EFF: The FCC Pretends to Support Net Neutrality and Privacy While Moving to Gut Both

["Dave Farber" <dave () farber net>]

---------- Forwarded message ---------
From: Dewayne Hendricks <dewayne () warpspeed com>
Date: Tue, May 23, 2017 at 9:39 AM
Subject: [Dewayne-Net] EFF: The FCC Pretends to Support Net Neutrality and
Privacy While Moving to Gut Both
To: Multiple recipients of Dewayne-Net <dewayne-net () warpspeed com>


[Note:  This item comes from friend Randy Burge.  DLH]

From: Randy Burge <burge () bizcatalytics com>
Subject: EFF: The FCC Pretends to Support Net Neutrality and Privacy While
Moving to Gut Both
Date: May 23, 2017 at 8:50:15 AM EDT
To: "Mr. Dewayne Hendricks" <dewayne () warpspeed com>

Dewayne: This from EFF – Randy

The FCC Pretends to Support Net Neutrality and Privacy While Moving to Gut
Both

<
https://www.eff.org/deeplinks/2017/05/why-losing-title-ii-means-losing-net-neutrality-and-privacy
>

Legal Analysis by Kit Walsh
May 9, 2017

FCC Chairman Ajit Pai has proposed a plan to eliminate net neutrality and
privacy for broadband subscribers. Of course, those protections are
tremendously popular, so Chairman Pai and his allies have been forced to
pay lip service to preserving them in “some form.”  How do we know it’s
just lip service? Because the plan Pai is pushing will destroy the legal
foundation for net neutrality. That’s right: if Pai succeeds, the FCC won’t
have the legal authority to preserve net neutrality in just about any form.
And if he’s read the case law, he knows it.

Let’s break it down.

The FCC’s Proposal Makes It Impossible to Enforce Core Net Neutrality
Requirements

Under the Telecommunications Act of 1996, a service can be either a
“telecommunications service,” like telephone service, that lets the
subscriber choose the content they receive and send without interference
from the service provider, or it can be an “information service,” like
cable television or the old Prodigy service, that curates and selects what
content channels will be available to subscribers. The 1996 law provided
that “telecommunications services” are governed by “Title II” of the
Communications Act of 1934, which includes nondiscrimination requirements.
“Information services” are not subject to Title II’s requirements.

Under current law, the FCC can put either label on broadband Internet
service – but that choice has consequences. For years, the FCC incorrectly
classified broadband access as an “information service,” and when it tried
to impose even a weak version of net neutrality protections the courts
struck them down. Essentially, the D.C. Circuit court explained [PDF] that
it would be inconsistent for the FCC to exempt broadband from Title II’s
nondiscrimination requirements by classifying it as an information service,
but then impose those requirements anyway.

The legal mandate was clear: if it wanted meaningful open Internet rules to
pass judicial scrutiny, the FCC had to reclassify broadband service under
Title II. It was also clear to neutral observers that reclassification just
made sense. Broadband looks a lot more like a “telecommunications service”
than an “information service.” It entails delivering information of the
subscriber’s choosing, not information curated or altered by the provider.

It took an Internet uprising to persuade the FCC that reclassification made
practical and legal sense. But in the end we succeeded: in 2015, at the end
of a lengthy rulemaking process, the FCC reclassified broadband as a Title
II telecommunications service and issued net neutrality rules on that
basis. Resting at last on a proper legal foundation, those rules finally
passed judicial scrutiny [PDF].

But now, FCC Chairman Ajit Pai has proposed to reverse that decision and
put broadband back under the regime for “information services” – the same
regime that we already know won’t support real net neutrality rules.
Abandoning Title II means the end of meaningful, enforceable net neutrality
protections, paving the way for companies like Comcast or Time Warner Cable
to slice up your Internet experience into favored, disfavored, and
“premium” content.


<snip>



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