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Old 11-21-2017, 01:30 PM
aldiboronti aldiboronti is online now
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Plan by FCC to repeal net neutrality rules unlikely to survive court challenge?

Here's the story.

And the following is the part that prompted the question.

Congressional Democrats have resisted working with Republicans on a net neutrality bill, saying that Pai's proposal is unlikely to survive an expected court challenge from supporters of the 2015 rules.
Could someone explain the legal aspects of this? I have no dog in this fight as I'm English but how would such a proposed rollback of the rules run foul of the courts? Is there some constitutional question here?
Old 11-21-2017, 01:42 PM
Evan Drake Evan Drake is offline
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Sounds rather like the Democrats don't have the guts.
Old 11-21-2017, 02:35 PM
md2000 md2000 is offline
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As I understand it (ANAA either) the proposal is to remove the designation that ISP's are "common carriers".

A common carrier enjoys a form of quasi-monopoly position so falls under the FCC jurisdiction and must abide by their rules that all users are treated equally - i.e. in the Phone business, Bell (or its pieces) cannot charge you extra if you want to call CNN instead of Fox News or vice versa; or extort from American Idol extra money to allow calls through to vote on their show. There's no upside to the USA (or any country) encouraging a situation where you would need several phones from several different companies, and need to remember which phone to use for which customers... or for the phone company to use its market dominance to force competitors out of business.

There was something analogous to this where the cable companies and TV channels were at odds over how much to pay for signals - i.e. if you don't give us $X per subscriber, you can't carry CBS, or NBC. Worse yet, you see with cellphone carriers - "with our service, you get Netflix and it doesn't count against your data cap." Good for Netflix, assuming they don't pay much - but of course, bad for competitors. Some internet providers, too, were seen monkeying with browser content - inserting their own ads, tracking users etc.

The FCC designated the internet providers are common carriers to ensure they did not stray from their basic job... passing traffic between any user and any website without interference or alteration.

So why the court threat? Well, I am guessing that the courts -depending on how broadly they read the laws and interpret the situation - may decide that ISP's are common carriers despite the FCC, or that the FCC may not have the power to rule they are not. Just calling them "not a common carrier" may not be enough. If it walks like one, waddles like one, and quacks like one, it is. The court may say so.
Old 11-21-2017, 08:12 PM
Colibri Colibri is online now
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Originally Posted by Evan Drake View Post
Sounds rather like the Democrats don't have the guts.
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Old 11-21-2017, 08:50 PM
dstarfire dstarfire is offline
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The challenge will be about whether the FCC followed proper procedures in changing this rule. They have a great deal of arbitrary power, so when the add new rules or revoke old ones, they're supposed to request public comment and consider it before enacting major changes. They did request and receive a lot of public comment, but chose to ignore it (the contents of those comments were released to the public by court order, so it can be demonstrated their decision is contrary to public feedback).

Also, the current chairman, Ajit Pai (a Trump appointee), has been pretty blatant in using his powers to support the mergers/acquisitions of a particular communications company (i.e. letting them buy up the competition), so the FCC reeks of impropriety right now.

Here's my source for this story: . It's a techie news site, so their take is very much "the sky is falling!" hyperbole.
Dion Starfire, grammar atheist.

Last edited by dstarfire; 11-21-2017 at 08:55 PM.
Old 11-21-2017, 09:56 PM is offline
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There's also the fact that as "common carriers", they are protected from liability for the content of whatever they carry. Their responsibility is simply to carry the content from one customer to another, without regard to what's in the content.

So a phone company can't be sued if their phone line is used for an obscene phone call, or if it's used to sell an elderly person fraudulent goods, or if a kidnapper uses it to collect ransom money, etc.

Similarly, Internet ISP's can't be sued if their lines are used to download pirated music, or view kiddie porn, or send phishing spam to hack someone's credit card or bank account -- because they are "common carriers".

Some public interest groups have said that if the Internet companies are no longer "common carriers", they will start lawsuits against them for all the illegal content they transmit. Imagine if you could sue Verizon or Comcast for every SPAM email they sent to you! Every juror who gets email would vote in your favor!

And business, too. It's not worth the effort for Sony to go after every person who downloads pirated music. But if they could go after Verizon for that -- they have enough money to be worth going after.
Old 11-21-2017, 10:03 PM
md2000 md2000 is offline
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The comment process was quite interesting. (See additional ars technica and techdirt articles). Apparently when John Oliver told his viewers to complain to the FCC, they flooded the site. The FCC chose to interpret this as a hack attack rather than an expression of public opinion. Then they had a flood of pro-deregulation submissions, many from people who never commented to the FCC and from dead people. The FCC chairman has been trying to dodge serious court challenges demanding he produce the technical analysis to justify the excuse that the anti comments mean nothing because they were hacks.

To clarify the political aspects without going too far into opinion... the FCC chair is a person appointed by the president for a certain term. The last chairman finished his term, and was replaced by the current chairman, who is solidly pro-big-business (or whatever characterization you want to put on it.) The Republican appointees have a 3-2 majority on the FCC board and so can rule however they want. The Democrats don't want to work with the Republicans because, like so much policy in DC these days, both sides would rather not compromise if it means giving a significant amount of ground on the issue - especially if they think the courts will support their point of view.

Last edited by md2000; 11-21-2017 at 10:04 PM.
Old 11-22-2017, 04:55 AM
Tired and Cranky Tired and Cranky is offline
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Originally Posted by aldiboronti View Post
Could someone explain the legal aspects of this? I have no dog in this fight as I'm English but how would such a proposed rollback of the rules run foul of the courts? Is there some constitutional question here?
I'm not expressing any opinion on whether the neutrality rule will be set aside.

In the U.S., the Administrative Procedure Act sets up the procedures that an independent agency like the Federal Communications Commission must follow when it adopts or changes a rule. The act allows federal courts to set aside a change to an agency's rule if, as others have noted, the change was "arbitrary, capricious or an abuse of discretion." The change may also be set aside for other reasons including if the change violates the constitution or if it is "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right."

That is, the FCC can't adopt a rule unless the statutes that give them their authority allow them to pass the particular rule change. For example, FCC doesn't have the statutory authority to tell me to have my dog spayed or neutered because nothing in their organic statutes lets them regulate pets.

There are other limits on an agency's ability to adopt or change rules, such as the Paperwork Reduction Act, but I'm not sure if they are relevant in this case.

Last edited by Tired and Cranky; 11-22-2017 at 04:57 AM.


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