Re FCC tells court it has no “legal authority” to impose net neutrality rules

["Dave Farber" <farber () gmail com>]

Begin forwarded message:

> From: Richard Bennett <richard () bennett com>
> Date: October 15, 2018 at 3:40:47 AM GMT+9
> To: Dave Farber <dave () farber net>
> Cc: ip <ip () listbox com>
> Subject: Re: [IP] Fwre  FCC tells court it has no “legal authority” to impose net neutrality rules
>
> The Big Irony that strikes me in this debate is that people who maintained for 40 years that the Internet was a 
> major, game-changing, revolutionary advance in networking are now saying: “Never mind, I was wrong, the Internet is 
> just another telephone network. Regulate your hearts out, appointed federal bureaucrats!”
>
> Let’s think through the implications of the claim that DNS is just like 411 and therefore should be regulated under 
> Title II. DNS is provided by Google, Cloudflare, and IBM. Should these firms be regulated under Title II as well? 
> That would be problematic since Title II includes a lot of baggage in terms of price controls and privacy. 
> Specifically, it disallows the use of information collected in the course of operating the telecommunications service 
> for other purposes - such as ad targeting - without affirmative consent. Putting Google (and why not Facebook while 
> we’re at it, since they operate and extensive network?) under Title II means the end of ad-supported web indexing. 
>
> The FCC has regulated so-called dial-up ISPs as information services since the 1996 Telecommunications Act, and as 
> enhanced services before. Are we to believe that dial-up ISPs do some information processing magic that broadband 
> ISPs don’t do? If so, what would that be exactly?
>
> While many bloggers regurgitate the advocacy claim that the FCC’s 2017 Restoring Internet Freedom order disavowed any 
> and all authority to regulate ISPs (they usually say “broadband” but the issue is really "Internet service over 
> broadband”), a careful reading of the Order and the response to the challenge by Mozilla and other Silicon 
> Valley-friendly players shows that the FCC’s claim is much more narrow and specific. 
>
> It says Section 706 of the Act doesn’t give the FCC authority to run around enforcing rules that haven’t actually 
> been written down. The Obama era Title II order, you see, includes a “general conduct standard” that allows the FCC 
> to sanction practices that it deems objectionable even if they don’t violate the bans on blocking, throttling, and 
> Quality of Service for a fee specified in the order.   
>
> If you want some irony, read the RIF order or the FCC’s response alongside Section 706 and you’ll see that the FCC’s 
> preemption authority comes from Section 706. You’re not going to see that spelled out in the blogs.
>
> Law, like technology, can be complicated, so sometimes you need to consult primary sources.
>
> RB
>
> > On Oct 13, 2018, at 5:47 PM, Dave Farber <farber () gmail com> wrote:
> >
> >
> >
> >
> > Begin forwarded message:
> >
> > > From: Joe Touch <touch () strayalpha com>
> > > Date: October 13, 2018 at 11:44:44 PM GMT+9
> > > To: David Jack Farber <dave () farber net>
> > > Subject: FCC tells court it has no “legal authority” to impose net neutrality rules
> > >
> > > FYI - it seems the FCC can’t see the ironies:
> > > - if DNS makes broadband ’not telecommunications’, why doesn’t 411 directory service do the same for telephony? 
> > > - if the FCC has no jurisdiction on federal broadband, why does it think *it* can block states (such as CA) from 
> > > passing their own broadband regulations (which CA just did)?
> > >
> > > Irony impaired indeed.
> > >
> > > Joe
> > >
> > > ----------    
> > >
> > > https://arstechnica.com/tech-policy/2018/10/ajit-pais-fcc-tells-court-that-net-neutrality-rules-were-illegal/
> > >
> > > FCC tells court it has no “legal authority” to impose net neutrality rules
> > > FCC defends repeal in court, claims broadband isn't "telecommunications."
> > >
> > > JON BRODKIN -  10/12/2018, 10:22 AM
> > >
> > > The Federal Communications Commission opened its defense of its net neutrality repeal yesterday, telling a court 
> > > that it has no authority to keep the net neutrality rules in place.
> > >
> > > Chairman Ajit Pai's FCC argued that broadband is not a "telecommunications service" as defined in federal law, and 
> > > therefore it must be classified as an information service instead. As an information service, broadband cannot be 
> > > subject to common carrier regulations such as net neutrality rules, Pai's FCC said. The FCC is only allowed to 
> > > impose common carrier regulations on telecommunications services.
>
> —
> Richard Bennett
> High Tech Forum Founder
> Ethernet & Wi-Fi standards co-creator
>
> Internet Policy Consultant
>
> This message was sent to the list address and trashed, but can be found online.



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