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Bad News For Everyone But Comcast
April 6, 2010 9:00 AM   Subscribe

Bad News for Net Neutrality: "A federal appeals court has ruled that the Federal Communications Commission lacks the authority to require broadband providers to give equal treatment to all Internet traffic flowing over their networks." The ruling is being viewed as a major setback for the FCC's National Broadband Plan.
posted by saulgoodman (92 comments total) 5 users marked this as a favorite

 
I want to cry. But I'm at work, and I don't want to explain to people that I'm sad for the internet.
posted by pwally at 9:06 AM on April 6, 2010 [7 favorites]


Ridiculous.
posted by entropicamericana at 9:09 AM on April 6, 2010


thank god. it's about time someone looked out for the oppressed corporations.
posted by shmegegge at 9:10 AM on April 6, 2010 [12 favorites]


Can this be a plus for professional content creators?
posted by The3rdMan at 9:11 AM on April 6, 2010


the Federal Communications Commission lacks the authority

Except when they need to regulate speech or install V-chips.
posted by Blazecock Pileon at 9:13 AM on April 6, 2010 [18 favorites]


I am a professional content creator.

This ruling is garbage. This is bad for American business, but not big American business. This is bad for free speech and for equal opportunity and, and, and.... gah.

.
posted by andreaazure at 9:15 AM on April 6, 2010 [1 favorite]


Maybe it's time for congress to pass a law clarifying and limiting what the courts have the authority to do. Then, when the courts try to declare that law unconstitutional too (which of course the law itself will prohibit), the fireworks will really fly.
posted by saulgoodman at 9:16 AM on April 6, 2010


Comcast's very existence is bad for everybody but Comcast.
posted by vibrotronica at 9:20 AM on April 6, 2010 [16 favorites]


Maybe it's time for congress to pass a law clarifying and limiting what the courts have the authority to do.

You've heard of Nixon, right?
posted by DU at 9:20 AM on April 6, 2010


Congress can still explicitly give the FCC this authority.
posted by jefeweiss at 9:20 AM on April 6, 2010 [7 favorites]


That's weird, I thought they had pretty broad authority. Certainly over the airwaves, but I guess they don't have as much control over wires?

Well, this is why we need legislation. Relying on the FCC is not a good idea long term, I mean do your really think President Palin's FCC is going hew to openness?

Of course we'll all be raptured* by then, so it won't be too big of a deal

(By raptured, I mean all dead in a nuclear war. Except for the survivors, for whom great suffering in the tribulations of nuclear winter, eeking out a survival as bands of "Left behind" Palinites battle U.N forces they believe work for the Antichrist himself -- Nicolas Sarkozy)
posted by delmoi at 9:22 AM on April 6, 2010 [2 favorites]


I'm assuming all it would take to fix this problem is for Congress to pass a bill amending the FCC's mandate to include this market, yes?
posted by Thorzdad at 9:22 AM on April 6, 2010


You've heard of Nixon, right?

Not following you here for some reason, DU... FWIW, that comment was just a lame joke.

posted by saulgoodman at 9:24 AM on April 6, 2010


So who's taking odds on the length of time before we see the first really egregious abuse of this?

I'm guessing six months. But I'm also guessing that because it's an "internet story" it'll fail to gain any traction with the press and most people won't ever hear about it.
posted by quin at 9:25 AM on April 6, 2010


I'm assuming all it would take to fix this problem is for Congress to pass a bill amending the FCC's mandate to include this market, yes?

Can you imagine how much money the competing lobbyists will make in the process of buying those votes?
posted by Nelson at 9:29 AM on April 6, 2010 [1 favorite]


Comcast's very existence is bad for everybody but Comcast.

Actually Comcast is bad for Comcast too, they just are too stupid to realize that short-term profit maximizing decisions that disrupt the entire way our culture is distributed will also ruin their own company going forward.
posted by pwally at 9:30 AM on April 6, 2010 [2 favorites]


Comcast's very existence is bad for everybody but Comcast.

You mean Xfinity?
posted by delmoi at 9:32 AM on April 6, 2010


Federal Communications Commission lacks the authority

Wow, people are blaming the court? This is a decision that should be celebrated! A limitation on government power? awesome!

Of course, I think in this case the Federal gov't should give the FCC this power. But I sure am glad someone (a court even) is willing to say that government bodies aren't omnipotent.
posted by blue_beetle at 9:37 AM on April 6, 2010 [5 favorites]


IANAL
The courts didn't rule on whether they thought it was a good idea or not, they ruled that the FCC lacked the authority. The FCC claimed authority under Title I of the Telecommunications Act. I'm by no means an expert, but I'm passing familiar with the act, and it does seem to be a bit of a stretch to claim that the Act includes the ability to regulate the internet. In fact, if my memory serves, the internet was intentionally left out of the act to keep it free from government interference.

This isn't a death knell for Net Neutrality, it just means that congress needs to explicitly grant the FCC authority to implement it. If congress does take this on (hopefully they do), they should also outline the FCC's authority with regard to regulating broadband as well, since this ruling seems to have implications to the FCC's nationwide broadband plan as well.
posted by forforf at 9:40 AM on April 6, 2010 [4 favorites]


[Insert 30 Rock Reference Here]
posted by robocop is bleeding at 9:41 AM on April 6, 2010 [1 favorite]


"Certainly over the airwaves, but I guess they don't have as much control over wires?"

The airwaves are nominally public resources, which the FCC administers on our behalf. The wires are laid by private companies.

Now, those wires often require right-of-way granted by local governments, but the chances of local governments getting together and requiring net neutrality to use their right of way is effectively nil.

And yes, that does mean that the answer is that congress must grant the FCC broader regulatory powers under the interstate commerce clause to regulate broadband access (though wireless broadband could still be regulated, and that might be a decent tack to take, because if wireless broadband is faster and cheaper than cable or DSL, people will simply choose that).
posted by klangklangston at 9:42 AM on April 6, 2010 [3 favorites]


blue_beetle: I think the question should not be whether power is in the hands of the government or not, but whether power is being concentrated or diffused. In this case, power is being concentrated in the hands of corporations, not being diffused into the hands of individuals exercising their own control over how they wish to use network resources.
posted by organic at 9:59 AM on April 6, 2010 [2 favorites]


Congress can still explicitly give the FCC this authority.

Correct. The FCC didn't have authority over certain aspects of cable until Congress gave that authority to it in 1984--which the opinion noted:
(Title VI, which gives the Commission jurisdiction over “cable services,” was not added to the statute until 1984. See Cable Communications Policy Act of 1984, Pub. L. No. 98-549, 98 Stat. 2779.)
If Congress wants the FCC to have authority over internet services, it can give the FCC that power. The opinion, in my opinion (sorry, bad pun( is correct.
posted by devinemissk at 10:06 AM on April 6, 2010 [1 favorite]


Wow, people are blaming the court? This is a decision that should be celebrated! A limitation on government power? awesome!

That's a matter of opinion. I completely disagree. I think the FCC has been weakened far too much in the years since Reagan sank fairness and accuracy and truth in advertising standards. I want a much more muscular government role in areas that actually have the potential to improve the quality of my life, and much weaker government when it comes to law in service to corporate interests (i.e., grants of corporate rights, subsidies, etc.). So further weakening the FCC is bad in my book, period.

And really in this case, it's not creating a new limit on government power, so much as removing a limit on the ability of ISPs to throttle content for whatever reasons they deem fit. It also has the upshot of making national broadband more difficult to achieve.

As for telecom infrastructure being privately owned, yeah, they are technically--but arguably, only because the industry has received the benefits of massive taxpayer funded subsidies to develop that infrastructure.
posted by saulgoodman at 10:12 AM on April 6, 2010 [5 favorites]


I want a much more muscular government role in areas that actually have the potential to improve the quality of my life, and much weaker government when it comes to law in service to corporate interests

This, this, a thousand times this.
posted by hippybear at 10:20 AM on April 6, 2010 [5 favorites]


FTA: "This decision destroys the F.C.C.’s authority to build broadband policy on the legal theory established by the Bush Administration,”
...then how bad could it be?
From what I'm reading forforf has it: "The decision could reinvigorate dormant efforts in Congress to pass a federal law specifically governing net neutrality, a principle generally supported by the Obama Administration."

"So further weakening the FCC is bad in my book, period."
So less Langly and Frohike, more Byers.
posted by Smedleyman at 10:23 AM on April 6, 2010


Congress can still explicitly give the FCC this authority.

Opponents of net neutrality argue against it because it regulates speech, something which already falls under the purview of the FCC. Congress has already given the FCC the authority to regulate speech.
posted by Blazecock Pileon at 10:24 AM on April 6, 2010


If Congress wants the FCC to have authority over internet services, it can give the FCC that power. The opinion, in my opinion (sorry, bad pun( is correct.

The opinion may not be incorrect on the technical merits, but it's definitely going to make it more difficult to advance the cause of net neutrality in the immediate term, because now the matter has to go back to the three ring circus: the house, the senate, and the lobbyists. Agreed with the comment upthread that it would be better, long term, to accomplish net neutrality in law than through the FCC anyway.
posted by saulgoodman at 10:30 AM on April 6, 2010


Maybe it's time for congress to pass a law clarifying and limiting what the courts have the authority to do. Then, when the courts try to declare that law unconstitutional too (which of course the law itself will prohibit), the fireworks will really fly.

Maybe it was a joke, but Congress has actually tried to do this plenty of times. Not a good idea at all.
posted by kmz at 10:39 AM on April 6, 2010



The airwaves are nominally public resources, which the FCC administers on our behalf. The wires are laid by private companies.


The FCC absolutely has the authority to regulate private companies with private wires, it just happens that this authority is granted to private companies offering Telecommunication Services. The act even defines what is meant by Telecommunication Services. However, the act says basically nothing on companies offering "Internet Services", and hence the whole problem.

I don't see how the commerce clause comes into it. It's pretty clear and has been established that the FCC CAN be given the authority to enact and enforce regulation on communication matters. So it's not an issue of whether the FCC can regulate private companies, it already does. The issue is whether the FCC HAS been granted that authority for internet matters. The court ruled no.

I think this ruling is actually a blessing in disguise, it will hopefully lead to a coherent policy and the role of government is to be with internet services. I don't think trying to shoehorn old policy to address internet issues is the right approach. The communications landscape has shifted dramatically in the last 15 years and its probably due some regulatory catchup.

on preview:
Congress has already given the FCC the authority to regulate speech.
The FCC can't do a damn thing about any speech I make (yay!), Walmart makes (boo!), or (with this ruling) MetaFilter makes (yay?). So saying that they can already regulate speech and inferring that can be used as a lever to gain net neutrality authority in an area they don't have clear authority in makes no sense. The FCC can't regulate me or corporations because it doesn't have the authority. The FCC can't regulate the internet because it doesn't have authority.

The more I think about it, the more I'm glad the court ruled this way. If the court allowed the FCC to move forward on Net Neutrality without clear statutory guidelines it means that every new administration would be free to interpret its internet enforcement authority in the way it sees fit.

and on double preview:
saulgoodman stole my thunder about this be better in the long term (and I agree its a set back for the immediate term)
posted by forforf at 10:45 AM on April 6, 2010 [4 favorites]


The FCC can't do a damn thing about any speech I make

I don't think you can buy a TV without a V-chip or say certain words on television or radio without getting fined. Aside from "public" airwaves, you can't even do this on basic cable, which runs over "private" lines. It seems pretty well established that the FCC has control over speech conducted through communication technologies. If a special case is being made here for the Internet because the FCC's lawyers made the wrong arguments, I could see why that would happen, but that's not the reason Congress needs to step in and clarify the FCC's role. If the FCC really wants to defend net neutrality, it seems it already has that authority.
posted by Blazecock Pileon at 10:54 AM on April 6, 2010


BP you lost me, maybe you can explain a bit more how the FCC could take its authority on regulating violence and obscenity and extend that to any kind of content? I'm just not seeing how that theory holds.
posted by forforf at 11:12 AM on April 6, 2010


Wow, people are blaming the court? This is a decision that should be celebrated! A limitation on government power? awesome!

Yes, it's totally awesome when the government doesn't have the power to protect individuals from corporate malfeasance. Just look at the "Consumer protection" for banks! Why should the government have the power to limit credit card interest rates!?
posted by delmoi at 11:12 AM on April 6, 2010 [3 favorites]


Agreed with the comment upthread that it would be better, long term, to accomplish net neutrality in law than through the FCC anyway.

Yeah, this is more my point. Under the law, on the technical merits, the opinion was correct. Does it create some bad implications, policy-wise? Absolutely. Is the FCC the right body to "fix" those bad policy implications? Probably not. The FCC's internal policies will vary over time depending on who the commissioners are and who appointed them. In 10 years, we could have five different FCC commissioners who might decide that the FCC doesn't have the authority to regulate the internet. Better to get it on the books, in the U.S. Code.

(No comment on whether Congress is capable of actually enacting good legislation on this. Also no comment on whether the market is capable of meeting user demand for a free internet.)
posted by devinemissk at 11:38 AM on April 6, 2010


If the FCC really wants to defend net neutrality, it seems it already has that authority.

I see little evidence of this; the FCC is given its authority to regulate by Congress, and Congress has not explicitly given it authority to regulate the Internet in this way. It has since its inception, as a descendant of the Federal Radio Commission, had authority over RF broadcast (the "airwaves" — what a moronic word) and telephone services, and in the 80s was granted further authority over cable TV, while the telephone-regulation role was broadened out to "telecommunication services.". But — and this is the significant part — "telecommunication services" doesn't necessarily include Internet access or the Internet generally.

For a lot of very good reasons, many people thought it best to keep the FCC away from the Internet, and were successful in doing this by labeling (and getting friendly courts to periodically reinforce) the Internet an "information service," distinct from the "telecommunication services" which were subject to its jurisdiction. (If you look at the text of things like the Communications Decency Act, which explicitly tried to regulate the Internet, it uses the phrase "interactive computer service" in order to avoid this problem.) It is precisely this lack of regulation that has allowed services like Skype and Google Voice to flourish, by avoiding the taxes that traditional wireline and wireless telcos are subject to.

So it's not entirely clear that the FCC does have the ability to regulate the Internet, and I think given the ambiguity it's best for everyone — even if it means a setback for net neutrality now — that Congress give it that power explicitly, leaving no room for questions down the road, if indeed we want the FCC to be able to do that. (Something which I am personally quite conflicted on; sure, a net neutrality rule would be great, but on the other hand, the FCC has traditionally sucked so much telco dick that its official emblem ought to be a pair of kneepads. Bad, corrupt, or incompetent regulation leading to regulatory capture could easily be worse than no regulation at all, and we'd be wise to remember that even if the FCC happens to be on our side today, they might not be in the future.)
posted by Kadin2048 at 11:43 AM on April 6, 2010 [2 favorites]


Before we get too carried away, let's read the actual opinion:
In this case, the Commission does not claim that Congress has given it express authority to regulate Comcast’s Internet service. Indeed, in its still-binding 2002 Cable Modem Order, the Commission ruled that cable Internet service is neither a “telecommunications service” covered by Title II of the Communications Act nor a “cable service” covered by Title VI. In re High-Speed Access to the Internet Over Cable and Other Facilities, 17 F.C.C.R. 4798, 4802, ¶ 7 6 (2002), aff’d Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005).
So basically, the FCC is trying to do something that it already decided that it cannot do. This decision was upheld by the United States Supreme Court in the Brand X case (opinion, discussion) currently the foundation of internet regulatory jurisprudence. Almost a decade a go, to avoid having to regulate the burgeoning internet under a telecom act written to regulate analog hard-wired telephony, the FCC ruled that internet services don't fall under its pervue. The Supreme Court affirmed this interpretation as being within the FCC's authority. In short, the FCC decided that it has no clear, statutory grant to regulate the Internet, and the Supreme Court upheld that ruling as within its authority.

But now, the FCC is coming back and arguing that even though it doesn't have to regulate the internet the way it regulates your phone service--and believe me, absolutely no one wants that to happen*--it nevertheless has the authority to regulate some parts of the internet, i.e. those it finds distasteful. In short, though by its own admission it does not have a clear statutory grant to regulate the internet, it, being the FCC, can do what it wants even in the absence of such a grant.

The judges on the DC Circuit, it seems, weren't born yesterday, and didn't allow the Commission to get away with an attempt to have it both ways. If the FCC wants to revisit its interpretation of the Telecommunications Act, it can do so through the normal APA rulemaking process. But it hasn't, and so it can't do this.**

Of course, Congress can amend the Telecommunications Act, but that's just not gonna happen. Too low a priority, what with health care, immigration, education, and energy on the agenda. The best way forward here is for the FCC to revisit its decisions classifying internet service as an "information service" rather than a "telecommunications service"*** and proceed to regulate on those grounds.

In sum: this was the right legal decision, however unpopular it may be. The FCC can do this right if it wants to, but that way madness lies. This leaves it up to Congress, and I, for one, am not holding my breath.

*Except perhaps the odd neo-Luddite, i.e. people who hate the Internet to begin with.

**Comcast actually argued this, but the DC Circuit declined to rule on it, holding that the lack of a clear statutory grant rendered such a decision unnecessary. If the FCC interpreted the statute as a clear statutory grant, it could probably win, but it hasn't.

***Given the increasing pervasiveness of the internet, this might not be a bad idea, and given federal agencies incredibly broad authority to interpret their own organic statutes under Chevron, it can almost certainly do this.
posted by valkyryn at 11:48 AM on April 6, 2010 [6 favorites]


"Wow, people are blaming the court? This is a decision that should be celebrated! A limitation on government power? awesome!"

While we're busy limiting government power, maybe we should drastically curtail the government's power to charter and legally recognize corporations. It's a power deferred to the state level, but it's still exclusively a power of Big Government to grant charters and legally create corporations. So in that sense, corporations, too, are a product of the application of state power, so let's limit them more, on principle, too.

posted by saulgoodman at 11:50 AM on April 6, 2010


Thanks for those insights valkyrn. If you're analysis is correct, it seems the situation isn't nearly as dire as the screaming headlines suggest. Yet another reminder not to take headlines or mainstream media interpretations of events at face value, because the headlines make it seem as if this decision is universally understood to be a death blow to the cause of Net Neutrality.
posted by saulgoodman at 12:01 PM on April 6, 2010


Given that the FCC's version of "Net Neutrality" is complete crap, I'm not particularly disappointed that they don't have the power to impose it on us.

On a side note, does that MSNBC link just redirect to the homepage for anyone else?
posted by madajb at 12:04 PM on April 6, 2010


saulgoodman, don't get me wrong: at the moment, net neutrality is currently dead on the table. The FCC will need to adopt a far broader interpretation of the Telecommunications Act than it currently operates under, and not only is that a pretty huge step, but there are a number of cases, cited by the DC Circuit in Comcast, upholding the current interpretation. It would take a huge about-face for the Commission to get what it wants here, and this would entail assuming the same level of regulation over the internet as it does over traditional telephony, and, well, traditional telephony is teh suck.

That being said, the ruling is a pretty technical one based far more on precedent and administrative law than on any sort of substantive thinking. The DC Circuit essentially ventured no opinion over whether or not the internet should be regulated, but it held that it's going to take far more significant changes to the FCC's current regulatory structure than a simple adjudication.

Any more than that requires a course on administrative law, and I don't have the time for that. Those interested should read up on the Administrative Procedure Act and the Chevron case, which I linked to above.
posted by valkyryn at 12:13 PM on April 6, 2010


organic: I think the question should not be whether power is in the hands of the government or not, but whether power is being concentrated or diffused. In this case, power is being concentrated in the hands of corporations, not being diffused into the hands of individuals exercising their own control over how they wish to use network resources.

I cannot understand this way of seeing this. Had the FCC been correct in this ruling, the power would just be concentrated in the hands of one government agency, not the people at all. If the FCC mandates that all carriers must carry all signals, how then do individuals have any control over how they use network resources? Personally, I'd rather see power being concentrated in a group of corporations that I choose to do business with rather than a government entity that mandates what I should receive.

I just don't see why people want a government entity to determine what price corporations can charge for internet access, especially as it will have a negative impact on the poor. With today's ruling, corporations are free to create packages that are cheaper by eliminating certain service channels and reducing their operating cost. If an individual currently cannot afford a $50 a month broadband package with access to all web sites, services and protocols, why wouldn't you want a company to be allowed to offer a cheaper package that eliminates the social networks or gaming sites to people?
posted by TheFlamingoKing at 12:24 PM on April 6, 2010


I edited municipal legal and administrative codes for three miserable years of my life, so I'll take a pass on the administrative law for dummies course. Thanks, though, for the link to the specific law that apply to Federal administrative code. I understand the difficulties. But at least there still exists the possibility of doing a political end-run around congress, should congress pull its usual keystone capers routine in pursuit of a legislative remedy. That gives Net Neutrality supporters some leverage going into the legislative process.
posted by saulgoodman at 12:30 PM on April 6, 2010


Devil's advocate (because I loves my bittorent):

With Cisco forecasting a 40x increase in mobile data usage by 2014, iPhones already clogging the hell out of AT&T's and O2's networks, and P2P and video streaming eating up >50% of available fixed broadband bandwidth, how are networks going to cope?

There are limits to how much wireless spectrum is available (or even theoretically usable), and even efficiencies from the move to LTE, and femtocells and WiFi offloading won't come close to mitigating the flood of mobile data usage that's coming once every laptop has embedded 3/4G radios, and every man woman and child has a full featured smartphone and ipad and whatnot.

Even full FTTH deployment nationwide in the US will have trouble (Japan, with NTT as a de facto government agency has tiered pricing for access - no net neutrality) in an environment where the connection to the internet is the primary video feed into the home (via Youtube in HD, Netflix, etc) in addition to gaming, and an immense amount of P2P use from a small percentage of users. There simply isn't the money, from the federal government, let alone from the AT&T's and Verizon's of the world, to solve the bandwidth issue with infrastructure alone (even if they were so inclined, which they certainly are not).

So what's so awful about regulated tiered service? For example, a mandated minimum level of consistent service that can be purchased (say a $25 2 mbps tier with a 250GB cap). Then layered on that, one could pay $5 for 5 mbps unlimited access to warcraft, or $10 for 10 mbps access to youtube up to 100GB - or even in terms of minutes of video - and so on. Or you could start at a higher tier, $50 for minimum 5 mbps service and start adding premium service from there. Basically, you'd be treating premium applications on the internet into the equivalent of premium movie channels, or HBO, etc, except you'd never be cut off from accessing them, you'd only do so at slower speeds or with more latency if you're not paying the premium.

I don't like this idea, compared to the free for all we've had until now, but I don't think the status quo can survive without network congestion causing even more problems than service discrimination would.


Bonus: Great youtube chat with the "inventor" of the cell phone, Martin Cooper
posted by loquax at 12:31 PM on April 6, 2010


If an individual currently cannot afford a $50 a month broadband package with access to all web sites, services and protocols, why wouldn't you want a company to be allowed to offer a cheaper package that eliminates the social networks or gaming sites to people?

Why wouldn't you accomplish this by bandwidth caps instead of limiting available sites to visit? What makes the internet the internet to me is the ability to visit all the sites, even the ones I don't care about. If I wanted to limit myself to other people's content they decided on, I'd have cable.

I understand this is probably the right decision legally as mentioned above, but put me in the group that thinks we need to explicitly authorize the FCC to enforce net neutrality if it's not already authorized.
posted by immlass at 12:35 PM on April 6, 2010 [1 favorite]


For a lot of very good reasons, many people thought it best to keep the FCC away from the Internet

Logically, you can't regulate the Internet without having a regulatory agency (such as a the FCC) doing regulation. To create QoS equality (which is what net neutrality represents to most of its proponents, if I understand it correctly, with some caveats here and there) requires establishing and enforcing standards — regulation of speech by a governing body.

The FCC already regulates speech in other ways that is defended as being in the public interest (which includes wobbly standards for obscenity, nudity and violence, to regulating the power levels of consumer transmitters, etc., all of which limit communication) so it's difficult to see why net neutrality does not fall under that aegis, as a logical extension of that thought process.

Part of me would welcome Congress stepping in and clarifying the FCC's role in regulating the Internet, as much as it regulates other forms of communication in so many ways. Another part of me knows it would be handled exactly like health care reform, once the lobbyists get their checkbooks out. And we all know for whom that turned out to be a sweet deal.
posted by Blazecock Pileon at 12:47 PM on April 6, 2010


I just don't see why people want a government entity to determine what price corporations can charge for internet access, especially as it will have a negative impact on the poor.

The Rural Electrification Act did a lot to modernize and improve the standard of living of (poor) people who lived on farmland.

Right now, local monopolies prevent people from getting better network service even within large cities (for example, I live in a major metropolitan area and have the choice of two service providers who both provide low-quality Internet access) and that's with virtually no regulation whatsoever.

The problem isn't regulation, the problem is the lack of oversight. Specifically of large corporate entities who operate monopolies in local markets, suing local and state governments into preventing any form of competition, deepening their hold over their business.

That the FCC is not exercising its regulatory muscles is one thing, but we also have weakened enforcement of antitrust laws, and a Supreme Court that calls corporations people. So it's all part and parcel of corporations not acting in the public's interest, and a government that lacks the will to enforce its lawful controls over said private entities.
posted by Blazecock Pileon at 12:55 PM on April 6, 2010 [2 favorites]


loquax, I actually did some research into this for a regulatory innovation class in law school, and you're demonstrating the classic miscommunication which tends to go along with discussions of net neutrality.

Simply: depending on how you construe your tiers, such an arrangement can be entirely compatible with net neutrality.

Net neutrality advocates are arguing neither that ISPs shouldn't be able to charge for their services nor that a clear, contractual arrangement whereby price x gets service y while price a gets service b is problematic.* ISPs have been doing that for years, and no one thinks that's a bad idea. Even metered service isn't terribly controversial, even if it is unpopular in certain quarters.

The problem is that under the existing system, an ISP can decide that traffic p or traffic q will be blocked or down-regulated 1) unilaterally, and 2) without recourse. Users don't really have any notice about what services they'll be able to use, and they frequently don't have alternatives if they decide they want to use blocked services. This is not only arguably a violation of truth-in-advertising** but could easily have anti-competitive and chilling effects on new technologies. The core of the argument is not that the ISPs shouldn't be able to regulate their networks to guarantee service for all, but that ISPs shouldn't be able to use regulations of their networks to interfere with their users' ability to connect to and use the services of their choice.

Triple-play service comes to mind as an example. What with ISPs now offering VoIP, it would be pretty simple for them to disable other providers' VoIP traffic in an effort to require users to subscribe to the ISPs' own service.

Thing is, this is basically what traditional telephone companies were doing with long-distance service, and the FCC went so far as to dismantle Ma Bell to combat this problem. This involves an incredible amount of regulatory authority--one would think that a regulator would be able to set things like prices and contract provisions before re-organizing an entire industry--which the FCC simply doesn't have or even want with respect to the internet.

Hence today's ruling.

*The reasonable ones anyways. Doctorow-/Barlow-types who think about net access as a right sometimes argue that it should be free--just like health care "should"--but no one important listens to them.

**I.e., I paid for my 3Mbps connection, and I want it to run at 3Mbps no matter what I'm doing.
posted by valkyryn at 12:55 PM on April 6, 2010 [2 favorites]


The opinion may not be incorrect on the technical merits, but it's definitely going to make it more difficult to advance the cause of net neutrality in the immediate term, because now the matter has to go back to the three ring circus: the house, the senate, and the lobbyists. Agreed with the comment upthread that it would be better, long term, to accomplish net neutrality in law than through the FCC anyway.

That pesky constitution, with its inconvenient separate of powers, I guess.
posted by Slap Factory at 1:05 PM on April 6, 2010


valkyryn: I understand that people have an issue with unilateral and non-transparent network management and downgrading of service, hence the FCC slapping CMCSA's wrists in the first place over bittorrent. So do I. But the FCC came back with their 5th policy, "no discrimination against specific content or applications", which certainly implies that to the FCC, net neutrality means not distinguishing between protocols or applications on the web. Which is why Comcast moved to throttle users regardless of what they were doing, if the network was "congested". This is what I would argue will hurt everyone in the long run - caps will get smaller and smaller, and users of the internet will all be treated (and charged) the same way, regardless of what they're using their connection for (which is likely to be far more varied than it was even 5 years ago, and far more varied five years from now).

While I certainly agree that carriers should not be able to indiscriminately cut off access to any service, content or protocol, I don't see anything wrong with allowing them to charge premiums for enhanced access to applications that cost them more to provide, and the unchecked proliferation of will ultimately choke access for everyone (especially for mobile networks). As far as I know, no carriers currently offer schemes like that, and the FCC, Tim Berners-Lee, Tim Wu and Lawrence Lessig certainly don't agree with it, unless I mistaken.
posted by loquax at 1:15 PM on April 6, 2010


For a lot of very good reasons, many people thought it best to keep the FCC away from the Internet, and were successful in doing this by labeling (and getting friendly courts to periodically reinforce) the Internet an "information service," distinct from the "telecommunication services" which were subject to its jurisdiction. (If you look at the text of things like the Communications Decency Act, which explicitly tried to regulate the Internet, it uses the phrase "interactive computer service" in order to avoid this problem.) It is precisely this lack of regulation that has allowed services like Skype and Google Voice to flourish, by avoiding the taxes that traditional wireline and wireless telcos are subject to.

So it's not entirely clear that the FCC does have the ability to regulate the Internet,
Well, you're missing the fact that there is a difference between "The Interenet" and "Your Internet connection". Something like Skype could not have been stopped without re-engineering the whole internet, and it wasn't even based in the U.S. On the other hand, what cable providers want to do is change the way people connect to the internet, in order to extract some extra revenue.

In other words, when people think of "The internet" they mean the giant packet switched network that lets you send data to any other machine online. They don't necessarily think of the individual hops along a traceroute.

Take newspapers for example. Everyone agrees that newspapers should not be regulated, right? But it's illegal for people to buy up every copy of a newspaper to keep people from reading it, even if they pay full price. Isn't that "regulating newspapers"? Well, yes. But that's regulation put in place to protect newspapers, and doesn't impact freedom of speech at all. It enhances it.
I cannot understand this way of seeing this. Had the FCC been correct in this ruling, the power would just be concentrated in the hands of one government agency, not the people at all.
Except that the government's power derives from the people, (whereas corporation's power derive from their stockholders)
So what's so awful about regulated tiered service? For example, a mandated minimum level of consistent service that can be purchased (say a $25 2 mbps tier with a 250GB cap). Then layered on that, one could pay $5 for 5 mbps unlimited access to warcraft, or $10 for 10 mbps access to youtube up to 100GB
Two problems. First, you're talking about wireless, which, as far as I know has no network neutrality provisions. Network providers already have services that don't use up your data.

And two, what you're talking about is different then what carriers have been talking about. Rather then YOU paying an extra $5 a month for a certain service -- which doesn't really make any sense because the amount of traffic would be almost the same or very close -- cable providers wanted to charge content companies for faster access to their clients. You wouldn't have any control at all.

Rather, they companies would be able to hold a gun to google's head to make them pay to deliver youtube videos at high bandwidth, while giving themselves discounts in order to get people to use their services.

And think about the future. What motivation would cable companies ever have for increasing the 'neutral' bandwidth? 10 years from now we could be looking at an "internet" that's still 5mbps, while cable companies grant deals for some services to operate at the gigabit speeds over the fiber they lay down.

Essentially squeezing off the internet, and replacing it with a cable model, where deals are worked out between large cable companies and large content companies to determine what you get to see.
I just don't see why people want a government entity to determine what price corporations can charge for internet access, especially as it will have a negative impact on the poor.
Well, perhaps you're just not thinking hard enough? Perhaps rather then saying "I just don't understand" you could make the effort to understand people's concerns?

A lot of people are operating under the assumption that the Internet, as it exists today is always going to exist. But there's no reason to think that's the case. What people want is for the government to protect the Internet from being destroyed to further the profits of companies, who, for the most part have local monopolies in the U.S.
posted by delmoi at 1:20 PM on April 6, 2010 [1 favorite]


This is what I would argue will hurt everyone in the long run - caps will get smaller and smaller, and users of the internet will all be treated (and charged) the same way, regardless of what they're using their connection for
Yes, that's what people want. Or cable companies could move towards putting in global bandwidth caps or congestion pricing. Why would the caps ever get smaller? That makes no sense. At the worst they would never grow.

But the problem is that the cable companies are monopolies. So if hey start doing that, there's nowhere else to go. If there was more competition, then people would move somewhere else if there was a problem.

But the argument that we should just let the cable companies do whatever they want because they are holding us hostage and can make our lives miserable is stupid.

And also, your original post was about wireless, which is far more limited then wired networking to homes. Google is talking about putting in Gigabyte connections to people's homes. There's no real limitation on wired bandwidth, and people can use wifi in their homes when there not on the go.
posted by delmoi at 1:25 PM on April 6, 2010 [1 favorite]


Wonder how many people with strong opinions on the subject actually know and understand the specifics what's in the FCC's Net Neutrality proposals? Is this another one of those situations where the people expressing their opinions loudest on the subject mostly haven't got a clue what they're really talking about, like this guy? My own understanding (while not nearly as complete) is consistent with delmoi's take on it, and so I can't help but see this as a net bad for the future of the web. Can anyone explain in specific terms how the proposals fall short or how not imposing net neutrality might be a good thing?
posted by saulgoodman at 2:00 PM on April 6, 2010


Yes, that's what people want. Or cable companies could move towards putting in global bandwidth caps or congestion pricing. Why would the caps ever get smaller? That makes no sense. At the worst they would never grow.

I assume, and forecasts call for, the use (or at least, demand for the use) of data will grow exponentially, far outpacing any physical infrastructure or alternative methods of expanding capacity. This goes double for wireless (which I include because I don't see the difference from a net neutrality principal - WiMax and LTE will bring wireless broadband connections to rural areas far sooner than any wired solution).

I misspoke when I said caps would get smaller, I mean that they should inevitably get relatively smaller. An increase from say, 50GB to 200GB in 5 years is trivial relative to the presumed 3D HD streams from netflix and the on-demand HD gaming and so on that will be available at that point. People will be using up their monthly allotment in days because networks will not be able to cope with the vast expansion of potential uses for the bandwidth.

Again, for arguments sake, if all I care about as an internet sub is playing WoW, why should I be able to pay for preferential access to that application - I'll pay an extra $10 and never be throttled, never have latency problems, never max out any cap and so on. Why should I be subject to the same network rules as another guy who only cares about torrenting between the hours of midnight and 7am only, or a woman who only uses the connection to stream videos, or a guy that only uses to to back up his server online.

Google is talking about putting in Gigabyte connections to people's homes.

Sure, but this is a pipe dream for all but the few communities that will be so blessed. Most of the US doesn't even come close to 1mbps, let alone the rest of the world.

There's no real limitation on wired bandwidth


Except for the capital expenditures (by the government, by the cable/telcos) required to lay the fibre, maintain the networks, etc.

And two, what you're talking about is different then what carriers have been talking about. Rather then YOU paying an extra $5 a month for a certain service -- which doesn't really make any sense because the amount of traffic would be almost the same or very close -- cable providers wanted to charge content companies for faster access to their clients. You wouldn't have any control at all.

Carriers have talked about that in the past, but it's really only practical in several cases (Google, WoW, Xbox, Sony, Hulu, etc). No one content provider can be charged for access for torrents, or for random flash games, or the 30% of general HTTP traffic. It's just not practical. A scheme where the users pays for what the user wants to do makes sense. I don't pay for HBO unless I want to watch it. I won't pay for certain QoS guarantees for access to Youtube unless I want to watch that stuff above and beyond what my standard package offers (or what the FCC regulated minimum standard allows- throttling due to to excessive use or network congestion). I think this is where things are headed, and where they already are to a certain extent in Japan. Of course, under such a plan, there's no reason that Google couldn't subsidize access to Youtube by paying the carrier in exchange for guaranteed QoS for all of their subs.

Don't get me wrong, I don't like this, I just don't see what else can happen. The alternative is severe congestion for everyone, across all services when any network built can no longer cope. And I'm not naive, I know full well that's at least partially because of the extreme aversion on the part of any carrier to spend one more dollar of capex than they need to. An open network model (sort of like Japan's) doesn't even work if you believe the forecasts of future data use. We just don't have the money or the capacity or the technology to keep up. I almost feel like the high bandwidth applications will have to subsidize the "web" one way or another in order to keep it viable and accessible and resembling at least somewhat what we knew. Obviously regulation is part of this, but there has to be an economic incentive to those providing access.
posted by loquax at 2:11 PM on April 6, 2010


Most of the US doesn't even come close to 1mbps,

Median net speed in this 2007 report was 1.97 Mbps. Average bandwidth is close to 4Mbps in the US right now (and that's not speedtest stuff, where providers sometimes cheat, but actual bandwidth to YouTube -- see http://www.youtube.com/my_speed -- although average is not as good as median for this sort of thing). I think your numbers are out of date.
posted by wildcrdj at 2:43 PM on April 6, 2010


(welll... of course YT users probably skew better on bandwidth. But still, all reports I've seen place median between 2-3Mbps now, and average as higher. It's been growing fast)
posted by wildcrdj at 2:52 PM on April 6, 2010


Whatever the number is currently, this quote is certainly still true:

"We have pathetic speeds compared to the rest of the world," CWA President Larry Cohen says. "People don't pay attention to the fact that the country that started the commercial Internet is falling woefully behind."
posted by loquax at 2:55 PM on April 6, 2010


So Comcast is our new overlord. I'm depressed.
posted by Nyrath at 2:55 PM on April 6, 2010


For some reason, in a non-ironic sense, I think Google's high-speed internet access can't come soon enough. Is it strange that I should trust one giant corporation providing internet access service over another?
posted by jabberjaw at 3:28 PM on April 6, 2010


I'm pretty skeptical about claims that it's prohibitively expensive to roll out last-mile infrastructure, since within my lifetime I've seen it done for a far less interesting medium: that of cable television. If the demand for broadband is as great as it seems to be (and it strikes me as much greater than that for cable TV — after all, most people had broadcast TV when cable came out), then there ought not to be much of a problem rolling out more physical infrastructure. We know exactly what's involved, it's just expensive. When the demand exists, provided we don't let anyone corner the market or achieve dominance via regulatory capture, the capacity will be built out.

And actually, the existing CATV infrastructure has the capability to carry quite a bit of data, if it's efficiently used. Most of the capacity on the coax coming into your house isn't used very well, though. Data gets only a few channels worth of space on most systems, because the rest is being used to spew out television channels — whether anyone is watching them or not. That's a pretty silly way to distribute content.

I expect that as people start to demand higher broadband speeds, we'll see cablecos axe continuously-broadcast programming in favor of something more like AT&T's U-verse, which only sends the programming that you want to watch down the wire.1 That would free up a lot of wasted bandwidth.

Plus, there are a lot of creative things that can be done if bandwidth does start to become pinched. Storage densities and processing power (esp. per watt) are still getting cheaper like crazy, so you could do lots of clever things with intelligent local caching that would stretch the available bandwidth by distributing requests over time. I could easily envision systems where everyone might have 10 or 20 TB of local video storage that's refreshed during off-peak times, a sort of "super TiVo", that would eliminate a lot of high-bandwidth, bursty traffic. It wouldn't be much of a technical challenge to put something like that together, if bandwidth was constrained and there was a demand for such a thing. (It's not much different from the web caches that used to be a lot more common when connections were slower.)

It would be nice to see more competition in broadband data service, so I'm all about municipal or even neighborhood broadband and mandatory line-sharing on infrastructure built using public money or on public rights-of-way, but I think it's a little premature to claim that there's some sort of looming crisis that is going to be a disaster if we don't regulate right now.

It's good that people are concerned about the issue, because it's something that we need to keep a close eye on. Of particular concern to me is the possibility of consumer ISPs essentially extorting websites in order to provide "enhanced" (read: "non-degraded") access by users. If that starts to be an issue I certainly think we ought to do something about it. But requiring that every ISP provide the same QoS to Bittorrent traffic, which is latency-insensitive, that it does to VoIP packets, strikes me as a mixed bag. I can think of a lot of valid technical reasons — ones that are in both the users' and network's best interests — for prioritizing traffic by protocol.

Net Neutrality rules don't seem to solve the real problem, which is the dominance of a few companies in the residential (and, increasingly, commercial) broadband market. The lack of competition is a bigger problem than lack of content-neutrality rules, but it's one that if solved will have the nice side effect of sidestepping the need for content-neutrality rules (since if you don't like your ISP's Bittorrent-throttling policy, in a competitive environment you could switch to a different ISP).

There are many areas where people are right to be skeptical about the ability of markets to provide good solutions, however telecommunications is one where markets have proven to work quite well — when they're set up correctly. The problem with broadband isn't a lack of neutrality rules, it's a lack of competition at the retail level, and the court case in question doesn't seem to really affect that either way.

1: Of course, U-verse is optimized for the individual point-to-point connection of VDSL, while cable modems share bandwidth among a certain number of edge nodes, sort of like old "vampire tap" Ethernet. However, even in the worst case on a cable system (where each house in the neighborhood is watching something different), you still have to transmit far fewer simultaneous video streams than most cable systems transmit today.
posted by Kadin2048 at 4:16 PM on April 6, 2010


I assume, and forecasts call for, the use (or at least, demand for the use) of data will grow exponentially, far outpacing any physical infrastructure or alternative methods of expanding capacity.

In which case... the caps would stay the same.

It's logically impossible for the use of data to outpace physical infrastructure.

I misspoke when I said caps would get smaller, I mean that they should inevitably get relatively smaller. An increase from say, 50GB to 200GB in 5 years is trivial relative to the presumed 3D HD streams from netflix and the on-demand HD gaming and so on that will be available at that point.

Again, no it won't. If people can't download HD 3d netfilx over their connections, they won't, and netflix won't offer it. It's not the end of the fucking world if you have to watch a movie in 720p h.264 instead of 2160p stereo-3d lossless stream
(which I include because I don't see the difference from a net neutrality principal - WiMax and LTE will bring wireless broadband connections to rural areas far sooner than any wired solution).
And they'll have far fewer users.

And nothing in the net neutrality laws say anything about on-demand cable channels or whatever, which could use as much bandwidth as they want.
"We have pathetic speeds compared to the rest of the world," CWA President Larry Cohen says. "People don't pay attention to the fact that the country that started the commercial Internet is falling woefully behind."
Well, the solution isn't scrap the Internet entirely and replace it with something more profitable for phone and cable companies.

Our government is perverse. The more money an industry makes, the more power and influence they have in Washington they have to preserve and enhance the status quo.
posted by delmoi at 6:30 PM on April 6, 2010 [1 favorite]




I realize that many people feel Comcast's stated desire to regulate bandwidth as part of a fight against piracy to be a "front" for their profiteering, but I for one hope they limit the crap out of any website that allows for illegal downloading or streaming of music and movies.

Just throwing that out there. As a twenty-something professional in the movie business.
posted by The3rdMan at 9:12 PM on April 6, 2010


As someone who's never bit-torrented anything, but who has been surprised to find every one of his poorly funded indie label's major releases bit-torrented well before their release dates, I can sympathize, to a point.

But I still don't like any court decision that limits the Federal government's authority to regulate any corporate activity on principle, because corporations are, after all, only legal fictions brought into existence and chartered under state law (which is especially subordinate to Federal law in the case of the Telecoms because their business crosses state boundaries).

The sole claim corporations have to any legal status whatsoever is a grant of the right to exist issued under exclusive government authority (try to declare yourself a corporation without following the proper legal channels and see where it gets you).

Yet somehow, despite being conspicuously absent from the constitution and the bill of rights, the peculiar legal fiction known as the corporation increasingly seems to have the market cornered on constitutional protections and legal rights.

I realize as others pointed out upthread that this was one of those "narrow, technical rulings," but I can't help noticing the courts often seem to issue narrow technical rulings in favor of corporate interests, and the courts also often seem to issue sweeping principle-based rulings in favor of corporate interests, and yet, they rarely ever seem to issue either kind of ruling in favor of other interests like the government or private citizens.
posted by saulgoodman at 9:55 PM on April 6, 2010


Anymore, I mean.
posted by saulgoodman at 9:57 PM on April 6, 2010


Just throwing that out there. As a twenty-something professional in the movie business.

Shorter The3rdMan:
I WANT MONEY! GIVE IT TO ME!
INTERNET IS NOT GIVING ME MONEY, MAKE IT GO AWAY!
posted by delmoi at 1:31 AM on April 7, 2010


Lay off corporations, saulgoodman. They're a really old legal device which serve an incredibly important purpose, i.e. limiting personal liability for entrepreneurs and enabling businesses to exist as ongoing concerns rather than personal assets. If you want anyone in the economy to deal with risk greater than that they can cover with their own assets, we need corporate forms. Chill. Also, corporations are entirely creatures of state law, so the federal Constitution wouldn't have anything to say about them anyways. The Constitution doesn't talk about family law or contract either, but we don't doubt the validity of families or contracts as a result.

Yes, their nature in a legal regime based upon (the fiction of?) individual rights is rather odd. In fact, all your complaints are really targeted at the fact that we haven't figured out how to deal with the distinction between legal and natural persons in such an environment. But corporations were first created in a legal regime predicated upon the rights of the crown, not the individual, and the issues there are a lot clearer.

The reason courts frequently issue rulings in favor of corporations is that corporations are generally the parties for whom interesting legal issues arise. Most federal regulation affects corporate actors far more than individuals, so cases involving federal regulation will almost always have corporations as plaintiffs or defendants. Most individuals' legal situations just aren't all that complicated. The place where the Constitution has the most to say about legal issues affecting individuals is criminal law, and that's once place where corporations are conspicuously absent in jurisprudence. You can't send a legal person to jail, after all. But the other two main areas of individual interest, family law and contract, really aren't subjects of any significance in constitutional law. Like corporations, they are entirely state law issues.

You're also seem to be discounting the usual outcome of administrative law cases: the courts almost always affirm what the government wants to do. Federal agencies have incredible discretion to interpret their own statutes, and as long as agencies follow their own procedures, they almost always get what they want. The fact that they didn't here is evidence that the FCC was really stretching. Note that the DC Circuit didn't simply send the decision back to the agency to try again, which is what usually happens. No, the court basically said "You can't do that," and it did so because the FCC wasn't even pretending to have any real authority.

Maybe net neutrality regulation is a good idea. Maybe it isn't. Either way, unless you want the FCC to regulate internet connections like they regulate landline telephones, net neutrality regulations are beyond the authority of the FCC to implement. That's just the way it is.
posted by valkyryn at 5:42 AM on April 7, 2010 [1 favorite]


Lay off corporations, saulgoodman. They're a really old legal device which serve an incredibly important purpose, i.e. limiting personal liability for entrepreneurs and enabling businesses to exist as ongoing concerns rather than personal assets

No. I don't have a problem with corporations in general, as long as they're forced to be agents the public good, rather than the other way around. My point is just that it's absurd to claim that corporations--explicitly a legal fiction--have any independent rights or powers not granted to them under the law. There's no real basis for any constitutional claims about corporations. I'll grant that a lot of corporations have done good things and served useful functions, but their role absolutely must be understood as subordinate to the public good.
posted by saulgoodman at 7:28 AM on April 7, 2010


I realize this case didn't make any constitutional claims about corporations, BTW. But it does seem odd that the courts always manage to find ways to thwart attempts by lawmakers to control corporate activities, despite the fact that the law is the sole authority for granting corporations even the right to exist.
posted by saulgoodman at 7:32 AM on April 7, 2010


Yes, their nature in a legal regime based upon (the fiction of?) individual rights is rather odd. In fact, all your complaints are really targeted at the fact that we haven't figured out how to deal with the distinction between legal and natural persons in such an environment.

No, we've refused to address the underlying legal issues, because we don't want to have to face the fact that state legislatures and the federal legislature should properly be able to pass whatever arbitrary laws they want governing the behavior of corporations because corporations have no standing whatsoever under the constitution. They aren't natural people to whom constitutional rights extend, and forming a corporation isn't a constitutionally protected activity. So what's the legal basis for the courts having any say whatsoever over how lawmakers can and can't regulate them?
posted by saulgoodman at 7:38 AM on April 7, 2010


I don't think you really get what corporations are and how they work. If anything, you're taking the fiction too seriously. Corporations are ultimately simply recognized groups of individuals acting in concert, namely the shareholders. Restricting corporate rights the way you think you want to would really be radically limiting individuals' property interests. These are constitutionally-protected activities. So is freedom of association. Right there in the First Amendment. If that's limited to our ability to be in the same room but excludes any ability to act in concert, that's hardly a right worth having, yes? If you'll permit the metaphor, corporations aren't named in the Constitution any more than the Trinity is named in the New Testament, but both are logical consequences of their respective documents.

The problem here is that the fiction of corporation-as-person predates the Constitution by hundreds of years. Fictional entities with real legal rights extend back to the Middle Ages--earlier in Asia--and our individual rights legal regime was essentially grafted in to an existing system which considered corporations to be persons in the legal sense. There doesn't seem to be a better way to do this. In many ways, we want corporations to have rights. They need to be able to own property, contract business, sue and be sued, etc. And if we want anything like the sort of stability we need to operate as a prosperous society, those rights need to be non-arbitrary just like they do for natural persons.

Why? Because the consequence of your position is that the government should be able to seize any and all corporate property without due process simply by virtue of it being corporate rather than individual property. Not only is this a terrible way to do business, but it actually does trample on individual rights. Corporations are ultimately owned by shareholders, and acting arbitrarily with respect to corporations is essentially acting arbitrarily with respect to the property interests of those shareholders in a clear violation of the Fifth Amendment. You don't want that either. So even if we assumed arguendo that corporations have no legal rights, the rights of the individuals which own them would accomplish the same purpose.

No, I'm afraid that as unpleasant as it may seem to you, there's no way to treat corporations as non-persons which doesn't violate the rights of natural persons too.

The other thing you're missing is that there were no lawmakers involved here.* If Congress decided that it wanted the FCC to regulate the internet, the courts wouldn't bat an eye. Totally within Congress's authority to do that. But the FCC doesn't actually make statutes. In fact, it derives all of its authority from statutes. The DC Circuit was acting to protect the statutory structure created by Congress by not permitting the FCC to implement an internally-contradictory interpretation of that structure. It's not "thwarting lawmakers" at all; the court was acting to protect a very logical reading of congressional will. If Congress disagrees, it has the tools to say so, and I guarantee you that the courts will enforce any new laws just as rigorously as this one.

*At least not in the traditional sense of the word, i.e. legislators. If you want to call the FCC a "lawmaker," you need to include the courts in your definition, which makes your position incoherent.
posted by valkyryn at 8:34 AM on April 7, 2010 [1 favorite]


Restricting corporate rights the way you think you want to would really be radically limiting individuals' property interests.

No, because you can always still do business as a sole-proprietor.
posted by saulgoodman at 8:43 AM on April 7, 2010


The problem here is that the fiction of corporation-as-person predates the Constitution by hundreds of years.

So what? The constitution doesn't obligate us to recognize Britain's historical legal traditions. Indentured servitude and debtor's prisons predate the constitution by hundreds of years, too.

I think you're the one who doesn't understand what a modern corporation really is. Early in American colonial history, joint-stock companies powers were sharply limited, with the states having the authority to repeal charters at will. Early American colonists were deeply suspicious of joint-stock companies (the forerunner to the modern corporation).

In the same year the declaration of independence was written, Adam Smith wrote, "The pretence that corporations are necessary to the better government of the trade is without foundation."

And corporate activities, when modern corporations first began to appear after American independence, were severely constrained under the law (cite):

After Independence, American corporations, like the British companies before them, were chartered to perform specific public functions -- digging canals, building bridges. Their charters lasted between 10 and 40 years, often requiring the termination of the corporation on completion of a specific task, setting limits on commercial interests and prohibiting any corporate participation in the political process.

The concept of corporate personhood, though it wasn't explicitly affirmed in the ruling so much as implied, was first established by the decision in Santa Clara County v. Southern Pacific Railroad in 1886.

The modern for-profit corporation bear almost no resemblance to the historical corporations you're claiming predate (and apparently supercede) the constitution.
posted by saulgoodman at 9:12 AM on April 7, 2010


If Congress decided that it wanted the FCC to regulate the internet, the courts wouldn't bat an eye. Totally within Congress's authority to do that. But the FCC doesn't actually make statutes. In fact, it derives all of its authority from statutes.

Well, sure, but if they wanted to, they could have ignored the technical issues and ruled on principle that the FCC has unlimited authority to regulate communications technologies because that's its mission. It's not like the courts have never made decisions on principle that ignore the technical specifics of the law.
posted by saulgoodman at 9:47 AM on April 7, 2010


Well, sure, but if they wanted to, they could have ignored the technical issues and ruled on principle that the FCC has unlimited authority to regulate communications technologies because that's its mission.

No, they couldn't have. As the DC Circuit observed, Federal agencies derive their authority from specific statutory grants, and the FCC has interpreted the statute which grants it authority as precluding significant regulation of the internet. As I've said before, the FCC can change its mind if it wants to (!!!), but it has to actually do that by reversing its Brand X order. There is a procedure for that, outlined in the APA. The one thing it can't do is exert "unlimited authority to regulate communications," and unless you want the internet to turn into the Post Office, you don't want it to do that any more than I do.

>>Restricting corporate rights the way you think you want to would really be radically limiting individuals' property interests.

No, because you can always still do business as a sole-proprietor.


I'm really trying to be polite here, but this is bullshit, and if you don't know it already, you should be ashamed of yourself. 1) Imposing such a restriction would prohibit people from pooling their resources, which is a pretty damned fundamental right, both of property and of freedom of association. 2) Corporations also provide a liability shield so that when your business fails the bank can't take your house; indeed, this is the very reason corporations were invented, to facilitate the sort of large-scale risk-taking which is the foundation of modern economies. 3) If you think it's possible to run a multi-billion dollar business as a sole proprietor you're sufficiently detached from the world we live in that there really isn't anything I can say to you.

Throwing one Smith quote at me without citations isn't going to get you anywhere, and I've done enough primary work with Smith that I don't think you want to go there anyhow.

Yes, corporate law has evolved in the past few centuries. Obviously. But as I've argued, a lot of that evolution had to do with the individual rights regime that now governs. All rights not explicitly granted to an individual or individuals were reserved for the crown. Corporations were one way of serving the crown's interests. The crown could require corporations to dissolve and reform or seize corporate assets at will because everything ultimately belonged to the crown anyways. Once we abolished that theory of government, the nature of corporations evolved to follow suit, and early modern British developments in shifting from monarchial to representative governments included significant advances in corporate law.*

But the history aside, entrepreneurs still need the ability to pool their resources in a responsible way without exposing themselves to massive liabilities, and investors still need to be able to invest their money with the confidence that a single schmuck can't take the money and run. This is what corporations are for.

Look, if you want to argue that we need a radical update to our corporate governance statutes, I'm with you all the way. The pursuit of short-term gains at the expense of long-term sustainability, indeed at the expense of any pretense of virtuous behavior, should be and must be curbed. But arguing that corporations are somehow the problem per se is short-sighted, not to mention a complete logistical non-starter.

*Interestingly enough, this was facilitated by a largely Calvinist theological atmosphere, but that's a different conversation entirely.
posted by valkyryn at 10:29 AM on April 7, 2010


Delmoi - Actually, I do get paid, and the internet is a big help in that respect. And if I wanted it to go away I probably wouldn't be on Metafilter.

Breaches against copyright are attacks on the fundamentals of a functioning capitalist society in which we work to earn a living to work more. If it takes heavy regulation by Comcast or the FCC to reign it in, I am 150% for it.

This is not to say our system doesn't need reform to protect the truly legal and ethical freedoms the internet provides. Though I'd frankly like our courts to decide what is legal and ethical, and not my friend downloading movies down the hall.
posted by The3rdMan at 10:36 AM on April 7, 2010


"It's not like the courts have never made decisions on principle that ignore the technical specifics of the law."

Yeah, but those are bad decisions.
posted by klangklangston at 10:38 AM on April 7, 2010 [1 favorite]


I'm really trying to be polite here, but this is bullshit, and if you don't know it already, you should be ashamed of yourself.

Please, don't get mad at me, just address the points; I want you to convince me if you can.

1) Imposing such a restriction would prohibit people from pooling their resources, which is a pretty damned fundamental right, both of property and of freedom of association.

What prevents you from pooling resources as individuals without enjoying the benefits of limited liability or formal incorporation? Nothing. Individuals can already do whatever they want with their own resources. It might not be as easy, or risk-free, but there's no enumerated right in the constitution or bill of rights to make doing business risk-free and easy.

2) Corporations also provide a liability shield so that when your business fails the bank can't take your house; indeed, this is the very reason corporations were invented, to facilitate the sort of large-scale risk-taking which is the foundation of modern economies.

3) If you think it's possible to run a multi-billion dollar business as a sole proprietor you're sufficiently detached from the world we live in that there really isn't anything I can say to you.

Maybe not multi-billion dollar, but the guy who owns Cirque De Soliel is a sole-proprietor who runs a multi-million dollar business.

Where is it stated that the law is required to make it easy for us to run multi-billion dollar businesses anyway? In fact, anti-Trust laws enacted earlier in American history (and still on the books, though only enforced when it's absurd anymore) were specifically created to discourage massive, economy-distorting concentrations of wealth and resources.

Aren't you just arguing that because corporations can do cool things that are riskier for private individuals to do, they should be treated as having a fundamental right to exist and certain inherent legal rights along with that right? You're arguing backwards from what you consider to be the outcomes of the law to justify the law.

They can only do all those cool and essential things you claim because that's how they are defined, in law. Corporations are nothing but the law they are made of, so why should any legal restriction or redefinition of a corporation under the law be off-limits, not as a practical matter as you've suggested, but strictly on the basis of legal principle?

Yes, corporate law has evolved in the past few centuries.

What an understatement! The earliest legal corporations in America were:

1) Chartered exclusively to perform specific public service functions on behalf of their chartering state with charters being set to expire after a limited time period (10--40 years);

2) Expressly prohibited from engaging in commercial for-profit activity;

3) Expressly prohibited from engaging in political activity.

And yet, your rebuttal above was essentially premised on the claim that corporations have historically just been understood to have the right to exist and certain other rights under the law. But as noted above, in the early days of the nation, corporations were explicitly not granted an unqualified right to exist, nor any other inherent right, much less the right to profit, to function without excessive regulatory constraints, or to be engaged in political activity.

I'm not saying that there isn't a need for any of the things you say only corporations can do, nor am I claiming that all corporations are evil or anything like that. The point is just that recent court decisions seem to suggest (and you seem to believe too) that people do have some natural right to incorporate, and that once established, corporations enjoy certain rights outside of those explicitly granted under the law. But what basis in law or history does that position have? Joint stock companies weren't even considered independent from the state, much less endowed with rights the state couldn't impinge, so you're initial rebuttal just doesn't follow to me.

That said, most of the other coverage I'm seeing on this ruling suggests the decision is much stronger than suggested up-thread--that it actually does rules that the FCC doesn't have the authority to regulate the ISPs, unless granted by statute, so I don't think a simple administrative rule change would do the trick. It might, but they'd probably throw that out to if it were challenged in court, despite the fact that doing so would be completely inconsistent with the Supreme Court's ruling on the question of whether the EPA has the authority to regulate greenhouse gases.
posted by saulgoodman at 11:19 AM on April 7, 2010


That said, most of the other coverage I'm seeing on this ruling suggests the decision is much stronger than suggested up-thread--that it actually does rules that the FCC doesn't have the authority to regulate the ISPs, unless granted by statute, so I don't think a simple administrative rule change would do the trick.

Well, "simple rule change" is not exactly simple. The procedures under the APA are not what I'd call simple. That being said, the FCC absolutely can use those procedures to change its position and, if it does (and does it in a way that complies with Chevron, etc.), there's really no "throw[ing] that out...if it were challenged in court" for the same reason that the Supreme Court deferred to the EPA in Mass. v. EPA. I don't know why you think the court wouldn't exercise the same deference towards the FCC (if the FCC complied with the APA) other than that you seem to think the court is politically inclined to reward ISPs.

And frankly, the media coverage of this case has been pretty mediocre. There are a lot of journalists who want to make this all about free speech, but it's really not. This is Admin Law 101 and free speech, corporate rights, and all that other rigamarole really has nothing to do with it.
posted by devinemissk at 11:33 AM on April 7, 2010


exercise the same deference

And I should clarify that the courts are required to exercise this deference when an agency has articulated a reasonable interpretation under Chevron. So it's not really a "choice" in the sense that the court could just decide to go one way or the other.
posted by devinemissk at 11:48 AM on April 7, 2010


I was sent this comment to post it anonymously on their behalf. I did not write this, and I will not be able to defend the statements contained within because they are not my opinions, etc, etc. But it's interesting and just good common sense.

>> Google is talking about putting in Gigabyte connections to people's homes.

> Sure, but this is a pipe dream for all but the few communities that will be so blessed.

No. Wrong. Google gigabit is not a pipe dream. Here's what else it isn't:

Google gigabit is not a technology showcase "town of the future".
Gigabit fiber is not technology worth showcasing. Last September, Bell Labs demonstrated 15.5 Tbit/s over a 7000 km fiber. You can demo 1 Gbit/s fiber over a couple miles with stuff purchased at Fry's Electronics. Besides, Google never shows off its technology. If they did, you'd probably know how many servers they owned. But you don't even know how many data centers they have. It's all a big secret.

Google gigabit is not a testbed for trying out new Google applications.
They're only hooking up 50k users. To put that in perspective, that's the population of Casper, Wyoming. You can't research the next big social app in Casper. Nobody will sign up because nobody will know about it. Even people in Casper won't know about it because they read the same sites the rest of us do. There are no A-list bloggers in Casper. Nobody is going to twitter YouTube HD links if the videos only work in Casper.

Google makes money by luring huge numbers of users with free apps and then showing them ads. The most important measures of an app's success are its user growth rate and its ad click through rate. But a launch in a town of 50k will tell you nothing about either. Even if you manage to get 1% of the town to try your new app, that's only 500 users. Forget about any network effects. Forget about going viral. Forget about attracting advertisers. You'll sell one ad to "Casper Computer Repairs" and no one will click it.

For the same reason, Google gigabit also isn't useful for researching the technical problems of hosting a next-generation app. With just 500 users, it's not much of a test. Google can do that kind of testing in-house among its 20,000 employees (and their offices already have gigabit).

Google gigabit does not signal Google's entry into residential telecom
Compare Google's profitability, operating margin, revenue growth, and debt to the same figures from AT&T and Comcast. Google management did not look at those telecom giants and say "let's be more like them". Moving bits is a bad way to make money and it's only going to get worse. It's a heavily regulated service on its way to becoming a basic utility. (Plus there would be anti-trust issues.)

So why is Google doing it?
Google wants to prove that lighting up a city with fiber is cheap when you do it all at once. In fact, it's a lot cheaper than people think. And the easiest way for Google to prove it is to do it. They hope the demonstration will induce other companies to enter the market, or perhaps the municipalities themselves.

The thing is, fiber optic cable is really, really cheap. It's cheaper than the pipes that bring you water. It's cheaper than the wires that connect you to the grid. It's cheaper than the coax that feeds you cable. It's cheaper than all those other utilities you take for granted. So there's no reason a fiber connection should cost more than installing cable tv or ordering a second phone line. You just need to get the infrastructure in place. Fortunately that's cheap, too, if you can hook up everyone at once and spread the cost.

Once that fiber is laid, its bandwidth will scale for decades. As technology improves, links will be upgraded just by replacing the endpoint equipment. In a couple decades, we'll be running that same fiber at 15.5Tbit/s, just like Bell Labs today.

(Note: I don't actually know Google's plans. If I'm wrong, I owe you a coke.)
posted by loquacious at 12:08 PM on April 7, 2010 [3 favorites]


I'm just going to have to disagree with your take on the history of corporate law. There are numerous examples of colonial incorporations for purely commercial purposes. One such land corporation in Pennsylvania actually had political representation. I really don't get the impression that you have any idea of what corporations actually do legally speaking, but telling you again won't change your mind.

You're also missing the significance of the FCC's interpretive powers here. As I and others have said time and again, federal agencies are given incredible deference in interpreting their "organic statutes," i.e. the statutes which give them authority. The FCC has used this authority to interpret the Telecommunications Act, which gives it the authority to regulate telecommunications, as not applicable to internet service. Now, without changing its interpretation of the Act, it is trying to regulate the internet. If it wants to do this, it will need to officially change its mind. But we aren't talking about a "minor administrative rule change" here: administrative law is actually a pretty big freaking deal, and accomplishing a change of this magnitude will take tons of resources and a year or three.

The reason this is such a big setback for net neutrality is that the FCC is largely unwilling to assert the sort of jurisdiction over the internet it would need to accomplish a regulation of this sort under existing statutes. It can enforce common carrier rules over traditional telecoms because it regulates that industry down to minute details, including pricing and technical standards. The FCC doesn't actually want to do that. If you like the idea of IPv6, you really don't want the FCC to regulate here, because there's no way that would be adopted in the next decade if we had to wait for federal regulators to get with the program. So because the FCC is unlikely to actually assert its authority over internet service in general, it can't assert its authority over this relatively minor area either.

The FCC does not have plenary authority to do whatever the f*ck it wants with telecom, despite your assertions to the contrary. Indeed, such a blanket and undefined grant of authority by Congress would likely be struck down by the Supreme Court as an impermissible delegation of legislative power to the executive branch. Congress has to at least make a clear statutory grant for a federal agency to do anything, and the FCC has interpreted its grant to exclude internet regulation. Deal with it.
posted by valkyryn at 1:00 PM on April 7, 2010


The FCC does not have plenary authority to do whatever the f*ck it wants with telecom, despite your assertions to the contrary. Indeed, such a blanket and undefined grant of authority by Congress would likely be struck down by the Supreme Court as an impermissible delegation of legislative power to the executive branch. Congress has to at least make a clear statutory grant for a federal agency to do anything, and the FCC has interpreted its grant to exclude internet regulation. Deal with it..

Jesus Christ, I don't understand how someone so obviously intelligent can so thoroughly misunderstand plain English. You're completely missing my point (maybe deliberately), and short of giving you a remedial course in reading comprehension, I'm not sure what to do about it. So I give up.

I included citations above for my claims about the history of corporations; you're free to dispute them, but I'm not coming completely out of left-field here.

Listen, you can believe whatever you like about what I do or don't understand about "what corporations do" (whatever the hell that's supposed to mean in the general case, because corporations can take a lot of different forms, including non-profit), but please just take a deep breath and see if you can find a single comment I've made that argues what you seem to be railing against here.

Corporations, by your own admission, are a legal construct. As a legal construct, we can define them and regulate them however we choose as a general principle. That is the only claim I have tried to make, and if you dispute that modest claim, I'd love to hear your reasoning (ideally, without that annoying tone of condescension you're affecting).
posted by saulgoodman at 1:14 PM on April 7, 2010


I was corrected earlier in the thread, BTW, about the scope of the ruling. And I've acknowledged that the ruling is technically correct, as far as it goes.

Maybe I didn't make that clear enough to you or something.

When I assert that we can define and regulate corporations however we choose, I generally mean through legislative processes, not necessarily through agencies like the FCC, although I would point out that in the recent case of Massachusetts vs. EPA, the Supreme Court ruled that the EPA did in fact have an implicit authority to regulate green house gas emissions from both point and non-point sources despite the fact that the EPA had to introduce significant new administrative rules to do so and was never given an explicit statutory authority to regulate greenhouse gases.
posted by saulgoodman at 1:48 PM on April 7, 2010


I actually have no problem with the EPA ruling. The difference is that the EPA did its homework and laid the administrative framework for its new regulations. The FCC didn't, and it got smacked for it.

No, we've refused to address the underlying legal issues, because we don't want to have to face the fact that state legislatures and the federal legislature should properly be able to pass whatever arbitrary laws they want governing the behavior of corporations because corporations have no standing whatsoever under the constitution...

That's what I've been reacting to here.
posted by valkyryn at 3:59 PM on April 7, 2010


I don't think you really get what corporations are and how they work. If anything, you're taking the fiction too seriously. Corporations are ultimately simply recognized groups of individuals acting in concert, namely the shareholders. Restricting corporate rights the way you think you want to would really be radically limiting individuals' property interests.
So? There are a huge number of limitations on property rights. All different types of zoning regulation, building codes, eminent domain and so on.
These are constitutionally-protected activities. So is freedom of association. Right there in the First Amendment.
That's insane. First of all, corporations in their current form didn't really come together later. And secondly nothing in the first amendment protects property rights (other then to protect them from search). You sound like the guy in this onion article. The fifth amendment says that property cannot be taken without just compensation. But presumably that would only apply to book value assets. There's no reason to guarantee future profits.
Why? Because the consequence of your position is that the government should be able to seize any and all corporate property without due process simply by virtue of it being corporate rather than individual property.
Again the government can seize individual property, provided they pay "fair market value" for it.
No, I'm afraid that as unpleasant as it may seem to you, there's no way to treat corporations as non-persons which doesn't violate the rights of natural persons too.
Again, there's no reason why we shouldn't worry about this when we're just talking about money. Who cares? If you invest in a company that's financially bankrupt, you lose all your money. Why shouldn't the case be the same for companies that are morally bankrupt?
Breaches against copyright are attacks on the fundamentals of a functioning capitalist society in which we work to earn a living to work more. If it takes heavy regulation by Comcast or the FCC to reign it in, I am 150% for it.
Oh whatever. Lax attitudes towards copyright are a feature of developing countries (including the early United States, where piracy of British work was rampant). Lax Chinese attitudes towards copyright infringement didn't prevent China's rapid shift towards capitalism. Because it doesn't matter. Without copyright, people who would work in creative endeavors would just have to work somewhere else. Perhaps in advertising, or maybe they would work in a factory.

In either case, the gears of capitalism would keep on grinding. And also "a society in which we work to earn a living" really has nothing to do with the basic idea of "capitalism", where wealthy people don't need to work if they don't want too, and instead invest their money and live off the interest/profits. It's socialists who argue for guaranteed/universal employment.

No one is going to starve to death if they stop making IRON MAN sequels.

(Also, you don't seem to be paying attention. The FCC is trying prevent Comcast from restricting bittorent)
I actually have no problem with the EPA ruling. The difference is that the EPA did its homework and laid the administrative framework for its new regulations. The FCC didn't, and it got smacked for it.
This totally is backwards. The EPA didn't want to regulate greenhouse gasses at all, and the state governments sued the EPA in order force the EPA to have the authority to regulate greenhouse gases. This was all during the bush administration. That's why it's Massachusetts vs. EPA and not "Coal Company X v. EPA" or whatever. It wasn't until the Obama administration, years later, that they actually did anything about it.
posted by delmoi at 6:21 PM on April 7, 2010 [1 favorite]


(oops, there protection from search is in the 5th, not first amendment. There is literally nothing about property rights in the first amendment)

Here is the 5th:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.[1]
So the government can take your property "given due process of law" or "with just compensation". As long as the corporations were given trials, seizing their assets would not be unconstitutional. Indeed, this happens all the time. Toyota is looking at a $16 million fine for their break pedals. No constitutional reason why the government couldn't make the fine larger if it wanted too, large enough to shut down the company even.

That's "taking money from shareholders" but so what?
posted by delmoi at 6:25 PM on April 7, 2010 [1 favorite]


Well, we just disagree then, because although I'll admit it would be calamitous if we were to impose all sorts of arbitrary and onerous requirements and legal restrictions on corporations without regard for practical and economic consequences, I still maintain that as a matter of legal principle, there's no reason we couldn't.

No one credible has ever claimed there's any fundamental right to do business with legal protections that limit personal liability.

Here's another source that supports my argument and clarifies some of these points. Both under common law, and under most state's statutes, the law holds that corporate charters can be revoked by the state under the theory of quo warranto: "which literally means that the state is asking the corporation, 'By which grant of right do you exercise the powers you are exercising?'" What's more:
In addition, state courts addressing the issue of corporate charter revocation in cases from 1900-1950 uniformly have held that a legislative repeal of the quo warranto statute would not have the effect of extinguishing the charter revocation remedy. Courts have stated that the common-law theory of quo warranto exists independently of the state statute.
So, even in states that don't explicitly provide for corporate charter revocation, it's understood under common law that corporate charters can be revoked at any time at the discretion of the state, because it is solely from the state's legal authority that a corporation derives its right to exist.
posted by saulgoodman at 6:30 PM on April 7, 2010


This totally is backwards. The EPA didn't want to regulate greenhouse gasses at all, and the state governments sued the EPA in order force the EPA to have the authority to regulate greenhouse gases. This was all during the bush administration. That's why it's Massachusetts vs. EPA and not "Coal Company X v. EPA" or whatever. It wasn't until the Obama administration, years later, that they actually did anything about it.

No. The outcomes were different but the law is the same.

Admin Law 101:

Agencies are endowed with authority by their organic acts. The agency has the power to interpret those acts in ways that are reasonable. In Mass. v. EPA, the states sued to force the EPA to interpret its organic act in a way that would force the EPA to regulate greenhouse gases. The EPA said that it's interpretation--that the organic act did NOT give them that authority--was due deference. And the Supreme Court agreed.*

In yesterday's opinion, the courts basically said that the FCC's interpretation of its organic act--that the FCC does not have authority to regulate "the internet" and which was upheld in Brand X--was binding and that the FCC's attempt to point to policy statements in the act was not a sufficient showing of statutory authority. Again, the agency's formal interpretation of its organic act governs the outcome here--just like in Mass. v. EPA.

*These "interpretations" are not just the agency deciding on a whim how to read the statute. There's a complex process for an agency to promulgate its interpretation of its organic act and changing that interpretation is not a matter of just changing its mind.
posted by devinemissk at 8:02 PM on April 7, 2010


The EPA said that it's interpretation--that the organic act did NOT give them that authority--was due deference. And the Supreme Court agreed.

Or, rather, I should clarify, the Supreme Court found the organic act did give the EPA this authority but that the EPA didn't have to exercise that authority if it articulated a reasonable interpretation of the act indicating it didn't have to. The point is still the same -- the EPA was found to have discretion to interpret its organic act for itself, as long as that interpretation was reasonable.

Here, we have an interpretation by the FCC that's already been found to be reasonable. And the FCC tried to find a way around that interpretation so it could regulate only certain activity related to the internet without actually changing its interpretation. No dice.
posted by devinemissk at 8:13 PM on April 7, 2010 [1 favorite]








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