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Yesterday, a federal appeals court ruled that the FCC had limited authority to regulate broadband services, meaning essentially that the FCC would not have the power to enforce Net Neutrality--giving all Internet users, and all Internet content providers, equal access to the network.

The decision is a setback for Net Neutrality advocates, for the FCC, and a minor win for Comcast, which has asserted its right to slow its own cable customers' access to file-sharing, the issue for the case. But it's not an out and out win for Comcast, as Jack Balkin explains, because there are a number of ways forward from here for the FCC.

  1. The Supreme Court overturns the D.C. Circuit on the scope of the FCC's ancillary jurisdiction, and the FCC goes on to fight the other issues in the case. One reason why the Supreme Court might reverse is because of its Brand X decision, in which it upheld the FCC's decision in its 2002 Cable Modem Order to treat broadband providers not as common carriers subject to regulation under Title II of the Federal Communications Act, but rather as "information services" which would be subject to much less stringent regulations. Brand X was premised on the assumption that the FCC might still regulate broadband providers, even if they were classified as "information services" and not subject to the more stringent requirements of Title II. The D.C. Circuit has declared these parts of Brand X dicta or read them very narrowly. The Supreme Court might disagree.
  1. Congress might amend the Federal Communications Act to create a new source of jurisdiction to regulate broadband. To do this one would need at least 60 votes in the Senate. Good luck with that. Comcast and other broadband providers probably could exert influence in both parties to prevent broad new regulatory authority to the FCC.
  1. The FCC might revisit its initial decision in its 2002 Cable Modem Order to treat broadband providers as information services instead of telecommunications services (regulated by Title II of the Communications Act). The Supreme Court let the FCC classify broadband this way in the Brand X decision, but in hindsight it was a big mistake on the FCC's part, because it put the FCC's regulatory authority on a much shakier ground. If the FCC goes through the administrative process of reversing its earlier decision about cable broadband, and places cable and DSL under Title II authority, there is little doubt that it has jurisdictional power to impose network neutrality requirements. And it may create special rules or exemptions for broadband under Title II to the extent that the existing common carriage model of telephone service is inappropriate for broadband. Indeed, under its Title II jurisdiction, the FCC can require open access requirements, which would be even more valuable for purposes of promoting freedom of speech and innovation.

It's possible that the FCC will simply see if it can get a reversal in the Supreme Court. That will take many more years of litigation. But the FCC might decide that the better solution is to retrace its steps, correct the mistake it made in 2002, and reassert Title II authority over broadband.  Doing this would give the FCC the tools it needs to deal with the regulatory problems of the future.

That option, the FCC reasserting its Title II authority over broadband, won't happen without a fight, but it seems to be the best option for an FCC that under chairman Genachowski has been a strong Net Neutrality advocate. It's ridiculous that the FCC ceded so much control over this huge component of our nation's communications infrastructer--broadband access--under the Bush administration. That tied its hands, as this court ruling demonstrates. The best solution at this point is to reverse that 2002 administrative decision.

Originally posted to Daily Kos on Wed Apr 07, 2010 at 06:46 PM PDT.

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Comment Preferences

  •  In China... (5+ / 0-)

    ... the government moves steadily forward to more and more control of what is available on the net.

    Here, it's the corporations.  And have no doubt - given the chance, they'll wind up every bit as draconian as China, given the chance.

    The inadequate is the enemy of the necessary.

    by JRandomPoster on Wed Apr 07, 2010 at 06:48:53 PM PDT

    •  In Russia... (3+ / 0-)
      Recommended by:
      Seneca Doane, jnhobbs, James Kresnik

      internet uses you!

      Cold hearted orb/That rules the night/Removes the colours From our sight/Red is gray and/Yellow white/But we decide/Which is right/And/Which is an Illusion

      by KingofSpades on Wed Apr 07, 2010 at 06:50:29 PM PDT

      [ Parent ]

    •  I think it will be more insidious though (3+ / 0-)

      They'll claim they're simply not giving something priority.  But as we all know, that can often be the same as censored.  

      If I type google, I generally look at what's on the top half of a page (unless i'm really into looking further). In the future if I click on something that's really slow to be rendered, I may instead choose something else (the something else owned by Comcast that's really fast for example)

      So yeah, you're basically right, though it will be couched differently

      The crooks are leaving have left office, unprosecuted and scot-free fully funded, thanks SCOTUS.

      by BentLiberal on Wed Apr 07, 2010 at 06:53:12 PM PDT

      [ Parent ]

  •  Wow - just when I thought this fight was over (4+ / 0-)
    or at least on the back burner.

    I'll ahve to go find my old Net Neutrality diaries!

    The crooks are leaving have left office, unprosecuted and scot-free fully funded, thanks SCOTUS.

    by BentLiberal on Wed Apr 07, 2010 at 06:49:28 PM PDT

  •  This is One of Those Areas Where (1+ / 0-)
    Recommended by:
    Norm in Chicago

    I would be a bolder advocate if everybody would just be honest.

    You at least accurately used the term "File Sharing."  What we're mainly talking about is torrent sharing, and what it's mainly being used for is to violate US and international Copyright law.

    I wish there was some way we could separate that fight--The fight of people who have enjoyed stealing for a number of years and would like to continue to get away with it forever--from the fight about "We can't let service providers limit traffic based on their political reasons."  Because the latter is the reason on the front of the envelope, and the former is along for the ride.

    •  There are other laws for that (3+ / 0-)
      Recommended by:
      DocGonzo, TooFolkGR, James Kresnik

      If those being injured think that they have a case that those sites are harming them, they can sue them just like they did the Napster people or obtain orders demanding that access to those servers be blocked.  Declaring cable internet a regulations free zone is, to put it mildly, overkill.

      "So if you don't have any teeth, so what? ... Isn't that why they make applesauce?" -- GOP leader Rush Limbaugh

      by Seneca Doane on Wed Apr 07, 2010 at 06:56:51 PM PDT

      [ Parent ]

      •  You Don't Think There's a Gray Area Between (0+ / 0-)

        "Cable internet is a regulations free zone" and "Companies are allowed to regulate bittorrent traffic?"

        •  But then why should corporations (1+ / 0-)
          Recommended by:
          James Kresnik

          be in charge of regulating bittorrent traffic or enforcing government laws regulating it?

          The crooks are leaving have left office, unprosecuted and scot-free fully funded, thanks SCOTUS.

          by BentLiberal on Wed Apr 07, 2010 at 07:02:18 PM PDT

          [ Parent ]

          •  Because if the Bandwidth is Available (1+ / 0-)
            Recommended by:
            Norm in Chicago

            for other things, they can sell it.  If they sell it, they make more money.  At least that's why they want to be able to regulate it.

            •  Yes that's why. (2+ / 0-)
              Recommended by:
              cybersaur, James Kresnik

              So then the question is one of control.

              Corporations have pretty much taken over television, which was once in theory part of the public domain.

              Do we want them to be in charge of the internet too?

              The crooks are leaving have left office, unprosecuted and scot-free fully funded, thanks SCOTUS.

              by BentLiberal on Wed Apr 07, 2010 at 07:07:05 PM PDT

              [ Parent ]

            •  There's No Bandwidth Shortage (4+ / 0-)

              Not only do the network operators have plenty of bandwidth for all the traffic demands today, investing in more capacity is proven higher performing than is filtering content.

              Proven. I have advised the NY City Council (legislature) Tech committee for several years, including while Net Neutrality became a public issue. I spoke with several researchers, both private consultants and academics, who had done actual studies of which approach to increasing bandwidth gave a greater ROI, in private studies for big broadband ISPs. They all found that increasing network capacity rather than filtering and blocking traffic was always much better ROI for the network operator.

              Making more network, though, means the supply/demand curve works against higher prices (even if it means higher profits, because of a higher volume of product sold). The telcos/cablecos want higher prices locked in, and then maybe they'll increase capacity.

              "When the going gets weird, the weird turn pro." - HST

              by DocGonzo on Wed Apr 07, 2010 at 07:49:30 PM PDT

              [ Parent ]

              •  Would you please tell my Cisco rep this? (1+ / 0-)
                Recommended by:
                James Kresnik

                Because they keep trying to explain to me that higher-capacity equipment costs more.

                That's only a small part of it, of course. The actual WAN infrastructure isn't free. The more bandwidth you want from a pair of fiber, the more attention you have to pay to it - management, monitoring, and maintenance.

                Then there's the support end. A residential user with a 512k upload can only have a limited impact, can only send so many spams from their botted laptop, and can only have so many torrent peers. Up that to 5mb, and you need more call center staff, more systems to identify malware traffic. Ironport boxes aren't cheap either.

                Everyone thinks that "net neutrality" means that my neighbor's NNTP stream is exactly as important as my voip call. I respectfully disagree.

                I built two large domestic networks and have run the engineering end of several ISP's you'd recognize the names of. I got the hell out of the business a few years ago because it's a hellhole; block a guy sending out 10,000 spams a minute and you're on the front page of Digg with a picture of Lenin next to your name. Allow the spams through, and you're still there, but next to a picture of Alfred E. Neuman. The dow drops 500 points, and the first thing everyone cancels is broadband, so you lay off a dozen good workers and delay a build-out that's six months in the planning.

                Even at the wholesale level, prices have dropped somewhat - I'm not buying more capacity than I was two years ago, but I'm pushing for price reductions and additional services. And being very grateful that I'm out of that horrible business.

                •  Cisco has a vested interest in pushing (1+ / 0-)
                  Recommended by:
                  DocGonzo

                  their hardware and expanding the market at all costs. They'll sell Big Brother telescreens if it helped their bottom line.

                  OMG. I have been offended. And on the internets of all Places. -A LOLCat.

                  by James Kresnik on Wed Apr 07, 2010 at 08:28:51 PM PDT

                  [ Parent ]

                  •  Just like HP, Juniper, Nortel, (0+ / 0-)

                    Fujitsu, Dell, Level3, AT&T, Sprint, OnFiber, Cogent, BT, Verizon, and every other company I get bills from. There's no price-fixing, no cartel, no "big fix".

                    If you think you can give a company like AT&T or Comcast a way to deliver one more megabit of data to their customers without raising costs, I will personally forward your resume to a VP at each company, and see which of them can push an offer letter through HR first.

                    •  They Both Raise Costs (0+ / 0-)

                      Nobody said anything about not raising costs.

                      What I said was that actual tests for backbone ISPs showed that just adding more capacity provided more saleable capacity than did adding more filtering to block some traffic. Both cost money. Adding capacity had better ROI.

                      I'll also point out that everyone's traffic, including pirated movies, is paid for on these networks. Pirated content isn't "free" to transmit, any more than is original or copyright cleared content. There is a difference to the network's profits, though: the pirate traffic tends to maximize its contractual entitlement to bandwidth. The large amounts of multimedia data constantly downloaded (because downloads are still slower than playback) tends to fill whatever quota the downloader (and therefore the uploader, too, at the other end of the transaction) has paid for. Other users tend to use a significantly lower fraction of the capacity they've paid for.

                      So the difference in loss to the network is in their oversubscription ratios, that can't sell the same actual bandwidth over and over to multiple people who mostly don't use their full share. It's hard to sympathize with the networks for finally losing what amounted to a scam, and fault the consumers who are finally getting what they have been paying for these long years.

                      And note that this higher consumption rate is not the basis for the ROI increases of greater capacity vs filtering. That metric is independent of the oversubscription bonus to the network. The greater capacity simply uses the available resources to move more bits with the same horsepower instead effectively wasted on the heavier task of blocking some bits.

                      And then consider that the networks can sell even more expensive, higher bandwidth connections to the heaviest downloaders. More $:bit:s than the slower ones, so much more profitable. Networks don't like to get into that argument, because they're cast instead by critics as offering the lower tier as "too slow", for still too much money. Because they are: the "normal" tier speeds are archaic by most global standards of consumer broadband, especially our biggest competitors abroad. And these networks also offer only very slow connections for high prices in much of their covered area, where they're always either a monopoly or a cartel duopoly.

                      Which is why these networks want the argument to be about piracy "stealing" (which market impact analyses frequently show either net no damages or increase overall revenues) or child pornography.

                      These are the companies that have been tapping everyone's phonecalls and emails for at least most of a decade, now officially immune to 4th Amendment prosecution. "We don't care, we don't have to care. We're the phone company." as Lilly Tomlin glibly informed us generations ago. Their way to make the most money isn't simply to offer the best, most competitive services to the most consumers in the market. It's primarily to protect their cartel, and secondarily to protect any possible future business line from any possible competition. Content filtering gives them the control to do that, even if just adding more capacity for open access makes them more money. It just goes completely against all their strategic interests, while the filtering is making them $TRILLIONS.

                      "When the going gets weird, the weird turn pro." - HST

                      by DocGonzo on Thu Apr 08, 2010 at 04:52:53 AM PDT

                      [ Parent ]

                  •  Just had a flash (0+ / 0-)

                    of a commercial where Ellen Page is being shown command central where all the telescreens are being monitored.

                    Ellen: "Is that my living room?"

                    Climate change deniers: Where's your model?

                    by rmoore on Thu Apr 08, 2010 at 09:10:27 AM PDT

                    [ Parent ]

                •  Endpoint FIltering vs Spam (0+ / 0-)

                  As you should know, filtering spam at the network edge is entirely different from filtering content at some midpoint. Ethically, technologically, and therefore should be legally.

                  And, as I said, actual tests for bacbone ISPs showed consistently that building out more network has a higher rate of return than filtering out more content. Actual tests.

                  Cisco's marketing and sales are based only on what the market will bear. And that market is defined by the greed and fear, and political strategies, of the big networks' top execs. Entirely different from what the actual tests show.

                  "When the going gets weird, the weird turn pro." - HST

                  by DocGonzo on Thu Apr 08, 2010 at 04:35:23 AM PDT

                  [ Parent ]

    •  It's just like any other crackdown though (5+ / 0-)

      Say terrorism for example. Hard to argue with opposing terrorism. But if the methods employed to crack down on terrorism also takes away basic rights from law-abiding citizens then we have abuse of a seemingly innocuous law. And don't think they don't know this.

      So yeah, in a sense I agree with you - but perhaps having the envelope the other way around.

      Cheers

      The crooks are leaving have left office, unprosecuted and scot-free fully funded, thanks SCOTUS.

      by BentLiberal on Wed Apr 07, 2010 at 06:56:57 PM PDT

      [ Parent ]

      •  So If the Technology Existed (1+ / 0-)
        Recommended by:
        BentLiberal

        To prevent illegal copyright violation but allow all other traffic, would you support Net Neutrality Regulation that didn't include protecting copyright violation?

        •  The question is who decides? (1+ / 0-)
          Recommended by:
          James Kresnik

          The company that wrote the algorithm?

          The crooks are leaving have left office, unprosecuted and scot-free fully funded, thanks SCOTUS.

          by BentLiberal on Wed Apr 07, 2010 at 07:02:53 PM PDT

          [ Parent ]

            •  Who decides (2+ / 0-)
              Recommended by:
              Angie in WA State, James Kresnik

              what's allowable and what's not allowable.

              Who writes the "technology" you referred to you in your comment?

              Letting a corporation decides what gets through and what doesn't will be ripe for abuse, imo.

              The crooks are leaving have left office, unprosecuted and scot-free fully funded, thanks SCOTUS.

              by BentLiberal on Wed Apr 07, 2010 at 07:08:47 PM PDT

              [ Parent ]

              •  There Was No Trick Built into My Question (0+ / 0-)

                it was in the plainest possible English imaginable, so I'll repeat it.  I'm not trying to trap you with trick words or anything:

                If the technology existed (I don't care if it's magic) to block the law violating traffic but support all others, would you be okay with exempting that unlawful traffic from net neutrality?

                I cannot imagine a more straightforward question than this.  Yes or no?

                •  I understood your question completely (2+ / 0-)
                  Recommended by:
                  DocGonzo, James Kresnik

                  But I didn't think it was complete. I didn't give a "Yes or no" answer, because I think it depends on how the "magic" is implemented:

                  Who decides (0+ / 0-)

                  what's allowable and what's not allowable.

                  Who writes the "technology" you referred to you in your comment?

                  Letting a corporation decides what gets through and what doesn't will be ripe for abuse, imo.

                  The crooks are leaving have left office, unprosecuted and scot-free fully funded, thanks SCOTUS.

                  by BentLiberal on Wed Apr 07, 2010 at 07:13:01 PM PDT

                  [ Parent ]

        •  No, (0+ / 0-)

          because the definition of copyright has been warped beyond its intent by a corrupt Congress and corporatist Court system; constantly extend into a monstrosity where practically every media product produced here before 1925 could remain under corporate lock-and-key for more than a lifetime practically forever.  

          Shorten the copyright back to 25 years like patents and you might have a deal. Until then, bounce.

          OMG. I have been offended. And on the internets of all Places. -A LOLCat.

          by James Kresnik on Wed Apr 07, 2010 at 08:33:12 PM PDT

          [ Parent ]

    •  My cable failed last minute of NCAA Championship. (3+ / 0-)

      Luckily, the game was being rebroadcast illegally on justin.tv.

      So, I was able to overcome Comcast's crappy cable service by using it's slightly less crappy broadband service.

      The streaming argument is not at all as clear as you state.

      I live 45 minutes from Detroit along the Ohio border.  I am a die-hard Lions fan.  As if that was not bad enough, Comcast does not broadcast the local Detroit CBS or Fox affiliates on my cable.  It chooses to broadcast the Toledo, OH affiliates which are ten minutes closer.

      There were at least three times last season that the Toledo affiliate was broadcasting the Cleveland Browns.  I had been cut off from watching the Lions in a non-blackout situation even though I live 45 minutes from the city in which they play.

      So, in that situation, I go to find the stream on the internet.  It may be illegal, but if Comcast actually provided reasonable local station access, I wouldn't be forced to take that route.

      One can also see the differences between the way certain leagues deal with the illegal streaming.  Most of the NFL games are cut off after about a half hour of streaming.  They are actively trying to stop the feeds.

      The NHL, however, does nothing like this.  And every night, it is possible to watch beautiful free feeds.  My guess is that the NHL loves this exposure.  And, in fact, the NHL is doing extremely well right now.  That kind of viral marketing is priceless.

      And, now, every time I enter an incorrect url at the top of my browser, Comcast hijacks my browser and sends me to an ad-filled Comcast page.  What right does it have to take my browser hostage?

      It is a piss-poor monopoly trying to extend its powers.

      http://twitter.com/mikeingels

      by DingellDem on Wed Apr 07, 2010 at 07:21:13 PM PDT

      [ Parent ]

    •  BT has legal uses (3+ / 0-)

      And, as Wikileaks has just proved, sometimes illegal is not the same as morally wrong. Obviously this isn't particularly the case for people dling movies off the intertubes, but there's room for ambiguity when it comes to the net, legality, and the potential of the net to better humanity.

      (My singularitarian may be showing, heh.)

      •  The bigger problem is the clear potential (0+ / 0-)

        for a slippery slope, where content providers race to prioritize their own content over competing independent vendors, reducing market competitiveness while charging more for no improvement in service.

        OMG. I have been offended. And on the internets of all Places. -A LOLCat.

        by James Kresnik on Wed Apr 07, 2010 at 08:36:34 PM PDT

        [ Parent ]

    •  That's Not It (1+ / 0-)
      Recommended by:
      James Kresnik

      No, the copyright control is only a part of the political power grabs here. The network owners, which are mainly giant cable TV and phone corps, each want to run telcos over the Internet to their customers without competition from any startups (or each other). And TV networks the same way. Copyright policing, like kiddie porn, is just the pretext for spying on everything people do over the Internet, so their giant broadband ISP can shut down (or charge out of existence) anyone competing with their own multimedia businesses.

      Only TimeWarner both runs an ISP and has large copyright holdings. And TimeWarner is probably the most hands-off ISP of them all when it comes to policing their subscribers for copyright violation.

      Apart from just using their cartel racket to doublecharge big Internet moneymakers like Google, they're just protecting their cartel by attacking Net Neutrality. Which means that you, me and the filesharers are all in the same boat, not expendable factions that can afford to be divided by these network operators.

      "When the going gets weird, the weird turn pro." - HST

      by DocGonzo on Wed Apr 07, 2010 at 07:42:37 PM PDT

      [ Parent ]

    •  Thanks, I love to learn from comments. (0+ / 0-)

      Liberty Valence Keep your eyes on the prize.

      by libertyvalence on Wed Apr 07, 2010 at 08:11:28 PM PDT

      [ Parent ]

    •  Of course... (0+ / 0-)

      It's also widely used to download FOSS (such as Linux distros) and other legitimate uses.

      I don't see any need to "separate the fight". Those who violate copyrights should be (and are) pursued through the legal system and/or finely targeted technical solutions. I really don't think this is a substantial reason that ComCast was doing what they were doing (among other things, IIRC, interjecting spurious RST packets into TCP connection streams).

      That said, traffic shaping and/or throttling is legitimate -- but it should be done based on data rate/quantity parameters that a broadband provider really should care about. For example, I'm okay with charges per GB, and/or throttling all traffic to/from a customer when usage exceeds some level over the past N days, and/or limiting the rate and amount of data that can be sent with QoS etc... (All, of course, fully disclosed and enforced without regard for the suspected content of the data).

    •  You confuse bandwidth with content. (0+ / 0-)

      Comcast is regulating content not regulating bandwidth. It could set rates for bandwidth but Comcast wants control of content so it can hold up content providers for access to it's customers and hold up customers for access to specific content.

    •  Depends on who you talk to. (0+ / 0-)

      That may be true with the average consumer, but Open Soucre software uses BitTorrent quite a bit for legitimate software distribution.  'Cause the last thing you want when you run on donations is a huge bandwidth bill from all the people downloading your latest distribution.

      The issue in the particular case at hand is not that they went after people for sharing files, or targeted sites where pirate content was hosted or indexed.  They chose to completely shut down all uses of a protocol on their network, and the FCC told them they could not take that extreme step, and a court over-ruled them saying the FCC can't regulate them.

      The very real worry a lot of us have, especially those of use who understand network routing, is that some major consumer broadband provider, like Comcast, will decide that they are perfectly entitled to contact websites, like DailyKOS, and offer to sell them premium access to that network's customers.  That premium access meaning that the company doesn't use Quality of Service settings to slow all traffic to the site to a snail's pace.  Of course, it would also make it easy for them to apply that same slowing to any sites that allowed posters to criticize them.  

  •  Do you think Tatel had an agenda here, Adam? (2+ / 0-)
    Recommended by:
    BentLiberal, James Kresnik

    If the best solution is to get the FCC to revisit its 2002 decision -- and that seems like a really good idea -- this decision could prompt that.  Beyond that, though, I'm wondering what the broader implications of deciding not to honor the alleged "dicta" in the Brand X decision.  Do you know if that matters in other interesting areas?

    "So if you don't have any teeth, so what? ... Isn't that why they make applesauce?" -- GOP leader Rush Limbaugh

    by Seneca Doane on Wed Apr 07, 2010 at 06:58:41 PM PDT

    •  fyi (2+ / 0-)
      Recommended by:
      Angie in WA State, Seneca Doane

      mcjoan's the author - good questions though.

      thanks

      The crooks are leaving have left office, unprosecuted and scot-free fully funded, thanks SCOTUS.

      by BentLiberal on Wed Apr 07, 2010 at 07:00:19 PM PDT

      [ Parent ]

      •  Yeah -- realized that only when I came back (1+ / 0-)
        Recommended by:
        BentLiberal

        to the diary.  Another in her list of good stories in the topic.

        "So if you don't have any teeth, so what? ... Isn't that why they make applesauce?" -- GOP leader Rush Limbaugh

        by Seneca Doane on Wed Apr 07, 2010 at 08:08:27 PM PDT

        [ Parent ]

        •  One problem with the queing system (1+ / 0-)
          Recommended by:
          Seneca Doane

          they have now, is that the authors aren't always necessarily around when the story gets published. I kind of miss the live interaction with the author when that happens

          The crooks are leaving have left office, unprosecuted and scot-free fully funded, thanks SCOTUS.

          by BentLiberal on Wed Apr 07, 2010 at 09:04:13 PM PDT

          [ Parent ]

    •  The ruling invited Title II (6+ / 0-)

      Having read the entire ruling today, and being rather close to the issue professionally... the press coverage isn't very good.  The ruling was surprisingly good, though -- Tatel (who wrote the DC Circuit unanimous Opinion) was actually advocating rule of law, something surprisingly rare in Washington (and especially at the FCC) for the past decade.

      The ruling was not about neutrality per se.  It was really about the FCC's procedures.  The FCC's Comcast Order was rooted in "ancillary jurisdiction", aka "Title I".  Tatel held that ancillary jurisdiction only applies when it is related to an actual rule, something found in one of the other Titles of the Act.  The FCC had pleaded a long list of ancillary jurisdiction cases, but Tatel knocked them down one by one, noting that all of the successful ones were more closely tied to another Title than the Comcast Order was.

      In essence, the FCC can't issue an Order without having a rule, which has to be based on the Law.  Makes sense, no?  They had based the Comcast Order on a Policy Statement, which may be interesting guidance but is not law.

      Tatel had a  couple of good clues there, though, indicating that Title II (common carriage) would be appropriate for access to the Internet.  One was a reference to the Brand X decision, which the FCC (falsely) held that the Supreme Court held required them to deregulate (remove open access) DSL and other telco broadband.  The Brand X decision in fact indicated that cable modems could be unbundled (made available to other ISPs).

      This is critical because before Brand X, DSL was open to all ISPs (common carriage), while cable modems weren't.  That was legally correct though it's a bit much to explain here... In Brand X, the Supremes actually held that cable modems were not the same as DSL and thus didn't have to be regulated the same way.  This meant that cable modems didn't have to be opened.  But the FCC insisted on making cable and telcos equivalent.  So they deregulated DSL and thus closed off the choice of ISPs.  That immediately created the "neutrality" problem.  If the DSL or fiber were open, then you'd choose the ISPs whose management policies worked best for you.  All you have now is a choice of two, if you're lucky.  Occasionally three.  That's not enough.

      The rule that the FCC had revoked in 2005, after Brand X, was called "Computer II", and it had forced telephone companies to provide "enhanced services" (ISPs) using the same underlying "basic services" that were offered to others.  Tatel's ruling used their 1980 approval of Computer II as an example of proper "ancillary jurisdiction"!  That's not just a hint, it's almost a Clue Stick.

      So the FCC majority should do the right thing and open up carriage to all ISPs.  Then there would be no need to regulate ISPs per se, and everyone would live happily ever after.  No other answer squares the circle or even comes close.

      •  Thank ou, much appreciated. (1+ / 0-)
        Recommended by:
        sceptical observer

        Liberty Valence Keep your eyes on the prize.

        by libertyvalence on Wed Apr 07, 2010 at 08:29:01 PM PDT

        [ Parent ]

      •  Tatel's Ruling (4+ / 0-)

        This is a quite correct administrative law ruling with respect to the Title I issue.

        Administrative law is a strange area to those who are not educated in it. If the law is ambiguous, the agency has to only be consistent with it, not necessarily give the "best" answer. In fact, the "best answer" idea was specifically found wrong in Brand X.

        Now, we've known since the Roosevelt administration that agencies are not normal litigants. If you, or I take a case to court, we can win or lose on any legal ground. But courts don't have separation of powers issues with you and me.

        Courts do have separation of power issues with agencies. They are the executive branch. And remember, the agency has a fair amount of power for what it wants to do and what grounds it wants to take to court. Ordinarily, courts cannot rule in favor of agencies except on the exact grounds brought by the agency. This allows agencies to have some control over the flow of precedent in the area.

        Here, the agency had said it had ancillary authority, but not to what that authority was ancillary. The court could have filled that gap for you or me. It could not for the FCC.

        The court that decided this is the most expert on administrative law in the nation. Many of its decisions are taken as judicial interference in policy decisions, or the making of judicial policy decisions. Far more often it is that either Congress or the agency missed a spot in administrative law.

  •  Actually (2+ / 0-)
    Recommended by:
    Seneca Doane, James Kresnik

    The FCC could take both of the approaches you outline, simultaneously.  It could appeal the DC Circuit's decision and, at the same time, promulgate a rule treating broadband as an information service.

    This aggression will not stand, man.

    by kaleidescope on Wed Apr 07, 2010 at 07:09:21 PM PDT

  •  Not going to happen (3+ / 0-)
    Recommended by:
    Eryk, James Kresnik, soms

    Read this primer from Cnet.  Basically there's some tools in the FCC's arsenal, but they're not going to turn broadband into that. Cnet on Net Neutrality's future

    Key Statement:

    The FCC is currently working on drafting Net neutrality regulation. How will the court ruling affect those efforts?
    In September, the FCC's current Chairman Julius Genachowski proposed making the four Open Internet principles plus two additional principles official regulation. The commission opened the issue for public comments and that comment period ended earlier this year.The agency is currently in the process of writing that regulation, which will be presented and voted on by the five-member commission at some point.
    Judging from its official comments on Tuesday, it looks like the FCC is moving forward with its plans to make these rules official regulation.
    "The FCC is firmly committed to promoting an open Internet and to policies that will bring the enormous benefits of broadband to all Americans. It will rest these policies--all of which will be designed to foster innovation and investment while protecting and empowering consumers--on a solid legal foundation," the agency said in a statement.
    But the FCC emphasized that its approach to ensuring an open Internet differs from the previous FCC under Martin.
    "Today's court decision invalidated the prior commission's approach to preserving an open Internet. But the court in no way disagreed with the importance of preserving a free and open Internet; nor did it close the door to other methods for achieving this important end."

  •  I say this as a Comcast customer (3+ / 0-)
    Recommended by:
    Sinan, thegrump, libertyvalence

    That if I don't like the internet service they give me, I'm free to change providers.  It's still their network, isn't it?  They built it, they get to run it.  I can complain as a customer, but in the end I can only vote with my wallet.  I don't have to get my internet from them, I have choices.

    Want unlimited access to the internet?  Want the freedom to use it however you want?  Go build one.  Get a non-profit consortium and put together a network of your own fiber, give it away for whatever price you choose, and run it as you see fit.

    But you'll quickly find that a network uses real equipment that costs real money.  That squirrels chew on the lines and real technicians with real kids that expect to be fed have to go out and do real work.  And that your real fibers have real bandwidth and only so many downloads can occur at the same time.  

    The more you give away for free, the less you have to sell to recoup your costs and pay for the capital improvements your customers will expect.  Are you planning on paying the engineers who will design the next network?

    All that costs money and you're paying all the bills.  And then one day you find that the Teabaggers are hogging up all your bandwidth sending around anti-Obama videos you hate, and you cut them off.  And I rest my case.

    •  Good. (0+ / 0-)

      Liberty Valence Keep your eyes on the prize.

      by libertyvalence on Wed Apr 07, 2010 at 08:31:35 PM PDT

      [ Parent ]

    •  Free to change to what exactly? (3+ / 0-)
      Recommended by:
      Sinan, WillR, cybersaur

      Often, the choices are limited to one or two providers, forming an effective duopoly in many local markets, where prices spiral upward as service deliver drops off. Overly restrictive franchise agreements and the physical limits of line placement make it extremely difficult for a truly competitive market to emerge.

      Honestly, I can't want for 4G to reach saturation nationwide. When Clear showed up in my town, rates for both cable and DSL dropped almost 30 percent.  

      The ideal solution may be for the government to own the pipe while allowing multiple vendors access.

      OMG. I have been offended. And on the internets of all Places. -A LOLCat.

      by James Kresnik on Wed Apr 07, 2010 at 08:44:30 PM PDT

      [ Parent ]

    •  In many cases, Comcast runs as a legal monopoly. (2+ / 0-)
      Recommended by:
      WillR, cybersaur

      In my city, Comcast is the official, regulated monopoly mandated by our city council to provide cable television service and broadband.

      Another company cannot legally come to town and string up wire because Comcast has the monopoly.

      The same thing applies with the phone company here.  It runs as a monopoly.  A company can't just string up its own wires.

      So, this idea that these companies have simply competed to get to their positions is bizarre.  Comcast is powerful because it has been able to sweet talk a lot of city councils and buy out a lot of competitors.

      http://twitter.com/mikeingels

      by DingellDem on Wed Apr 07, 2010 at 08:53:54 PM PDT

      [ Parent ]

      •  Can one control the local monopoly grant? (0+ / 0-)

        A thought (unless if there are some Federal or State laws that would prevent this in your locality)...

        Pressure your local officials to only entertain bids from providers which guarantee to maintain net neutrality for the life of the contract. (Or, run for the local government seats on the "net neutrality" platform - that might be a popular platform in some geek heavy areas.)

      •  Then it's the monopoly that's the problem (0+ / 0-)

        I agree 100% that if a community is under the thumb of a monopoly, that's a huge problem.  I still don't know how I can force a private entity to provide a service they don't want to.

        We're much better off in the long run focusing efforts on breaking the monopolies than trying to force a monopoly to behave the way you want.

    •  Comcast decides DKOS a "burden" Redstate OK. (2+ / 0-)
      Recommended by:
      cybersaur, Norm in Chicago

      There is no alternative cable modem service, which is why these are government "regulated" monopolies. Now if I could switch my cable service to a different company...but I can't do that.

      It's no different than phone company deciding who you can talk to and Democrats making calls for a political campaign from home are a "burden" but Republicans are not.

      We need the Democratic majority to rewrite the law to insure net neutrality. Those providing the connection service do not get to determine the content.

      Definitely the Comcast/NBC merger must be stopped.

    •  This man understands the issue (0+ / 0-)

      Well done Norm. You are absolutely right.

  •  Internet Obscenity (1+ / 0-)
    Recommended by:
    Seneca Doane

    Whatever the FCC does, it better not establish power to regulate "obscenity" or any other content standards. That road would totally destroy the entire point of Net Neutrality: it's neutrality towards content, all content providers (even you, not just Google and the NY Times) guaranteed equal access so long as they pay for their connection to someone already on the Net (the basic way the Internet has always worked).

    The last thing we need is the FCC getting power to require some "community standards" from some theocrat nowhereville determines what anyone else can publish on the Internet, just because some crusader there says so. Which is exactly what the theocrats would do, if the FCC got the power the way it does over broadcast. There's going to be another Bush/Cheney regime in power here someday, and by then a free Internet will probably be our only chance to get out from under it.

    "When the going gets weird, the weird turn pro." - HST

    by DocGonzo on Wed Apr 07, 2010 at 07:36:47 PM PDT

    •  But it's a two front war (2+ / 0-)
      Recommended by:
      Seneca Doane, James Kresnik

      I agree with your sentiment. But of course, the theocrats you fear could also implement the same restrictions through a corporation. In other words, if a corporation has ownership of the pipes (if you will) and the power to determine what gets sent over them, then they have the power to shut down the free Internet or limit it to what they want.

      The crooks are leaving have left office, unprosecuted and scot-free fully funded, thanks SCOTUS.

      by BentLiberal on Wed Apr 07, 2010 at 07:41:33 PM PDT

      [ Parent ]

      •  Of Course It's Not Binary (1+ / 0-)
        Recommended by:
        BentLiberal

        Well of course. Net Neutrality is essential, the basis on which the Internet became the indispensable service it's been for years. It's got to be protected from the consolidation into a handful of backbones that deregulation has encouraged.

        But only the neutrality of access, and the assurance of meaningful competition. Universal market access by vendors, consumers, and those who are both.

        Which regulation has no basis whatsoever for the FCC regulating content, except the longstanding cases of fraud, threats and other content that's in furtherance of damages in the physical world beyond the network. All of which can be filtered for after a legitimate court order.

        Not the overbroad expansion of the FCC into regulating the Internet with the power it has over broadcast. That power is neither necessary, nor justified, not anything but a death sentence for free speech and everything that goes with it. Which is everything.

        "When the going gets weird, the weird turn pro." - HST

        by DocGonzo on Thu Apr 08, 2010 at 04:58:45 AM PDT

        [ Parent ]

    •  Of course, not just a "connection" (0+ / 0-)

      guaranteed equal access so long as they pay for their connection

      And, probably, the actual data transfer (per GB or whatever).

      That's reasonable - the "connection" is cheap to the provider, it's the cases where one gets several users who crank 50GB/day on the same cable segment (including during "prime time") which create an expensive problem for the providers.

      Charge a base rate and by-the-GB (possibly adjusted by time of day) and problems all solved. Well, higher charges for data tagged with QoS above "best effort" would be reasonable of course - although there are some issues to work out there.

      •  Failed Model (0+ / 0-)

        For dozens of years networks have tried to charge by transferred volume rather than maximum rate. Every time it has strangled all innovation and growth, especially for anyone not making very high profit per bit (like banks) beyond the initial surge of pent up demand. Especially it freezes innovation.

        The only place it has been stable, so far, has been in the most extreme monopoly environments. Like US mobile phones, a total vertical locked-in monopoly in the US, except a triopoly (and often duopoly or monopoly by actual coverage area) run as a ruthless cartel. The fastest growth even in mobile has been in phones more open to choice in data providers, which has been only in smartphones choosing their apps, especially iPhones and even more especially Android phones that are even more open.

        Metering usage is also expensive. As I noted in another thread, actual tests for the major networks have consistently shown that adding capacity is more profitable than filtering content to block it. Metering content to block it is also less profitable than more capacity. And diminishing rates per incrementing bandwidth also show better profitability.

        Tiers of Quality of Service and maximum Committed Information Rate are legitimate billing methods (though QoS billing has often had problems, it's probably solvable technically). But even there (as I also explained later in that other thread) the tiers have to be "fast and cheap, or faster and less cheap", not "slow and expensive, or fast and a little more expensive". The government has a public interest (many of them, overwhelming in their combined effect) in ensuring that "broadband" or "high speed" is defined at a high and increasing rate (at least 3Mbps today, at least 5Mbps in 2012, at least 10Mbps in 2014, at least 20Mbps in 2016, etc), and that all but perhaps the very highest speeds possible all cost less per bit:second increased.

        That is the model that works best, for everyone, as proven in the market for generations. Except for comms cartels, which routinely sacrifice opportunity for more profit just to keep a bird locked in its hand. We can't afford to keep letting the rest of our global competitors do it right, while we lag further and further behind in the essential industry we literally invented and made a star.

        "When the going gets weird, the weird turn pro." - HST

        by DocGonzo on Thu Apr 08, 2010 at 05:12:15 AM PDT

        [ Parent ]

        •  In what way (0+ / 0-)

          do you regard the iPhone as "open"?

          Climate change deniers: Where's your model?

          by rmoore on Thu Apr 08, 2010 at 09:45:29 AM PDT

          [ Parent ]

          •  Choosing Their Apps (0+ / 0-)

            in smartphones choosing their apps, especially iPhones and even more especially Android phones that are even more open.

            iPhones are different from previous smartphones, and especially dumb phones before them, in the wide choices in apps available to the consumer from a very wide array of independent software developers and vendors. Android phones even more so, as development is open to even more developers, and not locked into vetting by Apple. But even with the vetting, Apple's openness to of 3rd party apps is a watershed in mass communications.

            "When the going gets weird, the weird turn pro." - HST

            by DocGonzo on Thu Apr 08, 2010 at 04:49:07 PM PDT

            [ Parent ]

            •  in selectively quoting yourself (0+ / 0-)

              you left out this part of the same sentence:

              The fastest growth even in mobile has been in phones more open to choice in data providers,

              So let's see, that's AT&T and...umm...

              Besides that, if you can only run apps that have been vetted by Apple, it really doesn't meet my idea of "open" by a long shot. I think you're the first person I've run into to use the words "iPhone" and "open" in the same sentence without the word "not" somewhere in between.

              The same limitation, by the way, is why I was disappointed in the iPad announcement. I was hoping it would be targeted as  a netbook killer (nothing against netbooks, as I like mine which runs Ubuntu, but I do own some AAPL). Instead it's just a giant iPod Touch. Yeah they're selling like hotcakes right now, but I'm expecting the initial enthusiasm to wane after a couple of months.

              Climate change deniers: Where's your model?

              by rmoore on Fri Apr 09, 2010 at 12:19:19 AM PDT

              [ Parent ]

              •  Selectively Editing Me (0+ / 0-)

                The whole sentence that you're carping about was:

                The fastest growth even in mobile has been in phones more open to choice in data providers, which has been only in smartphones choosing their apps, especially iPhones and even more especially Android phones that are even more open.

                That says: phones more open to choice in data providers, which has been only in smartphones choosing their apps, especially iphones and even more especially Android phones that are even more open.

                I'm talking about about data provision of application code as the data, not the data transmission carrier network, as being chooseable by the consumer.

                But that was a complex sentence. You asked for clarification. So I quoted the part that was talking about openness, and  clarified it:

                Phones are different from previous smartphones, and especially dumb phones before them, in the wide choices in apps available to the consumer from a very wide array of independent software developers and vendors. Android phones even more so, as development is open to even more developers, and not locked into vetting by Apple. But even with the vetting, Apple's openness to of 3rd party apps is a watershed in mass communications.

                Again I talk about exclusively the apps, not the carrier network. Indeed, 2 sentences later in my original post I said:

                As I noted in another thread

                In that other thread, where I do actually talk about carrier networks, I accuse them of lockin. And indeed the subject of my arguments in both threads in this diary discussion is the necessity of protecting Net Neutrality in access by consumers and developers to networks, regardless of the conflicting commercial interests of telcos.

                Now, the additional fact about smartphones, especially the iPhone, and even more especially Android phones, is that they can get data from WiFi, which provider is totally open to selection by the consumer. An additional point supporting the greater openness of smartphones, like iPhones and even moreso Android phones, that I could mention if I were talking there about network access rather than access to (more or less) arbitrary applications.

                But you're not interested in what I said, clarification of it, or anything else but your preconceived notion. You're so interested in looking for enemies over network lockin that you'll make one of someone who agrees with you. Trolling me with selective editing, and determined misinterpretation, of my own words isn't going to produce a valid point for you. It's only going to piss me off.

                Have fun with that.

                "When the going gets weird, the weird turn pro." - HST

                by DocGonzo on Fri Apr 09, 2010 at 05:00:12 AM PDT

                [ Parent ]

                •  Sure it's all data (0+ / 0-)

                  but referring to apps as data and saying you get your app from a "data provider" is pretty odd usage if you ask me. So your meaning wasn't clear from the start and taking half of the sentence out of context didn't help. In one half you talk about "data providers", without clarifying that you don't mean what most of us would infer (it could refer to content providers, but that doesn't make sense here, so then there are data service providers which seems like the likely meaning). The other half was about applications. Your reply to my question ignored the first part altogether, so don't blame me for misinterpreting you ("determined misinterpretation", indeed!). My response noted my concerns about a lack of openness both in choice of data service (the apparent meaning of the first half which you failed at first to clarify) and in apps distribution (the second half). In return I get accused of trolling. So unfair of you (I could use stronger language but I'm going to practice restraint).

                  I stand by my position. Apple's role as gatekeeper for apps is authoritarian (that's not a comment on whether it's a benign role or not, it's just an accurate description of what it is). If you have an authoritarian gatekeeper like that, benign or not, I do not consider it an open platform.

                  Climate change deniers: Where's your model?

                  by rmoore on Tue Apr 13, 2010 at 03:55:33 PM PDT

                  [ Parent ]

  •  Last time I checked.... the US Govt WAS the net.. (1+ / 0-)
    Recommended by:
    James Kresnik

    ... that the backbone was owned and operated by the US government, at least the portion inside the US.

    It grew out of the interconnection of military and nation lab installations, and universities doing govt work... and has grown from there ever since.

    The ISP's are simply portal operators that connect consumers with the actual internet backbone.

    So the government could just make neutrality part of the contract for access with all ISPs.

    Meantime, Congress can just up and explicitly grant FCC the authority any time they would like.

  •  The courts are corrupt (1+ / 0-)
    Recommended by:
    CitizenOfEarth

    but you suggest that "their hands are tied".

    Let's keep it real.

    In this age of falseness, only howls of agony ring true.

    by Paul Goodman on Wed Apr 07, 2010 at 10:48:51 PM PDT

  •  How is the net not neutral right now? (0+ / 0-)

    Can Comcast/Time Warner/Qwest slow down my access to Daily Kos and speed up my access to Fox News as of right now?

    In regards to internet freedom, I thought that now is a pretty good time to be alive.

    Am I incorrect in this assumption?

    •  Yes they can (0+ / 0-)

      do this. They are now free to 'manage their network' as they see fit. Blocking competitors content or slowing it to intolerable rates could well come under what they consider 'management'.

      Can Comcast/Time Warner/Qwest slow down my access to Daily Kos and speed up my access to Fox News as of right now?

      In fact, when the Comcast deal to acquire NBC content closes next year, NBC traffic will likely get the preferred bandwidth.

      Call it the 'Corporate New Deal' or a 'Plastic Democrazy'© if that makes you feel good. I call it Fascism.

      by CitizenOfEarth on Thu Apr 08, 2010 at 06:29:29 AM PDT

      [ Parent ]

  •  taking action (0+ / 0-)

    A bunch of groups are going out on this, including Free Press, Color of Change, Common Cause, and MoveOn. Here's Free Press' action: https://secure.freepress.net/...

  •  Funny (0+ / 0-)

    I never thought that David Tatel would get criticized here for not following Clarence Thomas, the author of the Brand X decision.

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