FCC Tells Court it has no "Legal Authority" to Impose Net Neutrality Rules:
FCC defends repeal in court, claims broadband isn't "telecommunications."
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.
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 [pdf] 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.
Then why not let the states implement it?
(Score: 5, Informative) by Anonymous Coward on Sunday October 14 2018, @10:21AM (17 children)
If the FCC only has oversight of telecommunications then of course it can't apply net neutrality rules to broadband if broadband is only data. But that should also mean the FCC cannot prevent states from enacting their own laws regulating broadband.
But, what about VoIP? Isn't that telecommunications? And what about cell service that implements broadband data and phone? Isn't that telecommunications? And what about video conferencing? Is the voice part of it telecommunications but the video not?
Doesn't the FCC have oversight of radio and TV as well? Is that only if they transmit their signal over the air? What about broadband services that use satellite transmission? I know someone who gets their internet connection from a dish on their roof.
Sounds to me like the FCC is cherry picking and wants to prevent any oversight of broadband so the companies that used to pay Pai's salary get their money's worth.
(Score: 5, Informative) by Runaway1956 on Sunday October 14 2018, @10:56AM (13 children)
Ajit Pai is the telecom's bitch. He was put in his office for the express purpose of making everything under the purview of the FCC more profitable for the telecoms. Ajit Pai's nomination to his current post is possibly the worst thing that Trump has done to this country. Pai's mission in life is to make tons of money, by whatever means, for his masters - nothing more, and nothing less. He'll be well rewarded when he leaves his current post.
Your points are all valid. The FCC can't have it both ways. If the FCC has no authority over the internet, then it has no authority to block the states from imposing their own rules on the internet. If the FCC has authority, then the FCC is derelict in it's duties.
Ajit Pai should be publicly executed for malfeasance, and Trump should be forced to watch, while being flogged. A little capital punishment for the president might help him to remember just who the hell elected his dumb ass. THEN he might actually do a good job.
(Score: 3, Informative) by Runaway1956 on Sunday October 14 2018, @10:57AM (6 children)
A little CORPORAL punishment for the pres. You can't do a "little capital punishment", LOL
(Score: 4, Funny) by c0lo on Sunday October 14 2018, @01:33PM (5 children)
If we can't scale up to GENERAL punishment, can we go to MAJOR punishment?
No? Come on, at least SERGEANT punishment, corporal is when you smack naughty kids.
https://www.youtube.com/watch?v=aoFiw2jMy-0 https://soylentnews.org/~MichaelDavidCrawford
(Score: 2) by Runaway1956 on Sunday October 14 2018, @01:37PM (2 children)
For you - communist punishment. You'll be sent to your cell without bread and water.
(Score: 0) by Anonymous Coward on Sunday October 14 2018, @02:38PM (1 child)
I kicked your monkey then I used your goat.
(Score: 2) by Runaway1956 on Sunday October 14 2018, @04:06PM
For the monkey, you get no bread. For the goat, you get no water. And, just for the fun of it, we're going to turn out the lights. We'll be back sometime next year to see if you want out.
(Score: 2) by The Mighty Buzzard on Sunday October 14 2018, @03:31PM (1 child)
Private punishment. Kick them in the goober.
My rights don't end where your fear begins.
(Score: 2) by c0lo on Sunday October 14 2018, @03:50PM
Yes... then use their goat [youtube.com] (SFW)
https://www.youtube.com/watch?v=aoFiw2jMy-0 https://soylentnews.org/~MichaelDavidCrawford
(Score: -1, Troll) by Anonymous Coward on Sunday October 14 2018, @11:48AM (1 child)
Not even joking here, go read up on Hindu caste systems and how skin color plays into it.
(Score: 1, Touché) by Anonymous Coward on Sunday October 14 2018, @12:10PM
No one cares. Take a look at the map. The FCC is for America, not anywhere else. Your bigotry is useless and unwelcome here. Now go eat your hot pocket before it gets cold. Your mom worked hard to heat it up for you.
(Score: 2) by MichaelDavidCrawford on Sunday October 14 2018, @06:12PM (3 children)
... even if you're joking." -- Clint Eastwood, "Line Of Fire"
Back in the day some Kuron speculated about how he might get a certain Covered Person's head on a pike in his front yard. A few days later he was called to his manager's office, where two Secret Service agents asked him to explain himself.
Yes I Have No Bananas. [gofundme.com]
(Score: 2) by Runaway1956 on Sunday October 14 2018, @09:22PM
You've heard the term "credible threat", I presume. I haven't "threatened" the prez - I've stated what we SHOULD DO. Neither you nor I have the power nor the authority to put Pai on a scaffold for a public execution, nor do either of us have the power or authority to force the Trump to watch the execution, nor to flog him while he watches the execution. Any "threat" you read into my post is simply not credible.
I'm not worried about any SS showing up at my home, or at work, or anywhere else in my life.
And - if they did? I'd laugh at any dumbass who takes my post above seriously.
(Score: 2) by FatPhil on Monday October 15 2018, @07:06PM (1 child)
http://youtube.com/watch?v=QEQOvyGbBtY
Great minds discuss ideas; average minds discuss events; small minds discuss people; the smallest discuss themselves
(Score: 2) by MichaelDavidCrawford on Tuesday October 16 2018, @12:54AM
I puzzled over posting it to Facebook. While it would get lots of shares I don't want my death to be ruled a suicide
Yes I Have No Bananas. [gofundme.com]
(Score: 2) by choose another one on Sunday October 14 2018, @12:15PM (1 child)
No no no, states will not be allowed to regulate interstate communication services carried on telephone lines, that is the clearly the preserve of the feds...
(Score: 2, Touché) by Anonymous Coward on Sunday October 14 2018, @12:29PM
But broadband, according to the FCC, is not communications, it is data. And it's not using telephone lines. So, yes yes yes ...
(Score: 1, Insightful) by Anonymous Coward on Sunday October 14 2018, @12:29PM
"Sounds to me like the FCC is cherry picking and wants to prevent any oversight of broadband so the companies that used to pay Pai's salary and will likely one day pay it again get their money's worth. "
fixed.
(Score: 1, Interesting) by Anonymous Coward on Sunday October 14 2018, @11:59AM (11 children)
Since ALL phone traffic ends up being data at some point ( even if you dont have a VoIP endpoint like many of us do ) that means it is all telecommunications too.
Actually, it has been for a long while now.
But, its 2018, time for a legal redefinition of what the term 'telecommunications' means.
(Score: 5, Insightful) by The Mighty Buzzard on Sunday October 14 2018, @03:33PM (8 children)
How about we fix the law instead of redefining words so that the law now means what we want it to?
My rights don't end where your fear begins.
(Score: 2) by DrkShadow on Sunday October 14 2018, @07:10PM (5 children)
-- because words change meanings with time.
Are you suggesting that using a data-backed thing to communicate via voice and image with a family member is not communications?
How about requesting data from a plethora of different servers to render you images?
If you call a librarian and ask for some information, and they provide it over the phone, is this a data service or a communication service?
The words all mean the same thing. The transport medium scarcely matters. Only if you're batch-processing huge amounts of information, perhaps, is it "data service" -- such as Walmart transferring databases between datacenters. Still, Netflix transferring 4GB to your TV is much more of a communication service, right?
The meanings of words change. Further, the meanings of words are not absolute, they're relative to whatever need the person had when they were created, and then they're slotted into a legal program for which they were never created. (Then that legal program also defines the term. How is "telecommunication" defined in the legal program/document in which it's being used?)
(Score: 2) by The Mighty Buzzard on Monday October 15 2018, @12:03AM (4 children)
Mostly I'm suggesting that you redefining a word so that a law means what you want it to mean is some extremely unethical bullshit.
My rights don't end where your fear begins.
(Score: 3, Insightful) by urza9814 on Monday October 15 2018, @03:07PM (3 children)
Or it's more ethical by making the law actually reflect reality. Depends how it's done. The definition of the word as it is used in that law is probably also part of the law. Most laws contain a glossary of terms -- any ambiguity in the definition means ambiguity in the law, so lawyers usually like to clear that up by providing their own legally precise definition. If the definition given in the law begins to drift from the common usage (ie, if the definition in law actually states that internet is not telecommunications) then the law should be fixed by correcting that definition.
(Score: 2) by The Mighty Buzzard on Monday October 15 2018, @03:20PM (2 children)
No, it's not ethical to bypass congress's constitutionally granted exclusive authority. Not ever. Not for any reason.
My rights don't end where your fear begins.
(Score: 2) by urza9814 on Monday October 15 2018, @03:55PM (1 child)
The only way to change the definition is to have Congress amend the law. Changing the definition does not mean bypassing Congress' authority.
(Score: 2) by The Mighty Buzzard on Monday October 15 2018, @04:34PM
FTFY. That's specifically my beef; courts and executive institutions going ahead and doing it anyway.
My rights don't end where your fear begins.
(Score: 2) by DeathMonkey on Monday October 15 2018, @05:40PM (1 child)
How about we fix the law instead of redefining words so that the law now means what we want it to?
Defining the words used by the law is an important part of the law itself.
Here's all the definitions. [cornell.edu]
This one sounds an awful lot like the internet to me:
Telecommunications:"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."
Telecommunications Service: "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."
(Score: 2) by The Mighty Buzzard on Monday October 15 2018, @08:04PM
Adding to an existing definition is still changing the law without congress getting its constitutionally mandated say in the matter. I don't particularly agree that congress even has the authority to regulate communications in any way but if it's going to be done it needs to be done in the least unethical manner possible, which precludes legislating from the bench.
My rights don't end where your fear begins.
(Score: 0) by Anonymous Coward on Sunday October 14 2018, @03:37PM (1 child)
But then that means involving the congress critters, of which there are likely only one or two out of 535 total (house + senate) who even have an understanding of broadband beyond this: "it is this magical pipe that brings these sweet things named bits to my computer".
The result being that whatever definition of "telecom" resulted from those incompetents working on it would likely either resemble a definition created by a committee of inebriated fools, or would so clearly be a carefully crated paragraph direct from Pai's masters that contains enough Swiss cheese holes that nothing, not even POTS copper, could be considered telecom. services anymore.
(Score: 2) by Pslytely Psycho on Sunday October 14 2018, @08:32PM
"But then that means involving the congress critters, of which there are likely only one or two out of 535 total (house + senate) who even have an understanding of broadband beyond this: "it is this magical pipe that brings these sweet things named bits to my computer". "
That seems a tad optimistic...
Alex Jones lawyer inspires new TV series: CSI Moron Division.
(Score: 5, Insightful) by Anonymous Coward on Sunday October 14 2018, @12:04PM (5 children)
So that means DMCA doesn't protect ANY of them from the actions of their customers i assume? And they are personally liable for ALL content on their networks, not just IP violations?
(Score: 2, Insightful) by Anonymous Coward on Sunday October 14 2018, @12:32PM
If you want to take this to it's logical conclusion (based on the FCC's position), then you are correct. Break out the petards 'cuz its time for some hangin's.
(Score: 3, Interesting) by trv on Sunday October 14 2018, @02:29PM (2 children)
Which will give the ISPs the right to censor all content they deem as putting them in danger. And for them to know what your content is then they will have to spy on your traffic.
Hence, the reason why VPN traffic is going up, and the reason to purchase a good VPN where your info is protected, and log files that are not kept for long. Meaning, you want to make money, create a personal VPN that goes through endpoints not controlled by a corporate entity.
(Score: 4, Informative) by The Mighty Buzzard on Sunday October 14 2018, @03:36PM (1 child)
How about a VPN that doesn't keep logs at all [privateinternetaccess.com]? There aren't many products or services I recommend to people unless specifically asked but PIA's VPN is absolutely one of the few I will.
My rights don't end where your fear begins.
(Score: 0) by Anonymous Coward on Sunday October 14 2018, @03:43PM
That only works if the end point isn't filtered.. They may not know who you are, but they can still block data on that side of the pipe.
(Score: 2) by Whoever on Sunday October 14 2018, @03:47PM
The DMCA does not require ISPs to be common carriers in order for them to be protected by it.
(Score: 0) by Anonymous Coward on Sunday October 14 2018, @02:14PM
There was a time when black people weren't people, as defined by federal law. There was a time before that where his majesty was the law. There was a time before that when only tyranny was law.
We would be fortunate if the judiciary should consider that the law is a rational thing, rather than a mystical invention of tyrants only used for confounding the freedoms of man. Such an act of reason has not be demonstrated in some time.
(Score: 2, Interesting) by Anonymous Coward on Sunday October 14 2018, @02:43PM (5 children)
Actually I think the states should delay on this one, and demand a speedy trial on the California case. The CA statutes are much, much better than the old Wheeler regs. What we don't want here, is for Ajit to strike a bargain, and give a plausible basis for a Federal judge to decide against California.
IOW, if you support NN, you REALLY want the CA lawsuit to close first. The Wheeler regs were pretty weak. They didn't cover zero rating, and a lot of other things that the carriers use to screw people. The CA rules are preferable by a long chalk. Really what needs to happen is the 20 states, should adopt the CA regs verbatim as quickly as possible, file them with an internation standards body, and pile on the CA lawsuit. Then win in the CA lawsuit, and then drop this case.
Think of it like the UCC or the UBC of telecom. CA has a really good set of standard regs. The Wheeler regs are kind of half baked and leave a lot of room for interpretation. Standardize with the ones coming out of California, and that puts this issue to bed for a long time. If the Wheeler regs prevail, then there will be a lot of new "technologies" that really only exist to ooze through the gaps in the regulations and fuck people over in whole new ways.
If on the other hand both cases are lost. Well... This country has survived calamity before.
(Score: 2) by The Mighty Buzzard on Sunday October 14 2018, @03:40PM (4 children)
The CA regs don't stand much chance of not being overturned. It's too easy to argue providing access to an interstate medium is interstate commerce and invoke the Supremacy Clause.
My rights don't end where your fear begins.
(Score: 1, Interesting) by Anonymous Coward on Sunday October 14 2018, @05:20PM (3 children)
I disagree.
There is almost no need to argue against the FCC to win this case. The FCC can flog the supremacy clause all it wants. The supremacy clause applies to the law, not the absence of it. If the FCC is under the impression that it can constrain the states from legislating, then it would have to do so on a constitutional basis other than the supremacy clause. Which is to say it would have to argue the 1st amendment. And the only way it could win that argument, is if CA pulled a "Citizens United" and threw the case intentionally.
The FCC isn't the FTC. If it wants to argue Wickard v. Filburn that is outside of its jurisdiction. It said so itself. Not that it matters, because this isn't really a trade case either.
It is a 1st amendment case. Jim Crowe laws were enforced by private persons and enterprises. Often standing outside the polls with a billy club. Really this is the argument that is absolutely incontravertable. The telecoms have, by means of ad-tracking dns mining and targetted ads, positioned themselves between the people, and the government, with the ability and active interest to interfere with their communications and right to redress grievances. Without common cairrage regulations, the presumption that this is not currently, and will not continue to be abused, is laughably ignorant.
Perhaps Ajit Pai's whole intention was to get this kicked down to the states? Maybe the conflict of the argument was set up specifically to do that.
Of course you can count on most of the south to try and use the telecoms as a new form of Jim Crowe-ism. But of all the regs, CA has the best. So the best solution is for CA to win, and then those regs to percolate through the union, and eventually be codified back into the FCC, as closely as possible to the current CA version. In that case, Ajit Pai wins, since he has kicked the regs out of the FCC's pervue. But the states win, because they now (hopefully) have NN regs that are workable. Except of course in GA,SC,NC, and TX, who will fuck shit up so bad they might end up trying to secede again. ;-p
(Score: 2) by The Mighty Buzzard on Monday October 15 2018, @12:06AM (2 children)
That argument would simply invoke the Commerce Clause from the other side. Anything considered interstate commerce falls squarely and constitutionally under the federal government's authority and is actively forbidden to the states and people.
My rights don't end where your fear begins.
(Score: 2) by deimtee on Monday October 15 2018, @06:44AM (1 child)
I quite admire the US constitution, and I think you are misreading it.
When they meant exclusive power, they said so. In other cases, constitutional Federal law trumps State law, but only if they actually pass them.
If Idjit Pai revokes the Federal regulations by disclaiming the power to pass them, the states are free to pass their own.
If you cough while drinking cheap red wine it really cleans out your sinuses.
(Score: 2) by The Mighty Buzzard on Monday October 15 2018, @02:48PM
Good luck with that argument. It hasn't held up thus far. Mind you, I'm not saying what's right or wrong in interpreting the constitution, just what is going to happen.
My rights don't end where your fear begins.
(Score: 4, Insightful) by Anonymous Coward on Sunday October 14 2018, @03:31PM
I very much bet that the FCC attorneys failed to inform the court that it was also the FCC themselves that decided that broadband was an information service.
So they have "no legal authority" because they themselves decided they have no legal authority.
But since they (the FCC) also get to decide if a service is telecom or information, they (the FCC) are also quite capable of deciding that they do in fact have the legal authority by deciding that broadband is a telecom service.
(Score: 4, Interesting) by Azuma Hazuki on Sunday October 14 2018, @04:54PM (5 children)
Funny, I always thought the GOP was about states' rights...hmm...
I am "that girl" your mother warned you about...
(Score: 4, Insightful) by Pslytely Psycho on Sunday October 14 2018, @08:47PM (2 children)
Not if it's a liberal state. They might do things like make Maryjane legal or Net Neutrality or give gay people rights, or raise minimum wages.
Of course they're good with voter suppression, destroying Planned Parenthood, making sure you don't do anything unholy in your bedroom and incarcerating children.
You know, all those Godly things.
http://www.politicsplus.org/blog/wp-content/uploads/2016/06/0612reublican-jesus.jpg [politicsplus.org]
Alex Jones lawyer inspires new TV series: CSI Moron Division.
(Score: 2, Disagree) by The Mighty Buzzard on Monday October 15 2018, @12:10AM (1 child)
You're a decade or three behind the times in your criticisms of Republicans. The only one still valid is the minimum wage bit and that's just them disagreeing rather than trying to force states to keep a low minimum wage.
My rights don't end where your fear begins.
(Score: 2, Insightful) by Anonymous Coward on Monday October 15 2018, @01:19AM
Really? So they're no longer in favor of the federal war on drugs?
(Score: 2) by crafoo on Sunday October 14 2018, @10:32PM (1 child)
I don't think the GOP is pro states rights and the constitution any more than the Dems are, they just play more lip service to it. It's a sad state of affairs.
(Score: 1, Troll) by Azuma Hazuki on Sunday October 14 2018, @10:37PM
People like you aren't helping, Mr "We need an 'involuntary skydiver' emoji." In fact, I'd say people like you are the main driving force behind the uniparty trending toward authoritarianism. You don't get to complain about the mess you made.
I am "that girl" your mother warned you about...
(Score: 2) by arslan on Sunday October 14 2018, @11:42PM (1 child)
Non-American here, but it seems odd that a federal branch can interpret the law in such a significant fashion... isn't that the sole domain of the judicial branch?
I understand at a micro level you do that, i.e. police officers have to interpret it in the field, but this is a different situation and there's no exigent circumstances here. The FCC could have easily discuss with the judicial branch first before it made such a drastic interpretation.
Now the deliberation seems to be more about whether the repercussions, i.e. States et el, makes sense rather than the fundamental issue of the FCC doing stuff like that, i.e. focus on the cause rather than the symptoms.
(Score: 3, Informative) by NotSanguine on Monday October 15 2018, @06:09AM
Actually, that's exactly what the FCC is *supposed* to do.
A little history: It used to be that Congress would pass a bill with specific requirements and, assuming the bill was then signed by the president (or have his veto overrriden). Now that's the law of the land and the Executive branch is bound to implement it.
Decades ago, however, congress started passing bills with language similar to "...hereby create [executive branch agency] which shall be constituted as hereinafter provided, and which shall execute and enforce the provisions of this Act." That gives legislators the ability to crow about how much they've accomplished, while being able to claim that anything their constituents don't like is the fault of those triple-damned regulators. Which makes a great deal of sense if you want to protect your incumbency and the power and privilege that go with it.
To be fair, there are some sets of issues which are both very complex and dynamic. In those cases, it doesn't make sense to require that a law include every single contingency, making regulatory agencies necessary
The Communications Act of 1934 [wikipedia.org] (as amended numerous times since), gives the FCC authority to define what is a "telecommunications service" and what is not. Specific requirements of the law places different providers under their purview into different categories, each with different regulatory regimes [wikipedia.org].
The courts have been involved in this particular debate, most recently in Verizon v. FCC (2014) [wikipedia.org] where the US Supreme Court ruled that the FCC could not impose net neutrality rules because "broadband providers" were classified as "Information providers" rather than "common carriers." (cf. Title I vs. Title II of the Communications Act of 1934)
As such, the FCC reclassified broadband providers as "common carriers" (which had been the case until 2002). This allowed them to implement net neutrality regulation. Ajit Pai's FCC has since changed the classification *again*. Doing so allows them to say they don't have the authority to implement net neutrality because broadband providers aren't "common carriers."
It's a shell game, where the corporate boot lickers at the FCC take away their own authority and then claim they have no choices.
As for the California law, those same boot lickers, trying hard to please their corporate masters, are now attempting to keep this under Federal purview. This is primarily because their corporate masters, having already bought one set of legislators and regulators, don't want to have to buy 50 more sets.
The above isn't comprehensive or a deep dive into this. If you want that you can take my course on the subject (sadly, that doesn't exist) or do your own research on the topic.
In a nutshell, the FCC implemented needed (to prevent censorship, added barriers to entry into various industries and a host of other issues) rules to give a modicum of consumer protection to ISP customers. There are a variety of other issues which can't be addressed this way (abusive TOS/T&Cs, port blocking, server restrictions, etc., etc., etc.) as well.
Those rules restricted ISPs from charging third parties for carriage of data that their customers pay them to carry. the technical term is "double dipping." It's a bit more complicated, but that's the short version.
The corporate boot lickers at the FCC got a majority and proceeded to do their masters' bidding and dismantle these needed rules.
As such, all three branches of the Federal government have been involved and have weighed in on the issues.
That said, despite the Supremacy Clause [wikipedia.org], state and local governments can, and do, implement their own laws all the time. When there is disagreement, as there is in this case, the courts get involved. And that's where we are now.
No, no, you're not thinking; you're just being logical. --Niels Bohr
(Score: 1) by Sulla on Monday October 15 2018, @07:25AM
The left has really been digging its own grave over the states rights issue. I was having a conversation with my uncle yesterday about Trump repealing a bunch of enviro laws and told him that we should just repass those laws at the state level and empowet the states to excercise their power. He was so afraid of the right reenacting slavery that he would eather roll over.
The left needs to weild states rights as an ax against the fed if they have problems, ill stand up for their right to do so even if i disagree with their goals. Power is always best situated as close to the individual as possible.
Ceterum censeo Sinae esse delendam