Re Berninger v. FCC: Cert petition filed with Supreme Court today

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

Begin forwarded message:

> From: Dave Burstein <daveb () dslprime com>
> Date: September 27, 2017 at 7:55:16 PM EDT
> To: Dave Farber <dave () farber net>
> Subject: Re: [IP] Berninger v. FCC: Cert petition filed with Supreme Court today
>
> Dave
>
> Try http://stopthemadness.tech/certpetition  or http://vcxc.org/documents/BerningerCertPetitionFinal.pdf if that link 
> doesn't work. 
>
> I disagree with Dan here, even though I know how wrong regulation can go. In particular, I believe
>
> "the vibrant and competitive free market that presently exists for the Internet and other interactive computer 
> services [defined as services that provide access to the Internet]" 
>
> is not an accurate description of a market in which half of the U.S. has only one choice of reasonably robust high 
> speed Internet and very few have more than two. 
>
> I've spent nearly 20 years in this stuff - some spent working alongside Dan, a true pioneer in voice over the 
> Internet. My observation is that until you get to 4-7 carriers, the remarkable results of competition are more often 
> than not compromised.
>
> U.S. landlines cost 30-60% more than many of our economic peers, especially France, for similar offerings. I consider 
> that strong evidence our competition is not working well.
> -----------------
>
> Like many others, I've been looking hard at whether wireless is more than a very partial substitute. Average landline 
> usage today is probably over 150 gigabytes/month, continuing to rise. 
>
> Even the more expensive "unlimited" plans in the U.S. have soft caps of 10-32 gigabytes, perhaps an hour a day of 
> video. That's enough for some people but not most of us. 
>
> I'm delighted to be reporting remarkable progress in video that will improve things, but it will be years before 
> wireless is similar to landline capacity.
>
> Email me freely offlist if you want to exchange analysis on how fast wireless capacity will grow.
>
> Dave
>
> > On Wed, Sep 27, 2017 at 6:49 PM, Dave Farber <farber () gmail com> wrote:
> >
> >
> >
> > Begin forwarded message:
> >
> > > From: Daniel Berninger <dan.berninger () gmail com>
> > > Date: September 27, 2017 at 4:16:48 PM EDT
> > > To: David Farber <dave () farber net>
> > > Subject: Berninger v. FCC: Cert petition filed with Supreme Court today
> > > Reply-To: dan.berninger () gmail com
> > >
> > > Dave,
> > >
> > > For IP, I filed a cert petition as a further appeal of the Open Internet Order in Berninger v. FCC with the Supreme 
> > > Court today.
> > >
> > > See the petition as filed via the redirect stopthemadness.tech/certpetition
> > >
> > > I believe the Supreme Court needs to defend the 9-0 holding in Reno v. ACLU that any Government regulation of the 
> > > Internet triggers a First Amendment strict scrutiny inquiry.
> > >
> > > The FCC's "predictive judgement" underlying the OIO becomes prior restraint in the context of the First Amendment.
> > >
> > > Mere speculation falls short of a compelling government interest necessary to obtain an exception to the First 
> > > Amendment.
> > >
> > > The FCC's reliance on Chevron deference - court defers to agency to resolve ambiguity in statute - does not 
> > > overcome a Constitutional First Amendment challenge.
> > >
> > > The larger controversy turns on the FCC's - war is peace - assertion of Government as the protector of freedom of 
> > > speech.
> > >
> > > I encourage everyone to read the 45 word First Amendment which prohibits - not ask for protection - government 
> > > abridging communication.
> > >
> > > I also encourage everyone to find an example of where in the 80 year track record of the FCC actually served the 
> > > benevolent purposes claimed in the OIO.
> > >
> > > The FCC has a long track record of blocking new communication modalities as it does in the OIO with respect to my 
> > > start-up Hello Digital (see the petition).
> > >
> > > Dan
> > > ..........................................
> > > Daniel Berninger
> > > Founder, Voice Communication Exchange Committee
> > > e: dan () danielberninger com
> > > tel SD: +1.202.765.3155
> > > SIP HD: dan () danielberninger com
> > > w: www.vcxc.org
> >
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>
>
>
> -- 
> Editor, Fast Net News, WIreless One.news, Net Policy News and DSL Prime
> Author with Jennie Bourne  DSL (Wiley) and Web Video: Making It Great, Getting It Noticed (Peachpit)



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