I agree. The courts have to weigh in and put an end to this travesty. However,
the case for broadband service neutrality should not be weakened with the
near-sighted notion that "net neutrality" began in 2015. It began in 1906.
And this other example of non-neutral broadband ISP behavior, in 2005, stamped
down by Michael Powell, is just that much more reason. Especially because, that
behavior is perfectly acceptable, according to Chairman Pai. As long as the ISP
"is transparent" about it, he seems to think, it's perfectly okay to block or
throttle, or charge more, in the self-interest of the service provider. Sounds
like someone else who cannot grasp anything beyond the legacy MVPD model. Make
Internet access the same as cable TV. I suppose that people who haven't been
able to progress beyond the cable TV model of 40 years ago will never
understand what the fuss is about.
Lucky for us, we have a court system to control the excesses of stubborn,
single-minded yahoos, in position of authority.
"The problem for Mr. Pai is that government agencies are not free to abruptly
reverse longstanding rules on which many have relied without a good reason,
such as a change in factual circumstances. A mere change in F.C.C. ideology
isn't enough. As the Supreme Court has said, a federal agency must 'examine the
relevant data and articulate a satisfactory explanation for its action.' Given
that net neutrality rules have been a huge success by most measures, the
justification for killing them would have to be very strong."
And,
"But Mr. Pai faces a more serious legal problem. Because he is killing net
neutrality outright, not merely weakening it, he will have to explain to a
court not just the shift from 2015 but also his reasoning for destroying the
basic bans on blocking and throttling, which have been in effect since 2005 and
have been relied on extensively by the entire internet ecosystem."
No, Tim, "in effect since 1906" is more like it. Broadband has taken the place
of POTS, plus a whole lot more. POTS may have been the first type of telecom
service available to households. That does not make telephone service a
completely different animal from broadband. We have merely expanded what
telecom provides.
"Moreover, the F.C.C. is acting contrary to public sentiment, which may
embolden the judiciary to oppose Mr. Pai. Telecommunications policy does not
always attract public attention, but net neutrality does, and polls indicate
that 76 percent of Americans support it. The F.C.C., in short, is on the wrong
side of the democratic majority.
"In our times, the judiciary has increasingly become a majoritarian force. It
alone, it seems, can prevent narrow, self-interested factions from getting the
government to serve unseemly and even shameful ends. And so it falls to the
judiciary to stop this latest travesty."
Exactly. So, courts, do the right thing.
Bert
--------------------------------------------
https://www.nytimes.com/2017/11/22/opinion/courts-net-neutrality-fcc.html
Tim Wu: Why the Courts Will Have to Save Net Neutrality
Tim Wu NOV. 22, 2017
Back in 2005, a small phone company based in North Carolina named Madison River
began preventing its subscribers from making phone calls using the internet
application Vonage. As Vonage was a competitor in the phone call market,
Madison River's action was obviously anticompetitive. Consumers complained, and
the Federal Communications Commission, under Michael Powell, its
Republican-appointed chairman, promptly fined the company and forced it to stop
blocking Vonage.
That was the moment when "net neutrality" rules went from a mere academic
proposal to a part of the United States legal order. On that foundation - an
open internet, with no blocking - much of our current internet ecosystem was
built.
On Tuesday, the F.C.C. chairman, Ajit Pai, announced plans to eliminate even
the most basic net neutrality protections - including the ban on blocking -
replacing them with a "transparency" regime enforced by the Federal Trade
Commission. "Transparency," of course, is a euphemism for "doing nothing."
Companies like Madison River, it seems, will soon be able to block internet
calls so long as they disclose the blocking (presumably in fine print). Indeed,
a broadband carrier like AT&T, if it wanted, might even practice internet
censorship akin to that of the Chinese state, blocking its critics and
promoting its own agenda.
Allowing such censorship is anathema to the internet's (and America's) founding
spirit. And by going this far, the F.C.C. may also have overplayed its legal
hand. So drastic is the reversal of policy (if, as expected, the commission
approves Mr. Pai's proposal next month), and so weak is the evidence to support
the change, that it seems destined to be struck down in court.
The problem for Mr. Pai is that government agencies are not free to abruptly
reverse longstanding rules on which many have relied without a good reason,
such as a change in factual circumstances. A mere change in F.C.C. ideology
isn't enough. As the Supreme Court has said, a federal agency must "examine the
relevant data and articulate a satisfactory explanation for its action." Given
that net neutrality rules have been a huge success by most measures, the
justification for killing them would have to be very strong.
It isn't. In fact, it's very weak. From what we know so far, Mr. Pai's
rationale for eliminating the rules is that cable and phone companies, despite
years of healthy profit, need to earn even more money than they already do -
that is, that the current rates of return do not yield adequate investment
incentives. More specifically, Mr. Pai claims that industry investments have
gone down since 2015, the year the Obama administration last strengthened the
net neutrality rules.
Setting aside whether industry investments should be the dominant measure of
success in internet policy (what about improved access for students? or the
emergence of innovations like streaming TV?), Mr. Pai is not examining the
facts: Security and Exchange Commission filings reveal an increase in internet
investments since 2015, as the internet advocacy group Free Press has
demonstrated.
But Mr. Pai faces a more serious legal problem. Because he is killing net
neutrality outright, not merely weakening it, he will have to explain to a
court not just the shift from 2015 but also his reasoning for destroying the
basic bans on blocking and throttling, which have been in effect since 2005 and
have been relied on extensively by the entire internet ecosystem.
This will be a difficult task. What has changed since 2004 that now makes the
blocking or throttling of competitors not a problem? The evidence points
strongly in the opposite direction: There is a long history of anticompetitive
throttling and blocking - often concealed - that the F.C.C. has had to stop to
preserve the health of the internet economy. Examples include AT&T's efforts to
keep Skype off iPhones and the blocking of Google Wallet by Verizon. Services
like Skype and Netflix would have met an early death without basic net
neutrality protections. Mr. Pai needs to explain why we no longer have to worry
about this sort of threat - and "You can trust your cable company" will not
suffice.
Moreover, the F.C.C. is acting contrary to public sentiment, which may embolden
the judiciary to oppose Mr. Pai. Telecommunications policy does not always
attract public attention, but net neutrality does, and polls indicate that 76
percent of Americans support it. The F.C.C., in short, is on the wrong side of
the democratic majority.
In our times, the judiciary has increasingly become a majoritarian force. It
alone, it seems, can prevent narrow, self-interested factions from getting the
government to serve unseemly and even shameful ends. And so it falls to the
judiciary to stop this latest travesty.
----------------------------------------------------------------------
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