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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.
For one : 2015 is not "Long standing rules". If anything, the "Long standing rules" apply more to the 1996 Telecommunications Act which labeled ISPs as Information Service Providers.
For two : Courts making laws and forcing regulatory bodies to enforce them is a path you don't want to go down. If a sitting judge can just decide whatever he wants, and make up new law and regulations on the spot, then they effectively become Legislative, Executive and Judicial all in one.
"Not to mention all the idiots who use words like boxen."
Anonymous Coward on Monday August 04, @06:49PM
From what we know so far, Mr. Pai's rationale for eliminating the rules is that cable and phone companies, despite years of healthy profit, need to earn even more money than they already do -- that is, that the current rates of return do not yield adequate investment incentives.
CEOs of various telecoms have been asked during quarterly earnings calls how the implementation of net neutrality and later its repeal would affect their bottom line. They have said it would not. They are legally required to provide accurate information during such calls (and can be sued for breach of fiduciary duty if they don't).
Such statements will be used against Pai when the FCC gets sued over this.
To make laws that man cannot, and will not obey, serves to bring all law into contempt.
--E.C. Stanton
I can only hope that there will be a sudden outbreak of common sense and that the courts will uphold net neutrality. ISPs should really only be access providers whom can optionally offer their own competing content services without harming competition by charging extra for access to, and throttling, the competition. Big Telecom has complained about the expense of building out their networks and maintaining them. Really, these networks have been subsidized by government granting them duopolies, or in some cases, monopolies. And in other cases, municipalities have offered tax breaks to Big Telecom for building out high speed data, which in effect, is a tax payer subsidy.
I do not want a return to the days of AOL, Prodigy, and CompuServe. Those days were truly walled gardens. You could not send email outside of those services. Bulletin boards were open only to subscribers and there was no sharing of content amongst the online services. If you wanted information on both a CompuServe and an AOL forum, you'd need subscriptions on both services. Then, as if to add insult to injury, you were sometimes charged exorbitant per minute usage fees on top of the monthly fee. Perhaps, the only more generous of services was Prodigy. At least with Prodigy, it was just about an all you can eat.
in addition, the gop controlled Congress, which refused to seat hundreds of judges under Obama is packing the courts with incompetent republican partisans, so the activism from the bench will be decidedly pro-business
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
When regulatory bodies completely ignore the will of the public you have a much bigger problem. Courts seem like the perfect entity to deal with that, though it should be a treason case.
Right... I'm sure a law professor at Columbia has no idea about how laws and judges work, and that you certainly must know more about it because you are an official Denizen Of The Internet.
So let me get this straight:
Oh, brave new world!
The FCC is going to have no shortage of examples of censorship and flaming hypocrisy from the most vocal advocates of Net Neutrality like Google, Facebook and Twitter. If the goal is an "open Internet," it's going to be the biggest backers who end up looking the worst because they are doing all of the things that they fear the ISPs would do (and yet have never done).
Big Tech crushes dissenting opinions, even slightly dissenting opinions. People get banned, shadowbanned, demonetized, etc. at the drop of a hat. By comparison, even Comcast looks downright honorable in how it treats its users.
Leftists on slashdot love to say "no one has a right to give you a platform." It's just terrifying to think that someone else might have the power to deplatform you instead of those who are amenable to your point of view on issues like this.
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 leading contributor of lobbying efforts to Congress is the healthcare industry. Number 2 is Telecom and there may be concerted effort on their part to be #1.
"The problem for Mr. Pai is that government agencies are not free to abruptly reverse longstanding rules on which many have relied without a good reason"
Well no, he gets this exactly backwards. Network Neutrality was EXACTLY such a reversal, and here's Pai simply undoing what the FCC wasn't free to do in the first place. Pai is correcting the very transgression Wu is citing here.
It was previously a longstanding rule--supported by law--that the FCC would have a hands off approach to the internet. Wheeler reversed that policy drastically. Pai is saying the FCC can't make such reversals.
Anyway, in the end Wu is complaining that he's not getting his own way. It's akin to throwing a tantrum when he's just not managed to convince lawmakers that his perspective is the right one.
Except the FTC was legally barred from doing exactly that, and the FCC assigned the role of overseeing ISPs.
Your ad here. Ask me how!
Except the FTC was legally barred from doing exactly that, and the FCC assigned the role of overseeing ISPs.
Yes, which is what the FCC is trying to reverse. The FCC is proposing going back to the previous model which they judge more apt at managing ISPs than the 2015 regulations. Anyone opposing this is hoping their supporters don't actually research the issues and the timeline, and it is why you see vague articles about "Net Neutrality" rather than comprehensive coverage of what is actually happenning and what is the context of it.
The previous rules in place worked for 19 years.
"Not to mention all the idiots who use words like boxen."
Anonymous Coward on Monday August 04, @06:49PM
Courts making laws and forcing regulatory bodies to enforce them is a path you don't want to go down.
Sigh... Courts make laws constantly in the form of case law. That is normal and proper. It is their job to make regulatory bodies adhere to the law when they overstep their authority. That is exactly the point of the judiciary. They are there to determine what the interpretation of the law should be in the event of an ambiguity or conflict. A judiciary that does not have the authority to create binding judgments and to correct regulatory bodies is worse than useless.
If a sitting judge can just decide whatever he wants, and make up new law and regulations on the spot, then they effectively become Legislative, Executive and Judicial all in one.
If a judge oversteps their authority that is why we have an appeal system and a supreme court. In the event they cannot handle it that's why we have Congress and an executive branch to provide a counterbalance. Sometimes judges get it wrong just like sometime congress passes laws that are wrong. That's ok as long as we have a mechanism to right the wrong.
Try to guess the number I'm thinking of.....
It's the number of people who voted for Trump based on his Net Neutrality stance.
It is also the number of people who voted against Trump based on his Net Neutrality stance.
Can you guess this magic number? I'll give you a hint-- It's between ZERO and ZERO.
Say what you want about whether NN is being "destroyed", or if it never existed in the first place... but don't fabricate a public mandate when 99.9999% of people who give a fuck disagree with what is happening.
"Prediction: within 10 years, Windows will be a Linux distribution." Me, 7-6-2016
Tom Wheeler ,the former head of the FCC, dismantled Ajit Pai's arguments for net-neutrality.
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.
If you could be bothered to read the article, it explains that the long standing rules are from 2005:
Back in 2005, a small phone company based in North Carolina named Madison River began preventing its subscribers from making phone calls using the internet application Vonage. As Vonage was a competitor in the phone call market, Madison River’s action was obviously anticompetitive. Consumers complained, and the Federal Communications Commission, under Michael Powell, its Republican-appointed chairman, promptly fined the company and forced it to stop blocking Vonage.
That was the moment when “net neutrality” rules went from a mere academic proposal to a part of the United States legal order. On that foundation — an open internet, with no blocking — much of our current internet ecosystem was built.
Just another day in Paradise
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.
He is doing exactly as promised your number of 99.9999% is way off base. Everyone that voted for Trump is behind this. Get rid of the government bloat and get them out of micromanaging business. Let the free enterprise system work.
I just watched a bunch of Republicans c*rcle j*rking on YouTube about how they were now facing an unprecedented pool of unfilled positions in the judicial system that can now be filled with 'right thinking people' thanks to McConnell's obstructionist tactics during the Obama presidency.
Not to defend the clearly-partisan choices of the Trump administration, but Hillary explicitly promised "activist judges" - one of the few campaign promises I truly believe she intended to keep. It doesn't make Trump and friends right for doing it, but there was simply no way we were going to get nonpartisan judges out of the 2016 election.
also think about what an Information Service Provider is. it's actually defined as an enhanced service provider in the law. back in the day it was a phone number you called into like a 900 line. it was a service someone provided to the public back then. 900-dial-hor got you a chick to sex with. if you called 555-AOL-HELL you connected into AOL, and the internet. all of this was done over the telecommunications network (however, by dialing into AOL, you actually were accessing another common carrier network known as the Internet).
now you no longer call up a number to gain access to those "Information Service Providers."
instead the internet exists by itself purely, as a separate network as it did from the start, a telecommunication system we all use to connect separate from telephone system. we use it more than telephones. it's become the definition of "common carrier" of all our personal communications, data, and information. there's no other common carrier anymore. it's just the internet. telephone is still around but not nearly as big anymore or as relevant because we send our voice communications over the internet instead. voice is in fact being transmitted over the internet, ie VoLTE and VoIP.
see. it never was a Information Service Provider. It always was a common carrier, but previously accessible like an ISP by use of a dial up number over the telephone network. it was always vastly superior to an enhancement of the telephone system of course, it was always an entire network to itself, a common carrier connectable to by a common carrier.
here's what a telecom service is: the offering of a pure transmission capability over a communications path that is virtually transparent in terms of its interaction with customer supplied information.
seems to describe the internet doesn't it?
here's what an enhanced service is: For the purpose of this subpart, the term 'enhanced service' shall refer to services, offered over common carrier transmission facilities used in interstate communications, which employ computer processing applications that act on the format, content, protocol or similar aspects of the subscriber's transmitted information; provide the subscriber additional, different, or restructured information; or involve subscriber interaction with stored information.
that seems to describe Facebook, Twitter, 900 line sex service, etc.
yeppers the internet was always in actuality a common carrier, however when accessed over the telephone lines back in the day using dial up modems, seemed a little enhanced servicey. however this classification was likely done because the republicans were in power, and their desire to misclassify the internet, in order to reduce regulations, make more money and profits, and reduce the rights of citizens who used it..
https://www.trumpsweapon.com/
Politicians actually usually do keep their campaign promises.
Wow, sent an e-mail as suggested when clicking on "use classic" banner, and got a fast response that addressed my msg
With all due respect, are you sure you've not had some of that Trump kool-aid? He's flip-flopped on even his promises more than a Northern Pike that just got reeled in. You cannot put much credence to what he promises any more than you could trust him if he said "the check is in the mail, trust me!"
What's that got to do with anything?
What? Is there a new requirement that /. comments need to be relevant to the topic at hand?
Ken
I have seen a lot of demonization of Hilary Clinton. Decades worth of it. Bengaaaaazzzzziii!! Butheremails!!!! Nothing significant ever stuck, but yes, this demonization produced the stink of corruption. It is very disappointing.
What amazes me is that almost issue-by-issue there were similar allegations against Donald Trump, and in his case there is a lot of substance, but somehow it doesn't seem to matter. Just take the supposed corruption with the charity foundation of the Clintons. A lot of mud has been thrown, but nothing substantial was ever proved. Whereas Donald Trump's charity foundation was used to pay off a prosecution and buy a portrait of Donald Trump; this is fairly well documented.
Similar for that stupid pizzagate versus DJT harrasment of lots of women; the uranium nonsense versus foreign diplomats staying in Trump hotels to please the president; Trump's 'original' way to handle state secrets; and there is Trump's past history as a shady business man, and I haven't even used the word Russia or Twitter yet...
Given all that, I try to understand why so many people still go for Trump, and all those 'isms' seem to be the most plausible explanation. And despite all evidence I still hope that enough people now realise what a danger to the country (and indeed the world) the current president is, and that THAT will backfire on him.
By a wide margin. He won because our system of government was set up to give wealthy rural landowners a disproportionate amount of voting power. So yeah, I can argue will o the people because America isn't really a Democracy, we just play one on TV.
Hi! I make Firefox Plug-ins. Check 'em out @ https://addons.mozilla.org/en-US/firefox/addon/youtube-mp3-podcaster/
That's pretty much always the case in politics: concentrated benefits versus diffuse costs. It certainly applies here: net neutrality provides concentrated benefits and imposes diffuse costs, which is why you have such vocal net neutrality proponents and hear little from the other side.
We elect representatives that represent us on a variety of issues. In the last election, we elected a pussy grabbing businessman over a faux-progressive career politician. That tells you the tradeoffs people generally prefer, namely less regulation and lower taxes as opposed to more social justice and progressivism. Repealing net neutrality is consistent with that choice.
Buy the people who make the laws. Oh, wait.
Don't fight for your country, if your country does not fight for you.
I can't tell you if you're trolling or just misunderstanding what the argument is about, but I'll bite.
There is a huge difference between regulations regarding blocking a competitor 100% and allowing one customer to pay for faster service, which has no net effect on others that choose not to pay for faster service EXCEPT to make them slower only by comparison to those that paid for faster service. (It's like arguing that first class mail got slower when the post office started offering priority mail service.)
That isn't what NN is about. You, the customer, are free to purchase higher or lower tiers of bandwidth. You always have been, and probably always will be. Each byte is given the same priority of service, no matter where it's bound or what type of byte it is.
Net Neutrality is all about how those bytes are handled. It affects services that you may subscribe to (Netflix, Youtube, Facebook, Skype), commercial websites you may frequent (Amazon, Reddit, Slashdot), or non-commercial sites (bit-torrent, your cousin's blog). This list is not exhaustive, but you get the idea.
If Net Neutrality is repealed, your ISP may charge you more to simply unblock any of the above -- you're not guaranteed access, because they will no longer be required to treat all bytes the same way. They may also charge the site (not you) money just to allow them onto the ISP's network. Once they're allowed, the ISP may charge you yet again to make one site -- but not other sites -- go faster for you so you can effectively use it. This is on top of the subscription fees you may already pay to the ISP and the service.
With NN, ISPs work like telephones. You may call any other phone, and talk as long as you want, under terms that apply equally to the entire class of calls. The phone company may not intentionally interfere, may not listen in, and may not dictate which other subscribers you may, or may not, call.
Without NN, ISPs get to work more like Cable TV and decide what you get and what you don't get. Don't like it? Get another ISP that offers a different package. (haha, you only have one ISP to choose from.)
Do you see the difference?
How much will Democrats force the federal government spend to investigate the Steele dossier, which they themselves funded the creation of and never bothered to corroborate or vett any claims within it before 'leaking' it to the press?
I don't know how much the federal government will spend investigating the Steele dossier but I will bet that it winds up being significantly less that the Republicans spent of investigating "Bengazi". And please address the contents of the dossier not where it originated, because if true then the contents are a damn-sight more important than who paid for it.
Not necessarily true... at least theoretically, an independent could have been elected if they were to actually get more votes than either of the two main parties.
The fact that many people in the USA feel that any vote that isn't for one of the big two is a wasted one is irrelevant. If enough people voted for an independent, than an independent would, in fact, be president. Period.
File under 'M' for 'Manic ranting'
No, the Supreme Court makes decisions based on laws other than the Constitution a lot of the time. One thing they do sometimes is take up different interpretations of Federal statutes in different circuits and decide which interpretation will be consistently followed.
In this case, there may be legal restrictions on what processes the FCC has to follow. Obviously they have the legal ability to change the 2015 decision, and the courts aren't going to stop that, but they may have to provide some sort of evidence it would be a good idea.
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes