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Tim Wu: Why the Courts Will Have to Save Net Neutrality (nytimes.com)
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.
Over on Twitter, a frequently promoted Tweet is Comcast claiming that they're not going to block/throttle anything.
Of course they are, even the proposal by the FCC right now includes language that addresses this specifically :
142. Many of the largest ISPs have committed in this proceeding not to block or throttle legal
content.507 These commitments can be enforced by the FTC under Section 5, protecting consumers
without imposing public-utility regulation on ISPs.508 As discussed below, we believe that case-by-case,
ex post regulation better serves a dynamic industry like the Internet and reduces the risk of overregulation.509
We also reject assertions that the FTC has insufficient authority, because, as Verizon
argues, âoe[i]f broadband service providersâ(TM) conduct falls outside [the FTCâ(TM)s] grant of jurisdictionâ"that is, if their actions cannot be described as anticompetitive, unfair, or deceptiveâ"then the conduct should not
be banned in the first place.â510 And the transparency rule that we announce today should allay any
concerns about the ambiguity of ISP commitments,511 by requiring ISPs to disclose if the ISPs block or
throttle legal content. Finally, we expect that any attempt by ISPs to undermine the openness of the
Internet would be resisted by consumers and edge providers.512 We also observe that all states have laws
proscribing deceptive trade practices.513
From page 83 of the proposal : http://transition.fcc.gov/Dail...
Basically, the FCC wants to reclass ISPs from Title II utilities to Information Services and let the FTC and market dictacte what is and isn't acceptable behavior. It's not like the FCC doesn't believe in Neutrality, they just don't think they are the body that should enforce it through heavy handed regulation.
"Not to mention all the idiots who use words like boxen."
Anonymous Coward on Monday August 04, @06:49PM
In this instance, the Supreme Court is acting as the checks and balances to the changes being made by the FCC. It's not like the Supreme Court are the ones suggesting that the law should be that the internet is free for all. Far from it. Instead, if the FCC go ahead with Pai's plans, someone will file a complaint with the Supreme Court. If there is enough evidence to show that the FCCs changes break the laws of the US, they will be ruled illegal. The SC simply aren't going to decide that they don't like the FCC and send a decree from upon high that everything must be reverted. This isn't how courts work.
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.
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? 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.
Basically, the FCC wants to reclass ISPs from Title II utilities to Information Services and let the FTC and market dictacte what is and isn't acceptable behavior. It's not like the FCC doesn't believe in Neutrality, they just don't think they are the body that should enforce it through heavy handed regulation.
The issue at hand is that the ISPs want to have it both ways. If an ISP is going to be a regional monopoly, it needs tighter regulation. If an ISP is going to argue to decrease the regulatory requirements with which it must comply, it needs competitors.
For large areas in the country, neither apply.
If I want >10Mbit/sec, 100ms latency internet at my home, I've got one option: Altice (formerly Cablevision, branded as Optimum). FiOS is available two towns over, but Verizon will only offer me 2Mbit/sec DSL at my residence. Both companies have different stories on this topic...and I live in the NY Metro area; I am certain it's that much worse in more rural areas.
While Altice has been pretty good about keeping my speeds and bill about right, and my content flowing neutrally, "the market" isn't really something I can use as a punitive action if they opt to change this. Literally every other option I have for internet access does not fit the FCC guidelines for 'broadband'. If they behave badly, the 'market option' is to give up broadband. Technically possible, but that's like saying the solution to Ma Bell was for everyone to give up phone calls.
If the FCC is going to say "talk to someone else about requiring this", then they really should make it clear whose responsibility it is. The feedback page was rather clear that, if asked, most people explicitly prefer Net Neutrality. All the major ISPs involved in this dispute are interstate entities, meaning that this would still be a federal matter to regulate them. Conversely, most of those same ISPs have deals with local government for exclusivity regarding wire runs, meaning the free market solution has a roadblock at the town and/or county level in many cases.
We have thus ended up with a perfect storm of bureaucracy that penalizes both options.
Ultimately, there are no shortage of companies that face regulations that prevent them from making as much profit as they could be making. Truth in advertising laws prevent companies from lying to get business. The FDA, for all its faults, generally ensures my food is clearly labeled regarding its contents. Laws which regulate hospitals ensure they can't save money by reusing needles between patients. Laws regulating insurance companies make sure they can't just deny every single claim 'because reasons' and pocket all the money.
Maybe Title II isn't exactly the set of regulations ISPs should be regulated under...and I'm fine with that argument...but ISPs can't have de facto monopolies and also decide they aren't willing to be regulated more heavily than if they were one of five options for 96% of Americans.