"The Buck Stops at the FCC"-(Net Neutrality)

[merrily]

Until this, I've never wanted to write an OP here. However, myths about net neutrality are abounding on multiple DU threads. Trying to refute the same myths on one thread after another solely with replies is too time-consuming and, candidly, too boring. Hence, this post.

The subject is complicated, so I hope that you will bear with me.

Analysis must begin, of course, with Verizon v. FCC, decided by United States Court of Appeals for the D.C. Circuit (Court) in January 2014.

http://www.cadc.uscourts.gov/internet/opinions.nsf/3AF8B4D938CDEEA685257C6000532062/$file/11-1355-1474943.pdf

I will deal in this post only with the majority opinion (60+ pages). Unless I give a different reference, things stated below about the law are things that the Court said in the majority opinion. When I capitalize the word "opinion," below, please know that I am referring to the majority opinion in Verizon v. FCC (2014)


Some Initial Background.

The FCC has only the power that Congress gives the FCC by statute. However, courts give federal agencies considerable leeway in interpreting the statute(s) that apply to the agency. Consistent with the prior sentence, the FCC has full power to change its own rules, but rule changes also require a rule-making process that includes notices and public hearings. In other words, the FCC can change its own rules, but it cannot do so in a second. It takes time and money on the part of the FCC and others and is, well, a process.

The FCC has power to regulate something called a common carrier. It's not a perfect analogy, but you might think of a Greyhound bus, operated to take members of the public where they want to go, as opposed to a bus owned by an individual for his or her own use. With a Greyhound, you can hop on and ride to your chosen destination as long as you pay the standard fare and behave reasonably. On the latter, the individual owner has a lot more to say about who has access to the bus and under what conditions. Greyhound is a common carrier. The other bus is not. The power of the federal government to regulate common carriers relatively heavily has been recognized for a very long time.

The FCC has power to classify companies as common carriers, as long as the classification is permitted under relevant federal statutes. The FCC also has power to regulate companies that are not common carriers. The FCC also can change the classifications that it has previously given companies, aka re-classify. Re-classifications, like other changes, require a rule-making process.

Here is the crux of the Opinion: The FCC has no statutory power to impose common carrier-type regulations on a company that is not FCC-classified as a common carrier. Please plant that one firmly in your mind because everything in this lengthy post depends on that: The FCC cannot impose certain common carrier-type regulations on companies that the FCC never classified as common carriers.

Here is another one to plant firmly in your mind: The FCC has never classified broadband providers as common carriers. In one or more previous rule-making processes, broadband providers were instead classified as information providers.

Something I will mention only in passing: A company like Verizon is both a broadband provider and provider of telephone services. In its capacity as a provider of telephone services, Verizon is indeed classified as a common carrier, but the classification does not apply to its broadband operations. For convenience, let's pretend for purposes of this post that broadband provider companies do not engage in any other activities.

At some point after Obama's first inauguration, the FCC instituted a rule-making process affecting broadband providers. Again, the FCC did not, during this rule-making process, or at any other time, seek to re-classify broadband providers as common carriers. For that reason, broadband providers were not classified as common carriers when Verizon sued the FCC; and they are still not classified as common carriers. This rule-making process of some years ago did, however, result in some new rules that we like to call "net neutrality" rules.

Okay, I hope at least some of you got this far.

Truth # 1: No court "struck down net neutrality." Part A

The term "struck down net neutrality" creates a very false impression of the Opinion.

In the initial portion of the Opinion, the Court noted that the FCC had not classified broadband providers as common carriers. Because of that failure to re-classify, the FCC could not impose on broad band providers certain common carrier-type regulations.

A lot of the opinion after that point is devoted to determining whether or not some of the new rules that the FCC tried to impose on broadband carriers were common carrier-type regulations or not. The net neutrality rules themselves were never declared outside the current statutory authority of the FCC. Rather, only the FCC's attempt to apply the rules to companies that the FCC had not already classified as common carriers was deemed to exceed the FCC's current statutory authority.

The L.A. Times articulated this as follows:

The D.C. Circuit Court of Appeals invalidated the first two of those rules in January, saying the commission didn't prove it had the legal authority to impose such restrictions on information services.

http://www.latimes.com/opinion/opinion-la/la-ol-net-neutrality-fcc-fast-lane-20140423,0,3906798.story#ixzz306QZvrla

To omit the last three words of that sentence is to mis-state the Opinion.

Can the FCC re-classify broadband providers as common carriers at some future date, without further Congressional action?

The Court did not hold on that, one way or the other. Doing so would have been an advisory opinion and federal courts cannot give advisory opinions. The Court said only that the FCC cannot treat broadband providers as though they are common carriers while the FCC still has broadband providers classified as information services. (The italicized part of the prior sentence apparently escaped some readers.) But please keep reading because some very knowledgeable people have spoken about it.

If the FCC should re-classify broadband providers as common carriers in the future, can the FCC then force net neutrality on broadband providers without further action by Congress?

The Court did not hold on that, one way or another, either. That, too, would be an advisory opinion and, again, federal courts cannot give advisory opinions. But, again, please keep reading.

Is there a Constitutional issue?

Verizon did raise the issue of a taking without due process, given that net neutrality would prevent broadband providers from making more money. Given how the Court decided, it did not need to reach the Constitutional issue and therefore did not. I will just note that common carriers have been heavily regulated for decades in ways that prevent them from maximizing their profits. And companies, such as Netflix, that want access to a common carrier without being charged a premium, can raise their own Constitutional issues, including the First Amendment.

Also, federal courts owe deference to Congress, which has put the FCC in charge of this, and to the FCC. However federal courts do not owe deference to Verizon or other broadband providers.

I am certain that authors cited below read the Opinion and noted that Verizon raised a Constitutional claim. None of them seem to think it an obstacle.

At the very least, I don't see any rationale for keeping the FCC from at least trying re-classification, given what is at stake.


Truth #1: No court "struck down net neutrality." Part B How can I assure you that my above description of the Court's decision is correct?

First, on February 19, 2014, FCC Head Wheeler issued a statement about the Opinion. If the Court had forever precluded the FCC from forcing net neutrality rules on broadband providers, that surely would have been in the statement about his plans to make new rules. (Why would the FCC or the Executive want all the blame?) It wasn't in his statement, though.

http://www.fcc.gov/document/statement-fcc-chairman-tom-wheeler-fccs-open-internet-rules

That statement, of course, was before Wheeler's April 23, 2014 statement, leaked by the WSJ, saying that the FCC would not be promulgating new net neutrality rules after all.

Next, an article by Michael Copps, the title of which is quoted in my post.

Copps is a Phi Beta Kappa college graduate with a Ph.d, IOW, both smart and highly-educated. For 12 years, Copps was Chief of Staff to Democratic U.S. Senator Hollings. Then, Copps was an Assistant Secretary in the Commerce Department. IOW, very used to dealing with federal statutes and courts.

Most relevantly, Copps became a commissioner of the FCC in 2001. Cops served as a commissioner of the FCC for a total of 10.5 years. When Obama took office, he chose Copps as acting head of the FCC until Genachowski could be formally nominated and confirmed. Copps served as acting head of the FCC for six months.

In 2011, Copps distinguished himself by being the only FCC Commissioner to vote against allowing giant Comcast to join with NBC Universal. Said Copps at the time:

In sum, this is simply too much, too big, too powerful, too lacking in benefits for American consumers and citizens.... I would be true to neither the statute nor to everything I have fought for here at the Commission over the past decade if I did not dissent from what I consider to be a damaging and potentially dangerous deal (..) At the end of the day, the public interest requires more-much more-than it is receiving. The Comcast-NBCU joint venture opens the door to the cableization of the open Internet. The potential for walled gardens, toll booths, content prioritization, access fees to reach end users, and a stake in the heart of independent content production is now very real.

http://en.wikipedia.org/wiki/Michael_Copps

FYI, Wiki is not clear about how long Copps served on the FCC in all, but about 10.5 years is correct. http://www.fcc.gov/leadership/michael-j-copps

Truth #2 The FCC can act further on net neutrality without further legislation by Congress.

Here is a link to the article written by Copps entitled, The Buck Stops With the FCC. http://benton.org/node/172880 The article was published January 22, 2014, after the decision in Verizon v. FCC, and before either of the statements by FCC Head Wheeler referenced above.

Former FCC Commissioner Copps' article states, among other things, that the FCC can legally re-classify broadband providers to common carrier without more legislation by Congress and should do so.

http://benton.org/node/172880

In light of Copps' intelligence, experience in government in general, and as FCC Commissioner and Acting FCC Chief in particular, I cannot imagine anyone much more qualified to make that determination.

Some may object that Copps is not a lawyer. Fair enough, which brings me to Tim Wu.

Tim Wu is not merely a lawyer, but a law professor at Columbia University in the fields of internet, media and communications. He wrote The Master Switch (2010) and Who Controls the Internet (2006), and Net Neutrality, Broadband Discrimination (2002) And, he is a former legal adviser to the FCC.

http://www.law.columbia.edu/fac/Tim_Wu and http://www.newyorker.com/online/blogs/elements/2014/04/the-end-of-net-neutrality.html

In a post at The New Yorker (link above), Wu accused President Obama of having broken firm campaign promises about net neutrality. The post was made the day after Wheeler's April 23 statement about not promulgating new net neutrality rules after all. Some DUers have suggested that the article did not mention the court ruling, which is true. However, looking at the timing of Wu's article--less than a full day after the news of Wheeler's plans hit the media--and Wu's own credentials, it seems almost bizarre to contemplate that Wu was not familiar with the January Opinion when he posted the article in April.

Some DUers also thought that Wu should have offered the FCC, an arm of the federal government, advice on how to get around the January Opinion. I hope this post and the sources cited in make very clear that there was nothing in the January 14 Opinion that the the FCC had to get around before beginning a new rulemaking process to re-classify broadband providers as common carriers and to adopt net neutrality rules. (The LAT article linked to above also states that as one of the three options that the Court left the FCC.)

I must acknowledge that it was DUer villager who brought the Wu/New Yorker post to the attention of DU by posting about it in an OP.

http://www.democraticunderground.com/10024866734

I acknowledge as well DUer Koko, who began a very informative thread urging our activism in this matter. (Our activism in this matter is another reason for this post: if you believe the mischaracterizations of the Opinion, you may not even try activism.)

http://www.democraticunderground.com/10024874164

Commissioner Copps' article, link above, also urges our activism and provides us with a petition that we can sign if we wish. (I have mixed feelings about internet petitions, so I am only letting you know that it's in the article.)

While I have not yet read the thread begun by DUer Ichingcarpenter, I include it here because some DUers have argued that we should be looking forward to a future with tiers; and I strongly disagree. Therefore, I liked the title of the thread and, sight unseen, I have confidence in DUers to produce a great thread. http://www.democraticunderground.com/10024873446 ("Why you don't want tiered Internet costs.&quot

Other Truths?

Other statements posted in various threads deal with whether or not the FCC and/or Obama bear any blame/responsibility for the current state of affairs. Those determinations may or may not be subjective, but they will be a lot more controversial than this thread should be, especially if people actually look at the writings to which I have linked. So, I prefer not to address issues of blame in this post, but may (or may not) do a separate post on that subject.

For purposes this post, suffice to say that the FCC had the option of proceeding to a rulemaking process without additional action by Congress, but the FCC chose tiers instead.

[Armstead]

1. Thank you, thank you, thank you

Very well stated and clears up a lot of the confusion floating around (including admittedly some of my own).

The gist, as I understand it, is that it is absolutely possible for the FCC to alter the definition and therefore protect the Internet from unscrupulous bastards (my admittedly nonobjective characterization of corporate service providers.)

It is not a guaranteed slam dunk, and would face opposition. And might lose.

But it sure as hell should be tried. And we the people should fight for it. And press the politicians to fight for our interests.

And, MOST IMPORTANTLY, this should not be a liberal vs conservative issue. It is about people and access.

In other situations regarding media access, groups as disparate as religious fundamentalists and NRA types have been in common cause with lefties on the shared desire to allow freedom of access and affordability.

That is one hope that if the people collectively fight this attempt by corporate power to screw up yet another public service for excessive profit.

[merrily]

2. Thank you! On the activism issue, I again refer you to Koko's great thread, unless you have already

jumped on one or more of her suggestions.

[Armstead]

38. K&R

[elleng]

3. Thanks for this.

As a former (retired) federal regulator of common carriers (railroads, at the Interstate Commerce Commission,) I appreciate your attempt to inform everyone of the otherwise confusing.

[merrily]

5. Thank you! A federal regulator of common carriers thinks my post was okay?

You made all that work worth it, as well as making my day!

[elleng]

8. Oh, I'm glad, merrily!

Your post was more than OK, quite informative.

I have a problem with Wu's statement/conclusion about President Obama. After all, the FCC (and the former ICC, and the SEC and many others) are INDEPENDENT regulatory agencies, NOT cabinet agencies, their members are named by Presidents and approved by congress, but they do NOT take orders from any administration.

An independent regulatory agency is a regulatory agency that is independent from other branches or arms of the government.

Regulatory agencies deal in the area of administrative law—regulation or rulemaking (codifying and enforcing rules and regulations and imposing supervision or oversight for the benefit of the public at large). The existence of independent regulatory agencies is justified by the complexity of certain regulatory and supervisory tasks that require expertise, the need for rapid implementation of public authority in certain sectors, and the drawbacks of political interference. Some independent regulatory agencies perform investigations or audits, and some are authorized to fine the relevant parties and order certain measures.

(wiki)

[HooptieWagon]

15. Key phrase... "members are named by Presidents"

Just like a President nominates a SCOTUS Justice. While SCOTUS is independant of the Executive branch, it is fully expected that a POTUS is going to nominate a Justce that as close as possible reflects their views. Its reasonable to assume the same with the FCC.... the POTUS will name members that closely reflect POTUS's views. Regardless of the FCC operating independantly of the Executive Branch, the mere fact that the POTUS named members who are industry insiders... lawyers, lobbyists, etc.... indicates whose interests the POTUS decided the FCC would serve. And that was a 180 deg reversal of a publically-made campaign promise.

[elleng]

23. Yes, and Earl Warren was nominated by republican Dwight Eisenhower.

Warren was the vice-presidential nominee of the Republican Party in 1948, is best known for the decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring "one-man-one vote" rules of apportionment. He made the Court a power center on a more even base with Congress and the presidency especially through four landmark decisions: Brown v. Board of Education (1954), Gideon v. Wainwright (1963), Reynolds v. Sims (1964), and Miranda v. Arizona (1966).

The fact is, one never knows what decisions will be made, and how.

[HooptieWagon]

29. Are you really trying to compare Tom Wheeler to Earl Warren?

Good luck with that...

[merrily]

30. Excellent point, but the Ike Warren thing was very different.

California did not go blue until the around Reagan time.

Warren had been Repoublican AG of California. As such, he had been most responsible for rounding up the Japanese on California's exceptionally long stretch of Pacific Coast. Most of the Japanese who were in camps had been physically put there under Warren's direction. (and, to the eternal shame of our party, FDR's order.)

Ike of course was a Republican general in that same war. So, Ike did not put in a very important position a man who was very different from him, who he had reason to know would behave like a liberal. While Warren sat on the court, Ike tried to get him to see the point of the Southern white supremacists. And, when asked what he regretted most about his 8-year term in office, Ike replied "Nominating Warren for the Supreme Court."

So, Ike never chose someone who he knew in advance was not in his party AND 180 degrees away from what Ike said he wanted for America.

Obama promised net neutrality and also promised to appoint to the FCC Commissioners who also wanted net neutrality. True, he never promised to appoint Democrats, but I think most of us assumed that. (Silly us.) Instead, Obama appointed to head the FCC a man Obama knew up front was a Republican venture capitalist who was "not opposed" to tiers, instead of a fierce net neutrality advocate, despite a specific promise.

I can't imagine that Wheeler in general or his current net policy are the same degree of shock and massive disappointment to Obama that Warren and school integration turned out to be for Ike.

[sabrina 1]

16. And perhaps because while they ARE nominated by Presidents, they 'do not take orders' from

Presidents, those nominations are extremely important and should be made with the knowledge that once confirmed, these nominations will have extraordinary power to make decisions, such as on Net Neutrality eg, that will affect the American people's interests even more so than nominations that ARE more accountable to the administration that nominates them.

Which is why the nomination of Wheeler, who has such a glaring conflict of interest, a former Cable Lobbyist, raises huge questions as to how much thought was put into that nomination.

If the OP is correct then the FCC can, without 'going around the Court's decision', as claimed by some DUers, protect Net Neutrality. Why Wheeler has stated he does not intend to that therefore raises huge questions. Not just about his own reasons, but as to why he was nominated in the first place.

[merrily]

31. Presidents don't have a lot of need to give orders to "independent" agency heads. They choose

Last edited Sun Mar 4, 2018, 12:16 PM - Edit history (2)

people who are already sympathetic to their wishes and can ask for their resignation, or remove them, at any time. "I serve at the pleasure of the President" has a lot of meaning; and people who serve at the pleasure of the President know that very well.

And there's always those discussions with Cabinet Secretaries, both formal and informal and schoozing with agency heads at receptions. No formal orders, perhaps, but Presidents have many ways of making their wishes known to those whose undated resignations may be in the desk as I type.

For industry darlings, like Wheeler and a lot of FCC lawyers, the next time they emerge from the revolving door will make them very desirable to the broadband behemoths like Comcast and Verizon. Likely, the bucks they pull down for the rest of their careers will dwarf what they made before getting into the FCC and making all those wonderful government contacts from the inside. And the inside of a Democratic administration, no less. They have no desire to be fired, um, tender their resignaations.

So, yes, "Of course, I am in favor of net neutrality, but I don't give orders to the FCC" is a lot like many of Obama's other statements that his supporters can latch onto and repeat, as though it there is nothing else behind it.

If I were a President in favor of net neutrality, though, I would not have nominated Wheeler to head the FCC and the FCC would not be full of former broadband industry lobbyists.

[sabrina 1]

39. Either presidents no longer have much choice on who to nominate, considering the huge donations

from people like Wheeler in order to GET elected in the first place, they owe people once they get there. But if that is the case they should refuse donations from people who have a clear conflict of interest. In fact I always thought that conflicts of interest were frowned upon at least so I would expect during the nomination process it would be brought up.

Clapper is another perfect example of this, not to mention so many others.

Iow, if you appoint Republicans to your cabinet you're going to get Republican policies.

This is something people now need to know and at least ask about. Although Campaign Promises don't appear to mean much anymore.

[merrily]

42. Oh, they have a choice.

They choose to line their pockets and abandon their Constitutional duties to us.

Someone once told me, quite correctly: You always have a choice, unless you have a loaded gun to your head--and even then, you have a choice."

(That comment changed my entire outlook and therefore my entire life and emotional well-being.)

Our choices in this? Fight to amend the Constitution to overrule Citizens' United and then get great anti-lobbying and campaign finance laws in place. That will never happen because Congress will never take the first step, but enough effort may send something of a message. (I am not sure it will send the exact right message--there was a hell of lot of politician purchasing long before CU, but it will be something.) And do others things as well, the easiest of which is to give notice that we will keep voting out sell out politicians, no matter what, and then do it. Or just do it.

[sabrina 1]

43. 'Keep voting out sell out politicians'. Exactly. They have the idea that they can take the votes of

the base of their parties for granted. I believe Axelrod or Rahm perhaps, stated that we 'have nowhere else to go'. They absolutely need to be made aware of just how wrong they are about that.

One sign of that was the coalition that formed before the last election where major Liberal Orgs, Advocacy groups, SS eg, Unions and other normally dependable Democratic voters and donors, sent a warning to the Dem Party telling them that this was the last election where they could count on them for votes UNLESS their issues were addressed which most of them felt had not been the case.

As for Presidents having a choice, you are right of course, I think to get to the WH anymore, they have to 'make a deal with the devil' as it were, otherwise they would not even close to being a viable candidate.

Big Donors are the ones who are appointed to powerful positions in the cabinet, or to Ambassadorships. Noone who does not have a huge bank account will get close to being in any of those positions. That has to change. Such people do NOT represent the people, they represent only their own 'class'.

[merrily]

46. I don't know about Axelrod or Rahm, but I have heard MANY Dem pundits say it on TV whenever

the issue comes up.

Typical example, when discussing some conservative measure, like the Grand Bargain, for example:

Q. Can Democrats convince their base that this is a good thing?

A. "The left has nowhere else to go."

IOW, no convincing of llberals need even be attempted. They are trapped.

Maybe learned helplessness does not happen without teachers?

I would not be surprised if Rahm said it. While in the White House, he did not hesitate to make his contempt for liberals quite obvious. Same for former press secretary Gibbs.

When I said "they" have a choice, I meant all politicians, not only Presidents. Over and over, we get sold out for lobbyists and the alleged good of the party. (Um, remind me how incredibly poorly the party did after FDR finally managed to unclog the New Deal from the Supreme Court. Americans elected him so many times, a Constitutional amendment limiting Presidents to two terms was passed after he died; and Americans lined railroad tracks for miles, just to pay their respects to the train carrying his corpse.

Yet, we're told over and over that liberal programs hurt the Party and liberals cannot get elected. Oh, yeah, and no one wants liberal anyway, at least not a majority of Americans. At the same time, though, look around the rest of this board: red states are liking Obamacare and that is not even that much of a liberal plan. Can you imagine what would have happened in 2010 and 2014 mid terms if it had been Medicare for all, or even a stronger public option?

Label something liberal and, sure, the efforts of both Republicans and New Democrats to "toxify" that word kick it, be it a program or a candidate. Leave off the descriptor, though, and America loves it some liberal programs, at least until the bipartisaan propaganda machine kicks in.

[merrily]

25. On this thread, anyway, I used Wu not so much because of his claim of

broken promise, but for his resounding expertise in the area. I posit that he would not have accused Obama (or anyone) of a broken promise if the Court's January 2014 Opinon had really been fatal to net neutrality once and for all.

As for independence of agency heads, I think there is theory and then there is reality. If you want and/or need your post, are you, in reality independent of the person who hired you and can fire you? I don't think you are. People in civil service posts are well-protected by their unions and the due process clause, but the same is not so of political appointees.

I also agree with HooptieWagon that the President probably would not nominate some one whose views are in opposition to his vision for the agency. If you promised America net neutrality and wanted to deliver, you probably would not nominate to head the FCC someone who was a venture capitalist who thought tiers were a good idea. Nor would many of the FCCs lawyers be former lobbyists for the broadband providers.

I also think that someone who knows as much about internet regulation as does Wu and who has been legal advisor to the FCC, as has Wu, probably has some idea of what actually goes on there. I don't think he'd fling accusations recklessly.

But, as I said, for purposes of this thread, Wu is hear to support that, from a legal perspective, the January case need not have been an end to the FCC's efforts to pursue net neutrality.

[ChisolmTrailDem]

4. "The FCC has no statutory power to impose common carrier-type regulations on a company...

... that the FCC never classified as a common carrier."

People here on DU used to know that well. Unfortunately, DU is not as intelligent, as a whole, as it used to be.

[merrily]

7. Full disclosure: I never thought about it before, one way or the other.

Never really came up.

[TheKentuckian]

37. For the FCC to impose common carrier regulations it must classify that way prior to

the regulatory action is what that means and why the previous efforts were overturned, the FCC may reclassify and then impose the regulatory regime.

[merrily]

47. Exactly. The FCC may proceed with NN, but obviously has no intention of doing that.

[joshcryer]

6. There we go.

[GoneFishin]

9. "The FCC has no statutory power to impose common carrier-type regulations

on a company that is not FCC-classified as a common carrier."

In other words, the FCC cannot take actions which the FCC itself has positioned itself so as to prevent itself from taking such action.

Got it.

[merrily]

11. Yes.

Perhaps the ideal time to have re-classified would have been during the rulemaking process when they adopted the net neutrality rules, if not before. Failing that, after the first time that the D.C. Court shot them out of the water. But, maybe those were not the politically good times to reclassify?

[GoneFishin]

12. Ok. Thanks.

[sabrina 1]

17. Or to the more cynical among us, a Republican Cable Lobbyist might have wanted to leave some

doors open for his former employers should there ever be a court challenge as there has been.

To avoid the possibility of such suspicions therefore, it might have better to nominate someone for that position as head of the FCC who was free of such a potential conflict of interest.

Fantastic post, merrily, glad you decided to do so.

[merrily]

19. Thanks much, sabrina 1.

I hated just about every minute of research and writing, so the positive reinforcement is very welcome and much appreciated.

[sabrina 1]

21. It is obvious how much work you put into this. DU used to produce some great research like this

but not so much anymore. Which is all the more reason why it is appreciated when someone takes the trouble to do so, merrily.

[merrily]

32. The worst bit was getting through the opinion. I freeze up

when I have to do anything with my computer other than type--and even then--let alone trying to figure out how the entire internet works and what the Court was saying about the applicable law. Took a very long time to get through those 60 pages.

I am not much for public speaking either; and an OP seems like a form of it. I am much more of a "replier."

But, thanks again. And I did learn that companies that deal with broadband providers to put content on the internet, like Netflix, are called "edge providers." So, there was that.

[pa28]

10. Bookmarking this great post for reference.

If a citizens movement has any chance at all of pressuring the FCC we need to recognize they are not powerless bystanders. They chose tiers rather than creating a strong new set of neutrality rules capable of standing up in court.

Chairman Wheeler should explain the reasoning behind his decision making process and if the answer does not hold up he needs to be called on it.

[Lasher]

13. Not bad for a first OP.

I will go through it all this evening.

[merrily]

34. No worries. You can always bookmark for whenever you want to read it

or use it for reference.

[Dragonfli]

14. I Merrily recommend this post!

Good job, it will be harder for the foes of net neutrality on this board to spread the misinformation that the FCC is powerless.

[merrily]

18. HA! Copps is already being discredited on other threads.

DU seems to be home to the only people on the internet who think reclassification would be a huge problem.


Acting head of the FCC and the legal advisor to the FCC combined, plus authors of lots of other articles I did not mention apparently can't measure up. Even the SCOTUS didn't mention any obstacle to re-classification when it affirmed the FCC's power to re-classify.

I guess DU is just unbelievably lucky!

Oddly enough, though, originally, I was told that I had misread the opinion, and that didn't turn out to be correct at all.





Thanks much for the kind words and rec, though

[JDPriestly]

20. Net neutrality is essential for the future of an internet.

Without net neutrality, the internet will, like TV become an endless run of reality shows with long, boring ads selling everything from headache medicines (to relieve the boredom of the canned offerings that the "new, improved" internet will run non-stop) its own lackluster "shows" and offerings.

If the internet is to remain a creative force in our lives, we must maintain net neutrality. The end of net neutrality will mean that a lot of internet users, including me, will simply stop using the internet's services. The internet will cease to be a public meeting place and become yet another ad venue. That would be such a waste, so sad.

[merrily]

26. Good points. I also think we need net neutrality because msm is

in the tank for everyone but the majority of Americans.

In particular, some great original reporting has been going on, even as it is disappearing from our mass media to save money.

[OnyxCollie]

22. K&R. nt

[Agony]

24. Thanks so much!

this will be quoted far and wide...

Thanks again for the time you put into this.

Agony

[merrily]

33. You are very welcome.

[KoKo]

27. Merrily...Thank You...Key Points from your Post that are Important:

I am certain that authors cited below read the Opinion and noted that Verizon raised a Constitutional claim. None of them seem to think it an obstacle.

At the very least, I don't see any rationale for keeping the FCC from at least trying re-classification, given what is at stake.

-------------

Next, an article by Michael Copps, the title of which is quoted in my post.[/]b

Copps is a Phi Beta Kappa college graduate with a Ph.d, IOW, both smart and highly-educated. For 12 years, Copps was Chief of Staff to Democratic U.S. Senator Hollings. Then, Copps was an Assistant Secretary in the Commerce Department. IOW, very used to dealing with federal statutes and courts.

Most relevantly, Copps became a commissioner of the FCC in 2001. Cops served as a commissioner of the FCC for a total of 10.5 years. When Obama took office, he chose Copps as acting head of the FCC until Genachowski could be formally nominated and confirmed. Copps served as acting head of the FCC for six months.

In 2011, Copps distinguished himself by being the only FCC Commissioner to vote against allowing giant Comcast to join with NBC Universal. Said Copps at the time:

In sum, this is simply too much, too big, too powerful, too lacking in benefits for American consumers and citizens.... I would be true to neither the statute nor to everything I have fought for here at the Commission over the past decade if I did not dissent from what I consider to be a damaging and potentially dangerous deal (..) At the end of the day, the public interest requires more-much more-than it is receiving. The Comcast-NBCU joint venture opens the door to the cableization of the open Internet. The potential for walled gardens, toll booths, content prioritization, access fees to reach end users, and a stake in the heart of independent content production is now very real.

http://en.wikipedia.org/wiki/Michael_Copps

FYI, Wiki is not clear about how long Copps served on the FCC in all, but about 10.5 years is correct. http://www.fcc.gov/leadership/michael-j-copps

Truth #2 The FCC can act further on net neutrality without further legislation by Congress.

Here is a link to the article written by Copps entitled, The Buck Stops With the FCC. http://benton.org/node/172880 The article was published January 22, 2014, after the decision in Verizon v. FCC, and before either of the statements by FCC Head Wheeler referenced above.

Former FCC Commissioner Copps' article states, among other things, that the FCC can legally re-classify broadband providers to common carrier without more legislation by Congress and should do so.


-----
In light of Copps' intelligence, experience in government in general, and as FCC Commissioner and Acting FCC Chief in particular, I cannot imagine anyone much more qualified to make that determination.

Some may object that Copps is not a lawyer. Fair enough, which brings me to Tim Wu.

Tim Wu is not merely a lawyer, but a law professor at Columbia University in the fields of internet, media and communications. He wrote The Master Switch (2010) and Who Controls the Internet (2006), and Net Neutrality, Broadband Discrimination (2002) And, he is a former legal adviser to the FCC.

http://www.law.columbia.edu/fac/Tim_Wu and http://www.newyorker.com/online/blogs/elements/2014/04/the-end-of-net-neutrality.html

In a post at The New Yorker (link above), Wu accused President Obama of having broken firm campaign promises about net neutrality. The post was made the day after Wheeler's April 23 statement about not promulgating new net neutrality rules after all. Some DUers have suggested that the article did not mention the court ruling, which is true. However, looking at the timing of Wu's article--less than a full day after the news of Wheeler's plans hit the media--and Wu's own credentials, it seems almost bizarre to contemplate that Wu was not familiar with the January Opinion when he posted the article in April.

Some DUers also thought that Wu should have offered the FCC, an arm of the federal government, advice on how to get around the January Opinion. I hope this post and the sources cited in make very clear that there was nothing in the January 14 Opinion that the the FCC had to get around before beginning a new rulemaking process to re-classify broadband providers as common carriers and to adopt net neutrality rules. (The LAT article linked to above also states that as one of the three options that the Court left the FCC.)

----------

must acknowledge that it was DUer villager who brought the Wu/New Yorker post to the attention of DU by posting about it in an OP.

http://www.democraticunderground.com/10024866734

[merrily]

35. Thanks, Koko. Clearly, you paid close attention.

Wu was the subject of an attempted hatchet job on villager's thread and, now, Copps is getting the ax on other threads, but both Copps and Wu clearly know both FCC law and internet regulation very, very well.

Their views are far from unique, too. If you google FCC net neutrality re-classification, you will get a lot of hits showing articles from knowledgeable people. Even the FCC itself does not make a huge deal of the alleged obstacles to re-classification. Nor did the President. You'd think the Executive Branch would at least want a great excuse like that---and the Constitution, too, no less--if they had one?

I have not seen anyone saying with a relevant resume and knowledge of the internet or FCC law say re-classification is a huge deal.



Think I'll go with Copps and Wu and the many who agree with them.

[sabrina 1]

44. Considering who is 'thrashing' Wu and Copps, lol, I'll go with them also.

Best to always consider the source of criticism. If the source has a vested interest in protecting someone, no matter what, then those criticisms are worthless imho.

[merrily]

48. Their credentials are in my OP. Pretty damned impressive.

I find it difficult to believe that either of them would risk their reputations by recommending re-classification if reclassification is impossible. And, the FCC already re-classified broadband providers during the Bush administration.

I don't remember what the original classification was, but now it's information services. So how come re-classification was possible then, but nigh impossible now?

To rule out that I was skewing the choice of articles that I was seeing on the net, I googled "net neutrality FCC obstacles to re-classification." I still got articles urging the FCC to re-classify and nothing else.

[sabrina 1]

52. Yes, their credentials are impressive. But when the facts and truth don't match the 'message'

that is when you see some familiar talking points, tactics, whatever they THINK it takes to try to distract from them.

It's at the point now where you don't even have to really check, although you did a magnificent job of doing so, all you have to do is look at WHO is attempting to distract, and you just KNOW they are desperately trying to hide something.

Bottom line, the appointment of Wheeler as head of the FCC ensured the beginning of the end of Net Neutrality, UNLESS there is such an overwhelming response from the people they simply have to put it off for a while, or at least until AFTER the election.

Which is why we have to look for candidates who have been opposed to these policies and still are to vote for. And to throw out those who have supported it in any way.

I am glad to see the huge reaction to this.

I don't see how ANY Democrat could support it.

[merrily]

54. "Pay no attention to the man behind the curtain." nt

[sabrina 1]

55. Exactly! Which I do, lol!

[Duppers]

28. thx for gathering this info & posting

Bookmarks for later reading.

[merrily]

36. You're welcome.

[Ichingcarpenter]

40. Five Epic Fails in the FCC's New Net Neutrality Plan

Fail #1: Let’s fix this by proposing new rules (that we can’t enforce)

The whole reason the FCC ended up in court (twice) is that it based its Net Neutrality rules on a shaky legal foundation. When the Bush-era FCC decided to classify cable and telco broadband as an “information service” instead of a “telecommunications service,” it surrendered the FCC’s power to protect the open Internet. These bad decisions finally caught up with the agency in January.

The reason the court threw out the FCC’s rules is simple: Telling ISPs they cannot block or discriminate is an obligation the FCC can impose only on telecommunications service providers. Information services are exempt from these obligations. Since these FCC decisions treat broadband the same way they’d treat any website or application, the agency can’t prohibit a broadband provider from discriminating any more than it can bar a website owner from rejecting an ad or an R-rated comment.

Fail #2: Applaud us for mentioning the existence of Title II

The FCC’s announcement says the agency will “keep Title II authority on the table” — meaning that the agency may consider reclassifying broadband under Title II of the Communications Act at some point in the future. This is supposed to soothe the millions of people, businesses and organizations that have called on the FCC to reclassify.

But leaving Title II “on the table” is a bit like saying the Constitution is still “on the table.” Title II is the law of the land; only Congress can take it off the table.

The court told the FCC it can’t have it both ways: Either broadband is a common-carrier network that’s subject to rules that prevent blocking and discrimination — or broadband is an information service, which means ISPs can discriminate.

Title II isn’t an option to be reserved for later. It’s the only option that will protect Internet users.

Fail #3: The FCC’s love affair with 706

The FCC keeps trotting out section 706 of the Telecommunications Act as a solution. But as we’ve explained before, the FCC can’t protect free speech and prevent discrimination under the so-called Section 706 authority mentioned in Wednesday’s announcement. Last month’s court decision made that crystal clear.

more;
https://www.commondreams.org/view/2014/02/20-6


Great Post BTW.... also everyone pay attention to
your TV news if open internet is even discussed during the day as news....and any politicians speaking about it on TV...... I only know that Sen. Sanders is doing this
in any substance of discussion.

I would like to see some democrats speak up about this.

[merrily]

41. Great post, to you, too, Iching.

Fail #1: Let’s fix this by proposing new rules (that we can’t enforce)

Exactly. "See, America, we tried. Can we help it if the court "struck down net neutrality?"

Hmm. I wonder who even got that deceptively worded meme going to begin with.

Fail #2: Applaud us for mentioning the existence of Title II

As if anyone is going to undo the tiers after they are in place.

Did you make an OP of the common dreams article? If not, please consider that.

[ProudProgressiveNow]

45. Thank you.. nt

[merrily]

49. You are welcome.

[blackspade]

50. Well written OP.

Very informative.

It seems from the info you posted that all the FCC needs to do is classify all Internet and phone providers as common carriers and regulate accordingly.
It speaks volumes that Wheeler has made a deliberate choice to go with a tiered system over net neutrality.

[merrily]

51. Thank you and yes, re-classification, if done properly, would be the solution.

Little in life in 100% guaranteed. However, many experts are urging it; and, as I said, I see no reason that the FCC should not have at least tried. And, tried years ago, I might add.

(This is not the first case the FCC has lost for this reason.)

[Guy Whitey Corngood]

53. K&R nt

[steve2470]

56. kick and rec nt