FCC Tells Court It Has No 'Legal Authority' To Impose Net Neutrality Rules (arstechnica.com)

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.

Comments

Dismiss the telecom suit with prejudice

[srmalloy]

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.

Re:Dismiss the telecom suit with prejudice

[sconeu]

Mod parent up. I came here to say the exact same thing.

Re:Dismiss the telecom suit with prejudice

[zlives]

+1, came here to say same

Re:Dismiss the telecom suit with prejudice

[Green Mountain Bot]

That's a big fat affirmative. The FCC is trying to not have their cake and keep anyone else from eating it, too.

Re:Dismiss the telecom suit with prejudice

[Calydor]

Do you connect to an ISP in another state when you connect to the internet?

Re:Dismiss the telecom suit with prejudice

[freddieb]

I agree. They also open the door to voip providers..ie not require them to pay fcc fees and possibility 911 access and fees also. Fb

Re:Dismiss the telecom suit with prejudice

[rahvin112]

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.

Re:Dismiss the telecom suit with prejudice

[Anonymous Coward]

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

This is correct.

Some additional consequences of broadband providers no longer classified by common carrier regulations:

No net Neutrality regulation apples, No more regulation preventing "pay-per-call", and no regulation on service prices.
No requirement to disclose costs and fees to customers.

No protection from "contributory copyright infringement" penalties.

No requirement to provide emergency services, or special considerations for hearing-impaired and speech-impaired individuals

No inheritance of "Right of Way" agreements (underground cables)
No longer defined as a "utility", which means no rights granting "pole attachments" (overhead cables)

https://www.law.cornell.edu/uscode/text/47/chapter-5/subchapter-II/part-I

Now that broadband ISPs are currently open to copyright infringement lawsuits for all violations their customers are found guilty of, including settlements, this will become quite expensive on their cash reserves.

Since they are also no longer allowed to own their own overhead or burred wiring, the non-wireless based providers will no longer have any income shortly either.

Hope no one likes their fiber or cable broadband speeds, it's verizon wireless for the short time any of them remain in business after bleeding untold money in copyright infringement lawsuits...

Re: Dismiss the telecom suit with prejudice

[saloomy]

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 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.

Re:Dismiss the telecom suit with prejudice

[s0lar]

Yes, this a sound, logical argument that makes sense to a lay man. When was the last time such sentiment made a difference in a tech-related law suit?

Re:Dismiss the telecom suit with prejudice

[Hognoxious]

Me too, except I know the difference between "there" and "their".

Re: Dismiss the telecom suit with prejudice

[Calydor]

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.

Re:Dismiss the telecom suit with prejudice

[Calydor]

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?

Re:Dismiss the telecom suit with prejudice

[Ichijo]

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.

The Due Process Clause of the 14th Amendment gives them that power. Does due process apply to Net Neutrality?

Re:Dismiss the telecom suit with prejudice

[guruevi]

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 entity to an "authority" would be the UN.

Re:Dismiss the telecom suit with prejudice

[dgatwood]

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.

Re:Dismiss the telecom suit with prejudice

[bluefoxlucid]

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 between" or "trade among"--suggests an odd dialect, or simply that "commerce" was as it was understood and applied originally under the Constitution, that being to indicate all forms of gainful activity including agriculture, transportation, and trade between the states.

There is, however, an important limitation to the commerce clause: it only applies to commerce--to gainful productive action such as agriculture or sale--and only if that commerce has an effect on commerce in at least one other state. A local producer of grain, for example, is in competition with grain producers in or selling to other states. Those grain producers may sell to the local market, or may have a desire to sell to the local market; yet they are competing with this local producer, and thus they may face much-lower prices thanks to less transit needed by this competitor, and so have no way to access the state's market at all, thus being impacted by this local producer's commercial activity.

In today's integrated economy, this is inevitably just about everything. Every business requires power, materials, legal services, insurances, the like, which integrate with the economies of neighboring states, and so all activities of commerce would affect commerce in other states as well.

This interpretation is something of a stretch, of course, since commerce among the states would be commerce occurring between and within the states, and not commerce between the states alone. The test for commerce affecting other states is sort of an erosion of the Constitution's original intent, but an ineffective one.

Re:Dismiss the telecom suit with prejudice

[rgmoore]

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.

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 can't have the authority in one case and not have it in another.

Re: Dismiss the telecom suit with prejudice

[postbigbang]

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.

Re:Dismiss the telecom suit with prejudice

[Gavagai80]

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 items you buy from other states, and agricultural checkpoints on their borders, so clearly the fact that something moves across a state line doesn't mean it can't be regulated by a state -- unless congress says so.

Re:Dismiss the telecom suit with prejudice

[LostMyBeaver]

By the same logic as is presented would it not by extension also lack the authority to regulate television? After all, while television contains "tele" within its name, it is clear that it is an informational service as opposed to being a telecommunications service.

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 tunnels across the Internet where leased lines are unavailable, it is practical to say that LTE is also an informational service as opposed to a telecommunications service.

So, that by his definition, there is no reason for the FCC to exist. Instead, we should demand the government establish the FISC or federal information systems commission to properly regulate these information systems in the best interest of the voters.

Re: Dismiss the telecom suit with prejudice

[BlueStrat]

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 the basic civcs of the US system as they apply here than many, many Americans, sadly.

You are also correct in that internet service is simply access, the data/voice/etc which is the product, in essence, comes from around the world. It is not only interstate in nature, it is inter-State, as in sovereign foreign States and thus plainly fall under the purview of the US Federal government. Traditional Constitutional interpretations and countless precedents would have to be turned on their head, and the current SCOTUS will be far too mainstream to overturn so much legal/judicial weight of precedent and historic Constitutional principle.

The only reasons to prefer net neutrality be enacted by administrative fiat rather than through legislative action is in order to use it as a partisan political weapon and a tool of authoritarian social control over the population and to set the precedent to do the same with other Federal agencies and other sectors in order to keep on expanding government scope and control.

Strat

Re:Dismiss the telecom suit with prejudice

[slack_justyb]

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.

Re: Dismiss the telecom suit with prejudice

[Dragonslicer]

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 have no idea what amount of a given chemical will cause significant environmental damage, how to evaluate the safety and effectiveness of a new drug being tested, or how to allocate radio frequencies. So instead of making uninformed decisions, Congress delegated those specific decisions to agencies that are responsible for enforcing those broader laws, and those agencies in turn employee experts in the appropriate fields.

Re: Dismiss the telecom suit with prejudice

[shaitand]

In this case with so many states already onboard the best path is to amend the Constitution and make the protections explicit. Thanks to a bunch of idiots monopolizing confirmation hearings with a bunch of discussion about unproven accusations a new supreme court justice was appointed who openly supports carriers not just throttling but altering information in flight. In other words, your carrier would be able to alter everything from the news to communications with your attorney, silently, and invisibly.

Re: Dismiss the telecom suit with prejudice

[shaitand]

How is this any different than buying items out of the catalog at IKEA and picking it up at the store when it arrives later? The products may be constructed across state or even national lines but the commerce is considered local, not inter-state and solidly falls under state authority. You don't get data from Google's server in say California, you get data from a network device just one hop away.

Re:Dismiss the telecom suit with prejudice

[Dragonslicer]

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.

Re:Dismiss the telecom suit with prejudice

[Impy the Impiuos Imp]

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 light of what was discussed above) and the industry didn't exist when Congress created the agency, then perforce Congress has not spoken about it either in the positive, or negative light, and therefore the fed agencies have no control, and therefore the states retain their sovereign power.

Re:Dismiss the telecom suit with prejudice

[Impy the Impiuos Imp]

tl;dr

Nelson: Ha ha!

Re:Dismiss the telecom suit with prejudice

[Dragonslicer]

Regulation of radio and, later, television that is broadcast over radio frequencies, is a separate part of the law from regulation of wired communications.

Re:Dismiss the telecom suit with prejudice

[Impy the Impiuos Imp]

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.

Re:Dismiss the telecom suit with prejudice

[shaitand]

"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 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 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."

Assuming it falls under some other power which they do have you are correct. But the FCC is not the federal government, the FCC is a federal agency and is only empowered within their mandate. If they aren't granted a power by congress they don't have it. At least not legally.

Re:Dismiss the telecom suit with prejudice

[shaitand]

Spread this far and wide.

Re:Dismiss the telecom suit with prejudice

[Dare nMc]

> 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 it more difficult for the states to dispute the FCC authority in the other case. Of course politically I think this is a loser for the FCC, but they don't seam to care about that.

Re:Dismiss the telecom suit with prejudice

[shaitand]

The Constitution doesn't empower the states only the federal government. Are you suggesting that when you order from the penny's catalog at the desk that suddenly state sales tax and consumer protection laws don't apply? California's law applies to the data served to customers in California who receive that from an ISP which much have a state level incorporation to business in the state California has every right to dictate consumer protections on what is being delivered.

Re:Dismiss the telecom suit with prejudice

[iMadeGhostzilla]

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.

Re: Dismiss the telecom suit with prejudice

[rahvin112]

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 designation (they were data services at the time). The court threw out the regulations because with those services declared as data services congress never gave the FCC authority to regulate data services. In effect the FCC has no authority to regulate or intervene in any case involving a data service and any regulation they attempt to apply on data services is void.

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. When the FCC calls a service a data service it becomes entirely unregulated and impossible for the FCC to regulate on any level. The only way the FCC can regulate is to declare a service a Title II service.

Re:Dismiss the telecom suit with prejudice

[Obfuscant]

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".

Re:Dismiss the telecom suit with prejudice

[Green Mountain Bot]

The interstate commerce clause doesn't have authority to do anything. It gives congress authority to pass laws allowing the executive to regulate interstate commerce. There is no law allowing the FCC to regulate what intrastate regulations the various states can impose.

Re: Dismiss the telecom suit with prejudice

[Green Mountain Bot]

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.

Re:Dismiss the telecom suit with prejudice

[Green Mountain Bot]

This has nothing to do with when "your websites" are hosted and everything to do with where you connect to the internet. Which is the state your house/apartment/cottage/cave is in.

Re:Dismiss the telecom suit with prejudice

[Green Mountain Bot]

*where, not when

Re:Dismiss the telecom suit with prejudice

[Green Mountain Bot]

States absolutely regulate health care. My state bars health care providers operating within its borders from being for-profit. Texas bars doctors without admitting priveleges at a local hospital from performing abortions.

Re:Dismiss the telecom suit with prejudice

[Green Mountain Bot]

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.

Re:Dismiss the telecom suit with prejudice

[Green Mountain Bot]

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 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.

Re:Dismiss the telecom suit with prejudice

[mycroft16]

The truly hilarious thing here is that the ISPs fought so hard to get rid of federal level regulations thinking this would make it easier for them, when in reality all it did was open the door for 50 completely different sets of regulations across the country, some maybe weak, but definitely some far more restrictive than what already existed. So instead of having to meet one standard, there will likely be multiple different standards. I'm willing to bet there are some people in the ISP industry wishing they had left well enough alone at this point. And you are completely correct. You can't claim you don't have authority, and then claim you have authority in the same breath. Either you do have the power to regulate, or you don't. You can't have both.

Re:Dismiss the telecom suit with prejudice

[Dragonslicer]

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.

Re:Dismiss the telecom suit with prejudice

[Green Mountain Bot]

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.

Re:Dismiss the telecom suit with prejudice

[Darinbob]

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.

Re:Dismiss the telecom suit with prejudice

[Darinbob]

Yes, but then congress has to get involved. Congress however has forgotten how to be involved in legislation.

Re:Dismiss the telecom suit with prejudice

[Green Mountain Bot]

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.

Re:Dismiss the telecom suit with prejudice

[Green Mountain Bot]

No, they specifically said they don't have authority:

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.

Re: Dismiss the telecom suit with prejudice

[MachineShedFred]

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

[iMadeGhostzilla]

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.

Re: Dismiss the telecom suit with prejudice

[fafalone]

The problem is courts only use logic like that when it suits them. If growing a plant on your own land, for your own consumption exclusively, is interstate commerce, just because you might have otherwise bought it from a seller that might deal with other sellers in other states... then there's simply no such thing as something that's not interstate commerce if the court wants it to be.

Re:Dismiss the telecom suit with prejudice

[mbkennel]

What is stopping the California Public Utilities Commission from deciding that ISP's with terminus in California are telecommunication utilities, or the state legislature?

Re:Dismiss the telecom suit with prejudice

[msauve]

Wait, you mean they can't have their cake and eat it, too?

Re: Dismiss the telecom suit with prejudice

[Ingenium13]

It's treated as a telecom utility, which the FCC has historically had jurisdiction over.

Re: Dismiss the telecom suit with prejudice

[reiterate]

Be careful what you wish for. I have a feeling our federal legislature is ill equipped for the task.

Re:Dismiss the telecom suit with prejudice

[Black LED]

Exactly. The FCC only repealed net neutrality, they didn't have a law put in place to make net neutrality illegal. The states are free to make up their own net neutrality laws because it's not illegal according to federal law (and even if it were, it still might be OK as in the case of legalised cannabis).

Re:Dismiss the telecom suit with prejudice

[Darinbob]

Interstate commerce clause has been shown by the supreme court to apply to many things that don't explicitly cross state borders. Yes, it seems a bit extreme but the rationale is that some of these businesses make use of goods and services from other states, or could affect interstate commerce.

First time was related to a famer who grew extra wheat beyond federal limits on production, but the extra wheat was used for feed for his own animals (and thus was not "commerce" according to his reasoning); the Supreme Court disagreed here. Later the court held that the government could prohibit a segregated restaurant since th food used in the restaurant crossed state lines. Those decisions cracked open the doors wide on using the interstate commerce clause to grant extra congressional power over commerce even within a state.

Re: Dismiss the telecom suit with prejudice

[terrycarlino]

Nope.

The FCC can only exert regulatory control. Only congress can pass laws. And there in lies the problem. Congress has shown little incentive to pass laws ensuring net neutrality, so the last administration, as it did whenever it was thwarted by congress ignored the limits of its constitutional power and tried to create authority where it had none.

I tend to agree that the situation should be addressed by congress. I also agree that since the FCC has no authority to enforce net neutrality it has no authority to prevent the states from enacting any laws controlling net neutrality.

The agency can't have it both ways. It either has authority to enforce (which I don't believe it has) or it doesn't. If it doesn't it also doesn't have the authority to stop states from enforcing within their own borders.

Re: Dismiss the telecom suit with prejudice

[terrycarlino]

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.

In actuality its not that easy to create laws, especially contentious ones. Nor is it easy to repeal them.

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.

Re:Dismiss the telecom suit with prejudice

[terrycarlino]

Actually CA has a direct exemption in the law on emissions and absolutely imposes its own standards on cars sold in CA. And since they are such a big part of the market most auto manufacturers make their cars to meet CA's standards, rather than make cars to differing standards.

A similar thing happens with TX and school text books.

As for the FCC they have said they don't have the authority, and they are right. The move by Obama in the previous administration was illegal and would eventually have been struck down by the courts.

Re: Dismiss the telecom suit with prejudice

[Dragonslicer]

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.

Re: Dismiss the telecom suit with prejudice

[orlanz]

Minor correction. The former FCC regulation was US only. It didn't change how packets were managed in S. Korea or India if you were connecting to a server there. Nor how they were managed passing through Europe or Japan.

The CA case is no different. Replace US with CA, India/Korea with NJ/FL and Europe/Japan with OH/GA.

Re: Dismiss the telecom suit with prejudice

[jd]

Historically, it did. That only changed under Bush.

Re: Dismiss the telecom suit with prejudice

[jd]

Let's say the Internet switched to transparent web caching. You would then be connecting to a local web server.

Packets are carried in containers, the wire protocol. The wire protocol traverses one hop. What is contained is extracted and repackaged. It's like having a multitude of trucking companies. Only the company crossing State lines can be implicated, all the others are intra-state.

Re: Dismiss the telecom suit with prejudice

[jd]

In the case of a wire protocol based system, the goods always come from the next router or switch.

Re: Dismiss the telecom suit with prejudice

[jd]

Those are all cases where there is well-defined commerce crossing a well-defined boundary.

Here, we have a system that uses dynamic routing, so you cannot state which boundary will be crossed. We also have a system where caching and replication are commonplace, so you can't say when or at what stage a boundary will be crossed. Protocol layers and encapsulation mean you cannot say how a boundary is crossed. Mobile IP means you can't prove that a given connection actually crossed a boundary at all.

You have to treat the data level as part of the wire level, as per IETF specs, or you end up with a nonsense. If you cannot prove, beyond all reasonable doubt, anything regarding an individual data packet, what's to stop Florida regulating Colorado Internet on the grounds that packets might go through there when travelling within the state?

I see lots of unintended consequences, if any ISP or State actor goes rogue. It is for people going rogue that you need laws. You don't need laws when things work.

Re: Dismiss the telecom suit with prejudice

[jd]

Dog in a manger.

Re: Dismiss the telecom suit with prejudice

[WindBourne]

Wow. I'm opposed to fighting for net neutrality ( better to let local gov put in competition and waste of time ), but have to say, great logic on your post, and spot on.

Re: Dismiss the telecom suit with prejudice

[postbigbang]

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 assertion that the FTC has nexus over network traffic "fairness". It's convoluted, strange, and written by the telcos to deepen their monopolies, promote 5G turf, and suck money from your wallet while keeping their costs as low as possible.

Re: Dismiss the telecom suit with prejudice

[kenh]

The FTC has jurisdiction, not FCC.

Re:Dismiss the telecom suit with prejudice

[guruevi]

They would have to limit it only to traffic that stays entirely within the state. On the Internet that's not really possible. Hence they would have to control traffic (aka commerce) interstate which the constitution prohibits.

Re: Dismiss the telecom suit with prejudice

[shaitand]

Yes, that is definitely an example of something that does not legitimately fall under the commerce clause. It is also an example of something that squarely falls in the same FDA exemption criteria as every other herbal remedy with a long established history of safe medicinal use.

But we already know the war on drugs, politics, and money are responsible for the blatant disregard of the law with regard to marijuana. This is two massive industries butting heads and your rights being trampled in the middle alongside any potential for free speech and free press. If they can alter data in flight... how do you even know if what your reading is what I wrote?

Re:Dismiss the telecom suit with prejudice

[bluefoxlucid]

That's a violation of interstate commerce, because it is one state telling a company in another state how it must act, and that action impacts their business with every other state.

The States are allowed to do that for commerce within their state. If you want to operate in any State, you need a business license. You're an LLC in California, but you want to do business in Maryland? You need to file as an out-of-state LLC in Maryland. You will need to pay Maryland taxes, as well, on certain activity.

It's actually impossible to sell Internet access to someone in California without having infrastructure and contracts in California, by the way.

Re: Dismiss the telecom suit with prejudice

[Obfuscant]

Minor correction. The former FCC regulation was US only.

Yes. Did I say otherwise?

The CA case is no different.

Yes, it is. CA is in the US. The FCC is in the US. The US Constitution covers CA as well as the rest of the country. A clause in the US Constitution has no bearing on Korea, but it does apply to CA.

Re:Dismiss the telecom suit with prejudice

[Obfuscant]

You're asserting that "If not A, then B" is equivalent to "If A, then not B". It most definitely is not.

Wrong. Here is 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."

In plain English, that amendment means that powers that are reserved to the states or the people must meet both requirements. They must not be delegated to the United States (the federal government) and they must not be prohibited to the states. If the Constitution grants (takes) the power to do something, that takes it away from the States. If the Constitution does not take a power for the federal government but does prohibit it to the States, then nobody has it.

This isn't just me confusing things. The federal courts have regularly ruled that the power to regulate interstate commerce IS delegated by the Constitution to the US and is NOT prohibited in the Constitution to the States, but the States do not have power to regulate interstate commerce based on the 10th Amendment. It's not that difficult. ICC IS one of the two limits, thus the result is prohibited.

Re:Dismiss the telecom suit with prejudice

[Obfuscant]

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.

But they are barred from regulating interstate commerce, and the Internet is inherently interstate commerce.

California isn't regulating other states, or the internet.

How is regulating the internet's neutrality not regulating the internet?

Re:Dismiss the telecom suit with prejudice

[Green Mountain Bot]

You're asserting that "If not A, then B" is equivalent to "If A, then not B". It most definitely is not.

Wrong. Here is 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."

In plain English, that amendment means that powers that are reserved to the states or the people must meet both requirements. They must not be delegated to the United States (the federal government) and they must not be prohibited to the states. If the Constitution grants (takes) the power to do something, that takes it away from the States. If the Constitution does not take a power for the federal government but does prohibit it to the States, then nobody has it.

Incorrect. This is basic formal logic, and is easily verified.
A=not delegated to the United states nor prohibited to the states
B=reserved to the states or the people

If A, then B. The contrapositive (If not B, then not A) follows, but the converse (If B, then A) and inverse (If not A, then not B) do not.

This isn't just me confusing things. The federal courts have regularly ruled that the power to regulate interstate commerce IS delegated by the Constitution to the US and is NOT prohibited in the Constitution to the States, but the States do not have power to regulate interstate commerce based on the 10th Amendment. It's not that difficult. ICC IS one of the two limits, thus the result is prohibited.

The courts have indeed regularly ruled that states cannot enact laws and regulations that are discriminatory to other states (ie, applying only to commercial enterprises from outside their borders - cf Baldwin v GAF Seelig, in which the court struck down a NY law prohibiting the sale of milk from other states). But they have also regularly ruled that laws that are not discriminatory to other states are constitutional (cf Cooley v Board of Wardens, in which the Supreme court upheld a Pennsylvania law requiring the use of local pilots on boats entering Philadelphia Harbor).

The jurisprudence is generally accepted that states have the right to regulate commercial activity within their own borders - even if it involves interstate trade - as long as the law and/or regulation is not discriminatory against out of state trade. Chief Justice Roger Taney wrote in 1847:

"... the state may, nevertheless, for the safety or convenience of trade,or for the protection of the health of its citizens, make regulations of commerce for its own ports and harbours, and for its own territory; and such regulations are valid unless they come in conflict with a law of congress."

The California law applies to commerce within its territory, applies to all ISPs doing business within their borders, and does not conflict with any law of congress. The idea that it is not allowable due to the Insterstate Commerce Clause is patently false.

Re:Dismiss the telecom suit with prejudice

[Green Mountain Bot]

Says the AC. The difference between your straw man and the situation at hand is that tariffs by definition only apply to good imported across the border, whereas the California law applies to all ISPs doing business in California, including those based in California.

Then why does it try to stop states?

[hawguy]

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/...

Re:Then why does it try to stop states?

[Hognoxious]

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.

Re:Then why does it try to stop states?

[slack_justyb]

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 to regulate such. Thus, since the Federal government is silent on the matter, by the way of 10th Amendment, the States are free to enter into compacts and regulate as they see fit.

Re:Then why does it try to stop states?

[shaitand]

Almost every good in a retail store came from somewhere else. The sale the consumer is happening in the destination state and the state has every right to regulate it. If they pass a law requiring goods be produced within 24hrs of payment, it doesn't matter if that indirectly results the sales outlet having to do interstate shipments by plane instead of train.

Re:Then why does it try to stop states?

[mycroft16]

Kind of the whole point of the 10th amendment. Since the federal agency that would have the logical authority to regulate this has stated they do not have the legal authority to do so, the 10th amendment kicks in and reserves this to the states meaning the FCC doesn't have the right to block net neutrality regulations of any kind any more by their own legal defense.

Re:Then why does it try to stop states?

[Green Mountain Bot]

They do have authority to regulate commerce within their borders.

Re:Then why does it try to stop states?

[Attila Dimedici]

They did not say that the federal government does not have the authority to to do so. They stated that none of the laws passed by Congress give the FCC the authority to do so. Congress COULD pass such a law, but they have not done so. The FCC only has the authority which Congress has granted it.

Re:Then why does it try to stop states?

[Darinbob]

In the telecommunications act of 1996, possibly applicable here,

`(3) PRESERVATION OF STATE ACCESS REGULATIONS- In prescribing
                            and enforcing regulations to implement the requirements of this
                            section, the Commission shall not preclude the enforcement of
                            any regulation, order, or policy of a State commission that--
                                        `(A) establishes access and interconnection obligations
                                    of local exchange carriers;
                                        `(B) is consistent with the requirements of this section;
                                    and
                                        `(C) does not substantially prevent implementation of the
                                    requirements of this section and the purposes of this part.

So..

[Anonymous Coward]

Does this mean they also lack the authority to ban states from implementing their own NN laws?

Great!

[Jahoda]

So, sounds like Calfornia can do whatever the fuck they want to regulate internet inside their state.

Re:Great!

[Anonymous Coward]

Good, gtfo. We don't want your shit-ass ISP in our state.

Re:Great!

[Anonymous Coward]

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.

Re:Great!

[Anonymous Coward]

Who are you to tell Californians how businesses ought to be run in their state? Seriously, entitlement much? If the only way you can do business is by your own terms, then you're a pretty pathetic businessperson.

Re:Great!

[lactose99]

That decision was broken and will be overturned. You want to run a business? You have to play by the rules

Re:Great!

[Calydor]

Wait. Why are you calling the guy who would PREFER to have regulations on ISPs in California a Trump supporter?

Definition in law

[Anonymous Coward]

https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def_id=47-USC-1773906204-1952898750&term_occur=10&term_src=title:47:chapter:5:subchapter:I:section:153

#telecommunications service

> (53)The term “telecommunications service” means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.

Re:Definition in law

[presidenteloco]

"tele" - to or at a distance
"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.

Re:Definition in law

[nickmalthus]

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 because quite simply unfettered total information control is too valuable for these private companies relinquish.

Sure, they can remain modestly profitable in a commodities market as consumer demand grows and at the same time technological efficiencies lower costs. However real money can be made with negative leverage in negotiations, where the telcoms can extort content providers with threats of selective treatment and the Federal government turning a blind eye to all unscrupulous behavior.

Instead of an open, transparent, and economical Internet the telcoms want to capitalize on their privileged position to manufacture artificial scarcity and provide a path to unlimited profits for their stockholders.

Re:Definition in law

[ItsJustAPseudonym]

Oh, man. That's an interesting concept. So many images spring to mind.

Trucks use the highways. The highways are public, and anyone can send information across them in a truck. Packaging and content don't matter, really. That sounds to me like highway-telecommunications neutrality.

I think a similar analogy could be made about airspace and pigeons. Or swallows, or whatever you want to use to package your carrier-bird communications.

Nevertheless, if Verizon decided it was monetarily advantageous to use pigeons for communications, then you could be sure that Ajit Pai would still find a way to do whatever Verizon wanted, to classify the network in their favor.

Excellent!

[Anonymous Coward]

This means that the FCC's attempt to kill states making rules about net neutrality should fail. If the FCC does not have authority to make net neutrality regulations, then they also don't have the power to stop states from doing so.

A subtle but important difference

[Sarten-X]

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

[edi_guy]

FTFA

"[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.

Re:A subtle but important difference

[eth1]

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.

[Zorro]

This is what happens when presidents just make crap up instead of doing it the legal way.

Re:Pass It Through Congress.

[bobbied]

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.

Re:Pass It Through Congress.

[stinerman]

This is a great idea...if congress weren't thoroughly disinterested in doing their jobs.

Re:Pass It Through Congress.

[Dragonslicer]

They did. The FCC exists because Congress created it, and the FCC has the authority that Congress gave it.

Re:Pass It Through Congress.

[Impy the Impiuos Imp]

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.

Re:Nobody on the left believes in Common Carrier

[Sarten-X]

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.

Ok then

[fustakrakich]

"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!

[BrendaEM]

File the attacks against Net Neutrality as "Clear Result of Corporate Payoff."
Ajit Pai is slime.

Re:I believe the headline is ambigious

[Anonymous Coward]

I suggest reading more carefully. The headline and article are not about the California case, that is a separate issue.

Re:I believe the headline is ambigious

[tirk]

Thank you, you are correct. I read through too quickly and my entire comment is actually wrong. So everyone, please ignore the random noise I have generated.

Re:I believe the headline is ambigious

[presidenteloco]

If the court doesn't have that right, then, interestingly, the constitution permits the State of California to regulate as it sees fit.

I suppose Ajit Pai is angling for a Supreme Court of the US decision on this one, now that that court has been stacked.

Re:Nobody on the left believes in Common Carrier

[Anonymous Coward]

Actually, there isn't. The barriers to entry are very high, so no other players are able to enter the market, and signalling differences are such that it is difficult to change from one provider to another without incurring the expense of new hardware. The providers are large, entrenched, and thus have unequal power in the marketplace, such that the consumer is essentially powerless.

In The Age Of Converged Services

[Anonymous Coward]

So according to FCC, part of the customers broadband package or traffic belongs under the common carrier classification, while the rest of it doesn't. That will be fun for the providers as they are forced to perform package inspection to avoid getting sued.

Re:Nobody on the left believes in Common Carrier

[Sarten-X]

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.

But one does not buy "broadband"

[cjonslashdot]

One buys "Internet service" and "cable TV service", and perhaps other services. While TV service is perhaps an information service, Internet service is a telecommunications service - TCP/IP. So the "broadband companies" are providing both. Seems like their "Internet service" business is a telecommunications service.

Wouldn't this go against previous court rulings?

[timrod]

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.

Re:Nobody on the left believes in Common Carrier

[parkinglot777]

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, AT&T stocks, etc.)?

Re:Chevron

[Impy the Impiuos Imp]

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.

Re:Wouldn't this go against previous court rulings

[kenwd0elq]

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?

[anegg]

The US service providers who provide "broadband" access worked assiduously to reduce the amount of information services they were providing (personal web sites, e-mail, ftp servers, Usenet news services) leaving serving us with almost nothing but telecommunications services. We don't sign up with ISPs for their information services, we sign up with them for telecommunications. What we want now is for those telecommunications to be provided on an unrestricted basis as a common carrier service so that our only access to the Internet is as devoid of trickery as possible.

Federal vs. State

[lionchild]

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.

Re:Nobody on the left believes in Common Carrier

[Pfhorrest]

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 providers (phone and cable companies) became the ISPs, and since they were now selling Internet Service as a separate thing from phone (or cable) service, they were not explicitly to be regulated as common carriers, and as always still had monopolies on their services, so they began to push some shady practices that nobody could get away with back in the dialup era.

Pretty soon laws were passed curtailing those practices, putting things back how they were.

But then those laws were challenged in court on the grounds that Internet Service was not classified the same way as phone service, and so legally could not be regulated the same ways.

Then the last administration's FCC decided that Internet Service really should be classified the same way, and did so, and then the same regulations that always used to apply, since dialup, once again applied.

Now this administration's FCC has reversed that classification, and now claims that because of that, they have no power to regulate Internet Service.

And now places like California have decided that they will once again reinstate the same regulations that there have always been, themselves, within their own states at least.

And the current FCC is claiming that doing so wrongly usurps the power that they just disavowed having? What?

Take it one step further...

[k6mfw]

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 tech thing there was no regulation. Then the govt stepped in, many stations didn't like it so they got the courts to rule against the Commerce Dept saying they had no enforcement authority (all this happened around 1920). Gordon West wrote in his book after this court ruling radio stations went wild, changing freq, varying power levels, etc. the radio spectrum became such a mess many people stopped listening to radio. Then the 1934 Communications Act was enabled with more teeth to regulate. So.... will The Internet become such a mess people will stop using it? Or parts of it become useless? There's already gripe sessions about Reddit and Facebook going the way of Digg, Myspace, etc.

Finally users can escape

[AHuxley]

the federal rules that ensured paper insulated wireline was the only monopoly network that was federally NN approved.
Time for people to look for innovative ways to move on with their own networks without federal NN rules.

Garbage In - Garbage Out

[WaffleMonster]

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 available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service."

States regulate health insurance of course

[mbkennel]

http://www.insurance.ca.gov/

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 will the insurance commissioner of North Louisiana be really very motivated to fight injustices against non-constituents on policies not sold in his state? Looking over his office at all the new downtown buildings and stadium with insurance company logos on them? And his governor's biggest supporter?

It happened exactly this way with credit cards.

And the Pai FCC wants to do the same thing, abandon Federal regulation and pre-empt local and state regulation.

Re:Nobody on the left believes in Common Carrier

[mbkennel]

The UK has freer competition precisely it because it imposed strong "neutrality" regulations on the owners of the last mile infrastructure.

https://arstechnica.com/tech-policy/2010/03/uk-regulators-officially-mock-us-over-isp-competition/

Re: Nobody on the left believes in Common Carrier

[TimMD909]

Isn't that like saying, "were it not for physics, I'd be invulnerable!"?

Re:Throw Pai in jail

[HannethCom]

Ajit Pai may be a jerk and a liar, but I don't think there is legal grounds for contempt. His defense may be stupid, but it is valid.
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 open and closed landing Pai in jail.
Now because this is America, and the laws don't seem to matter, I doubt any of this will actually happen, but Pai did just admit in the court of law to committing a crime.

Interesting.... no wait... Dumb.

[McFortner]

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?

IANAL, but doesn't no common carrier status

[PJ6]

mean ISP's can now be sued for any illegal content they deliver?

Especially since they're an "information service"?

Pai got this one right - and it's about time.

[Ungrounded Lightning]

And if the FCC thinks that the internet is not telecommunications it's packed full of incompetent idiots.

You're thinking the plain-English meaning of telecommunications. The FCC is working with the terms of legal art, as defined by the congress in the enabling acts and interpreted by the court.

In those terms, there is a distinction between "telecommunication services" (the default when one-way or two-way information transmission, like telegraph, telephone, radio, television, etc. are involved) and information services (a carve-out for computer networking, defined by later federal legislation which also tells both the FCC and the states to keep their hands off from it).

To say the FCC has authority over computer networking, adequate to impose network neutrality, because carrying phone calls and the like makes it a "telecommunications service", is also to say that computer networking is NOT an "information service" (a category created just for it) and all the protections against meddling by federal and state governments are moot.

Is that what you want?

If it's an "information service", both the FCC and the states must keep their hands off. (Though there's nothing to stop the FCC from choosing to ask the federal and state courts to block state meddling.)

But that doesn't stop the FTC from regulating the companies' business practices when they fall afoul of federal business law. (At the moment there IS a clause in federal law that the FTC interprets as depowering them, too. But congress could fix that with an almost trivial legislative tweak.)

I've been saying for years that:
  - There are good TECHNICAL reasons for treating different packets differently. (For starters, TCP file transfers and streaming don't "play well together" without such QoS management, but can both work just great if it's present and done correctly.)
  - The problems we see with non-net-neutrality are actually business pathologies that are already violations of (the spirit, if not the letter, of) laws banning anti-competitive practices, consumer fraud, "tying" (and other pathologies of vertical integration), and the like.

The FTC is very good at going after companies that break such laws. It has some big hammers and is not afraid to use them on big companies - even to the point of breaking them up. (See Standard Oil and mama-bell-era AT&T. IBM "foreign attachments". Microsoft v. Mozilla. Carterfone. And on and on...)

Meanwhile, the FCC is good at many tech issues, but horrible at business competition regulation. (Look at telephony, where they defined "competition" as "at least two players" or even "one player and the threat of another" - and even built that into channel assignment for analog cellphones. Two players aren't competition - they're a duopoly that doesn't even have to communicate to fix prices. You need at least three, and preferably four or more, before market forces drive prices down rather than up.) Trying to apply a tech fix to a business practice issue is a recipe for just breaking something technical (like streaming through network congestion) without solving the underlying problem.

For years I've been saying this is a job for the FTC and NOT the FCC. It's nice to see that the head of the FCC is now saying it, too.

Re:Pai got this one right - and it's about time.

[Darinbob]

So, a phone call over the internet is "information services", whereas using the telephone to get the current time is "telecommunications". Why is watching television over IP different than watching television over the cable line, especially when the same company is involved in both? Why is broadcast TV and cable TV both covered over FCC rules, when both are information services (ie, entertainment and news)?

Net neutrality here is not about mucking with packets and such, it's exactly the same thing as having a common carrier telecommunications.
From the FCC website:

The Bureau develops and executes policies and procedures for fast, fair licensing of all wireless services, from fixed microwave links to amateur radio to mobile broadband services.

and

The Federal Communications Commission regulates interstate and international communications by radio, television, wire, satellite and cable in all 50 states, the District of Columbia and U.S. territories.

Both of which apply equally to the internet. But, you'll point to congressional legislation about the FCC duties. And in the 1996 act it has:

`(48) TELECOMMUNICATIONS- The term `telecommunications' means
                            the transmission, between or among points specified by the
                            user, of information of the user's choosing, without change in
                            the form or content of the information as sent and received.
`(49) TELECOMMUNICATIONS CARRIER- The term
                            `telecommunications carrier' means any provider of
                            telecommunications services, except that such term does not
                            include aggregators of telecommunications services (as defined
                            in section 226). A telecommunications carrier shall be treated
                            as a common carrier under this Act only to the extent that it
                            is engaged in providing telecommunications services, except
                            that the Commission shall determine whether the provision of
                            fixed and mobile satellite service shall be treated as common
                            carriage.

So if networking doesn't apply because the data changes form, then this means that POTS telephones are also not telecommunications. I see nothing in these definitions that distinguish telephone companies from internet providers, or which distinguish the method of communication for telephones from the method of communcation for the internet. In fact, in all practical terms there is no difference at all between telephone and internet, except that one is a general purpose networking infrastructure and one is a networking infrastructure oriented towards audio.

Yes, there are portions of the 1996 act that limit regulation of the internet - however the wording is such that it seems to imply this is for regulation of internet services itself, rather than internet service providers or internet infrastructure.

This is not the job for the FTC precisely because the FTC does not do anything, it cannot enforce anything and never has, and is effectively toothless. Sending something to the FTC is equivalent to saying that you want there to be no regulation

Good news

[n2hightech]

Well if they don't then the states do. So state net neutrality laws should not have to worry about the FCC trying to overrule them. I think the FCC just shot itself in the foot.

Really.

[Hallux-F-Sinister]

The Federal... COMMUNICATIONS... Commission... doesn't... have the authority... to regulate... providers of internet service... which is nothing... but... communications...?

I can't... with... this...

Does this mean they also don't have the authority to regulate anything else? Because that begs the question, why the fuck do they exist?

Useful history

[jd]

The Arrival Of The Internet
This brings us to the 1980s, when The Internet first became publicly available. At the time, the existing common carrier laws were applied de facto to the fledgling Internet Service Providers (ISPs) because the only mechanism for access was a dial up modem. Information was traveling across a service that had already been classified as a common carrier, and although the type of information had changed dramatically from human voices to computer documents the mechanism for delivery had not changed at all. DSL providers, who used telephone wires to carry Internet data were classified as Title II Common Carriers and were not allowed to throttle traffic to and from any particular destination or charge an additional fee for that transmission.

https://medium.com/@TebbaVonMa...