Re: Verizon Policy Statement on Net Neutrality

[Owen DeLong <owen () delong com>]

> On Feb 28, 2015, at 11:29 , Rob McEwen <rob () invaluement com> wrote:
>
> On 2/28/2015 1:48 PM, Lamar Owen wrote:
> > > The bigger picture is (a) HOW they got this authority--self-defining it in, and (b) the potential abuse and 4th 
> > > amendment violations, not just today's "foot in the door" details!
> > How they got the authority is through the Communications Act of 1934, as passed and amended by our elected 
> > representatives in Congress, with the approval of our elected President.
>
> For roughly two decades of having a widely-publicly-used Internet, nobody realized that they already had this 
> authority... until suddenly just now... we were just too stupid to see the obvious all those years, right? And how 
> nice that the people who decided that this authority suddenly existed, are the ones who voted themselves that 
> authority (referring to the vote on Thursday), and will be wielding that authority.

Actually, many people realized they had the authority, including, but not limited to the FCC, the incumbent 
Telco/Cablecos, and Congress. To the credit of the commission, they tried very hard to find ways not to use such heavy 
handed authority to prevent the current abuses by the Telco/Cablecos, but each of their major efforts was thwarted by 
lawsuits from those same Telcos and Cablecos.

Now, you want to cry foul because, faced with essentially no other way to stop the current string of abuses, the FCC 
has chosen to use the one and only authority it has that will stand up in court? That’s absurd. The commissioners 
didn’t suddenly realize this authority existed, they have been trying to avoid using it in such a heavy handed manner 
until the organizations they were trying to regulate essentially left them no other choice.

> Nobody has refuted my statement that their stated intentions for use of this authority, and their long term 
> application of that authority, could be frighteningly different. What they say they will do for now... and what they 
> COULD do in the future if this power grab stands--without anything more than another one of their little votes 
> amongst themselves--could be very very different.

Sure… Not the least of which is FCC commissioner appointments are not lifetime appointments and even if they were, they 
wouldn’t live forever, so you’re going to have a different commission at some point in the future. That’s also true of 
Congress, the supreme court (and don’t get me started on some of their gaffs, such as Plessey V. Ferguson, Citizens 
United, Hobby Lobby, etc.). This isn’t a power grab. It’s a very judicious exercise of power they’ve had for a long 
time which they waited as long as possible to exercise. If you don’t like this, then the people to blame are not the 
commissioners, but the incumbent telcos and cablecos that brought this on themselves by blocking every attempt at more 
gentle regulation.

> FOR PERSPECTIVE... CONSIDER THIS HYPOTHETICAL: Suppose that the EPA was given a statutory power to monitor air 
> quality (which is likely true, right)... decades later, a group of EPA officials have a little vote amongst 
> themselves and they decide that they now define the air INSIDE your house is also covered by those same regulations 
> and monitoring directives for outside air. Therefore, to carry out their task of monitoring the air inside your home, 
> they conduct random warrent-less raids inside your homes, thus violating your 4th amendment rights. If the CO2 levels 
> are too high (because someone likes to smoke), that person then gets fined, or their house gets bulldozed, etc. When 
> asked about how they get that authority, someone like Lamar Owen points out that Congress gave them this authority in 
> such-in-such clean air act past so many decades ago.

First of all, congress can’t exceed the authority of the fourth amendment, so that wouldn’t fly and you know it. The 
constitution overrides congress, not the other way around. Nothing in the FCC ruling that I’ve seen seems to have any 
fourth amendment (or any other portion of the bill of rights) implications as near as I can tell, even with the 
(bizarre and absurd) extensions recently granted by the supreme court in Citizens United. What, exactly, is it that you 
find so objectionable in the actual ruling? (Please cite CFR section or quote the objectionable pieces in your 
response). What horrible consequences is it that you think can come from further FCC interpretation or application of 
this ruling?

> I know that hypothetical example is even more preposterous than this net neutrality ruling... but probably not that 
> much more! (in BOTH cases, the power grab involves an intrusion upon privately-owned space.. using a statute that was 
> originally intended for public space)

Yes… Quite a bit more given that your example is completely preposterous _AND_ unconstitutional, whereas this net 
neutrality ruling is simply the next step in an ongoing battle between consumers+content providers vs. the broadband 
oligopolies with the FCC (for once) siding with the consumer.

> But the bigger picture isn't what the FCC STATES that they will do now.. it is what unelected FCC officials could do, 
> with LITTLE accountability, in the future. Arguing for/against this power grab... only based on what they say they 
> will do for now, is very naive. Future generations may ask us, "why didn't you stop this?" When we answer, "well, it 
> wasn't implemented as badly when it first started". They'll reply, "but you should have checked to see how far this 
> could go once that power grab was allowed (or ignored!)”

FCC officials (as you call them) are political appointees. They do have accountability in that if the executive 
administration doesn’t like what they do, they’re out. Their regulatory authority is limited to that authority granted 
to them by congress.

If future generations are going to judge us for federal power grabs, I’m betting this won’t be the one they pick. 
First, I don’t see this as a power grab. Second, even if it were such a thing, it so starkly pales in comparison to the 
actions of DHS, BATFE, TSA, NSA, FBI, et. al. under the auspices of the USAPATRIOT act and supreme court rulings like 
Citizens United that I cannot imagine it will even make it onto their radar screen.

Owen