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posted by martyb on Thursday August 11 2016, @05:49PM   Printer-friendly
from the about-headlines:-don't-use-no-double-negatives dept.

The Register has a story about a court ruling that possibly puts one nail in the coffin of the attempt by the FCC (Federal Communications Commission) to prevent states from banning municipal ISPs.

The Sixth Circuit Court of Appeals said on Wednesday [PDF] that the American regulator lacks the authority to overrule state laws that prevent cities from operating their own ISPs.

Last year, the watchdog declared it was unfair of North Carolina and Tennessee to block community-run broadband. Now an appeals court has said the FCC overstepped the mark by trying to undo that block with a preemptive order. In other words, in this case, the US states can't be pushed around and overruled by the communications regulator as it lacks the clear authority to do so.

"This preemption by the FCC of the allocation of power between a state and its subdivisions requires at least a clear statement in the authorizing federal legislation," the judges noted.

"The FCC relies upon S706 of the Telecommunications Act of 1996 for the authority to preempt in this case, but that statute falls far short of such a clear statement. The preemption order must accordingly be reversed."

We obviously have not seen the last of this, especially since the amateur lawyer in me believes the court decision was in error.


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  • (Score: 5, Insightful) by Runaway1956 on Thursday August 11 2016, @05:56PM

    by Runaway1956 (2926) Subscriber Badge on Thursday August 11 2016, @05:56PM (#386685) Journal

    I bitch a lot about the federal government assuming powers that it rightfully doesn't have. But, in this case, I see "Federal Communications Commission" and I think they have the proper authority to define who can or cannot be an ISP.

    I don't believe that any state has the authority to ban a city from creating it's own ISP.

    The bottom line is, current providers have deep pockets, and they can buy whatever laws they want. And, that is one pretty good definition of corruption.

    The federal government should step in to end corruption, when and where possible. But, the federal government declines to do so. I guess that's because the feds enjoy their own corruption.

    Where would we be if private water supply companies had blocked cities and counties from providing water to it's residents? We'd all be in a position similar to Flint, Michigan. The water might be fit to do laundry, but you wouldn't want to bathe in it. That is, if you had water.

    Still waiting for that "last mile" that our government paid for years ago . . .

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  • (Score: 0) by Anonymous Coward on Thursday August 11 2016, @06:08PM

    by Anonymous Coward on Thursday August 11 2016, @06:08PM (#386691)

    I bitch a lot about the federal government assuming powers that it rightfully doesn't have. But, in this case, I see "Federal Communications Commission" and I think they have the proper authority to define who can or cannot be an ISP.

    Where in the constitution does it grant the federal government such a power?

    • (Score: 3, Insightful) by kurenai.tsubasa on Thursday August 11 2016, @07:05PM

      by kurenai.tsubasa (5227) on Thursday August 11 2016, @07:05PM (#386734) Journal

      Oh that's easy. Commerce clause! Next!

      Ok, more seriously, it's right next to the part that allows it to put people in jail for growing unapproved plants or owning unapproved arms; to impose fines for claiming an unapproved substance is a medicine; to dictate educational standards; to impose fines for using unapproved radio frequencies; to promulgate dietary advice; to explore the solar system; to provide farm and other subsidies; to retard the the progress of science and useful arts, by securing for unlimited times to the corporate masters of authors and inventors the exclusive right to their respective writings and discoveries; oh… to raise and support permanent armies and police actions across the globe; to create a bureaucracy that's expending to meet the needs of the expanding bureaucracy of social safety net programs; to regulate public bathrooms; to define marriage; to require citizens to purchase certain services; to… oh you get the idea.

      Yes, I'm sure there's case law that upholds each and every one of those. And if it ain't the commerce clause, it's the necessary and proper clause.

      • (Score: 3, Interesting) by mendax on Thursday August 11 2016, @07:31PM

        by mendax (2840) on Thursday August 11 2016, @07:31PM (#386758)

        Oh that's easy. Commerce clause! Next!

        Pretty much if it's something that crosses state (or international) boundaries, the Commerce clause is your man. That gives Congress the power to give the FCC the power to regulate phone service, the radio spectrum, and Internet service. And as I read the statute, which the court no nicely quoted in its decision, a broad reading gives the FCC the power to regulate ISPs in any manner it sees fit.

        And with regard to the long paragraph detailing various powers, features, and occasional abuses of federal power, and what you said afterward

        Yes, I'm sure there's case law that upholds each and every one of those. And if it ain't the commerce clause, it's the necessary and proper clause.

        You better believe it, although I am still unconvinced that any power granted by the federal constitution gives the feds the power to prosecute me for growing pot in my backyard, or for selling it to my friends and neighbors.

        You did miss some abuses of federal power, such as the now dead national speed limit, the Medicaid program, or the statutes that sets guidelines for sex offender registration. The government actually has no power to impose these things on the states. However, it can and does withhold federal money for programs if the states don't comply. In the case or the national speed limit, the extortion involved federal highway funds, money that all states need to keep their roads in good repair.

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      • (Score: 0) by Anonymous Coward on Friday August 12 2016, @04:30AM

        by Anonymous Coward on Friday August 12 2016, @04:30AM (#386898)

        the part that allows it to put people in jail for growing unapproved plants

        Drug prohibition is outright unconstitutional and the government knows it, thats why banning alcohol required a constitutional amendment and why they used roundabout ways like "tax stamps" to subvert the constitution. If nothing else, the very existence of the 18th and 21st amendments makes drug prohibition unconstitutional by precedent. Eventually, after subverting and undermining the constitution for many decades, they just stopped caring and the government officially went rogue.

  • (Score: 2) by mcgrew on Thursday August 11 2016, @06:54PM

    by mcgrew (701) <publish@mcgrewbooks.com> on Thursday August 11 2016, @06:54PM (#386729) Homepage Journal

    Well, the FCC operates under the "interstate commerce" clause of the Constitution so I agree, the court got it wrong. But then, it's an appeals court, not SCOTUS. This sounds like when SCOTUS defined the word "limited" to mean whatever Congress says it means.

    As to whether a state can ban a city from municipal ISP, that would depend on that state's own constitution.

    --
    mcgrewbooks.com mcgrew.info nooze.org
    • (Score: 0) by Anonymous Coward on Thursday August 11 2016, @07:19PM

      by Anonymous Coward on Thursday August 11 2016, @07:19PM (#386747)

      Well, the FCC operates under the "interstate commerce" clause of the Constitution

      What doesn't operate under the "interstate commerce" clause? According to our insane courts, the federal government can arrest someone selling drugs entirely in a single state because it might conceivably affect interstate commerce. In reality, the commerce clause was only meant to apply to cases where something is actually interstate and commerce; it can't be just one or neither.

      The interstate commerce clause is just a way for judges to justify giving the federal government powers the constitution simply does not grant it.

      • (Score: 0) by Anonymous Coward on Thursday August 11 2016, @07:23PM

        by Anonymous Coward on Thursday August 11 2016, @07:23PM (#386754)

        And yet when the judiciary does exercise some restraint with the application, it's all corruption and dystopia.

        Make up your fucking minds.

        • (Score: 1, Insightful) by Anonymous Coward on Thursday August 11 2016, @07:33PM

          by Anonymous Coward on Thursday August 11 2016, @07:33PM (#386759)

          Different people have different opinions. What a shocker. You can't use a faceless horde of people to pretend as if individuals are contradicting themselves.

      • (Score: 1, Informative) by Anonymous Coward on Thursday August 11 2016, @09:54PM

        by Anonymous Coward on Thursday August 11 2016, @09:54PM (#386799)

        I use my ISP to connect to websites outside my state to buy things.

        My ISP sells internet connectivity in multiple states.

        How the hell is this not covered by the interstate commerce law?

    • (Score: 3, Insightful) by Runaway1956 on Friday August 12 2016, @01:40AM

      by Runaway1956 (2926) Subscriber Badge on Friday August 12 2016, @01:40AM (#386859) Journal

      "As to whether a state can ban a city from municipal ISP, that would depend on that state's own constitution."

      Except, I'm not aware of any cases in which a community run ISP was beaten down based on some vague constitutional issue. Each and every case of which I'm aware is based on the vague idea that the community run ISP would compete, that is, threaten the profits of, some corporation. In fact, most of those community run ISP's are LESS cutthroat than the corporate counterpart. The city's ISP is more than happy to finance fiber into the city, then lease service to smaller players, which then act as ISP's for smaller areas of the county/city/town.

      The only cases in which corporations should have any standing to even challenge the city, is when those corporations are actually serving customers that the municipal authority hopes to serve. If there is no fiber in my area, and the county is considering running fiber, then no corporation has standing to even consider filing a suit.

      • (Score: 3, Interesting) by mcgrew on Friday August 12 2016, @04:27PM

        by mcgrew (701) <publish@mcgrewbooks.com> on Friday August 12 2016, @04:27PM (#387076) Homepage Journal

        I agree with you. I think ALL services like water, sewer, gas, electric, should be run by the city or county. Here in Springfield the city owns the electric company, and we have the best uptime and lowest rates in Illinois. Electric rates go up or dependability or customer service goes down, the Mayor loses his job.

        If we were stuck with Amerin we would have no say, only Amerin's stockholders and state government do.

        --
        mcgrewbooks.com mcgrew.info nooze.org
    • (Score: 3, Informative) by captain normal on Friday August 12 2016, @03:38AM

      by captain normal (2205) on Friday August 12 2016, @03:38AM (#386888)

      In recent years the 6th Circuit has been overturned by SCOTUS more than any other district. "Decisions issued by the Sixth Circuit were reversed by the United States Supreme Court 24 out of the 25 times they were reviewed in the five annual terms starting in October 2008 and ending in June 2013 — a higher frequency than any other federal appellate court during that time period." https://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_Sixth_Circuit [wikipedia.org]

      --
      When life isn't going right, go left.