FTC Says It May Be Unable To Regulate Comcast, Google, and Verizon (arstechnica.com)

The Federal Trade Commission is worried that it may no longer be able to regulate companies such as Comcast, Google, and Verizon unless a recent court ruling is overturned, ArsTechnica reports. From the article: The FTC on Thursday petitioned the 9th US Circuit Court of Appeals for a rehearing in a case involving AT&T's throttling of unlimited data plans. A 9th Circuit panel previously ruled that the FTC cannot punish AT&T, and the decision raises questions about the FTC's ability to regulate any company that operates a common carrier business such as telephone or Internet service. While the FTC's charter from Congress prohibits it from regulating common carriers, the agency has previously exercised authority to regulate these companies when they offer non-common carrier services. But the recent court ruling said that AT&T is immune from FTC oversight entirely, even when it's not acting as a common carrier. It isn't clear whether the ruling sets an ironclad precedent preventing the FTC from regulating any company with a common carrier business.

Comments

Someone missed the Spirit of the Law

[MikeDataLink]

This was of course not the intent of the law when it was written.

Re:Someone missed the Spirit of the Law

[npslider]

The spirit was willing, but the execution is weak.

Re:Someone missed the Spirit of the Law

[geekmux]

This was of course not the intent of the law when it was written.

Which of course highlights the utter fucking stupidity surrounding the "Spirit" interpretation of any law in the black and white world of legality we live in today.

Re:Someone missed the Spirit of the Law

[tsqr]

This was of course not the intent of the law when it was written.

Laws are not supposed to be enforced according to someone's interpretation of their intent. If the law is not performing as intended, then it can be amended by the lawmakers.

Oh yeah -- the courts are not supposed to interpret intent either; they're supposed to make judgements according to the way laws are written. This, of course, is an area where practice often departs from theory.

Re:Someone missed the Spirit of the Law

[sootman]

> Oh yeah -- the courts are not supposed to interpret
> intent either; they're supposed to make judgements
> according to the way laws are written.

Have you ever in your life seen a design spec that covered all possible use cases?

Re:Someone missed the Spirit of the Law

[bobbied]

Have you ever in your life seen a design spec that covered all possible use cases?

Nope, but I've also not seen a protracted court battle over something that wasn't actually addressed in the contract's specs either. I've seen debates of what the spec means, but never have I been sued for non-conformance on a requirement not at least implied by the contract.

We have a serious problem in this country where our laws and regulations are out of hand and in many cases conflict with each other. This, my friends, is on of the paralyzing affects of "big government" and should not be so.

Re:Someone missed the Spirit of the Law

[Anonymous Coward]

False. If what you said was true, then precedent would be unimportant, as it would be what was written in the law that would be important. But fact is, in the courts, precedent is probably more important than the law itself. This indicates a system where interpretation and intent are very important.

Re:Someone missed the Spirit of the Law

[Ichijo]

the courts are not supposed to interpret intent either; they're supposed to make judgements according to the way laws are written.

If the courts are not the last line of defense against unjust laws, then who or what are?

Re:Someone missed the Spirit of the Law

[uncqual]

The U.S. courts have no role in determining the "justness" or "unjustness" (or "fairness" or "unfairness") of a law. They are only to apply existing law -- which includes the United States Constitution which is the supreme law of the land.

If Congress passed a law (and the President either signed it or the President's veto was overridden) that "No commercially produced shoes in half-sizes shall be shipped across state boundaries in trade", it might not be "fair" to people who wear a size 10½ shoe but the courts could not dismiss the law unless they could articulate a valid constitutional right to buy or sell half-size shoes across state boundaries. One of the few powers granted to the Federal government is to regulate interstate trade so Congress clearly has the right to do so.

The ballot box is the last line of defense against "unjust" laws -- and remember, one person's "unjust" law is often another person's "just" law.

Re: Someone missed the Spirit of the Law

[Anonymous Coward]

I presume never had anything to do with a court case either. This happens all the time, interpretation is a big thing.

Re:Someone missed the Spirit of the Law

[Anonymous Coward]

Juries are.

The legislative branch is supposed to pass good laws. Failing that...
The executive branch is supposed to enforce the law fairly and refuse to enforce bad laws. Failing that...
The judicial branch is supposed to decide whether a law is enforceable and how to do it, or if a law is a bad law that is completely unenforceable. Failing that...
Jury nullification and voters kicking out the bad actors in the legislative and executive branches. Because "We The People" is how this whole thing is supposed to work. Failing that...
Civil disobedience, hopefully influencing the legislative and executive branches to do their jobs correctly. Failing that...
War. An armed revolt. It really is the last option. It's not supposed to have to get that far. There should only be war when someone fails at their job and then 4 more failsafe processes fail in succession. Once this happens, the Constitution has fully failed and is null and void.

And that's the US government in a nutshell.

Re:Someone missed the Spirit of the Law

[Anonymous Coward]

The court literally took up the power to overturn the law in Marburry v. Madison long ago. While it is something that can be used for good, the fact that they have dictatorial power is not something that should just be ignored. It's great, as long as they do the right things. But just imagine a court that rules the wrong way on everything to see why it's not the way things should be.

Re:Someone missed the Spirit of the Law

[Anonymous Coward]

... have no role in determining the "justness" or "unjustness" ...

This is why US attorneys demand juries obey the law: It seems all the slashdotters who complained about that corruption of jurisprudence are now supporting it. "Obey the law" is the mantra justifying the war on drugs/piracy/terrorism: The idea the government can enforce the law at any cost also leads to ironclad precedents, that shouldn't exist, forming US law. The reason why people have rights, is to remind the government that bureaucratic powers are limited; particularly their ability to harass and punish at any cost.

Laws are usually written with a preamble describing who they are meant to benefit and to punish. The laws in other countries are frequently tested in court cases, on their fairness to the parties involved. What difference will that make?

... recent court ruling said that AT&T is immune from FTC oversight entirely.

Leaving aside the stupidity of declaring someone immune to delegated law, they've applied the law by saying the law doesn't apply. This is another ironclad precedent for US law; this one giving corporations more rights than the government. As you admit, it's not the job of the law to be fair. Have the courts ever claimed the law doesn't apply to poor people? But as you admit, it's not the job of the law to be fair. So there's no way that Facebook, Twitter, Instagram can have the law changed because it's unfair to network services that don't carry their own data.

Re:Someone missed the Spirit of the Law

[uncqual]

Government has no "rights". We, the people, agree to cede our rights to the common government in the interests of the common good. We, the people, also can reclaim every one of those rights through the democratic process. Corporations are simply collections of people - owners (sometimes stockholders), employees, customers.

We, the people, could even amend the U.S. Constitution to repeal every word of it and replace them with a declaration that the person with the user name uncqual on /. is the supreme ruler and shall have complete control over every person, business, and property in the U.S.

Re:Someone missed the Spirit of the Law

[slimjim8094]

That's an overly simplistic (dare I say, engineering) view of how the law works. While their decisions are grounded in statute and constitutional law, as well as common law, they have broad enough latitude in how they apply it that they use a number of doctrines to actually figure out how they're going to rule even if they could rule either way based on the merits of the case. The higher up the court, the more likely this becomes - after all the case is sufficiently ambiguous that the lower courts couldn't resolve it easily. These doctrines are broadly speaking the court's view of "justness" and help them consistently apply the law to the facts of the case.

For instance, a number of laws have been struck down as being overly vague and a court could certainly find that because your hypothetical law doesn't define "shoe size" precisely enough, it's essentially void. Or if they figured that such a law was fair, they could also agree with the government that "shoe size" is commonly understood.

Put more broadly, one of the reasons the courts are so important is because they can essentially create law from thin air. For instance, did you know that the Constitution has nothing in it giving the Supreme Court the power to strike down laws? The court gave itself that power in Marbury v. Madison. (It's a bit more complicated than that, as history is, but nonetheless the Constitution doesn't mention it.) The court's mandate is deliberately left vague enough to continue to be relevant - for instance, if you piss off the court, you might find yourself jailed indefinitely for contempt, which is the only indefinite detention allowed by law. If you proscribe a court's behavior too much it becomes too easy to circumvent which leads to absurdities. Thankfully courts are reactive, not proactive, by nature - and they tend to have pretty reasonable and history-conscious people on them, so this usually works out alright.

(IANAL)

Re:Someone missed the Spirit of the Law

[uncqual]

If the drafters of the shoe-size law were not rigorous, yes, the courts could decide it was too vague to enforce. However, it's easy to get this right so, unless the courts were doing something they should not be doing, it would not likely be an avenue that would result in an successful challenge to the law. "Fairness" of the law would never be a proper reason for a court to rule for/against the shoe-size law.

Actually, the Supreme Court doesn't "strike down laws" - the laws often stay on the books because the court has no authority to strike them, they just fail to be enforceable in full or in a particular way due to findings of the court.

I agree that Article III does not completely define the scope of the court's power and, unfortunately, the courts have few checks and balances on them beyond the power of impeachment by Congress -- but Congress does have the power to impeach every last Federal judge (or, just dissolve all inferior Federal Courts and define the Supreme Court to consist of one justice using rules that mean their "favorite" justice will be the survivor) and the Senate can refuse to confirm replacements that they don't feel are appropriate. That is, of course, a sort of "nuclear option" so the courts avoid getting too close to the flame and Congress would be very hesitant to strike out at the courts if they don't get to close to the flame.

Re:Someone missed the Spirit of the Law

[Darinbob]

If a law is vague and two different interpretations are opposing each other, then what should the courts do when asked to adjudicate? The problem with the view that the courts should not be interpreting laws is used most often by people who think the laws are already perfectly clear and precise except and that their political opponents are just too stupid to see otherwise. In practice the vagueness of laws creates an entire industry of lawyers fighting back and forth hoping to make headway. After a few centuries we still have not discovered a solution to this issue; even the occasional violent revolution only serves to reset the process to start all over again only with a different bias.

Re:Someone missed the Spirit of the Law

[Anonymous Coward]

Wrong! Ammo box is the last resort. Don't forget it.
  "There are four boxes to be used in the defense of liberty: soap, ballot, jury and ammo. Please use in that order."

Re:Someone missed the Spirit of the Law

[uncqual]

From a practical matter, yes. As a Constitutional matter, the ammo box is not a factor.

Re:Someone missed the Spirit of the Law

[Anonymous Coward]

Laws are absolutely open to interpretation. It's called judicial interpretation.

Re:Someone missed the Spirit of the Law

[silentcoder]

>"Fairness" of the law would never be a proper reason for a court to rule for/against the shoe-size law.

Actually - that would entirely depend on how it's written. There are numerous laws which have a fairness clause - and explicitly leaves the question of whether a particular case is fair or not up to the courts to determine. This is common where the law is trying to protect an activity which should be legal in certain circumstances but not in others - and it's difficult to determine upfront a universal set of rules to seperate the legal and non-legal cases. Then individual examples can be tested in court - the courts ruling becomes precedent which helps clarify other ones which are substantially the same - while any that differ waits until eventually they too get tested. A great example is the fair use section of copyright law, which specifically creates a number of limited exceptions where copyright does not apply - but whether or not a particular activity fits within those exceptions is left on a case-by-case basis up to the courts.

Re:Someone missed the Spirit of the Law

[uncqual]

I didn't mention that the shoe-size law had a "fairness" clause. Most laws don't so it's disingenuous to assume that a random hypothetical law would when no mention has been made of such a clause.

The "fair use" section of copyright law is more the exception than the rule.The "fair use" section is an essential part of copyright law as, otherwise, the law would stifle the press et al from even quoting material from copyrighted sources and thus would interfere with the intent of portions of the First Amendment, and would also interfere with academic research etc. It's also not a general "fairness" clause ("fair use" was an unfortunate term to use in the law as it's easily confused by laypeople with some abstract notion of "fairness" that many primates, including humans, seem to posses). "Fair use" is a specific piece of the machinery of the law and quite specific -- the decisions left to the courts are the relative weights and impacts of four specific factors listed in Section 107 (coupled with higher court precedents on such matters). Congress recognized that it would be impossible to come up with crisp criteria for every case so left that up to courts and government agencies to determine.

HOWEVER... Suppose I create a work entirely based on the life of some destitute homeless guy that I notice every day. Assume I carefully avoiding violating copyright interests he may have (for example, perhaps by quoting, in their entirety, every one of his cleverly worded signs begging for money over the years). Suppose I make hundreds of millions of dollars off that work. Suppose the homeless guy notices this and makes photocopies of my work without permission and sells them to those passing by. Although many people may "feel" that would be "fair" (after all, "The entire work exists only because of actions and behaviors of this homeless guy, shouldn't he benefit?"), the courts would find in my favor if I sued him for copyright violation because his use was not "fair use" under Section 107 and the courts are not authorized to create a new exception for this case based just on some abstract notion of "fairness".

Re:Someone missed the Spirit of the Law

[silentcoder]

You are aware that similar sections in copyright laws all over the world, with radically different legal systems, all used the term 'fair' in their names ? Dutch/Roman law for example reffers to it as "fair dealing" exceptions.

Re:Someone missed the Spirit of the Law

[uncqual]

It's still an unfortunate use of the term -- it's not "wrong", it creates confusion for many who don't understand the law and confuse the term with the more abstract and flexible and moralistic term "fair" rather than a relatively precise and narrow meaning in the US copyright law. It isn't a problem for those in the publishing business or in the legal profession of course.

Re:Someone missed the Spirit of the Law

[Anonymous Coward]

The U.S. courts have no role in determining the "justness" or "unjustness" (or "fairness" or "unfairness") of a law. They are only to apply existing law -- which includes the United States Constitution which is the supreme law of the land.

If Congress passed a law (and the President either signed it or the President's veto was overridden) that "No commercially produced shoes in half-sizes shall be shipped across state boundaries in trade", it might not be "fair" to people who wear a size 10½ shoe but the courts could not dismiss the law unless they could articulate a valid constitutional right to buy or sell half-size shoes across state boundaries. One of the few powers granted to the Federal government is to regulate interstate trade so Congress clearly has the right to do so.

The ballot box is the last line of defense against "unjust" laws -- and remember, one person's "unjust" law is often another person's "just" law.

Absolutely false. Acceptance of the pre-Bill of Rights Constitution was in practice conditional, and as such (and as a matter of ethical practice of law), that document is NOT the supreme law of the land, the Bill of Rights itself is the supreme law, and the Bill of Rights was written to be open-ended. It provides for unspecified rights "retained by" the people (9th Amendment), and unspecified rights "reserved to" the people (10th Amendment). The ballot box is completely irrelevant, because no entity of government gets to decide what rights are retained by or reserved to the people - if government could do so, then there would be no such rights - a contradiction.

If you don't understand proof by contradiction, then please review the concept. It appears in Euclid, the basis for high school geometry.

Contradictions in the law always involve unethical practice of law.

It is not only expected, but required that judges think about the implications of the 9th and 10th Amendments in reviewing any case. This certainly does mean they are required to consider intent as well as the letter of the law, but they also have to consider more than just intent. This can mean that a federal law - even one regulating interstate commerce - gets struck down as being in violation of the Bill of Rights. Such a law is an illegal law, and any attempt to enforce it is illegal (and probably criminal) conduct. The principle of individual responsibility set out at Nuremberg is found in the highest law of the land.

You don't always see this happening. It's supposed to happen, the system is designed that way, however, the US legal profession has a massive array of ethical conflicts of interest with regards to recognizing the authority of the 9th and 10th Amendments (the reasons why should be obvious) and associations of legal professionals make large campaign contributions to the politicians who select judges. It is certainly not an accident that few judges are willing to act as their oaths require in matters involving these Amendments.

Re:Someone missed the Spirit of the Law

[uncqual]

You are confusing "fairness" with "law" and the "Constitution".

The BoR is, legally, simply the first ten amendments to the constitution. The Federalists felt them unnecessary as the Federal government wasn't granted the right to restrict speech, arms, or to quarter soldiers etc. so they couldn't do it. The Anti-Federalists, in a last stand, demanded a BoR which the Federalists agreed to. The Federalists though were wary that the rights enumerated in a BoR might be construed to be the only rights to be retained by the people or states respectively - hence the inclusion of the Ninth and Tenth Amendments which, theoretically, are completely unnecessary (as the body of the Constitution doesn't give Congress the right to pass laws limiting freedom of the press, free speech, right of assembly, keeping and bearing arm etc).

If you are making the argument (poorly) that the Federal Government has far overstepped what the People ceded to them in the Constitution (as amended), you are correct. However NONE of that argument as to do with "fairness", it simply has to do with Congress et al exercising powers they were never granted by the people in the Constitution (as amended). There is not a single notion of "fairness" in the Constitution except that which is explicitly captured in it. Nowhere is Congress limited to passing "fair" laws nor are the Federal courts allowed to reject laws based on them being "unfair".

The Constitution, as amended as of October 18, 2016, is the supreme law of the land. Until an amendment is ratified (note that not all that were proposed for the what we now call the "Bill of Rights" were ever ratified), it has NO impact. Those of the original "Bill of Rights" that were not ratified, have no force - and if NONE had been ratified, they would have no force. Again, though, the entire BoR is superfluous. Exactly what some of the Federalists were concerned about has happened - pretty much the Federal Government is now allowed by the courts to intrude on most any right that isn't an enumerated right (or, one found to be in the penumbras by a creative court).

However, the Constitution clearly gives, in its body, a broad right to Congress to regulate interstate commerce.

Executive Overreach

[Anonymous Coward]

The executive is, of course, prone to overreach, but the congress was very clear that the FCC regulates common carriers, not the FTC. In fact, in a sane government, businesses would be regulated by only one agency, instead of having literally hundreds of thousands of overlapping, conflicted, poorly written, misapplied rules promulgated by different agencies with dubious statutory authority and no oversight. The US is one of the easiest countries in which to start a business. However, it's not at all clear that you can legally run any business with any real property or physical product.

This horrible overlap of mis-regulation allows companies like Comcast to keep fucking the customers without any worries about startups competing with them.

Re:Executive Overreach

[omnichad]

congress was very clear that the FCC regulates common carriers, not the FTC.

And "common carrier" is a hat that a company wears. If they're not wearing that hat, they're not under the FTC. To say otherwise would put the SEC in charge of a day trader's murder trial.

Re:Executive Overreach

[Anonymous Coward]

The problem I see here is:

While the FTC's charter from Congress prohibits it from regulating common carriers, the agency has previously exercised authority to regulate these companies when they offer non-common carrier services. But the recent court ruling said that AT&T is immune from FTC oversight entirely, even when it's not acting as a common carrier.

So if the FTC cannot regulate them when they are not acting as a common carrier then who is regulating them? The FCC doesn't regulate non-common carrier, the FTC does. The problem I'm seeing with the ruling is that the courts have essentially stated no one currently regulates AT&T. Since part of their business is common carrier, the FTC cannot regulate the part that is NOT common carrier.

This was a ruling regarding AT&T advertising "unlimited" mobile data plans, but then throttling because somewhere in their 50 page T&Cs they stated "We define unlimited as limited." The mobile side of AT&T's business is clearly not "common carrier" and is regulated by the FTC. If there was a problem with their landline plans, I'm sure the FCC would be all over them.

Re:Executive Overreach

[PPH]

To say otherwise would put the SEC in charge of a day trader's murder trial.

Or put the Post Office in charge of concealed carry policies.

Wait. They do that now.

Re:Executive Overreach

[omnichad]

All they did was put out a formal policy to follow federal law. They are not directly arresting or prosecuting.

Re:Executive Overreach

[Holi]

The FCC regulates communication in America, not just common carriers. The FTC would deal with issues of anti-trust and consumer protection. They are always under the FTC if they do business, but it seems the FTC was trying to do the FCC's job in this situation.

Re:Executive Overreach

[omnichad]

The FCC only regulates the communication - it doesn't regulate all aspects of their business. The FTC is saying that they may not be allowed to enforce anything on a company that is partially under the FCC at all:

The panel’s ruling creates an enforcement gap that would leave no federal agency able to protect millions of consumers across the country from unfair or deceptive practices or obtain redress on their behalf. Many companies provide both common-carrier and non-common-carrier services—not just telephone companies like AT&T, but also cable companies like Comcast, technology companies like Google, and energy companies like ExxonMobil (which operate common carrier oil pipelines). Companies that are not common carriers today may gain that status by offering new services or through corporate acquisitions. For example, AOL and Yahoo, which are not common carriers, are (or soon will be) owned by Verizon. The panel’s ruling calls into question the FTC’s ability to protect consumers from unlawful practices by such companies in any of their lines of business.

Re:Executive Overreach

[Anonymous Coward]

but this is stupid.
fcc doesn't regulate same things.

if extended further. at&t could sell poisoned apples to children and just claim that they can do that because they can be only regulated by fcc.

Re:Executive Overreach

[PPH]

formal policy to follow federal law.

During the Bush administration, the posted regulation at the local Post Office permitted carry by those possessing a valid state CCW. Under the Obama administration, the signs were revised to restrict this to carry by 'officials'. Same law, different interpretations.

Re:Executive Overreach

[Anonymous Coward]

or the IRS being in charge of health care

Wait. They do that now.

A message of hope

[npslider]

Screw your Courage to the sticking place. Stay with us dear customers!

Our bottomless pit of greed means you no harm. There is no need for nasty government oversight. We will serve you, our loyal subjects. We will always treat you right, compete fairly, and allow new companies to compete with us.

Hmmmm....

[MitchDev]

"A 9th Circuit panel previously rule"

Time to investigate the panel's financial records and those of their close friends and family for "improprieties" I'd say....

Re:Hmmmm....

[Anonymous Coward]

The 9th Circuit is moderately famous for bad rulings. Of those cases that were later reviewed by the Supreme Court, 80% were reversed or vacated. This served as a significant factor lifting the total Supreme Court reversal/vacate rate of appeals decisions up to 68%. There's a lot more wrong with this appeals court than I feel the urge to re-type.

Time to get really corrupt

[omnichad]

But the recent court ruling said that AT&T is immune from FTC oversight entirely, even when it's not acting as a common carrier.

Well that's a dumb precedent to set. AT&T might as well start defrauding consumers in any way they can think of. The worst that happens is a few class action lawsuits...maybe.

Re:Time to get really corrupt

[fedos]

And you just know that any attempt by the FCC to regulate the areas of these companies that the FTC should be overseeing would result in the court saying that the FCC has no regulatory power over that business area.

Break them up, then

[ausekilis]

These companies are wireless phone providers, internet service providers, content creators, and cable television companies. When one company owns the full stack of an entertainment channel and can no longer be regulated by a single government agency, then they need to be broken up into their constituent parts. Just like the Ma Bell days of old.

It's nothing more than a different style of monopoly similar to a mafia-run operation. You will buy only their product, from them, at prices they command. They've already killed all real competition, so you don't have a choice.

Re:Break them up, then

[Anonymous Coward]

More nonsense for the peanut gallery... meh.

Unless you can cite a statute to base this idea on you're just blowing hot air and as long as all your doing is complaining on Slashdot you may as well not even do that. Write you senator and migrate from big party politics or just settle for more of the same.

Re:Break them up, then

[omnichad]

Owning the means to production is just good business sense - even the full vertical stack. Exploiting that is the only time there's a problem.

Re:Break them up, then

[ausekilis]

Unless you can cite a statute to base this idea on you're just blowing hot air and as long as all your doing is complaining on Slashdot you may as well not even do that.

I'm no lawyer, so it would take an absurd amount of time to find any sort of legal citation. My guesstimate (yes, guess, see previous statement about not being a lawyer) would be that something along the lines of Comcast hasn't yet occurred and there would not be a lot of legal precedent. First, we are dealing with a single corporation that does not compete with itself and faces minimal competition in multiple markets, some of which have "government-approved monopolies" (even if it's municipal-level last-mile contracts and not anything federal). Second, there is no inherit problem with incorporating all components of a business per se. Samsung owns everything they need to make a phone, washer/dryer, or TV with minimal purchasing from other companies. Nobody really complains about that, but then again we have competition in all markets that Samsung sells items in.

Write you senator and migrate from big party politics or just settle for more of the same.

This is probably one of the more insightful statements I've seen on /. in a while. Unfortunately the public is too busy using change.org to urge the president to declare the Westboro Baptist Church a Hate Group, or build a death star.

Re:Break them up, then

[Anonymous Coward]

It's nothing more than a different style of monopoly similar to a mafia-run operation.

Yeah, like we got here: https://www.yakimawa.gov/council/

Re:Break them up, then

[Gr8Apes]

Originally the Communications Act of 1934 which created the FCC also created a set of rules that prevented ownership issues. The FCC under the Bush Administration worked hard to repeal these restrictions, and now we have our wonderful mass media oligarchs that dictate what we like and what we watch. Something else we can pin on W.

Re:Break them up, then

[Tablizer]

Large oligopolies lasting at least a decade have almost always:

1. Had crappy service
2. Stagnate the industry
3. Bribe law-makers via their deep pockets in their favor

It's especially true when they control multiple sectors, such as content/product creation and delivery, OS and applications, hardware and software, etc. because they create proprietary or unpredictable interface "standards" that lock out newcomers.

They argue they need economies-of-scale to be efficient, but that's largely BS, as Japan car co's and ARM chips have shown. The harm from lack of competition is far worse than the benefits of economies-of-scale, if any.

I vote to slice em up and/or divide byte transfer from content. And/or make last-mile a public utility, which creates far more competition because content providers and ISP's then don't have to lay boatloads of wires to compete; just create a hookup to router nodes. Perhaps the end-user could even select which provider they use on an as-needed basis rather than have to pick one.

WTF?

[mrchaotica]

For "common carrier" to be a meaningful distinction, some agency needs to be responsible for making sure entities that claim to be common carriers actually behave that way. If it's not the FCC's responsibility, whose is it?

Re:WTF?

[Anonymous Coward]

The ruling is about *FTC* not *FCC*.

Re:WTF?

[fedos]

You might want to re-read. It's the FTC, not the FCC, that the court said has no say in this matter. Not that I agree with the decision. What the court is essentially saying is that if a company acts as a common carrier in any way then the FTC has no say over their non-common carrier activities. So that would mean that the FTC can't regulate Yahoo because Yahoo is owned by Verizon.

That's bullshit.

Re:WTF?

[Anonymous Coward]

Except when the FCC *is* involved they're suddenly not common carriers?

Re:WTF?

[PPH]

entities that claim to be common carriers

Today, the FCC is claiming authority over my company. So I choose not to be a common carrier. Tomorrow, the FTC tries to regulate me. Now I'll be a common carrier.

Bullshit. It's not up to a company to pick and choose its regulatory environment. If it is doing common carrier stuff, the FCC should sent a letter saying, "You're fall under my jurisdiction." Don't want to be a common carrier? Then sell off those parts of your business that provide those services.

So corporatocracy rules?

[StandardCell]

Since when did companies become immune to fraud, collusion and misrepresentation?

Either:

a. These companies become "immune" from the FTC, but lose their franchise/market exclusivity status permanently and pay the government back all of the money they were given to build infrastructure, or

b. They can be sanctioned by the FTC for breach of consumer laws, fraud, misrepresentation and other consumer problems

Between this and the now-mandatory binding arbitration clauses in consumer contracts from these companies, the American consumer is in a really bad spot.

Re:So corporatocracy rules?

[Anonymous Coward]

The girl I'm seeing now bought a car over the weekend and had to sign an arbitration clause concerning the Lemon Law. It pretty much states that she will go into arbitration, instead of litigation, if they refuse to honor her Lemon claim. As I read the document (I helped her with the purchase) I was astonished how this was even legal. How can you sign away such a basic right? You can always choose to not sign the arbitration agreement, but then you're not buying a car from them, either.

Re:So corporatocracy rules?

[zifn4b]

Since when did companies become immune to fraud, collusion and misrepresentation?

Did you know manipulating the stock market is illegal per the SEC yet corporations do it all the time via buybacks? How do you suppose that's allowed to happen? Have you looked at the Clinton administration wikileaks documents? For example: http://www.zerohedge.com/news/.... It's all corrupt from top to bottom.

Re:So corporatocracy rules?

[Tablizer]

Since when did companies become immune to fraud, collusion and misrepresentation?

Since they bribed lawmakers and judge selectors to give them "freedom".

They are people now: Giant people with deep pockets and lots of lawyers.

Re:So corporatocracy rules?

[Zxern]

Just draw a line through "the I herby agree" part, and initial it, then sign it. Chances are the sales people won't even look at it after she signed it. Once they've accepted payment the contract is valid and you haven't agreed to the clause despite the signature at the bottom.

Unlimited Data Plans

[Anonymous Coward]

And with this, how long till the new definitons come in from Verizon and AT&T? Data traffic congestion needed for throttling is .0000001%, maybe change the "excessive" account download amount to 1MB? Basement is the limit for how to hobble faithful customers, not like there are solid alternatives.

Re:Unlimited Data Plans

[omnichad]

not like there are solid alternatives.

And if there are, all they have to do is collude with the other carriers to fix pricing. After all, the FTC isn't coming after them.

FUD

[Anonymous Coward]

They are really looking for congress to grant them sweeping powers to regulate anyone using the internet.

Yah!!!!

[Anonymous Coward]

Network neutrality is going down!!!!
Killing the TPP!!!!
YES!!!!!

what about unfair metering?

[Joe_Dragon]

what about unfair metering CAN some regulate over that?

Owned by NAWBO

[Anonymous Coward]

The Federal Twat Commission (FTC) is already a worthless piece-of-shit government bureaucracy. It was commandeered by NAWBO (https://www.nawbo.org/) a long time ago; to hell with 'em.

The FCC claims mobile is common carrier and not

[raymorris]

> The mobile side of AT&T's business is clearly not
> "common carrier" and is regulated by the FTC.

Of course FCC regulates common carriers. In the last few years, under Wheeler, the FCC has said:

mobile voice, but not data, is common carrier and subject to FCC regulation.
mobile voice AND data are common carrier and subject to FCC regulation.
Neither mobile voice nor data are common carrier and subject to FCC regulation.

It may be clear to YOU which is common carrier and which isn't, but Tom Wheeler, chairman of the FCC, can't seem to decide.

Re:The FCC claims mobile is common carrier and not

[Gr8Apes]

Of course FCC regulates common carriers. In the last few years, under Wheeler, the FCC has said:

mobile voice, but not data, is common carrier and subject to FCC regulation.
mobile voice AND data are common carrier and subject to FCC regulation.
Neither mobile voice nor data are common carrier and subject to FCC regulation.

It may be clear to YOU which is common carrier and which isn't, but Tom Wheeler, chairman of the FCC, can't seem to decide.

I think your sequence may not be date based.

had enough?

[Anonymous Coward]

TIME for all of these companes that overcharge for internet ( compared to the rest of the world ) be classified as utilities.
Solves the problem of overcharging, hidden fees, and general hijinks in billng.
Regulation beyond what they fear.
Subjected to state public service comission rulings, and state attorney general lawsuits.

Re:had enough?

[Zxern]

Especially considering how hard they're working to get laws passed to prevent public options from being created.

FTC?

[Holi]

Why is the FTC trying to regulate a communications company, Isn't that the FCC's job? I mean unless this is an anti-trust issue it really seems like it would fall outside of the FTC's authority.

Re:FTC?

[Anonymous Coward]

I got help from the FTC when dealing with Comcast over fraudulent billing. The FCC doesn't deal with helping consumers with fraud. The FTC should be able to help consumers with fraud even with common carriers.

Re:FTC?

[The Raven]

Because AT&T is a communications company... and it sells phones, and is an employer, it pays taxes, and it owns shares of other companies.

The FCC regulates AT&T's use of spectrum and communications.
The FTC regulates their sale of physical goods and other trade.
OSHA regulates their employee safety.
The IRS regulates their tax payments.
And the SEC regulates their purchase and sale of stocks.

Just because they are a telecommunication company doesn't mean that nobody but the FCC has any jurisdiction, ever.

Re:FTC?

[omnichad]

False advertising is under FTC jurisdiction - and that should not have anything to do with the company's main line of business. The FCC doesn't regulate advertising.

Re:FTC?

[Anonymous Coward]

False advertising is under FTC jurisdiction

The real problem is that if this is the case, then the FTC is clearly worthless. The real answer is that false advertising should be tackled by a citizen subjected to that Fraud, deciding to File A Lawsuit for Fraud.

It would be real nice if I had the _slightest_ inkling that the FTC was doing _anything_ about fraudulent and false advertising. When I look at the world around me however...

How many times have you seen an ad where a product or company claims to be the best of something or the top something, in a way that is only at best true with half a dozen unwritten qualifiers that in sum when unwritten or written in ferengi print are tantamount to outright Fraud. I vaguely recall someone telling me about a decade ago there was some precedent set related to peanut butter advertising, and that the result of the precedent was practically the abolition of the concept of fraudulent false advertising. I.e. there is no hope in hell of actually holding the sleaziest of false fraudulent advertisers accountable until that precedent gets reversed. Hell, I think the new normal is to tell the public "sorry, we have an Enforcement Gap, go complain to your legislator and tell your kids to tell their kids that someday it might get better.

FTC, what a crock.

Typical example of NAWBOism

[Anonymous Coward]

A direct quote taken from the FTC's Complaint Assistant "Additional Information" web page, at https://www.ftccomplaintassistant.gov/Comments#crnt: "Now is your chance to tell us your story. Please describe your experience, including any additional information about the company and the product or service offered. Do not include any personal or sensitive information such as your social security number, date of birth, financial accounts or credit/debit card numbers, driver license number, detailed health or medical history or similar sensitive information."
The phrasing of the 1st sentence exudes typical "female" syntax; oh goody-gumdrops, I get a chance to tell my "story". Fraudulent IRS "shakedown" notices are even worse, to the point of downright ludicrous!

Unless it's an essential, don't buy the item

[Anonymous Coward]

Make sure you tell them why. This is a lack of consumer education, just like the general lack of education in this country.

TOO BIG TO FAIL?

[Anonymous Coward]

So, the major ISP/Telecoms are Too Big To Fail? Time to break them up, I think.

Brought to you by your friends at...

[zifn4b]

...The US Chamber of Commerce. They have an army of lawyers and keep crafting very complex cases in the Supreme Court to get the laws to suit the interests of large corporations. Think I'm kidding? Do your research? While you're at it, research them holding money in offshore accounts and using buybacks to inflate their stock price instead of reinvesting back in the growth of the corporations. It's become quite corrupt these days. It's going to take a lot to rein in the corruption and I'm not sure how it can be done when they're playing both sides of the aisle.

Regulatory Spawn

[Anonymous Coward]

Let's just make it a rule that if an agency is denied authority, it can invoke "Regulation Needed".
This will immediately cause a new and separate agency, with the appropriate authority, to exist.

FTC can't regulate AT&T?
FTC: Regulation Needed!
AT&T, say hello to the DTA, the Data Throttling Agency ...

Watch how quickly these corps fall in line to stop having to fill out paperwork for yet ANOTHER agency.

Re:Regulatory Spawn

[omnichad]

The last thing TLAs need is the ability to reproduce.

Be careful what you wish for

[Anonymous Coward]

In the federal regulatory environment there is a long (and reasonable) history of companies falling under primarily one regulatory agency for specific functions and actions. This avoids two agencies making differing (and all too often) contradictory rules that cannot both be implemented. An agency can defer to another's expertise for specific operations/functions, but it must be an explicit action (no "by default", or "this seems reasonable" allowed).

Many wanted the ISPs to be treated like common carriers to come under FCC regulations. The FCC obliged. Now that is coming back to haunt everyone, as the FCC does not have the regulatory processes in place to handle the various issues that the FTC historically handled when they were not common carriers. I am a little surprised that neither the FCC nor FTC staff lawyers saw this coming (or if they did, why was that report not made public).

This can get fixed, and (likely) will get fixed, but it is going to take some time. Nothing (in the agencies) moves quickly, especially during the tail end of a presidential election cycle.

I regulated Comcast.

[mmell]

I bought (not rented, not paid for via installments, bought) a Comcast-branded cable router (to ensure physical layer compatibility with Comcast's cable network offering). I turned off the wifi and attached my own wifi router via 1G copper. No XFINITY free hotspot.

But you know, just when I thought it was safe to go back in the internet, Comcast flashed my router. Suddenly, even with wifi explicitly turned "off", there was the XFINITY free hotspot, just advertising that any wardrivers with a valid or hacked Comcast account should park near my place.

Anybody ever see what the built-in (internal) antenna on an Arris cable modem/router looks like? It's just a little green piece of circuit board, and the connector just comes right off without any excess tugging or pulling. I do think Comcast misses me, though - they seem to send hits downstream to my cable modem/router several times a day. It's vaguely frustrating to hit these forty to fifty second network outages from them because they just can't believe nobody is using my free wifi SSID.

But I regulated Comcast.

If they want to play..

[Zxern]

If thats the game they want to play alright then. In order to avoid regulatory loopholes, businesses operating under common can no longer offer non common carrier services.

I'd be more than happy to have all isp's be just isp's. If all they can compete on is data service, we might start to see some real advancement in isp offerings.

Re:If they want to play..

[mr_mischief]

I think if the precedent holds that common carrier is black or white and who regulates them based on that holds, they're going to still be able to offer non-common services. What they really won't like, though, is that this is consistent with the FCC's argument that because they are common carriers and tie non-common offerings to common offerings that the FCC gets to regulate the non-common offerings.

3 words

[Anonymous Coward]

BREAK THEM UP!

The Intent...

[SeattleLawGuy]

Laws are not supposed to be enforced according to someone's interpretation of their intent. If the law is not performing as intended, then it can be amended by the lawmakers.

Oh yeah -- the courts are not supposed to interpret intent either; they're supposed to make judgements according to the way laws are written. This, of course, is an area where practice often departs from theory.

Several centuries would like to disagree with your talking point.

Intent is *one* factor in interpreting what a law means. How persuasive a factor it is depends on the circumstances and the jurisdiction in which the law is being interpreted and all of the other factors that suggest a different result. Sometimes it comes in through lenses like "consistent with public policy" or "intent to solely regulate the entire area of law" or "under a statutory scheme designed to" or "the legislative history of the Amendment..." or "the intent of the framers" and in a dozen other ways. Sometimes it is rejected because one or two legislators cite some reason and that's not enough to tell that's what the whole legislature meant.

3 letter acronyms

[pax humana]

Don't worry, FTC. CIA has you covered.