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Tim Wu: Why the Courts Will Have to Save Net Neutrality (nytimes.com) 251

Posted by msmash from the tussle-continues dept.
Tim Wu, a law professor at Columbia who first coined the term "net neutrality," writes for the New York Times: Allowing such censorship is anathema to the internet's (and America's) founding spirit. And by going this far, the F.C.C. may also have overplayed its legal hand. So drastic is the reversal of policy (if, as expected, the commission approves Mr. Pai's proposal next month), and so weak is the evidence to support the change, that it seems destined to be struck down in court. The problem for Mr. Pai is that government agencies are not free to abruptly reverse longstanding rules on which many have relied without a good reason (Editor's note: the link could be paywalled), such as a change in factual circumstances. A mere change in F.C.C. ideology isn't enough. As the Supreme Court has said, a federal agency must "examine the relevant data and articulate a satisfactory explanation for its action." Given that net neutrality rules have been a huge success by most measures, the justification for killing them would have to be very strong. It isn't. In fact, it's very weak. From what we know so far, Mr. Pai's rationale for eliminating the rules is that cable and phone companies, despite years of healthy profit, need to earn even more money than they already do -- that is, that the current rates of return do not yield adequate investment incentives. More specifically, Mr. Pai claims that industry investments have gone down since 2015, the year the Obama administration last strengthened the net neutrality rules.
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Tim Wu: Why the Courts Will Have to Save Net Neutrality More

Tim Wu: Why the Courts Will Have to Save Net Neutrality

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  • Long standing rules ? Courts making legislation ? (Score:3, Insightful)

    by RedK ( 112790 ) on Monday November 27, 2017 @10:47AM (#55629373)

    For one : 2015 is not "Long standing rules". If anything, the "Long standing rules" apply more to the 1996 Telecommunications Act which labeled ISPs as Information Service Providers.

    For two : Courts making laws and forcing regulatory bodies to enforce them is a path you don't want to go down. If a sitting judge can just decide whatever he wants, and make up new law and regulations on the spot, then they effectively become Legislative, Executive and Judicial all in one.

    • Re:Long standing rules ? Courts making legislation (Score:5, Insightful)

      by Anonymous Coward on Monday November 27, 2017 @10:56AM (#55629437)

      in addition, the gop controlled Congress, which refused to seat hundreds of judges under Obama is packing the courts with incompetent republican partisans, so the activism from the bench will be decidedly pro-business

      • Not that any previous administration packed the courts with partisans, competent or not.

        You actually may not want competent partisans packed onto the courts, though it's hard to tell what's worse, partisan judges or incompetent judges. Not a big deal however, as the results are often the same. So is the fix.

    • Re: (Score:3)

      by oic0 ( 1864384 )
      When regulatory bodies completely ignore the will of the public you have a much bigger problem. Courts seem like the perfect entity to deal with that, though it should be a treason case.

      • Re: (Score:2, Informative)

        by RedK ( 112790 )

        When regulatory bodies completely ignore the will of the public you have a much bigger problem. Courts seem like the perfect entity to deal with that, though it should be a treason case.

        The will of the public is enforced through the ballot box. In this case, it was clear the Trump agenda was deregulation. It was a theme of his campaign that Government is too big and needs to be trimmed down.

        He even addressed SPECIFICALLY the 2015 Act prior to its passing :

        https://twitter.com/realdonald... [twitter.com]

        And he was elected. You can't argue "Will of the people" in this case.

        • Re:Long standing rules ? Courts making legislation (Score:5, Insightful)

          by Killall -9 Bash ( 622952 ) on Monday November 27, 2017 @11:48AM (#55629839)
          Try to guess the number I'm thinking of.....
          It's the number of people who voted for Trump based on his Net Neutrality stance.
          It is also the number of people who voted against Trump based on his Net Neutrality stance.

          Can you guess this magic number? I'll give you a hint-- It's between ZERO and ZERO.

          Say what you want about whether NN is being "destroyed", or if it never existed in the first place... but don't fabricate a public mandate when 99.9999% of people who give a fuck disagree with what is happening.

          • Re: (Score:2)

            by RedK ( 112790 )

            He promised it in his campaign and is now delivering on his promises. He was voted into office. I know you're not used to Politicians keeping their campaign promises, but this is what is happening now, and yes, he wasn't voted into office based only on his stance on Net Neutrality, but the fact remains : He is the sitting President of the United States and he is fulfilling his campaign promises.

            • Re: (Score:2)

              by AvitarX ( 172628 )

              Politicians actually usually do keep their campaign promises.

            • Re: (Score:2, Insightful)

              by Anonymous Coward
              With all due respect, are you sure you've not had some of that Trump kool-aid? He's flip-flopped on even his promises more than a Northern Pike that just got reeled in. You cannot put much credence to what he promises any more than you could trust him if he said "the check is in the mail, trust me!"

          • Re: (Score:2, Informative)

            by Anonymous Coward

            He is doing exactly as promised your number of 99.9999% is way off base. Everyone that voted for Trump is behind this. Get rid of the government bloat and get them out of micromanaging business. Let the free enterprise system work.

          • but don't fabricate a public mandate when 99.9999% of people who give a fuck disagree with what is happening

            That's pretty much always the case in politics: concentrated benefits versus diffuse costs. [wikipedia.org] It certainly applies here: net neutrality provides concentrated benefits and imposes diffuse costs, which is why you have such vocal net neutrality proponents and hear little from the other side.

            Try to guess the number I'm thinking of.....
            It's the number of people who voted for Trump based on his Net Neutralit

          • The mandate applies to the elected officials and their appointees, not to their individual policies.

            For better or worse, we elect officers to exercise their judgment. In this case, it's pretty clearly for the worse.

        • He lost the popular vote (Score:5, Insightful)

          by rsilvergun ( 571051 ) on Monday November 27, 2017 @12:59PM (#55630393)
          By a wide margin. He won because our system of government was set up to give wealthy rural landowners a disproportionate amount of voting power. So yeah, I can argue will o the people because America isn't really a Democracy, we just play one on TV.

      • When regulatory bodies completely ignore the will of the public you have a much bigger problem. Courts seem like the perfect entity to deal with that, though it should be a treason case.

        The will of the public is instantiated in an election. If the people don't like what the elected officials do, they change them at the next election.

        One doesn't throw a coup against democracy because it hasn't turned out the way you imagined. There's nothing he can do that can't be waved away in the future (unless 18 months counts as long-term precedence, as OP claims, in which case 30 months under Trump will be even worse.)

        The real problem is the supine, ballless Congress of both sides who prefer to do n

      • Re: (Score:2)

        by mark-t ( 151149 )

        Assuming you are referring to the issue with the FCC ignoring letters, 45,000 emails is not reflective of the will of the public in a country with over 300 million people, especially when it does not amount to doing anything more than basically signing your name on someone else's letter and sending it. It is reflective of the beliefs of a special interest group which has made some relatively small number of people aware enough of the issue to sympathise with their position.

        I don't agree with the FCC's d

    • Re:Long standing rules ? Courts making legislation (Score:4, Insightful)

      by PoopJuggler ( 688445 ) on Monday November 27, 2017 @11:05AM (#55629497)
      Right... I'm sure a law professor at Columbia has no idea about how laws and judges work, and that you certainly must know more about it because you are an official Denizen Of The Internet.

    • Case law is normal and proper (Score:5, Informative)

      by sjbe ( 173966 ) on Monday November 27, 2017 @11:43AM (#55629791)

      Courts making laws and forcing regulatory bodies to enforce them is a path you don't want to go down.

      Sigh... Courts make laws constantly in the form of case law [wikipedia.org]. That is normal and proper. It is their job to make regulatory bodies adhere to the law when they overstep their authority. That is exactly the point of the judiciary. They are there to determine what the interpretation of the law should be in the event of an ambiguity or conflict. A judiciary that does not have the authority to create binding judgments and to correct regulatory bodies is worse than useless.

      If a sitting judge can just decide whatever he wants, and make up new law and regulations on the spot, then they effectively become Legislative, Executive and Judicial all in one.

      If a judge oversteps their authority that is why we have an appeal system and a supreme court. In the event they cannot handle it that's why we have Congress and an executive branch to provide a counterbalance. Sometimes judges get it wrong just like sometime congress passes laws that are wrong. That's ok as long as we have a mechanism to right the wrong.

      • Re: (Score:2, Informative)

        by RedK ( 112790 )

        Sigh...

        I am puzzled at your reaction. What Tim Wu is suggesting is not "interpretation of law" and thus as you state, making case law, it is literally forcing the FCC to enforce regulations they are planning on repealing.

        Courts interpret current laws and can only rule on the legality and constitutionality of a law. They cannot force regulating bodies to enforce specific policies, just because people on the Internet signed a petition.

        • Re:Case law is normal and proper (Score:5, Insightful)

          by sjbe ( 173966 ) on Monday November 27, 2017 @12:45PM (#55630299)

          I am puzzled at your reaction

          I would have thought it clear enough but I'll endeavor to clarify.

          What Tim Wu is suggesting is not "interpretation of law" and thus as you state, making case law, it is literally forcing the FCC to enforce regulations they are planning on repealing.

          Because sometimes repealing regulations is not legally justified or proper or handled appropriately. It's not exactly difficult to make the argument that the FCC is being arbitrary and capricious in changing their policies nor is it difficult to argue that there would be real and tangible harm to consumers and content makers from their actions. There also seems to be some disagreement about what the FCC's role in this should be. This all absolutely is interpretation of law which at the end of the day is case law. You don't need to invoke the specter of judges inventing law out of whole cloth here because that isn't what is happening.

          Courts interpret current laws and can only rule on the legality and constitutionality of a law. They cannot force regulating bodies to enforce specific policies, just because people on the Internet signed a petition.

          The courts absolutely can, do, and should force regulating agencies to enforce specific policies provided there is a legal basis to do so. Regulators don't get to enforce and/or ignore and/or undermine rules as they see fit without limits. This has nothing to do with whether people signed a petition and everything to do with law. If the FCC makes regulations that they were authorized to make and people depend on those regulations then it is entirely reasonable and proper for a court to hold the FCC to keeping those regulations in place. It's absolutely the job of courts to help ensure that regulators are not allowing arbitrary and capricious changes of policy when such changes clearly result in favoring the narrow interests of a few over the wider interests of most of the populace.

          Let's not pretend here that Mr. Pai is attempting to be a neutral and honest arbiter of the law here. He's clearly got an agenda and it is perfectly reasonable to question his actions in a court of law.

    • Re:Long standing rules ? Courts making legislation (Score:5, Informative)

      by dcw3 ( 649211 ) on Monday November 27, 2017 @12:07PM (#55629987) Journal

      If you could be bothered to read the article, it explains that the long standing rules are from 2005:

      Back in 2005, a small phone company based in North Carolina named Madison River began preventing its subscribers from making phone calls using the internet application Vonage. As Vonage was a competitor in the phone call market, Madison River’s action was obviously anticompetitive. Consumers complained, and the Federal Communications Commission, under Michael Powell, its Republican-appointed chairman, promptly fined the company and forced it to stop blocking Vonage.

      That was the moment when “net neutrality” rules went from a mere academic proposal to a part of the United States legal order. On that foundation — an open internet, with no blocking — much of our current internet ecosystem was built.

      • Re: (Score:2)

        by VeriTea ( 795384 )

        Nope, just rolling back the classification change from 2015. If an action was not legal before 2015 it will continue to not be legal. The 2005 example is irrelevant.

    • Checks and balances you know.

  • Telecomes disagree with his logic (Score:5, Insightful)

    by Raul654 ( 453029 ) on Monday November 27, 2017 @10:48AM (#55629377) Homepage

    From what we know so far, Mr. Pai's rationale for eliminating the rules is that cable and phone companies, despite years of healthy profit, need to earn even more money than they already do -- that is, that the current rates of return do not yield adequate investment incentives.

    CEOs of various telecoms have been asked during quarterly earnings calls how the implementation of net neutrality and later its repeal would affect their bottom line. They have said it would not. They are legally required to provide accurate information during such calls (and can be sued for breach of fiduciary duty if they don't).

    Such statements will be used against Pai when the FCC gets sued over this.

    • CEOs of various telecoms have been asked during quarterly earnings calls how the implementation of net neutrality and later its repeal would affect their bottom line. They have said it would not. They are legally required to provide accurate information during such calls (and can be sued for breach of fiduciary duty if they don't).

      Your statement might mean something in a legal system that includes actual punishments. We are still rewarding CEOs when they get caught doing unethical shit. When the worst case scenario is being forced to pull a platinum-lined parachute and walk away with millions, they have zero incentive to be honest and ethical.

      • I don't understand your reply...

        Are you trying to say that the CEO's mislead their investors in that the reversal of net neutrality wouldn't effect their bottom-line?

        Damn. That's some hardcore reverse psychology.

      • We are still rewarding CEOs when they get caught doing unethical shit.

        Only when the unethical shit doesn't hurt the stock holders and investors. If it screws over customers, employees, and partners, then it's fine for CEOs. For example, Martin Shkreli [wikipedia.org] never suffered any kind of real punishment for raising the price of Daraprim to extravagant amounts while CEO at Turing Pharmaceuticals. No, he was convicted of securities fraud for lying to investors while at MSMB Capital Management and Retrophin. You never screw over the investors as they are mostly wealthy and can bring real

    • Re: (Score:2, Insightful)

      by cyberchondriac ( 456626 )

      Hopefully. Pai's entire premise is ludicrous on it's face. Comcast and Verizon already have huge coffers, and yet Verizon halted it's rollout of FIOS, having no intention of ever deploying it to many locations (as I was told by a Verizon lineman). They could certainly afford to, but they don't want to expand, they just want to sit on what they've got: the money alone isn't motivation enough anymore. Maybe they don't see certain areas as profitable enough. Killing net neutrality won't change that mindse

      • and yet Verizon halted it's rollout of FIOS, having no intention of ever deploying it to many locations (as I was told by a Verizon lineman).

        THAT'S the reason it is so hard to get a Verizon lineman to come fix my service. He's busy in high-level strategic planning meetings! Foolish me, I thought he was a contractor paid to do grunt work.

        but the cableTV division is degrading everyday with more commercials and less content.

        The cable TV company is not responsible for ad time inserted by the content providers. If ESPN or CBS decides to double the number of ads, the cable company has no say over the matter.

        These two mega-corporations are prime examples of when gov't regulation *is* needed.

        Government regulation over the number of ads in a TV program? Truly first world problems.

  • I hope so ... (Score:3)

    by DaMattster ( 977781 ) on Monday November 27, 2017 @10:55AM (#55629435)

    I can only hope that there will be a sudden outbreak of common sense and that the courts will uphold net neutrality. ISPs should really only be access providers whom can optionally offer their own competing content services without harming competition by charging extra for access to, and throttling, the competition. Big Telecom has complained about the expense of building out their networks and maintaining them. Really, these networks have been subsidized by government granting them duopolies, or in some cases, monopolies. And in other cases, municipalities have offered tax breaks to Big Telecom for building out high speed data, which in effect, is a tax payer subsidy.

    I do not want a return to the days of AOL, Prodigy, and CompuServe. Those days were truly walled gardens. You could not send email outside of those services. Bulletin boards were open only to subscribers and there was no sharing of content amongst the online services. If you wanted information on both a CompuServe and an AOL forum, you'd need subscriptions on both services. Then, as if to add insult to injury, you were sometimes charged exorbitant per minute usage fees on top of the monthly fee. Perhaps, the only more generous of services was Prodigy. At least with Prodigy, it was just about an all you can eat.

  • So let me get this straight:

    • Censorship large companies pay for: Bad.
    • Censorship large companies employ against people: Completely within their rights as private corporations blah blah blah.

    Oh, brave new world!

  • Depends on what you mean... (Score:3)

    by DeplorableCodeMonkey ( 4828467 ) on Monday November 27, 2017 @11:09AM (#55629533)

    The FCC is going to have no shortage of examples of censorship and flaming hypocrisy from the most vocal advocates of Net Neutrality like Google, Facebook and Twitter. If the goal is an "open Internet," it's going to be the biggest backers who end up looking the worst because they are doing all of the things that they fear the ISPs would do (and yet have never done).

    Big Tech crushes dissenting opinions, even slightly dissenting opinions. People get banned, shadowbanned, demonetized, etc. at the drop of a hat. By comparison, even Comcast looks downright honorable in how it treats its users.

    Leftists on slashdot love to say "no one has a right to give you a platform [xkcd.com]." It's just terrifying to think that someone else might have the power to deplatform you instead of those who are amenable to your point of view on issues like this.

    • I think the term is "nobody has an obligation to give you a platform". And yes, nobody does. Unless of course they are a monopoly. Then it starts being a bit iffy.

      • I think the term is "nobody has an obligation to give you a platform". And yes, nobody does. Unless of course they are a monopoly. Then it starts being a bit iffy.

        There is one print newspaper serving this area. (We have a statewide one from 90 miles away.) Does our "HomeTown Newspaper", as they like to call themselves, have a legal obligation to print my letter to the editor? They're a monopoly on the local print media. Is it "iffy"?

        • One's business is making content, one's business is transporting it. So no. And neither is a leaflet printer required to carry my snail mail spam to you, but the mail service is.

  • The leading contributor of lobbying efforts to Congress is the healthcare industry. Number 2 is Telecom and there may be concerted effort on their part to be #1.

  • Completely backwards (Score:3, Insightful)

    by volkris ( 694 ) on Monday November 27, 2017 @11:26AM (#55629661)

    "The problem for Mr. Pai is that government agencies are not free to abruptly reverse longstanding rules on which many have relied without a good reason"

    Well no, he gets this exactly backwards. Network Neutrality was EXACTLY such a reversal, and here's Pai simply undoing what the FCC wasn't free to do in the first place. Pai is correcting the very transgression Wu is citing here.

    It was previously a longstanding rule--supported by law--that the FCC would have a hands off approach to the internet. Wheeler reversed that policy drastically. Pai is saying the FCC can't make such reversals.

    Anyway, in the end Wu is complaining that he's not getting his own way. It's akin to throwing a tantrum when he's just not managed to convince lawmakers that his perspective is the right one.

    • Re: (Score:3, Informative)

      by Actually, I do RTFA ( 1058596 )

      It was previously a longstanding rule--supported by law--that the FCC would have a hands off approach to the internet

      BS Alert. The FCC was ordered to get involved in 2015; until then it was the FTC.

      • Re:Completely backwards (Score:4, Interesting)

        by volkris ( 694 ) on Monday November 27, 2017 @11:50AM (#55629849)

        The FCC was always involved. It chose to take a more active role in 2015 despite the Telecommunication Act not asking it to, and despite its means of involvement kicking the FTC off the case.

        That's one of the huge problems with how the FCC acted under Wheeler: they removed the FTC and its consumer protections. Pai has now been pushing to get the FTC back on the case, and their proposal of regulation lays out clearly that restoration of FTC protections is one of the key elements of his plan.

    • Bogus argument (Score:4, Interesting)

      by sjbe ( 173966 ) on Monday November 27, 2017 @12:00PM (#55629929)

      Well no, he gets this exactly backwards. Network Neutrality was EXACTLY such a reversal, and here's Pai simply undoing what the FCC wasn't free to do in the first place. Pai is correcting the very transgression Wu is citing here.

      If there is any disagreement as to whether the FCC has that authority it is the responsibility of the judiciary and/or congress to clarify the matter. I disagree that the FCC doesn't/shouldn't have the authority to enforce net neutrality but if there is disagreement on that point then the courts are a perfectly reasonable place to address the matter. To be frank with the current Congress and administration the judiciary is probably the only place to fight what Mr Pai is trying to do.

      It was previously a longstanding rule--supported by law--that the FCC would have a hands off approach to the internet.

      A hands off approach isn't an option. You either support the content makers or your support the ISPs and there are consequences either way. Elimination of net neutrality rules de-facto is favoring the interests of certain parties over others. There is no middle ground here and someone has to play referee. If not the FCC then someone else but I would argue that net neutrality is a vital policy that needs to be enforced. I think Ajit Pai's arguments against net neutrality are specious at best and corrupt at worst.

      Pai is saying the FCC can't make such reversals.

      Why not listen to what he actually said [pbs.org]? Pai is CLEARLY in the pocket of those who favor elimination of net neutrality and has a long track record of favoring the interests of broadcasters over other parties. This is neither new nor a secret. His arguments are ridiculous and specious and transparently one sided.

  • ... a basis for decreeing Net Neutrality in the first place?

    Networks have prioritized certain types of high-value traffic ever since someone figured out that their network was saturated with someone else's data, and that you could program a way to control that.

    NN isn't a "long standing expectation", but a relatively new idea. If the basis for fighting the "abruptly reverse longstanding rules on which many have relied without a good reason", the reasons behind the "longstanding rules" need to be proven to be

    • ... a basis for decreeing Net Neutrality in the first place?

      Networks have prioritized certain types of high-value traffic ever since someone figured out that their network was saturated with someone else's data, and that you could program a way to control that.

      Because that was being done by end users. If I want to prioritize one sort of data over another, that's what I pay for. The issue is that when the ISP does it, I can't make those choices anymore.

      NN isn't a "long standing expectation", but a relatively new idea.

      It's not a new idea, it's only needed to be explicitly given a name because it was "just how stuff worked" beforehand. Bonus tip: with the admittedly notable exception of the AOL Time Warner merger, few ISPs were also content creators in the same way that NBC Comcast Universal are, so there was no incentive to depri

      • What is bad about all traffic being treated equally?

        Because the net was designed with the ability to differentiate. And because not all data is equal in terms of need. VoIP and streaming video need consistent data rates. VoIP needs low latency to work. Email and file downloading needs neither to be functional.

        How is it helpful to customers for ISPs to decide the speeds of different services?

        Ask that to someone whose VoIP service is unusable because the guy next door has decided that his download of the latest linux distro is of absolute highest priority and needs full bandwidth for the full download.

    • That's old news; RTFA about the Madison River/Vonage case from 2005. Lack of network neutrality proved itself a disaster because it enabled anti-competitive practices. This isn't speculation; it's what happened. And the FCC got involved to address that. That's when NN started to become a more formal (but still unpolished) policy (rather than merely a theoretically good idea).

      People seem to think the recent change is just a reversal of some recent Obama thing. It's true that reversing the 2015 under-Obama o

      • Re: (Score:2)

        by VeriTea ( 795384 )

        Look, I know you really want to imagine Pai as the boogeyman of your nightmares, but it important to remember that the changes being proposed are not the ridiculous straw-man you are arguing against. Repealing the 2015 classification change brings us back to the regulations in place in 2015. The 2005 decision was made under the pre-2015 classification and would not be affected by the proposed rule change.

  • Tom Wheeler says Otherwise (Score:2, Informative)

    by Anonymous Coward

    Tom Wheeler [wikipedia.org] ,the former head of the FCC, dismantled [npr.org] Ajit Pai's arguments for net-neutrality.

  • The problem for Mr. Pai is that government agencies are not free to abruptly reverse longstanding rules on which many have relied without a good reason

    The Net Neutrality regulations Chairman Pai proposes rolling back are only 2 years old...

  • Comcast, AT&T, Verizon and the National Cable & Telecommunications Association (NCTA) have spent $572 million on attempts to influence the FCC and other government agencies since 2008.

    https://medium.com/theyoungtur... [medium.com]
    https://represent.us/action/ho... [represent.us]
    https://www.theverge.com/2017/... [theverge.com]

  • Comment removed (Score:3)

    by account_deleted ( 4530225 ) on Monday November 27, 2017 @01:13PM (#55630507)
    Comment removed based on user account deletion
  • The government, or the companies that took on the costs of building and maintaining the pipe? It's a businesses business to run it as they see fit. If they run it poorly, then people will go to other places to get the business they want. And, if you want a faster internet, why shouldn't you pay for it? More government interference means poorer service, and less reason to innovate. You think smartphones would be what they are today, had the government not broken up "ma-bell" and deregulated the phone system

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