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FCC loses Internet regulation lawsuit

By: Neil Stevens (Diary)  |  April 6th, 2010 at 11:50 AM  | 

RESIZE: AAA

The DC Circuit Court of Appeals slapped the FCC today by ruling in Comcast v. FCC that the regulatory body overstepped its legal bounds when it tried to regulate Internet management practices. This precludes Net Neutrality regulation, which is at heart regulation of how ISPs manage their networks.

Judge David Tatel, Clinton appointed successor of now-Justice Ruth Bader Ginsburg, wrote for the court that since even the FCC acknowledged it had no “express statutory authority” to go after Comcast for regulating use of Bittorrent on its network, the Commission had to show that the regulation was “reasonably ancillary” to the authority it does have. The FCC did not, and so the FCC’s order to Comcast has been thrown out.

I’m no lawyer, but having lost decisively at the DC Circuit Court of Appeals seems to set a dangerous precedent for the FCC’s future ability to regulate ISPs. That is why the FCC has a plan: reclassify (or deem) ISPs to be something different under the law (make them a Title II service under the Communications Act, which former Chairman Michael Powell says they never, ever have been), and then reassert (or pass) this authority regardless of what the court said.

We’ve got to raise the alarm and pressure the FCC against this deem and pass tactic.

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COMMENTS

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  • renny

    And hopefully a nail in the coffin of little o’s’ and minions’ desire to “save” the internet by regulating it into having no cons. sites.

  • http://www.dcworksforus.com Kenny Solomon

    ……..Probably more like a shove though.

    Neil, you touched on it…….. The administration doesn’t care.

    They’ll try the courts to get it their way, but if decisions don’t fall into place, Mr. Sunstein will simply “nudge” things across existing regulations and laws.

    Public opinion, legality and Constitutionality be damned.

    It’s coming.

  • acat

    Should our Obama Overlords decide to try to “regulate” the internet, these terms should be in your dictionary.

    By the way, we need to recall a page from our liberal opponents during the COPA debacle. “The internet treats censorship as damage and routes around it”.

    There’s no other reason why reclassifying the internet service providers as if they’re telephone service providers makes sense – the whole internet in the U.S. would be just as damaged as the whole internet in China – and the same tools would be needed to work around it.

    Don’t worry, there’s a couple million U.S. teenage boys who will be working on “fixing” whatever Obama does to the internet. Their goal will be to keep access to free porn, but the tools will work just as well to keep access to the Constitution.

    Mew

  • http://pocketchangeproductions.net/ anotherindyfilmguy

    sounding the alarm won’t be enough. It never will, they will just go forward as they wish until they are thrown out of court again and again or removed from power or both.

  • groveratt

    GOD WILL NOVEMBER EVER GET HERE???

  • americanmale

    Without Net Neutrality, depending upon the political view of the boards of directors of one or any of the major internet service providers, a router system administrator may be tasked to de-prioritize traffic from 174.120.27.221 (redstate.com) and priorize traffic from 208.122.51.48 (dailykos.com)

    Furthermore, that same router tech could be tasked to block all H.323 protocol traffic from the RNC and prioritize H.323 traffic from the DNC. H.323 traffic is VOIP (voice over internet protocol) traffic used by most call centers which employ VOIP technology for each of their campaign workers.

    With the FCC in charge of and enforcing net neutrality, we have a constitutional argument with regards to free speech if any traffic shaping occurs. If there is no net neutrality, then private companies are in charge and they can block any traffic they so desire….and because they are non-governmental agencies, there is no constitutional right to free speech.

  • eastbaylarry

    this would be the death of an internet service provider, unless it is done via government mandate and ALL providers have to do it.

    Let’s leave the internet in the free market and take our business elsewhere if that board of directors is ever so foolish.

  • http://www.hakubi.us/ Neil Stevens

    You’ve been lied to and you’re allowing yourself to be a parrot for neo-Marxist propaganda.

    You don’t know what you’re talking about and I urge you to get informed, quickly.

    Get the facts about the FCC’s neo-Marxist plans

  • GregInFla

    Beck discusses “Free Press” on Fox News. (Hope this embed works.)

  • LibertarianHawk

    You honestly want the government to start getting involved in the question of what can/can’t/must/mustn’t flow over the Internet?

    I’m all for neutral network policies — and would almost certainly drop service with any provider which instituted anything different.

    But no way in hell do I want the FCC getting involved in this. Because I know full well it wouldn’t stop there. As soon as they did, then the providers would lobby for their own concessions — which they’d get — and then all providers, and prospective providers, would be forced to live by both the concessions and the restrictions, etc. etc. etc.

    You’ve gotta be crazy to support this. No offense.

  • aesthete

    would be to have service providers disclose information regarding de-prioritization of traffic. Such information would be useful, and would allow consumers to make rational decisions based on the facts. Net Neutrality entails far too much government control and redistribution.

  • http://www.helpawhiteguy.com livefreenh

    I still maintain that the most important part of the Constitution is contained in the first five words of the Bill of Rights.

    Congress has no business determining which data packets should have priority in my personal or professional lawful dealings. I do not know how to state that in more simple terms.

  • davesinsanantonio

    trust the FCC, or any government agency, which wants to be able to control the content, or eliminate it, of conservative sites, more than you trust a private company???? Couldn’t you just switch companies that pull any of that nonsense? If the government is the problem, what recourse do you have? If it is a private company, let the market forces work. Do companies like liberal money more than conservative money? In the free market, the customer rules. In a socialist state, the government rules everything, and individuals have no say. I don’t trust the FCC any farther than I can throw their headquarters building!

  • bs61

    We need to be wary of anything this administration proposes since they are socialist, and want to squash the right’s speach. Just look to the paragon’s of free speach that Obama has – Mark Lloyd who was impressed with Chavez incredible revolution.

  • bs61

    http://www.foxnews.com/story/0,2933,562722,00.html

  • ihateliberals

    it is just a question of how they do it. they will keep trying until it works for them. deem and pass at work again.

  • http://www.hakubi.us/ Neil Stevens

    It’s up to us to work to get that final say to be the right one!

  • eastbaylarry
  • americanmale

    Let’s give another example of why we should be for net-neutrality:

    Comcast is in partnership with General Electric (GE) which when combined, form majority ownership of NBC; the home of Matthews, Maddow, Shultz, and Olbermann.

    Let’s say they (Comcast) decides to implement a policy which allows only two terabytes of video data emanating from the “ditto cam” to pass through to it’s millions of subscribers after which, the “ditto cam” traffic is blocked until an equivalent amount of video traffic originating from msnbc.com passes through to it’s millions of subscribers. And furthermore, this oscillating traffic shaping policy is to be in effect 24/7, 365 days a year.

    What the above example describes is a technological implementation of the Fair Use Policy; something which we are all unanimously against.

    Sure, one can complain to Comcast, but there is no legal mandate causing them to act on your behalf. One can push the arugument of free speech…but Comcast is a private/public – non government entity which is NOT subject to the preservation of Free speech. In essence, one is up the creek without a paddle. One will be forced to drink the kool-aid.

    Yes one can unsubscribe…if one is lucky enough to have competing internet service providers. However, for the majority of americans, they are not within the local loop of major metropolitan areas and thus have access to only a single cable provider; comcast for example.

    Now, if the FCC is in charge as a regulator….and they ignore their mandate as a regulator and decide to become an agent and implement a blocking/traffic shaping policy on the direction of some “regime”, then we the people do have legal recourse based upon the constitutional principle of Free Speech. (Internet messages, video has been classified as speech through numerous legal precedence). Furthermore, one has the ultimate recourse, the ballot box. The offending “regime” can be replaced and thus replace the chairman of the FCC with one who promotes proper behavior.

    Ultimately, what i am trying to say is that being for net neutrality is a means by which we can continue to have unfettered propagation of conservative thought without worrying that some private entity can adversely affect it.

    Lastly, i feel as though we are being duped by the liberals. They know we are going to be, at first glance, against any form of governmental regulation. And thus they are working in parallel aquiring influence in these public/private – non governmental Internet Service Providers (telcos) such that they can implement their philosophies in a private realm.

    In sum, they’ll appear to relinquish their desires by avoiding any implementation of governmental regulation and thus throw us a bone…meanwhile snickering behind the scenes thinking job well done. They (conservatives/republicans) fell for it hook line and sinker.

    Let’s not lose the technology war like we did in 2008.

    (Paul)

  • zroxx

    Ultimately, what i am trying to say is that being for net neutrality is a means by which we can continue to have unfettered propagation of conservative thought without worrying that some private entity can adversely affect it.

    The right way to achieve “unfettered propagation of conservative thought” is to put that conservative thought out in the free marketplace and attract more “consumers” for your thought than your competition’s thought. Become the content producer and develop a devoted following for your “product”. Your audience will likewise choose content delivery providers that best serve them, and will therefore financially reward providers that ensure their access to their desired thought product is unfettered.

    All of this can happen without government involvement.

    With government involvement you are inviting central planners (who change every 2-4 years and who will not always behave in a manner you agree with) to intrude and steer the situation toward an ideological outcome rather than a competitive outcome.

    The bottom line: putting the power to regulate content production and delivery in the government’s hands is not conservative. Putting that power in consumers’ hands – whose freely made financial choices result in a “regulatory effect” through market success and failure – is conservative.

  • americanmale

    I would agree with you whole-heartedly if i believed net neutrality wasn’t ultimately about speech. If net neutrality was a product or service, i would say “heck ya, let em go at it in the market” but speech isn’t a product / service, it is a philosophy of the founders and deserves special consideration.

    Here is the thought process:

    Major Internet Service Providers (telcos) are public companies which are comprised of shareholders, a board of directors, a CEO, etc. And, it is the job of the CEO to implement the policies as outlined by the board of directors.

    Each director is either appointed or elected by, for all intensive purposes, the majority shareholders. These majority shareholders on a whole include Saudi Sheiks, Euro Elites, Socialist governments, Communist governments, Dictatorships, foreign businessmen, foreign funds, US hedgefunds (whose foreign ownership is quite high), wealthy liberals (soros) etc.; all of which may or may not subscribe to our core beliefs of free speech.

    Take for example a policy of nuclear proliferation. Some foreign / non conservative shareholders might not want us to hear a conservative viewpoint on the issue because it conflicts with theirs. They may elect, via communication with their puppet directors, to have the public corporation implement a traffic shaping policy which suppresses conservative speech on that particular issue. I believe that is wrong and we should guard against that occuring. simply by the whim of shareholders in the private sector.

    Having said the above, i believe in the case of net neutrality, the government does have a regulatory role; much the same as it does relative to interstate commerce and the telecommunications act. And, i believe this governmental role is in line with the constitution and the intent of the founders because free speech is a core constitutional issue that is ultimately protected by a strong US Policy.

  • http://www.hakubi.us/ Neil Stevens

    What a joke.

  • http://www.hakubi.us/ Neil Stevens

    You didn’t even answer any of the arguments and facts from my post. Clearly, you can’t.

    You’re clueless.

    That or you’re just a liar. No intelligent, honest person comes here and tells us that a massive expansion of government regulation stands for freedom.

    Plus, you mindless baboon, the radical left is solidly behind this, as I clearly demonstrated.

    YOU ARE THE DUPE. That or you’re a shill.

  • zroxx

    If net neutrality was a product or service, i would say ?heck ya, let em go at it in the market? but speech isn?t a product / service, it is a philosophy of the founders and deserves special consideration.

    Well first of all, having Comcast, a privately owned entity, determine what it will or wont allow on its “property” for lack of a better description, doesn’t infringe on free speech rights anymore than Wal-Mart demanding that someone passing out communist literature inside their store cease and leave the premises. Why would you (presumably) allow Wal-Mart to set the rules for what it will or wont allow on its premises but not accord Comcast the same? Remember, in many communities, Wal-Mart is the only general retailer in town, or perhaps one of only a couple choices – much like NN advocates like to tout regarding allegedly limited choice for Internet service. You haven’t demonstrated a meaningful infringement of – or even threat to – anyone’s Constitutional free speech right.

    Second, you need to back up your characterization of the makeup of majority shareholders of American corporations. Take Comcast, AT&T, Verizon, and Time-Warner as relevant examples in this discussion and come back with some facts on how their majority shareholders are predominantly foreign, socialist or Saudi. Otherwise, fear of what shareholders might demand executives to do isn’t really going to fly as support for government intervention.

    Third, and building on the whole “what if” line of argument, the limited examples I’ve seen where a company has “traffic shaped”, ala Comcat/bittorrent, were resolved without government regulatory intervention. Not only that but they do not exemplify the scenario of ideological/political “throttling” that you are concerned with, they were technical in nature. So you and other NN advocates are asking for government intervention on the basis of scenarios that you argue (poorly) might happen sometime in the future but which are not occurring currently.

  • eastbaylarry

    nt

  • renny

    and their professed interest in “preserving” the net and/or keeping the nation from mass hacking or saving us from presumed international cyber attacks is just as easily used to censor and/or shut down conservative sites.

    After all, look at how happy his majestyinchief is with FOX, Rush, the tea parties, and any other opposing point of view.