oppose the next, and now they would have the legal precedent to do so.

      You can't have a short term view of the law as a judge, and while it might not make them popular in the short run I'd rather our freedom be protected by forcing us to have our elected representatives pass a law for something we want (their entire job), rather then give a branch of our government unbridled power because they happen to be acting in our favor today.

      Think about this, the FCC decided on their policy with little to no input from the citizens, and little to no recourse from the citizens. You can't vote FCC workers out of office. What would your view of the legality of what they just did be if they had come down on the completely other side of the issue and were punishing companies that didn't throttle p2p networks in the name of stopping piracy for 'public interest' but had no written law mandated or approved by our representatives to tell them or give them the power to do so?

      You can't judge legality of a government organization's actions based on whether you think what they are doing is good, you judge legality based on whether they have the legal right to acting in the way they are according to the constitutions and laws set forth by congress.

  • Consumer Interest (Score:3, Interesting)

    by psbrogna (611644) on Friday January 08, 2010 @05:11PM (#30700100)
    I'd be happy enough if the ISPs were held accountable for delivering advertised bandwidth when they're not throttling. Does ANYBODY get advertised performance from ANY ISP? Most of 'em tell you up front they won't guarantee bandwidth. To provide some context, my whining comes to you today from the middle of Rural America- an area seriously neglected by the broadband industry.
    • by fyngyrz (762201)

      You realize, don't you, that bandwidth is a locally limited resource Y, and that if they guarantee you X, they have Y-X remaining for everyone else? And further, if they guaranteed, say, 1 mb/sec to a thousand customers, they'd have to have a 1,000,000 mb/sec pipe to support it? And THEN, once this goes out on any portion of the network they don't control (by which, I mean almost all of it), of course you know said bandwidth can be choked off by any other company for any particular reason, rendering your "

  • by Rene S. Hollan (1943) on Friday January 08, 2010 @05:15PM (#30700168)

    I would think to a "reasonable person", who knows what the internet is (an internetwork of networks carrying internet protocol and internet control protocol traffic), that would mean I get to send and receive such packets to the ability of the provider to carry them, without discrimination, to the limit of the bandwidth I pay for.

    IOW, if the traffic demand is D and the capacity is C, C D, the actual bandwidth available to someone desiring d is c=d*C/D.

    When the law or contract is silent on a matter, the courts will generally apply a "reasonable person" interpretation on what the contracted agreement is.

    Now, the FCC might have been out of place to punish Comcast, but that does not mean that subscribers would not be in a position to launch a breach of contract suit.

    Comcast's tough if they oversold bandwidth to the point where they have to discriminate between their users so as to try to minimize the fraction that they piss off (which is really what they are doing -- punishing those that expect what they are paying for).

    Disclaimer: I have Comcast business internet service with a static IPv4 address, and I had their residential service as well. I found significant variance in bandwidth available on their residential service, but not their business service. I expect it is not as oversold. I no longer subscribe to their residential service. I actually considered load-balancing outbound TCP sessions across both links at one point, but, given the variance, found it would have been more cost-effective to subscribe to greater bandwidth on their business line. In the end, I decided it wasn't worth it, or necessary, and dropped the residential service, keeping the business service.

    • by natehoy (1608657)

      Are there monthly caps on Comcast's business service?

      Right now, I'm paying $45 a month (plus I'm required to have $15 a month Cable TV) for their 3mb down / 256kb up plan. They have a $60 6mb down / 1mb up plan, which would actually work out to the same money, but if they have the same cap and throttling, forget it.

      I can't find a terms of service for their business accounts.

      • I have the 6x1 plan, and AFAIK, there are no monthly caps on their business service.

        But, if my calculations are correct, saturating the download at 6 Mb/s 12% of the time would be required to hit a monthly 250GB download cap.

        That's A LOT, and would generally warrant them suggesting you trade up to a higher data rate plan.

        In practice I regularly see download speeds of 15 to 20 Mb/s, which are nice when downloading a Linux distro ISO. I'm sure that gives them plenty of room to throttle me to the agreed-upon r

  • You can't have government employees doing good!

    Translation:
    This gives everybody the wrong fucking idea. Like we work for the good of the people or something. Makes the rest of us look bad!

  • Forgery perhaps (Score:4, Informative)

    by ArhcAngel (247594) on Friday January 08, 2010 @05:21PM (#30700248)

    If I understand this correctly what the judge is asking is what law did Comcast break in their actions. If I understand what Comcast was eventually charged with by the FCC wouldn't forgery or impersonating an officer or hijacking all be possible crimes committed? Comcast basically took a packet coming from a sender and hijacked it, injected it with the reset command (forgery), and sent the packet on it's way to the recipient (impersonating a packet from sender which could be looked at like a mail carrier or "officer" of the post office).

    • Those are all good points. I am not sure that the laws you mentioned are written in such a way as to be applied to the Comcast case. The FCC apparently didn't think so because they did not appeal to those laws. Of course, that could possibly be because the FCC is not authorized to enforce the laws against the crimes that you listed.
  • You can't get an unbridled, roving commission to go about doing good,' said U.S. Court of Appeals for the District of Columbia Circuit Chief Judge David Sentelle during an oral argument.

    But one CAN get unbridled roving commission to go about doing evil! Judges allow that all the time.

  • Or a few thousand of them.

  • "'You can't get an unbridled, roving commission to go about doing good"

    This adequately describes more than one Appeals Court. Talk about calling out the kettle!

    Breathtaking. Just stupendously breathtaking! He couldn't possibly have said that out loud with desperately wishing he had just shut up...

  • In my insightful comment [slashdot.org] last week I alluded to something exactly like this happening.

    This week, advocates for "net neutrality" still have a lot of excuse making to do for injustices of the patent and copyright system, rights violations in the war on terrorism, and the train wreck which is Obamacare before they get to advocating for an expansion of government into internet regulation.

    Why is "But won't you think of the children?" a joke but "But won't you think of net neutrality" regarded equally?

Arithmetic is being able to count up to twenty without taking off your shoes. -- Mickey Mouse

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