Court Strikes at 'Net Neutrality'

[Celebration]

Source: Wall Street Journal

A federal appeals court struck down the FCC's efforts to enforce its "net neutrality" principles, ruling Tuesday that the Federal Communications Commission exceeded its authority when it issued a 2008 citation against Comcast Corp. for throttling Internet traffic from high-bandwidth file-sharing services.

A unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit overturned the citation, ruling that Congress hadn't given the FCC the power to regulate an Internet service provider's network-management practices.

"The commission has failed to tie its assertion of ancillary authority over Comcast's Internet service to any statutorily mandated responsibility," the court said in a 36-page opinion.

The court's decision could throw into question the FCC's authority to impose open Internet rules.

Read more: http://online.wsj.com/article/SB10001424052702303411604575167782845712768.html?mod=WSJ_latestheadlines

---

Uh oh.

[beac]

1. Crap.

Very depressing news. :(

[Hawkeye-X]

2. Well, it's time to enact NN legislation

and nothing watered down.

Hawkeye-X

[groundloop]

3. Well then, the House and Senate will just have to... (OH HELL !!!)

This isn't good. Any attempt at fixing the law will be blocked by the Greedy Obstructionist Party senators.

[underpants]

4. Comcast...... nuff said

:grr:

[lonestarnot]

5. Legislation from the bench sucks ass!

[MousePlayingDaffodil]

6. I'm not sure that this decision represents . . .

. . . "legislation from the bench." The three-judge panel concluded that the Communications Act of 1934 did not give the FCC the authority to issue the administrative order in question. I suppose reasonable minds could disagree, but the issue came down to one of statutory interpretation, and the panel found the FCC's arguments as to why it had authority unpersuasive.

The solution is for Congress to revised the Communications Act accordingly to provide the FCC the necessary authority.

[No Elephants]

34. Congress COULD do that, but WILL it? See Reply #3.

[MousePlayingDaffodil]

36. Whether Congress will do so, I have no idea . . .

. . . but my suspicion is that this is a fight it will shy away from, at this point.

[No Elephants]

45. I suspect Congress may well shy away from it, or enact some half measure,

unless and until we have a Constitutional amendment providing that federal elections will be financed by public financing and only public financing.

Maybe, if enough us yell loud and long, Congress will do what it should, but I doubt it. I think people yelled loud and long about single payer and/or strong public option and those cries fell on deaf ears. Or, if not deaf ears, greedy ears.

[lonestarnot]

72. reasonable minds could disagree

"the issue came down to one of statutory interpretation," borrowed excuse looking to me, but I haven't read enough.

[MousePlayingDaffodil]

74. I'm afraid I'm not sure what you are saying here . . .

. . . but I read the court's decision this morning when it first came out. Have you read it?

[lonestarnot]

77. Didn't I say

that I had not read enough? :shrug: Case law, decision, etc. Thanks.

[MousePlayingDaffodil]

85. Well, as I said . . .

. . . I wasn't sure what you were saying. You said that you hadn't "read enough," but whether that meant you hadn't read the D.C. Circuit opinion, I had no way of knowing.

[lonestarnot]

86. Sorry, should have just said pertinent reading materials.

:evilgrin:

[onenote]

11. how is this "legislation from the bench"?

The FCC always was on thin ice in this case, which is why there have been efforts under way for some time to have Congress enact legislation addressing net neutrality.

[No Elephants]

35. See Reply #3.

[24601]

73. Like when "The Bench" reigns in executive branch Terrorist Surveillance

Programs? Judges who stop the government from over-reaching are critical to checks & balances.

What really sucks is when non-elected bureaucrats legislate in place of Congress and judges fail to stop them. My suspicion is that some here are just looking for the classic "ends justify the means" and that is sad regardless of ideology.

[Doctor_J]

7. DC Circuit is 10-4 fascists vs. real judges.

Hitler's organization was a Cub Scout pack compared to the Bush Crime Family.

[KamaAina]

8. Ask Bill Clinton about three-judge panels from the DC Circuit

:eyes:

[onenote]

12. so you think Judge Tatel is a fascist?

Appointed by Clinton after having helped found the Chicago Lawyers' Committee for Civil Rights Under Law and having served as Director of the National Lawyers' Committee for Civil Rights Under Law, and Director of the Office for Civil Rights of the United States Department of Health, Education, and Welfare under Jimmy Carter. He wrote the opinion.

[starroute]

9. Who were the judges in the case?

There was an article posted here last night about a terrorism case abruptly being closed to the public and spectators kicked out. The judges who provided the 2-1 ruling to close the case were David Santelle and Laurence Silberman -- the same two Reagan appointees who let Ollie North off the hook and sicced Ken Starr on Clinton.

As someone pointed out upthread, the DC Court of Appeals, which gets so many of these high-profile, politically sensitive cases has been heavily stacked by Republican appointments for decades. I don't doubt that it's going to become an increasing focus of these kinds of ideological battles.

[MousePlayingDaffodil]

10. The three judges on the panel were . . .

Chief Judge David Sentelle (a Reagan appointee), Senior Circuit Judge Raymond Randolph (a George H.W. Bush appointee), and Circuit Judge David Tatel (a Clinton appointee).

The decision, which was unanimous, was written by Judge Tatel.

[conspirator]

13. This is the line in the sand. If we allow this we might as well let them put chains in our legs nt

[NJmaverick]

14. US court rules against FCC on `net neutrality'

Source: Associated Press

WASHINGTON – A federal appeals court ruled Tuesday 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 by the U.S. Court of Appeals for the District of Columbia is a big victory for Comcast Corp., the nation's largest cable company. It had challenged the FCC's authority to impose so-called "net neutrality" obligations on broadband providers.
The ruling also marks a serious setback for the FCC, which is trying to officially set net neutrality regulations. FCC Chairman Julius Genachowski argues that such rules are needed to prevent phone and cable companies from using their control over Internet access to favor some online content and services over others.
The decision also has serious implications for the massive national broadband plan released by the FCC last month. The FCC needs clear authority to regulate broadband in order to push ahead with some its key recommendations, including a proposal to expand broadband by tapping the federal fund that s

Read more: http://news.yahoo.com/s/ap/20100406/ap_on_hi_te/us_tec_internet_rules;_ylt=Aj8GWy4fCDoRFxdTpqFHwv6s0NUE;_ylu=X3oDMTNwZDdxbmNuBGFzc2V0A2FwLzIwMTAwNDA2L3VzX3RlY19pbnRlcm5ldF9ydWxlcwRjY29kZQNtb3N0cG9wdWxhcgRjcG9zAzYEcG9zAzMEcHQDaG9tZV9jb2tlBHNlYwN5bl9oZ

[BanzaiBonnie]

15. If the FCC has no authority, then who does

We have some really extremely corporate judges.

[NJmaverick]

17. That's a really good question. This issue is one of those big ones

that people are not paying attention to.

[lonestarnot]

70. I'm paying attention. I'm paying very close attention. Very, very close attention

to this one.

[Deep13]

20. Congress. They need to pass a statute. nt

[No Elephants]

33. Exactly!

[ProgressiveProfessor]

28. Actually the court is correct, they currently do not have that authority

In the US, the Internet is a huge collection of interconnected private networks all agreeing to work on the same standards. There are no exclusive franchises (unlike phones) and it not using public airwaves, which is the basis of FCC authority.

The problem is that there are some benefits to the private nature as well as problems. Today a network operator can block traffic from sites that are spamming, sourcing malware etc. One of the concerns about net neutrality is that depending on how it is done, that may no longer be possible.

Regardless, something must be done to stop favoring some traffic over others while preserving the ability of both ISP and network providers to maintain some control.

[No Elephants]

37. It simply cannot be that cut and dried.

First, use of public airwaves is is not the basis for FCC authority. The basis for FCC authority is the Communications Act of 1934, as amended by the Telecommunications Act of 1966 and regulations promulgated under that Act, as amended.

(Use of public airwaves is cited as the basis for allowing the FCC to regulate things that would otherwise be protected by the first amendment, like cursing and nudity.)

The thrust of the Act is interstate communications.

Second, the 1934 Act, as amended, covers interstate communication by broadcasst, wire and telecommunication. Arguably, between dial up internet and the terms "wire" and "telecommunication," the Act, as amended, does cover interstate communication via internet.

The FCC sure thinks it does, or it would not have entered into regulating, much less fought this case. And, I'm guessing, the FCC's attorneys have a pretty good working knowledge of relevant law. Beyond that, amicus curia briefed this case, too, both on the side of Comcast and on the side of the FCC. If it were all that clear cut, that would not have happened.

One would have to see the Act itself, including how terms are defined by the Act, and applicable regulations, before one could make any definitive statements--and even then, it can't be all that clear cut or a court battle over the issue of FCC jurisdiction could not have been sustained.

I am not saying the court is wrong. I am just saying that it ust can't be as cut and dried as you suggest by declaring flatly the court is correct. The court may be "correct" simply because, no matter how many briefs there may be on both sides, our system gives the court the final say, unless Congress overrules this decision in the future.

P.S. The Court's opinion is 35 pages long, another indication that the issues are not as cut and dried as your post suggests. And, near the end of the opinion, the Court acknowledges that Congress gave the FCC broad authority, so that the FCC could keep up with rapidly-developing technologies, like the internet. )Originally, the technologies were only telephone and radio.)

http://en.wikipedia.org/wiki/Communications_Act_of_1934 http://en.wikipedia.org/wiki/Telecommunications_Act_of_1996

[onenote]

47. In a nutshell

The Communications Act is organized into various "titles". Title I is entitled "General Provisions"; Title II covers regulation of "Common Carriers"; Title III governs regulation of "Radio" (meaning both broadcast television and radio); and Title VI covers regulation of Cable Television. (Title IV covers "procedural and administrative provisions; Title V deals with penalties; and Title VII covers "miscellaneous provisions"). While Title I generally provides that the FCC has the authority to "peform any and all acts, make such rules and regulations, and issue such orders...as may be necessary in the execution of its functions", that provision is itself not regarded as an independent grant of authority. Rather, it is a source of "ancillary authority" to take actions reasonably related to the fulfillment of the specific grants of authority given to the FCC in Titles II, III and VI.

More than 40 years ago, prior to the addition of Title VI to the Act, the FCC decided to adopt regulations governing the then relatively new "cable television" technology. Because Congress had never given the FCC specific authority to regulate cable, the FCC relied on its Title I authority as "ancillary" to its authority to regulate broadcast television since, at the time, cable essentially did little more than retransmit broadcast television stations. The SCOTUS upheld this exercise of authority; however, FCC the FCC pushed the envelope too far and began adding new regulations over cable that were not "reasonably ancillary" to its authority over broadcasting. Those regulations were struck down as beyond the FCC's authority.

The Comcast case is essentially a 21st Century version of those old cable cases. Everyone, including the FCC, acknowledges that Congress has not amended the Communications Act to give the FCC express authority to regulate Internet service. So the issue was whether the FCC could build a case for exercising "ancillary" authority. The problem is that the FCC relied mostly on its Title I authority and some "policy statements." But the court found that "policy statements" are enough to trigger ancillary authority. The FCC would have to show that its regulation of Comcast's interent service was reasonably ancillary to an area in which the FCC currently has express regulatory authority. The FCC made a couple of mistakes. First, it tried to tie its authority back to Title I -- but as the court pointed out, that would be a circular approach that would allow the FCC's source of ancillary authority to be ancillary to itself, giving the FCC "unbounded" authority to do pretty much anything. Second, the FCC actually came up with a couple of better arguments that tied its regulation of the Internet to its authority to regulate cable and telephone services, but it screwed up procedurally in presenting these arguments by raising them for the first time in court, not when it adopted the order being challenged by Comcast.

Was it "cut and dried"? Not exactly, but it was generally thought that the case that the FCC had made in support of its ruling (which was made back when Kevin Martin was Chairman, not under the current administration) was pretty weak from a purely legal standpoint. It was a 3-2 decision (with the two Democrats on the Commission joining with Martin). As has been noted, various members of Congress who support net neutrality regulation have introduced bills to give the FCC express authority precisely because the FCC's claim of authority under existing law was so dubious.

[No Elephants]

76. "Was it "cut and dried"? Not exactly...." Which is what my post said.

Quoting from my prior post:


"I am not saying the court is wrong. I am just saying that it ust can't be as cut and dried as you suggest by declaring flatly the court is correct."

See also, Reply 64. (Sen. Kerry, chair of the Senate Communications Subcommittee thinks the FCC maintants that authority, per the legislative history of the statute, which informs courts as to how they should interpret the statute.)

[ananda]

16. So what.. did Comcast buy the court?

Ugly. Bad bad bad.

[onenote]

31. no. the court followed the law.

I no longer am surprised when folks who disagree with a judicial decision immediately assume that the court was "bought" by one side. Just saddened.

For the record, it was a unanimous decision of the three judge court. The three judges are Sentelle (appointed by Reagan), Tatel (appointed by Clinton) and Randolph (appointed by Bush I). Tatel, who wrote the opinion, is hardly a right-winger. His past service (pre judiciary) included service as a founder of the Chicago Lawyers' Committee for Civil Rights Under Law, as Director of the National Lawyers' Committee for Civil Rights Under Law, and as Director of the Office for Civil Rights of the United States Department of Health, Education, and Welfare under Jimmy Carter. And while Randolph was appointed by Bush I, he was Jimmy Carter's Solicitor General.

[No Elephants]

38. Meh. Court decisions usually indicate one bias or another. Otherwise, why are there so many 5-4

SCOTUS decisions, usually right down party lines? 8 of the current SCOTUS Justices are well trained to read the law.

See also, Reply # 37.

[onenote]

50. even assuming that the judges were "biased" that doesn't mean they were "bought"

I was responding to the suggestion (not by you) that the judges must have been "bought" to reach this particular result.

But the logic of your argument -- that the fact that there are party line 5-4 decisions indicates that theres is 'bias' means that both sides are revealing bias in their decisions. To the extent you are defending the notion that the judges were bought (and I'm not sure if you were or not), by extension that would equate "bias" with being "bought" and in5-4 decisions it would mean both sides have been "bought."

The fact that judges disagree suggests that the issues aren't that cut and dried. Where you have a 3-0 decision, with the three judges are (i) a former civil rights and education lawyer appointed by Clinton; (ii) a conservative judge appointed by Reagan; and (iii) a senior judge who served as Jimmy Carter's solitor general and was appointed to the court by bush I, it generally means the losing side had a particularly weak case. Keep in mind that decisions by the DC Circuit reviewing FCC (and other agency) decisions tend to turn more on the details of administrative law and procedure and less on the underlying substantive outcome.

[No Elephants]

80. Again, I know what you were responding to. And, again, I saw something in your post on which I

wanted to comment. So, I responded to your post. That does not necessarily mean I am agreeing with the post to which you were responding.

"But the logic of your argument -- that the fact that there are party line 5-4 decisions indicates that theres is 'bias' means that both sides are revealing bias in their decisions."

My statement was that there are many 5-4 deciaions ALONG PARTY LINES. I think that does suggest a couple of things. One: The law (be it statutory or case law) can often be read more than one way. Two, the pre-existing views of the Justices these days "inform" how the Justices choose among the possible ways the law can be read.

"The fact that judges disagree suggests that the issues aren't that cut and dried." Yes, disagreement among appellate judges is not the ONLY suggestion that the law is cut and dried. My prior posts to Progressive Professor and to you on this threas stated other reasons; and one of your own responses to my post said this case was not totally cut and dried.

"Keep in mind that decisions by the DC Circuit reviewing FCC (and other agency) decisions tend to turn more on the details of administrative law and procedure and less on the underlying substantive outcome."

Yes, I know. And one of the cardinal rules of reviewing an administrative decision is that courts should give great deference to the decisons of an administrative agency charged with reviewing these matters and with interpreting the statute day in and day out. (Again, see the quote from Kerry in Reply 64.)

Whether a court opinion reflects that great deference or not is another issue on which people can differ--and the way they come out these days is very likely to be "informed" by whether they are Republicans or Democrats. Or, given Justices like Souter and Stevens, maybe I should say, whether they tend to lean left or right.

My motives is wanting to say this is not totally clear cut are at least twofold.

First, I believe that a flat statement in this case is less accurate than a qualified statement. For all the reasons I've stated on this thread, I do honestly believe the issue was not totally cut and dried, and the court, if it wished, could have come out the other way, especially given the legislative history of the 1934 Act and its amendment. Apparently, Senator Kerry would agree with me; and, as chair of the Senate Communications Committee, I would give more weight to his view than I would to, say, Progressivve Professors. However, again, I am not trying to decide who is right or wrong, or who is "righter." My only point is that the law left room for interpretation.

Two, like most non-corporatists, I would LIKE the result to be net neutrality. (Yes, I realize that is a result-oriented statement.) And I have my doubts as to whether Congress is going to do anything meaningful about it. See my Reply #45.

I'm not sure why any non-corporatist would want to go to such great lengths to insist that the court made the only decision anyone possibly could have made. So, candidly, I wonder why you and Progressive Professor are so insistent on making the less careful statement.

[onenote]

94. What evidence do you have that Judge Tatel is a "corporatist"

He wrote the decision. It was 3-0. Could a different group of judges reached a different decision? Possibly, but if anything, its been the rw judges that have tended to be deferential to the FCC in the past. Ask any of the FCC lawyers which judge they would least like to see on the bench in one of their cases and the answer probably would be Harry Edwards, who was appointed to the court by Carter.

My strongly held belief that the odds of the FCC prevailing in this case were minimal from the start is informed by the background of the case. Kevin Martin hated Comcast and was willing to push the envelope to get at them. One of the first actions taken after Obama was inaugurated was to roll back several anti-cable actions that Martin had taken in his vendetta against the industry. The two Democrats, Copps and Adelstein, are strong supporters of net neutrality, so they went along with the opportunity to address Comcast's behavior. But as Copps' statement yesterday all but admitted, the "ancillary jurisdiction" approach was dubious from the get go.

[ButterflyBlood]

87. Actually most SCOTUS decisions are unanimous

It's the controversial and interesting ones that we hear about that are 5-4.

[No Elephants]

89. So not the point of my post. And I never said most SCOTUS decisions were

not unanimous.

And I am not sure what period of time your post addresses. Last term? The Reoberts Court? The entire history of the Supreme Court?

If a case lacked controversy, it probably would not even get to the stage of a full-fledged Supreme Court opinion. Again, however, the point of my post was to say that there is often more than one way that nine very smart--okay, eight very smart--Justices could decide and that the way they go is not based strictly on what the law says unequivocally.

BTW, we hear about a lot of cases that are unanimous decisions, too, because the Court believes (or at least used to believe) that the nation is better served if very important cases are unanimous decisions. However, the Court gets more and more partisan, IMO.

Maybe the Court always was that partisan and I just have not studied that particular issue enough. The Court sure did an about face on New Deal legislation after FDR's so-called "court-packing" plan. Which again proves my point about there often being more than one way to decide a case and which you choose probably depends more on how you'd like to see the case come out than it does on any exact and unequivocal wording. (See also Reply 80.)

Do you disagree with that point? Because, again, I never said that most SCOTUS decisions were not unanimous. I never addressed that at all, one way or another.

Even though it was not the point of my post, if you have a link to support your statement, I would love to see it. Not that I am doubting you. I would just be interested in reading more.

[whats_a_zip]

95. Then the law is wrong.

I think it's time President Obama began issuing executive orders to get us where we need to be. Old laws aren't always good laws.

[Bennyboy]

18. OH GOD NO!

Goodbye the internet the way we know it. I am sure this will go to the SCOTUS, but even then they will rules simalarly.

This so sucks.

[NJmaverick]

19. You can say that again.

[lbrtbell]

24. It's high time people rally against Comcast

Tell them that any attempts to stifle the net will result in a massive exodus of people switching to DSL and satellite TV service.

Corporate America needs to know who pays their salaries. :mad:

[tsuki]

21. Shouldn't that read, "Activist US court"? I don't mind recycling old talking points. nt

[ProgressiveProfessor]

32. But it wasn't . The current law just does not support this.

That can and should be changed

[Plucketeer]

22. Ah - the benefits of corporate control!

Congress' #1 priority should be to devise laws that isolate corporate powers. :grr:

[Jefferson23]

23. K&R n/t

[onehandle]

25. I hope this part is true. Read this near the end of the article --->

With so much at stake, the FCC now has several options. It could ask Congress to give it explicit authority to regulate broadband. Or it could appeal Tuesday's decision to the Supreme Court.

But both of those steps could take too long because the agency "has too many important things they have to do right away," said Ben Scott, policy director for the public interest group Free Press. Free Press was among the groups that alerted the FCC to Comcast's behavior after The Associated Press ran tests and reported that the cable company was interfering with attempts by some subscribers to share files online.

The more likely scenario, Scott believes, is that the agency will simply reclassify broadband as a more heavily regulated telecommuniciations service. And that, ironically, could be the worst-case outcome from the perspective of the phone and cable companies, he noted.

"Comcast swung an ax at the FCC to protest the BitTorrent order," Scott said. "And they sliced right through the FCC's arm and plunged the ax into their own back."

[NJmaverick]

26. Thanks for catching that critical point

[lazarus]

27. very nice catch

that gives me some hope.

[ProgressiveProfessor]

29. Free Press is wrong about that scenario

The reclassification would be fought harder and longer than either legislation or more court appeals.

The better answer is to craft legislation that allows the good part of private network ownership to continue while not allowing the downside to thrive as well.

[onenote]

30. +1

You are right. Trying to pass legislation that reclassifies cable modem service is a very heavy lift that would take years and involve all sorts of tradeoffs.

[No Elephants]

83. The same is likely to be true of any legislation on this, though.

[No Elephants]

82. Legislation would be fought hard and long, too.

[onenote]

91. you are right about that

Reclassification is the quicker approach, but the issue will be whether the courts will allow a reclassification order to go into effect pending judicial review. I wouldn't want to venture a prediction on that issue at this point.

[ProgressiveProfessor]

93. It indeed would be, but it is the only viable long term answer

Congress needs to do the right thing and clearly define this. I know that is not in their nature, but without a clear legal basis and framework, its just not going to work.

[Doctor_J]

40. However

1. Congress won't give any Fed agency any authority while a Dem is in the WH

2. If the decision is appealed to this SCOTUS, Big Business will win and the people lose.

3. As far as reclassifying broadband, when is that last time that an agency like this favored We The People over Big Media, especially with such a bold move?

[lonestarnot]

71. And we all know what happens when appeal is made to SCOTUS

Reclassification of broadband. Comcast can kill itself and I won't cry.

[Ter]

39. Is this a victory for free speech on the net or no?

I don't understand the ruling, but since most of us here dislike the FCC, why are most people here against this decision?

[activa8tr]

43. The FCC is arguing in FAVOR of Net Neutrality !

[Ter]

44. "A federal appeals court struck down the FCC's efforts to enforce its "net neutrality" principles"

It also goes on to say "the Federal Communications Commission exceeded its authority". Sounds anti-FCC to me, I'm confused.

[onenote]

51. its not "anti-FCC" or anti--net neutrality. its a ruling that the FCC lacked the authority

to do what it did.

The door is open for Congress to confer the necessary authority on the FCC or even for the FCC to try to make a better case for having authority (which it might try to do in several ways). If you read the decision, you'll see that the FCC did a particularly poor job of defending its position.

[DuaneBidoux]

41. we are beginning to reap the results of steady right wing appointments under Republicans.

Anyone for nationalization and guaranteed access for all to a broadband infrastructure?

It's certainly not what I want, but we have to guarantee that all have access to information it may be what we need.

It's funny, about 4 days ago Comcast (unfortunately they are mine) sent me a "usage meter" which it said would help me keep track of my usage. I suspected then, and am sure now, that it was a precursor to making sure they kept my traffic down.

[onenote]

42. How so? The author of the opinion was named to the court by Bill Clinton

and he's hardly a right winger.

[No Elephants]

46. Clinton governed center right.

[onenote]

49. the post I responded to suggested the judges were repub appointments

Clinton may have been "center right" in your opinion, but he wasn't a repug.

And the author of the opinion, Judge Tatel has pretty distinguished liberal credentials, including founding the Chicago Lawyers' Committee for Civil Rights Under Law and having served as Director of the National Lawyers' Committee for Civil Rights Under Law, and Director of the Office for Civil Rights of the United States Department of Health, Education, and Welfare under Jimmy Carter.

[No Elephants]

78. I know what you were responding to. I was responding to your statement that

Clinton was "hardly RW." My reply was that he governed center right. That is not my opinion. See, for example: http://www.prospect.org/cs/articles?article=did_clinton_succeed_or_fail

I never said Clinton was a Republican (some of whom are center left), nor did I say the judges he appointed were conservative.

[No Elephants]

79. Self delete. Dupe.

[No Elephants]

48. Well, we could start hammering our Reps and Senators, but

does that do any good anymore? 77% of Americans favored a public option and many of us were quite vocal about that; and that went nowhere. Still, I guess I'd rather try than remain silentt.

[Lakerstan]

52. Federal appeals court rules for Comcast and against FCC on 'net neutrality' case

Source: LA Times

WASHINGTON (AP) — 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.

Tuesday's ruling by the U.S. Court of Appeals for the District of Columbia is a big victory for Comcast Corp., the nation's largest cable company. It had challenged the FCC's authority to impose so called "net neutrality" obligations.

It marks a serious setback for the FCC, which needs authority to regulate the Internet in order to push ahead with key parts of its massive national broadband plan.


Read more: http://www.latimes.com/technology/sns-ap-us-tec-internet-rules,0,6955319.story

[Joanne98]

53. DAMN!

[ixion]

54. A sad ruling for the internet...

and perhaps the beginning of the end of what we know as the internet. :(

[Joanne98]

55. Fucking Comcast!

Court Strikes at '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.

Tuesday's ruling by the U.S. Court of Appeals for the District of Columbia is a big victory for Comcast Corp., the nation's largest cable company. It had challenged the FCC's authority to impose so-called net neutrality obligations.

It marks a serious setback for the FCC, which needs authority to regulate the Internet in order to push ahead with key parts of its massive national broadband plan.

http://online.wsj.com/article/SB10001424052702303411604575167782845712768.html?mod=googlenews_wsj

[BumRushDaShow]

56. Ugh.

:banghead:

[gilpo]

57. Need to get Congress to give them the authority, then don't we?

[ProgressiveProfessor]

61. Indeed that is the only option

[lonestarnot]

58. MOTHERFUCKERS!

[Enthusiast]

59. Fascism!

Corporate will triumphs over the public good once again.

Was it a George W Bush appointed judge on the appeals court?

[ProgressiveProfessor]

62. You are aware that the entire network is private property?

Its not publicly owned etc and the FCC authority is based on the use of public airwaves etc

[Enthusiast]

65. So what is you point? nt

[ProgressiveProfessor]

69. That the court was correct, the FCC does not CURRENTLY have the authority to enforce Net Neutrality

[high density]

60. Time for Congress to give FCC the proper authority then

This corporate crap from the courts is ridiculous.

[Jamastiene]

63. RIP Freedom on the internet.

Pretty soon, they'll start packaging internet like cable channels are packaged now. :puke:

[karynnj]

64. Congress is working on giving the FCC clearer authority per this article

From the House:

"Clearly, the court's decision must not be the final word on this vitally important matter, and I intend to work vigorously to ensure an open Internet for generations to come," said Rep. Ed Markey (D-Mass.), who has proposed network neutrality legislation,

Markey said what the court had done was " out the previous commission's shoddy legal theories." Though the court also threw out the justifications provided for those theories by the current commission's attorneys. "In light of the court's ruling," he said, "I encourage the current commission to take any actions necessary to ensure that consumers and competition are protected on the Internet. It is important to note that the Court neither called into question the wisdom of network neutrality policies nor did it exonerate Comcast for its unreasonable interference with lawful consumer Internet use."

From the Senate:

Sen. John Kerry (D-Mass.), who chairs the Senate Communications Subcommittee, said he was not advocating the FCC reclassify broadband service, but he did almost everything but. "I absolutely believe they maintain that legal authority and it would be entirely consistent with the history of communications law in our country if they did," Kerry said in a statement. In fact, in cases involving FCC classification of services, the Supreme Court has always deferred to the agency. It is likely to continue doing so if the agency reversed and provided a strong rationale for updating the Bush era classification of broadband service."

And if the FCC can't find a way to reclassify it, Kerry suggested he would help come up with some other way to make its authority over the Internet clear. "In the long run, we may need a new legal and regulatory framework for broadband, especially if reclassifying broadband as a telecommunications service proves too difficult to administer," he said. "I am willing to work with all interested parties on the construction of that framework."

[Grand Taurean]

66. About time.

[karynnj]

67. Markey and Kerry have been working on this for years

In the past, it was considered that the FCC could decide this. I assume that the other thing that likely will be done is to try to appeal this.

[onenote]

68. actually, the reason various members of Congress have been working on this

for years is that there was considerable doubt that the FCC could decide it under existing law.

The FCC could try to appeal to the SCOTUS and there is a small chance that the court would take it, but I wouldn't bet on it -- it was a unanimous opinion from the court below and there are no conflicting rulings from other circuits.

[No Elephants]

84. In your opinion. The Kerry quote in Reply 64 says otherwise.

Legislators may thin a statute is perfectly clear, until someone raises an issue, whereupon they decide amending may be a good idea.

That doesn't mean there was more doubt or potential ambiguity, under the 1934 Act than there is under most statutes.

[onenote]

90. actually Kerry's statement is completely consistent with my post

I referred to concerns, both within and without Congress, that the FCC's ability to adopt net neutrality rules was constrained under "existing law" -- ie., the FCC's decision to classify cable modem service as an information service. Kerry's comment does not dispute that. Rather it focuses on the FCC's authority to change "existing law" by reclassifying cable modem service as a Title II service -- something that I agree could be done either by the FCC or by COngress, although if the FCC does it, the decision will be tied up in the courts for years. Sen Kerry may well be correct that in the end the SCOTUS will defer to an FCC reclassification decision, but as he points out, Congressional action is another option.

Again, the issue isn't whether the FCC could reclassify. Its whether it could take the action it took against Comcast without doing so or without Congress stepping in. Even before the FCC acted against Comcast, Congress clearly doubted that the FCC could enforce net neutrality obligations without a change in the law. Markey admitted as much when he introduced his bill in 2006 and Senator Snowe (whose bill was co-sponsored by Kerry) did much the same when she introduced her bill, also in 2006.

Markey: "Recent decisions by the Federal Communications Commission (FCC) and court interpretations, however, put these aspects of broadband networks and the Internet in jeopardy. The corrosion of historic policies of nondiscrimination by the imposition of bottlenecks by broadband network owners endanger economic growth, innovation, job creation, and First Amendment freedom of expression on such networks. Broadband network owners should not be able to determine who can and who cannot offer services over broadband networks or over the Internet. The detrimental effect to the digital economy would be quite severe if such conduct were permitted and became widespread."


Snowe:
"Unfortunately, the 2005 FCC decision that deregulated broadband services also lifted nondiscrimination safeguards that had been in place since the Internet’s inception. Our legislation brings these protections back in order to ensure that the Era of Digital Democracy, brought about by the proliferation of the Internet, is allowed to continue."

[No Elephants]

81. The fact that they have been working on it for years reinforces my Reply # 45.

While I appreciate the efforts of Kerry and Markey--and I often have reason to be proud of one member or more of the Massachusetts delegation--I am not confident that legislation these days goes in the direction of public interest all that often, at least not without bending over for corporations/lobbyists/donors much too much.

We have had a very different U.S. government and a very different Democratic Party, than we had before lobbyists in Washington increased so dramatically.

[TexasObserver]

75. This is a big battle that must be won.

If the president and congressional leaders are smart, they'll make this a big issue and pass it before the election. It's a good opportunity to make the GOP line up on the side of screwing 99% of the internet users.

[Jefferson23]

88. See Democracy Now interview, the transcript is not yet available but

you can play the video at the link. http://www.democracynow.org/

Along with the ruling being discussed, the merger of Comcast and NBC is addressed as well.


Also from freepress: The savetheinternet.com coalition is more than a million everyday people who have banded together with thousands of non-profit organizations, businesses and bloggers to protect Internet freedom.

[Romulox]

92. If "net neutrality" is similiar in concept to how cable tv is run, I DON'T WANT IT.

Why, in our "capitalist" society, am I required to pay for a 24 hour a day channel broadcasting religious messages, for example, if I want to have access to basic news channels?

OK...by the same token, why should I pay to subsidize the transmission of those same services over the internet? If there aren't enough people willing to pay for bit torrent, or hulu, say, then a capitalistic society should produce less of those things.

The "efficiencies" and "choice" embodied in the forgoing theory are the bases of our society (and are enshrined in the President's new Healtchcare Bill, too!) So I become very suspicious of cui bono when it argued as a foregone conclusion that "it's not fair" to apply these self-same free market principles to another area of our lives.

Or, long story short, why should anybody be asked to subsidize bit torrent? :shrug: