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FCC May Tweak Broadband Plan 52

Posted by Soulskill
from the all-waps-must-be-named-after-beatles dept.
adeelarshad82 writes "Despite a recent ruling that said the FCC did not have the right to interfere in Comcast's network management issues, the agency is pushing ahead with its national broadband plan, though there might be some tweaks. Since the case was won on the fact that the FCC based its decision on its Internet Policy Principles, a set of guidelines the agency developed internally several years ago regarding broadband Internet service and not actual rules that went through a formal, open rulemaking process, they are invalid, as is the enforcement action. FCC general counsel Austin Schlick acknowledged that the court's decision may affect a significant number of important plan recommendations. The commission is assessing the implications of the decision for each recommendation to ensure that it has adequate authority to execute the mission laid out in the plan."
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FCC May Tweak Broadband Plan

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  • by commodore64_love (1445365) on Saturday April 10, 2010 @10:43AM (#31799702) Journal

    ...granting power to Congress to regulate commerce INSIDE the states. That appears to be the only way they (and the FCC) can regulate a company like Comcast of Baltimore, or Comcast of Oklahoma, or other wholly intrastate companies.

    Otherwise without that amendment, the regulation responsibility falls to the Maryland Government's Public Utility Commission, Oklahoma's PUC, et cetera...... the same way electricity and natural gas companies are regulated.

    IHMO.

    Please don't mod me down if you disagree.

    • by nurb432 (527695) on Saturday April 10, 2010 @10:53AM (#31799744) Homepage Journal

      That would be against the very foundation of our country and the concept of state sovereignty, and would have far reaching consequences as it would instantly give the federal government direct control over *every* aspect of your life.

      Might as well shut down all state government if that should happen.

      • by Qzukk (229616)

        That would be against the very foundation of our country and the concept of state sovereignty, and would have far reaching consequences as it would instantly give the federal government direct control over *every* aspect of your life.

        Sorry, we've already lost that battle in the War on (Some) Drugs. If what you plant in your backyard is a matter of interstate commerce, so is what Comcast plants in your backyard.

    • Re: (Score:2, Informative)

      by Anonymous Coward

      Well, your point might have some merit if the FCC's enforcement action against Comcast had been overturned because it wasn't Constitutional.

      But that simply is not the case. The FCC was smacked down based on administrative law, not Constitutional law.

      Please try to understand the actual issues involved before you advocate for extreme positions.

      KTHXBYE

    • by ducomputergeek (595742) on Saturday April 10, 2010 @11:36AM (#31799932)

      We already have an amendment about this:

      http://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution [wikipedia.org]

    • by Kirijini (214824) <kirijini@y a h o o . com> on Saturday April 10, 2010 @12:07PM (#31800058)

      Add an amendment to the constitution granting power to Congress to regulate commerce INSIDE the states. That appears to be the only way they (and the FCC) can regulate a company like Comcast of Baltimore, or Comcast of Oklahoma, or other wholly intrastate companies.

      The FCC can regulate intrastate companies, especially when they're subsidiaries of an interstate company. To be more accurate, the FCC could regulate those intrastate companies if Congress empowered it to. The fact of the matter is that Congress chose not to preempt state public utility commissions. The interstate commerce clause has been interpreted so expansively that there is very little economic regulation that Congress can't enact or delegate to an agency (the only examples that come to mind are gun restrictions in/around schools (US v. Lopez) and enabling women to seek civil remedies under the violence against women act (US v. Morrison)

      Anyway, the FCC's net neutrality order against Comcast wasn't slapped down by the DC Circuit because it lacked constitutional authority. It was because the FCC's action wasn't reasonably ancillary to a specific grant of jurisdiction. In other words, the FCC can't enforce net neutrality unless it can better explain which of its specific powers authorized by Congress net neutrality would fall under. Let me reiterate - the problem isn't that the FCC lacks the power to enforce net neutrality, the problem is that the FCC hasn't given a sufficient, consistent explanation of why it can enforce net neutrality.

      The easiest way for the FCC to respond to the DC Circuit's ruling, assuming it still wants to enforce net neutrality, is issue a new rule that finds internet access service to be regulated under Title II of the Telecom Act. That would enable the FCC to regulate ISPs as common carriers.

      • by memnock (466995)

        thanks for that explanation. i was one of the folks who was under the impression that FCC had no jurisdiction.

        now, since it seems they do have jurisdiction, assume that FCC wants to maintain net neutrality, it seems like the death knell that many headlines were announcing earlier is not the case. since FCC has jurisdiction, if they establish the policy correctly, net neutrality could be alive and well, correct?

        • by Kirijini (214824)

          This is somewhat simplified, but:

          The FCC doesn't currently have jurisdiction over internet access service, because of the way it interpreted certain definitions [slashdot.org] in the telecommunications act. A pretty good argument could be made that it interpreted those definitions in a certain way in order to prevent "open access" requirements on cable ISPs (i.e., requiring cable providers to allow third party ISPs to use their cable infrastructure). But, now the FCC wants to enforce net neutrality, and those interpreta

      • by careysub (976506)

        ... The interstate commerce clause has been interpreted so expansively that there is very little economic regulation that Congress can't enact or delegate to an agency (the only examples that come to mind are gun restrictions in/around schools (US v. Lopez) and enabling women to seek civil remedies under the violence against women act (US v. Morrison)

        Indeed. In Gonzales v. Raich (previously Ashcroft v. Raich), 545 U.S. 1 (2005), it was held that the Federal government had the right to ban growing medical marijuana by the patient herself, with no money or cannabis changing hands, because it involved interstate commerce. How you say? Well, the decision NOT to buy or sell marijuana affects the interstate trade in said product, according to the court!

        It seems with interstate trade anything goes today, unless it is some specific policy that the right wing o

    • by MacWiz (665750)

      ...the same way electricity and natural gas companies are regulated.

      Not a chance in hell.

      The best one could hope for from the FCC is for them to provide the same expert guidance they used to prevent payola, make sure that ClearChannel didn't homogenize and monopolize radio, and champion the causes of localism and diversity.

      Fortunately, unlike electricity and natural gas, radio isn't that important to our survival. It's been replaced by the Internet, over which the FCC has no authority yet. Even if they ever

  • by nurb432 (527695) on Saturday April 10, 2010 @10:50AM (#31799730) Homepage Journal

    So the true ruling is that the FCC really DOES have this authority, they just have to put the rules in black and white before they run off enforcing them. Nothing new here, just that they didn't follow procedures ( DOH ! ). And you can bet when they do, Comcast will regret calling them out on it. ( of cousre even if they do go down, their board already made their millions )

    • Re: (Score:1, Informative)

      by Anonymous Coward

      So the true ruling is that the FCC really DOES have this authority

      The Court didn't say that. The FCC may or may not have that authority. The presence or lack of that authority was simply not used by the Court to make this decision. If the FCC follows the proper rule making procedures, it would still be possible for a future court to rule that the FCC does not have that authority.

      Even if the Court did say that, it would be nonbinding dicta, meaning that a future court could simply ignore it.

      • Re: (Score:3, Interesting)

        by Kirijini (214824)

        If the FCC follows the proper rule making procedures, it would still be possible for a future court to rule that the FCC does not have that authority.

        Under NCTA v. Brand X [google.com] and the Chevron Doctrine [wikipedia.org] courts have very little power to overrule agency interpretations of vague statutes. Under Brand X itself, the Supreme Court found that the telecom act was vague on whether internet access service was or was not a "telecommunications service" (versus a "information service"), and therefore, the FCC's interpretation was valid unless it was not a reasonable policy choice. It seems pretty clear that if the FCC changed its mind, and enacted a new policy that fou

    • Re: (Score:2, Insightful)

      by Anonymous Coward

      "And you can bet when they do, Comcast will regret calling them out on it."

      I hope they get hammered. Just look at how they treat customers in their home state, in between where they're headquartered and the state's capital.

      I'm in Pennsylvania, which is home to Comcast corporate. The state legislature pretty much kisses Comcast's derriere and passes whatever the company wants into law, as seen with the cable box law they passed several years ago. Assembly hearings on trying to break the monopoly on PCN in

    • by careysub (976506)

      So the true ruling is that the FCC really DOES have this authority, they just have to put the rules in black and white before they run off enforcing them. Nothing new here, just that they didn't follow procedures ( DOH ! ).

      Correct, it is only the DEA it seems that can ignore its own rules, administrative law rulings, and science and set regulations that contradict all of these at once.

      The scheduling of marijuana as Schedule I when pure THC is Schedule III directly violates its rules on scheduling, and was actually ruled in violation by an administrative law judge. The DEA simply ignored the ruling. Laws don't apply to the lawmen apparently.

  • The FCC lost the case because the Court said they lacked "statutory authority" only. It had nothing to do with "rights" as was alluded to in the article summary.

    That means Congress can pass a law giving the FCC that statutory authority; the FCC's statement about looking at various aspects of their "Broadband Plan" to discern where they have "authority" and where they do not, is a bit on the disingenuous side, no? It's as if they're saying, "We'd like an open/fair internet access situation, but we just can't

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