AT&T: FCC has never had regulatory power over broadband

[Dave Farber <dfarber () me com>]

Begin forwarded message:

> From: Tor Fosheim <tfosheim () gmail com>
> Date: April 15, 2010 5:41:03 PM EDT
> To: dave () farber net
> Subject: Re: [IP] AT&T: FCC has never had regulatory power over broadband

> I agree, the scope of the FTC is not technical - you cannot argue that because the FTC was not granted power over 
> this specific piece of whatever, then the FTC has no power over it. 
>
> The FTC has power over everything in a very broad comsumer-protective way; so you just cannot say that _this_ 
> _particular device_ is like a very technical and difficult thing, so you have no power over it. Thats BS. 
>
> That's like saying antitrust laws don't exist because its a 
> computer-operating-thingy-system-contraption-with-loads-of-technical-widgets-innit, that I am now implementing on a 
> mobile phone and something I am going to, well, call something kinda pad-like...
>
> Obviously; if there is some sort of technical way to harm or limit consumer access to communication or free trade by 
> implementing a first- and second-tier system of access to said communications or limit access to it in any kind of 
> way, the actual technical implementation of said device or contraption is not interesting to the scope of the power 
> of the FTC.
>
> It is not the Federal Technical Commission :)
>
> It is the Federal Trade Commission.
>
>
> On Thu, Apr 15, 2010 at 9:14 PM, Dave Farber <dfarber () me com> wrote:
>
> From the pan into ... djf
>
>
> Begin forwarded message:
>
> > From: "David P. Reed" <dpreed () reed com>
> > Date: April 14, 2010 9:35:36 PM EDT
> > To: dave () farber net
> > Cc: Dave Farber <dfarber () me com>, ip <ip () v2 listbox com>
> > Subject: Re: [IP] AT&T: FCC has never had regulatory power over broadband
>
> > You know.... the FCC's regulatory power over the Internet may be complicated.  But the FTC can easily regulate *any* 
> > form of commerce.
> >
> > In particular, any service that is marketed as "Internet access" that turns out to NOT be access to the well-known 
> > thing called the public Internet, but instead turns out to be full of interference, substitutions, deceptions, etc.  
> > Any service that claims to provide communications but in fact reads people's communications and interferes with 
> > their communications at will: those actions would have to be considered as exploitation of consumers.
> >
> > Since such actions involve either Interstate Commerce (a Federally pre-emptive jurisdiction) or International 
> > Commerce, if the FCC has no regulatory authority, let's move to the Dept. of Commerce and the FTC.
> >
> > If the reclassification is a "nuclear option" - maybe we should just go straight to the "thermonuclear option" - the 
> > FTC.
> >
> > I'd not feel too sorry for Comcast, Verizon, ATT, etc. if they were required to submit to a completely new 
> > regulatory framework.  They asked for it.
> >
> > Instead of being regulated based on theories of competition and antitrust, they'd have to respond to accusations of 
> > consumer fraud, bait-and-switch, misleading contracts, danger to children, etc.  Fun times.
> >
> > Yeah, I know: the FTC can be wimpy.  But maybe, given a new task and a direct reporting role to the President, they 
> > might rise to the occasion, rather than being captive and a tool of the companies under regulation, as the FCC has 
> > shown itself to be.
> >
> > The FCC is no consumer watchdog, and hasn't been for decades.
> >
> >
> > On 04/14/2010 06:33 PM, Dave Farber wrote:
> > > Begin forwarded message:
> > >
> > > > From: Stagg Newman <lsnewmanjr () yahoo com>
> > > > Date: April 14, 2010 4:10:22 PM EDT
> > > > To: Richard Bennett <richard () bennett com>, George Ou <George.Ou () digitalsociety org>
> > > > Cc: "dave () farber net" <dave () farber net>, Lauren Weinstein <lauren () vortex com>
> > > > Subject: Re: [IP] AT&T: FCC has never had regulatory power over broadband
> > >
> > > > It is a complicated history.   As a non-lawyer I certainly find it confusing.
> > > >  
> > > > And then I remember what Scalia wrote via a vis the Telecom Act of '96
> > > > and take some comfort that I am not the only one who finds this confusing
> > > > "Not only is this act not a model of clarity, it is in fact a model of ambiguity and self contradiction ...." - 
> > > > Anton Scalia
> > > >  
> > > > Can one of the lawyers provide more details of what the FCC ruled on in 2002 and the context?
> > > >
> > > > From: Richard Bennett <richard () bennett com>
> > > > To: George Ou <George.Ou () digitalsociety org>
> > > > Cc: "daIve () farber net" <dave () farber net>; Lauren Weinstein <lauren () vortex com>; "lsnewmanjr () yahoo com" 
> > > > <lsnewmanjr () yahoo com>
> > > > Sent: Wed, April 14, 2010 3:42:45 PM
> > > > Subject: Re: [IP] AT&T: FCC has never had regulatory power over broadband
> > > >
> > > > Cable modem was never a Title II service, so there's no history of "freeing Cable Broadband from Title II." There 
> > > > was some ancillary authority trick prior to the 2002 ruling, but never a Title II status for Cable.
> > > >
> > > > RB
> > > >
> > > > On 4/14/2010 1:36 PM, George Ou wrote:
> > > > > The FCC had never had Title II powers over broadband on the IP layer (Layer 3).  What they had was price 
> > > > > regulation powers (Title II) over DSL transport (Layer 2) through the use of ATM PVCs in the DSLAM up until 2005. 
> > > > >  The FCC had regulated wholesale prices of the sharing of twisted pair and DSLAMs.
> > > > >
> > > > >  
> > > > >
> > > > > In July 2005, the FCC won the “Brand X” case affirming its 2002 ruling that freed Cable Broadband from Title II.  
> > > > > In August 2005, the FCC went further and freed DSL transport from Title II classification and no longer regulated 
> > > > > wholesale prices for DSL transport.
> > > > >
> > > > >  
> > > > >
> > > > >  
> > > > >
> > > > > What the Open Internet Coalition and others are now is asking is that the FCC should regulate broadband on all 
> > > > > levels under Title II such that its actions on Comcast and its NPRM can be justified.  That would have to include 
> > > > > layer 3 IP services, Internet transit, IP interconnect (peering), and maybe even CDN.  But from what I am 
> > > > > reading, the FCC is limited in power to regulate prices even on things like Video on Demand, so I can’t see how 
> > > > > they would justify price regulating the whole darn Internet and everything it encompasses.  I mean can the FCC 
> > > > > regulate the price of Amazon’s virtual “Elastic Cloud” servicers?
> > > > >
> > > > >  
> > > > >
> > > > >  
> > > > >
> > > > >  
> > > > >
> > > > >  
> > > > >
> > > > > George Ou
> > > > >
> > > > >  
> > > > >
> > > > > From: Dave Farber [mailto:dave () farber net] 
> > > > > Sent: Wednesday, April 14, 2010 5:56 AM
> > > > > To: ip
> > > > > Subject: [IP] AT&T: FCC has never had regulatory power over broadband
> > > > >
> > > > >  
> > > > >
> > > > >
> > > > >
> > > > >
> > > > > Begin forwarded message:
> > > > >
> > > > > From: Stagg Newman <lsnewmanjr () yahoo com>
> > > > > Date: April 14, 2010 8:50:37 AM EDT
> > > > > To: dave () farber net, ip <ip () v2 listbox com>
> > > > > Subject: Re: [IP] AT&T: FCC has never had regulatory power over broadband
> > > > >
> > > > > The FCC has regulated Frame Relay, ATM, and SONET and other high speed private line services as Title II services.
> > > > >
> > > > > Those service are in the family of broadband services.
> > > > >
> > > > >  
> > > > >
> > > > > The FCC did not regulate Internet service as Title II.
> > > > >
> > > > >  
> > > > >
> > > > > There is a deft change in the email below from broadband to Internet.  They are not synonymns.
> > > > >
> > > > >  
> > > > >
> > > > > From: David Farber <dave () farber net>
> > > > > To: ip <ip () v2 listbox com>
> > > > > Sent: Tue, April 13, 2010 4:58:38 PM
> > > > > Subject: [IP] AT&T: FCC has never had regulatory power over broadband
> > > > >
> > > > >
> > > > >
> > > > > Begin forwarded message:
> > > > >
> > > > > From: dewayne () warpspeed com (Dewayne Hendricks)
> > > > > Date: April 12, 2010 2:44:14 PM EDT
> > > > > To: Dewayne-Net Technology List <xyzzy () warpspeed com>
> > > > > Subject: [Dewayne-Net] AT&T: FCC has never had regulatory power over broadband
> > > > >
> > > > > AT&T: FCC has never had regulatory power over broadband
> > > > > The Hill
> > > > > By Kim Hart
> > > > >
> > > > > AT&T lobbyist Hank Hultquist disputes that the FCC ever had the authority over broadband that it seeks today.
> > > > >
> > > > > His comments in a blog post fuel the fast-growing fight over whether the FCC can or should reclassify broadband 
> > > > > as a "Title II" service, rather than the "Title I" service it is today. The D.C. Circuit clearly said last week 
> > > > > that the FCC cannot impose net neutrality rules with the current classification.
> > > > >
> > > > > A host of legal experts and lobbyists have made the case that the FCC should be able to revert back to Title II, 
> > > > > since the agency used to have regulatory authority over DSL and other broadband services until 2002, when they 
> > > > > were reclassified as Title I.
> > > > >
> > > > > <http://thehill.com/blogs/hillicon-valley/technology/91603-atat-fcc-has-never-had-regulatory-power-over-broadband>RSS
> > > > >  Feed: <http://www.warpspeed.com/wordpress>
> > > > >
> > > > >
> > > > >
> > > > >
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