FCC Tells Court It Has No 'Legal Authority' To Impose Net Neutrality Rules (arstechnica.com) 226
The Federal Communications Commission opened its defense of its net neutrality repeal yesterday, telling a court that it has no authority to keep the net neutrality rules in place. From a report: Chairman Ajit Pai's FCC argued that broadband is not a "telecommunications service" as defined in federal law, and therefore it must be classified as an information service instead. As an information service, broadband cannot be subject to common carrier regulations such as net neutrality rules, Pai's FCC said. The FCC is only allowed to impose common carrier regulations on telecommunications services. "Given these classification decisions, the Commission determined that the Communications Act does not endow it with legal authority to retain the former conduct rules," the FCC said in a summary of its defense filed yesterday in the US Court of Appeals for the District of Columbia Circuit. The FCC is defending the net neutrality repeal against a lawsuit filed by more than 20 state attorneys general, consumer advocacy groups, and tech companies. The FCC's opponents in the case will file reply briefs next month, and oral arguments are scheduled for February.
Dismiss the telecom suit with prejudice (Score:5, Insightful)
If the FCC has no authority to impose net neutrality regulations on telecommunication services, then it equally has no authority to prevent states from imposing their own net neutrality regulations, because their is no federal authority that they are usurping. This means that the fundamental premise behind the suit filed by the telecom companies to invalidate California's net neutrality legislation has no footing, since it requires the FCC to have the authority Mr. Pai just disclaimed it possessing.
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Mod parent up. I came here to say the exact same thing.
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Me too, except I know the difference between "there" and "their".
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Do you connect to an ISP in another state when you connect to the internet?
Re: Dismiss the telecom suit with prejudice (Score:3, Insightful)
That doesn't matter for most connections, but it does matter since you are using interstate connections most of the time you connect to anything (except maybe your corporate office or mail server).
While I am a proponent in general of Net Neutrality, and I want ISPs to treat the internet as just a phone call with no ifs, ands or buts; the FCC is right in this case. What we really need is for this question to be answered where the framers meant for it to be answered: in law.
We can't change the rules for somet
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Full disclosure: I'm not American so I am not familiar with all these interstate laws from more than seeing them mentioned a lot on the internet.
Are your connections to servers in other states and countries any different from buying things that were made in other states or countries in your local grocery store? At least in my mind, my ISP is a local connection similar to a local store, and they provide ACCESS to goods that were made in a lot of other places.
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Full disclosure: I'm not American so I am not familiar with all these interstate laws from more than seeing them mentioned a lot on the internet.
Are your connections to servers in other states and countries any different from buying things that were made in other states or countries in your local grocery store? At least in my mind, my ISP is a local connection similar to a local store, and they provide ACCESS to goods that were made in a lot of other places.
First, let me say that you have a better grasp of
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When I contract with an ISP, I am paying for a next-hop router and an IP address. It is very likely that will be local to my address, the same as electrical grid connection or local water and sewer.
The Federal Government doesn't prevent the State of Ohio from enacting regulations regarding those other utilities, why the hell is it one-size-fits-huge-corporations-and-everyone-else-is-screwed with this?
Yes, I am calling an ISP a utility provider, and they should be classified and treated as such.
Re: Dismiss the telecom suit with prejudice (Score:5, Insightful)
It was answered IN LAW. See Title II and common carrier assertion that the previous FCC administration re-classified broadband directly into the scope of jurisdiction. Then Pai say, nope, mishandled the public input process with a faux astroturfing complaint, and proceeded to let the telcos have their ways-- no nexus under Title II.
So there WAS law. It treated all of those old fashioned 56K, ISDN, private line, inter-NAP, and other cricuits from SONET and ATM through to WDM lambas.... until it didn't, under Pai.
And so the states litigating this are indeed correct, and if we don't bust the monopolies, they will indeed strangle you and I and have already started the processes to do so. While this is happening, 5G promises to unwind many decades of state control nexus over telecommunications IN IT'S ENTIRETY by a wholesale reclassification of all telephony away from telecommunications into something UNREGULATED. Don't be a fool. The regs were there, are there, and they're being end-run by countless telco attorneys that are sidestepping the law by FCC fiat.
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Go back to school, please. Read about how the FCC came into being. Learn its jurisdiction. Learn the Title II vs Title XIII controversy. Read about the Telecommunications Act, as amended, of 1996.
Rethink your answer. The reason for the current litigation has to do with both State's rights, but also their mis-classification of common carrier status, which would give them nexus, and their transformation of the concept of what defines telecommunications to arrive at ther ostensible lack of nexus and their asse
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While I am a proponent in general of Net Neutrality, and I want ISPs to treat the internet as just a phone call with no ifs, ands or buts; the FCC is right in this case. What we really need is for this question to be answered where the framers meant for it to be answered: in law.
We can't change the rules for something as long-lasting and fundamental as the internet every time we change administrations. We can't rely on the executive branch to define the rules. The constitution calls on Congress to make the rules, and the administration (executive branch) to enforce them. Congress has to act. This purview should be codified into a bill, and passed. Thereby Establishing legal authority and imperative.
Congress can change stuff with every new election just as much as an executive agency can (see, e.g. the Affordable Care Act). You could even argue that it's easier for Congress, since executive agencies are required to follow a process that's defined by Congress.
As for Congress making the rules instead of an executive agency, I'm not convinced that's always better. Members of Congress are elected for several various reasons, but specific domain expertise is rarely one of them. Most members of Congress h
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It really doesn't matter whether you or I believe that its better for congress to create laws or not. The constitution states that congress is where laws get created.
Executive agencies, like the FCC are only empowered to create regulations to enforce already created laws. they are not empowered to create laws of their own.
Right, and Congress passed a law that empowered the FCC to create regulations, such as those pertaining to telecommunications providers. Congress frequently delegates the creation of regulations (which are really just laws that have more specific details) to executive agencies.
Generally speaking regulatory capture is a bad thing and explains why this situation has even come up. In the Obama administration the FCC was under the control of industries that wanted net neutrality, because it served them. Now it is under the control of industries who don't want net neutrality, because that position serves them.
In no case is anyone asking what serves the electorate or the consumer.
You won't get any disagreement from me here.
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The problem with your claim about interstate commerce is that if the FCC declares a service a "data service" congress never gave the FCC authority to regulate it. So in theory you are correct, with the power over interstate commerce the FCC could block state level regulations that impact internet traffic the FCC removed their authority to do so by declaring the service a data service.
This was all settled in 2014 when the Obama administration tried to implement net neutrality rules without the Title II desig
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What this means is that the FCC has no regulatory authority to block California nor do they have the authority to even intervene legally. Congress never gave them this power.
That's the bottom line. I would go further and say that even if FCC had not declared ISPs to be data services, they would still lack the authority to prevent states from implementing regulations on how ISPs operate within their borders, or to block them from imposing regulations more stringent than the FCC's.
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Headquartered, sure. Do you pay sales tax for the state your grocery store's headquarters is located in, or the one where the store is?
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It would appear that the Federal government does not, in fact, impose a sales tax; and that States do, in fact, attempt to impose sales tax on goods sold by a grocery store headquartered out of state which sells a good and ships it across state lines.
The Federalist papers have suggested that one of the reasons--one, not the--for the regulation of commerce among the states is to regulate trade between the states. The strange consistency of the phrases "commerce among" and "trade between"--never "commerce
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States regulate health insurance of course (Score:2)
There is little or no Federal regulation of health insurance.
That's why the usual suspects of malevolence want to allow people to "buy health insurance across state lines". Because what that really means is disallowing your home state from regulating insurance plans sold to you---and what will certainly happen is that all health insurers move their offering jurisdiction to the state with the least regulation, e.g. "North Louisiana" and stop operating in every other state. And w
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interstate commerce clause does have authority to regulate however
The FCC has no general right to regulate interstate commerce, which makes that largely irrelevant. The federal government has the right to regulate it, but not the imperative, nor the sole right. States are not prohibited from regulating interstate commerce that terminates within their state.
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interstate commerce clause does have authority to regulate however
The FCC has no general right to regulate interstate commerce, which makes that largely irrelevant. The federal government has the right to regulate it, but not the imperative, nor the sole right.
Further, federal agencies may only regulate interstate commerce as authorized by federal law. There is no federal law allowing the FCC to regulate what regulations states may impose.
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interstate commerce clause does have authority to regulate however
Congress has that authority, and they must exercise it. Many feel a purely regulatory agency should not inhale control over a multi-trillion dollar industry that didn't exist back then, without express Congressional direction.
Anyway, the ggp post is a good point. If the agency chooses to deliberately not regulate, the dormant commerce principle says no state may override the feds' choice of no regulation. But if the fed agency claims it doesn't have that authority from Congress (a reasonable claim in lig
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tl;dr
Nelson: Ha ha!
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If the agency chooses to deliberately not regulate, the dormant commerce principle says no state may override the feds' choice of no regulation.
That's not at all what the dormant commerce principle says. The dormant commerce principle [wikipedia.org] prohibits state legislation which discriminates against interstate or international commerce. Applied to net neutrality, it would prohibit California from passing a law requiring net neutrality for ISPs based outside of California but not for ISPs based within California. It most certainly doesn't permit a federal agency to bar states from implementing regulations of commerce occuring within their states.
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Yes, but then congress has to get involved. Congress however has forgotten how to be involved in legislation.
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+1, came here to say same
Re:Dismiss the telecom suit with prejudice (Score:5, Insightful)
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Exactly. Which is why Pai trying to claim he has the authority to prevent state level regulation will go down in the same flaming mass that the first neutrality regulations did.
The FCC has no congressional authority to regulate data services, including preventing state level regulation, congress never gave it to them.
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The FCC has no authority to impose regulations on information services, but neither does anyone else. It's not because the federal government "can't" do something, that the states can do it. Laws only give the government authority to do something. There is no laws on the books regards net neutrality (Obama's executive directive was not a law) so technically, neither FCC nor states can implement them. States also can't regulate other states, the Internet crosses states and even international, so the closest
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The constitution gives congress the power to regulate interstate commerce if and when it so chooses but makes no prohibition against the states, and the 10th amendment says "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." If congress has not chosen to regulate this form of interstate commerce, isn't that right reserved to the states until congress acts to say otherwise?
States have use taxes on
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The constitution gives congress the power to regulate interstate commerce if and when it so chooses but makes no prohibition against the states, and the 10th amendment says "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
The 10th Amendment is what gives congress the authority to prevent states from regulating interstate commerce. Regulating IC is a power delegated to the United States by the Constitution", so IC meets the logical statement "delegated to the US OR not prohibited to the states", thus "not reserved to the States".
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The 10th Amendment is what gives congress the authority to prevent states from regulating interstate commerce. Regulating IC is a power delegated to the United States by the Constitution", so IC meets the logical statement "delegated to the US OR not prohibited to the states", thus "not reserved to the States".
Living up to your username as always, I see.
You're asserting that "If not A, then B" is equivalent to "If A, then not B". It most definitely is not.
But that's beside the point, as California isn't trying to regulate interstate commerce. They're only regulating commerce within their borders.
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Laws only give the government authority to do something. There is no laws on the books regards net neutrality ... so technically, neither FCC nor states can implement them.
You might familiarize yourself with the 10th amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
States absolutely are not barred from regulating commerce within their borders. Thus, they are authorized to pass laws - like California's - to do just that.
States also can't regulate other states, the Internet crosses states and even international, so the closest entity to an "authority" would be the UN.
California isn't regulating other states, or the internet. They are regulating ISPs doing business within their borders.
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Then of course with the world abandoning classic telephony in favor of IP telephony we no longer have any real need for the FCC.
If we also consider that LTE is run or operated primarily over the IP network infrastructure, often employing GRE tunn
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I don't think the FCC said they don't have authority over ISPs, rather they said they didn't think it was useful to exercise it in the way NN prescribed.
The example of federal government limiting state rights for the assumed benefit of the country you can find with cars: CA due to the size of its market is not allowed to impose its own emissions standards on cars sold in CA, whereas RI for example can.
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Chairman Ajit Pai's FCC argued that broadband is not a "telecommunications service" as defined in federal law, and therefore it must be classified as an information service instead. As an information service, broadband cannot be subject to common carrier regulations such as net neutrality rules, Pai's FCC said. The FCC is only allowed to impose common carrier regulations on telecommunications services.
"Given these classification decisions, the Commission determined that the Communications Act does not endow it with legal authority to retain the former conduct rules," the FCC said in a summary of its defense filed yesterday in the US Court of Appeals for the District of Columbia Circuit.
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Huh actually the title of the post alone more or less counters what I said. Butter on my head. I guess I didn't RTFT.
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And if the FCC thinks that the internet is not telecommunications, then it's packed full of incompetent idiots. You can use the internet for everything that classic telecommunications does. And the internet makes full use of all the stuff the FCC does claim to regulate, like RF bands, copper wire, satellites, etc.
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The Due Process Clause of the 14th Amendment gives them that power. Does due process apply to Net Neutrality?
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Just to clarify the power for the 14th amendment is Incorporation. States cannot limit Free Speech as the 1st Amendment has been Incorporated into the 14th Amendment in Gitlow v. New York 1925 268 US 652.
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It is precisely related. The argument in the California case is a federal supremacy claim: that the FCC has the power to enforce network neutrality, and that it's refusal to do so is a positive action that supersedes any state action. But in this case they're claiming they lack the authority to regulate network neutrality. They ca
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> They can't have the authority in one case and not have it in another.
Not sure that it is true that they cannot claim both sides in separate cases, especially since at this point it is just a legal statement by their lawyers. Will California also be disposed to choose a single side of this argument for both cases?
It could be a smart legal move by the FCC, use the civil case to get the states to defend the FCC's legal authority, but the FCC could still win the civil case based on other claims. Thus make
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Not sure that it is true that they cannot claim both sides in separate cases...
Technically they can say whatever they want, but statements that an entity (person, corporation, etc.) makes in one court case can be cited in other court cases, and the judge can use contradictory statements in rulings against them.
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The FCC may not have the legal mandate to enforce NN, but that's not the same thing as not having the legal standing to prevent states from doing the regulation themselves. The contention that because the FCC claims they don't have the authority to enforce NN they cannot prevent the states from enacting the same regulation is not logically related.
If the FCC has no authority to regulate Network Neutrality, then how can the FCC dictate what states can and cannot do about it? You can argue that the Commerce clause gives Congress that authority, so Congress could pass a bill that prohibits states from enforcing Network Neutrality, but the FCC is arguing that Congress has not delegated that authority to the FCC.
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If the FCC has no authority to impose net neutrality regulations on telecommunication services, then it equally has no authority to prevent states from imposing their own net neutrality regulations, because their is no federal authority that they are usurping. This means that the fundamental premise behind the suit filed by the telecom companies to invalidate California's net neutrality legislation has no footing, since it requires the FCC to have the authority Mr. Pai just disclaimed it possessing.
Um... I get your argument and support the state's right to do this, but your logic is flawed.
The FCC may not have the legal mandate to enforce NN, but that's not the same thing as not having the legal standing to prevent states from doing the regulation themselves. The contention that because the FCC claims they don't have the authority to enforce NN they cannot prevent the states from enacting the same regulation is not logically related.
The Federal government may not be able to restrict your free speech rights, but that doesn't mean they have no power over the states attempts to do the same thing.
So I don't think the argument you are using here is logically correct.
You are technically right, but this would have required Congress to have considered, then declined, to have regulated the Internet in this manner, in some unrelated (to the FCC) legislation.
I don't know but I doubt it.
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The basis for the FCC having the authority to prevent the states from regulating is that their decision preempts the state regulation. If they lack the authority to regulate and therefore impose NN rules, their NN rules (whether for or against neutrality) do not carry the weight of law or preempt anything. The two are directly rela
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Then why does it try to stop states? (Score:5, Insightful)
Ok fine, so the FCC says it has no legal standing to enforce net neutrality, then it ought to step aside and let the states do it.
https://www.theverge.com/2018/... [theverge.com]
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If I buy Idaho potatoes in a Florida supermarket is that interstate commerce? By your logic if they connect to a website in China then Chinese law applies.
The contract between the consumer and the telco happens in a state. Therefore that state has jurisdiction over it.
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States have no authority over interstate commerce.
That's not entirely correct. States may enter into compacts with each other if they so wish. The Federal government may step in at any point, but absent that, States are free to have trade between each other should the Federal government be silent on the matter.
In other words, the Federal government has the "right" to regulate interstate commerce, but it does not have the "imperative" to regulate interstate commerce. The FCC is indicating that the Federal government has not taken any steps at this time t
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Great! (Score:3, Insightful)
Re:Great! (Score:5, Insightful)
Good, gtfo. We don't want your shit-ass ISP in our state.
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Wait. Why are you calling the guy who would PREFER to have regulations on ISPs in California a Trump supporter?
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The citizens of California would be your customers. And we've decided how we want you to run your ISP. We've decided on some regulations that we've made in to law. If you can't run a business that follows these regulations, then we don't want you here.
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That decision was broken and will be overturned. You want to run a business? You have to play by the rules
A subtle but important difference (Score:5, Insightful)
The big difference between a "carrier" and "information service" is that an information service produces the information is gives to customers, even if it's produced from information other sources provide.
In other words, an "information service" is not only permitted to, but is expected to be adding to or changing the information passing through it. A related example would be a local network television station inserting its own ads in network programming. For an ISP, it means they would have full legal justification to run proxies that MITM encrypted streams and inject their own ads, or extract the data you send and resell it to advertisers. Essentially, any security effected by HTTPS is compromised, and because the CA trust model is inherently broken, that insecurity can even be made undetectable.
Re:A subtle but important difference (Score:5, Insightful)
"[B]roadband providers do not make a stand-alone offering of telecommunications," the FCC also said. "[B]roadband providers generally market and provide information processing capabilities and transmission together as a single service, and consumers perceive that service to include more than mere transmission."
This to me is further reinforcement that Pai only really cares about the corporations involved. Everyone I know from tech saavy-to-noob, young-to-old, just wants straight up Internet access. None of the extra junk services that Comcast, TimeWarner, etc want to sell you. Pai is just such a straight up Corp shill I can't believe people from all political stripes aren't insisting that he be fired.
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Well, I guess if the companies can't be properly classified, they need to be split up so that they can be.
Goes back to what I've been saying for years: No single entity should be allowed to do more than one of:
- Create content
- Provide transport for content
- Provide last-mile service
Do that, and it fixes almost all of this, because the last two are pure carriers, and the one with the natural monopoly (last-mile) has no real incentive to not connect as many transport providers as possible.
Pass It Through Congress. (Score:3, Interesting)
This is what happens when presidents just make crap up instead of doing it the legal way.
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This is true.
A phone and a pen are no match for making actual laws using the prescribed method. Remember, HOW you make the rule, is how you remove the rule, so if you cannot do it the hard way, it will be easy to undo later.
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This is a great idea...if congress weren't thoroughly disinterested in doing their jobs.
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This is one of the big points against regulatory agencies -- Congress can run and hide and let the rage play out elsewhere and every congress-critter can throw up their hands and exclaim, "I didn't do it!", proving the agency is legislation without representation.
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Ok then (Score:2)
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."
Ajit Pai Must Go! (Score:3, Informative)
Ajit Pai is slime.
But one does not buy "broadband" (Score:2)
Wouldn't this go against previous court rulings? (Score:5, Insightful)
I don't have exact case names, but I specifically remember that the Obama-era FCC went to court because the telcos sued them claiming the FCC did not have the authority to regulate net neutrality under Title 1 (information services). The telcos won, and the courts told the FCC that if they wanted to mandate net neutrality, they'd have to do it under Title 2 (by regulating ISPs the same as telephone companies).
That was EXACTLY what Tom Wheeler did - he moved ISPs under title 2 and began regulating them as Title 2 Common Carriers, which DID give the FCC the authority to mandate net neutrality because that's what the courts told him he had to do.
I would hope the court would respect stare decisis and tell Ajit Pai that he cannot have it both ways, preferably forcing him to restore the regulation of ISPs under Title 2.
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CONGRESS can do this, Not the FCC. Not the President, Not the Courts. CONGRESS. Talk to your Representative and Senators,
Just how far up his ass does Ajit's head fit? (Score:2)
Federal vs. State (Score:2)
Well, if indeed, the FCC does not have the "power" to regulate Broadband, then each of the 20 states suing them should be allowed to regulate this "information service" that the FCC says it cannot.
Take it one step further... (Score:2)
FCC has no authority on [insert your favorite communications mode here]. At times it sure seems like it when 2-way radio bitch about FCC not enforcing regulations (which is true as enforcement bureau has little resources). To me it seems FCC focuses on auctioning spectrum. At least Part 90 manufacturers and users tend keep themselves within operating limits, and the hams are generally reasonable (yes, there's a few troublemakers).
But wait, this kind thing has happened before when radio was the new high te
Finally users can escape (Score:2)
Time for people to look for innovative ways to move on with their own networks without federal NN rules.
Garbage In - Garbage Out (Score:2)
At this point I would settle merely for basic self-consistency.
If ISPs are in fact "information services" and not telecommunications services then I would love to know what exactly fulfills "via telecommunications" role required by the definition of information services in order to be labeled an information service in the first place?
"The term âoeinformation serviceâ means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making av
Interesting.... no wait... Dumb. (Score:2)
Chairman Ajit Pai's FCC argued that broadband is not a "telecommunications service" as defined in federal law, and therefore it must be classified as an information service instead.
Oh, so I guess that VOIP doesn't exist any more then?
Re:Nobody on the left believes in Common Carrier (Score:5, Insightful)
The problem is that they aren't just private corporations.
They're private corporations with natural and artificial monopolies on several aspects of the market, which means there is a necessity for regulation to ensure they don't abuse those monopolies to the detriment of society.
Completely neutralize the monopolies, and net neutrality isn't a problem.
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This is precisely why net neutrality wasn't an issue in the era of dialup.
Dialup internet use the telephone network, which is regulated as a common carrier, as its backbone. Anyone could easily set up an ISP with just an office full of modems, piggybacking on that phone network, so there was lots of competition for Internet Service, and the uncompetitive last mile was separately regulated. Between those two things, good behavior like net neutrality was guaranteed.
With the advent of broadband, the last-mile
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The natural monopoly for ISPs comes from being the first to run last-mile cable to an area. It's an expensive start-up cost, so only established companies are typically able to afford it. This expense could be absorbed by local governments, but it still has to be paid by somebody before service can start.
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https://arstechnica.com/tech-policy/2010/03/uk-regulators-officially-mock-us-over-isp-competition/
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They are private corporations if they don't want you using their private system then that is just too bad.
Sauce for the goose is sauce for the gander.
Private corporations? What do you mean by that? If they are private, why do they have their stocks in public exchange (Verizon stocks [yahoo.com], AT&T stocks [yahoo.com], etc.)?
Re:Definition in law (Score:5, Interesting)
"Communication" (from Latin commūnicāre, meaning "to share") is the act of conveying meanings from one entity or group to another through the use of mutually understood signs and semiotic rules.
Sounds an awful lot like a good definition of what the information communication infrastructure of the Internet does.
Internet information-communication service providers are CLEARLY telecommunications service providers under any non-crack-smoking interpretation of the common sense meaning of English language terms.
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Ajit Pai's doublespeak doesn't fool anyone. USTelcom, one of the telcom's lobbying groups that sued California, has telcom in the name! The Internet is nothing but networked communication and his argument is that the Federal Communications Commission has no authority to regulate the preeminent communication method in America?
Under current leadership the FCC is a textbook definition of regulatory capture. Ajit Pai is desperately trying to undo and barricade against the future enforcement of Net Neutrality be
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I suppose Ajit Pai is angling for a Supreme Court of the US decision on this one, now that that court has been stacked.
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The idea was the regulatory agency's interpretation of the law should carry greater weight, as they have the knowledge of the subject matter, unless there are obvious errors.
This has lead to some unfortunate things such as the agencies changing their own interpretation of their own regulation after an offense to keep charges on someone.
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That being said, he just admitted in court that the lawsuit against California is known to be false, making him guilty of criminal defamation against California. The California case should be speed tracked now and closed with prejudice against the FCC. Hopefully California will press charges, and considering Pai already admitted guilt in court, on record, the trail should be