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.

Comments

Telecomes disagree with his logic

[Raul654]

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.

Re:Long standing rules ? Courts making legislation

[Anonymous Coward]

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

Re: Long standing rules ? Courts making legislatio

[quintus_horatius]

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?