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Chus, I have to disagree with you on the net neutrality issue. They are using the old federal laws that broke up telephone monopolies and regulated utilities as their statutory authority for net neutrality rules. They are overriding the 1996 telecommunications act in the process. Two articles below on the topic from this week. It is exactly about the Federal Government level of regulation over the Internet.
Information Age: Obamanet Goes to Court
By L. Gordon Crovitz
799 words
30 November 2015
The Wall Street Journal
J
A15
English
Copyright © 2015, Dow Jones & Company, Inc.
This week the federal appeals court in Washington considers the legality of the Obama administration's decision to micromanage the Internet. Obamanet ended 20 glorious years of the Internet as a fount of permissionless innovation. Now judges will decide, in U.S. Telecom Association v. FCC, if anyone can ever again launch a website, app or new product without having to beg a bureaucrat.
The Federal Communications Commission chairman himself last week made the case for invalidating Obamanet. Asked at a news conference whether regulators would approve a new low-priced plan from T-Mobile, Tom Wheeler said yes, adding, "I also kind of chuckle at the fact that as we were debating the open Internet, everybody was saying, 'Oh, this is going to thwart innovation, it's going to be terrible. People are going to have to come to the FCC to say, "Mother, may I?" before they do anything in the market.' Well that certainly didn't happen here."
Of course it did. Mother Wheeler said You may -- though that became maybe when he added: "What we're going to be doing is watching the Binge On product, keeping an eye on it, and to measure it against the general conduct rule." Republican commissioner Ajit Pai warned T-Mobile not to assume anything: "I don't think it should give any company comfort to know that the state of the law is so unsettled."
T-Mobile's Binge On benefits consumers by giving them low-priced unlimited access to 24 video services, including Netflix, HBO and ESPN. This package is aimed at cost-conscious people who don't have broadband. Net neutrality absolutists hate the idea, known as "zero rating." Susan Crawford, a former Obama special assistant for science, technology, and innovation policy, has written that it "is pernicious; it's dangerous; it's malignant."
U.S. policy is supposed to "preserve the vibrant and competitive free market" for the Internet, according to the Telecommunications Act of 1996, "unfettered by federal or state regulation." That mandate reflects the governmental humility that prevailed across party lines at the launch of the commercial Internet.
But the White House last year decided "net neutrality" was good politics. A page-one article in The Wall Street Journal headlined "Net Neutrality: How the White House Thwarted FCC Chief" described "an unusual, secretive effort inside the White House . . . acting as a parallel version of the FCC itself." The White House bullied Mr. Wheeler to treat the Internet as a monopoly utility under laws written in the 1880s for railroads and in the 1930s for Ma Bell.
Strong-armed by the White House, the agency rushed out more than 300 pages of slapdash regulations. Among the legal objections the appeals court will consider is that letting the FCC decide what is "fair" and "reasonable" violates the plain wording of the Telecommunications Act; that the agency's new "Internet conduct standard" is so vague it exceeds the agency's authority; that the White House's intervention violated separation of powers and the notice period for new regulations; and the rules violate First Amendment protections for free speech by letting regulators decide what content broadband providers can and can't make available.
The courts are applying greater scrutiny of independent federal agencies, insisting on "reasoned decision-making." In June the Supreme Court invalidated an Environmental Protection Agency regulation issued without serious cost-benefit analysis. Likewise, in its rush to adopt Obamanet, the FCC failed to conduct even a cursory review of the costs of treating the Internet as a utility.
That's relevant because broadband investment declined immediately after providers realized Obamanet could become law. Economist Hal Singer calculates major Internet service providers reduced capital spending by 12%, while the overall industry average dropped 8%. Even Mr. Wheeler has acknowledged that regulations put pressure on "the needs of network operators to receive a return on their investment."
The Internet succeeded because it was unregulated. If Obamanet had been in effect, newspapers would have objected to Google as "unfair." Wall Street might have forced Steve Jobs out if the government deemed "unreasonable" his idea to include a Web browser in Apple's mobile phones. Investors could have nixed the disruptive messaging service WhatsApp for fear it would be held to violate a "general conduct rule."
Since Obamanet took effect, the FCC has received thousands of requests to regulate Internet pricing, business practices and products. BlackBerry even asked regulators to force Netflix to stream videos on its unpopular phones.
The Internet needs more innovation and competition, not bureaucrats picking favorites. Regulators seeking "Mother may I?" permission to end freedom on the Internet should be given a quick and final no.
Focus Turns to U.S. Judge In Net Neutrality Appeal
John D. Mckinnon
By John D. McKinnon
777 words
30 November 2015
The Wall Street Journal
J
B1
English
Copyright © 2015, Dow Jones & Company, Inc.
As a high-stakes appeal of the U.S. government's net neutrality rule looms, telecommunications companies have found cause to take heart: The same judge who shot down two previous versions of the rule will help decide the latest challenge.
But Judge David Tatel's presence on the three-judge panel for the closely watched Dec. 4 appeal doesn't necessarily mean the Federal Communications Commission and its high-profile rules are in trouble again, backers of the regulation say.
They contend Judge Tatel's selection could even boost the odds of victory for the FCC, which has seen both its past efforts rejected by the U.S. Circuit Court of Appeals for the District of Columbia.
Judge Tatel wrote both of those appeals court opinions, one in 2010 and another in 2014. In both cases, the Clinton appointee found that the FCC had failed to show it had sufficient legal authority for its sweeping net neutrality rules.
Net neutrality proponents say the rules are necessary to prevent big cable and phone companies from using their emerging dominance as Internet access providers to disadvantage potential rivals, particularly companies like Netflix Inc. and Alphabet Inc.'s Google.
Critics say those problems have so far failed to materialize; meanwhile, the strict new net neutrality rules could stifle investment in broadband, they warn.
The lawsuit is shaping up as the definitive challenge to the FCC rules and a milestone in the Internet's development.
Given the high stakes, it might well end up at the Supreme Court, and the circuit court's framing of the issues could be crucial.
Some lawyers for telecommunications firms quietly cheered Judge Tatel's inclusion on the panel, which the court says is appointed randomly.
They contend the judge in his 2014 opinion offered the FCC a road map to write legally acceptable rules that would be more modest, but that the FCC chose to short-circuit that approach under political pressure from the White House.
FCC Chairman Tom Wheeler has said he was independently considering the path the commission chose and the administration didn't exert undue influence on it.
"It will be interesting to see how Judge Tatel responds to this direct slap in the face," said Lawrence Spiwak, president of the Phoenix Center for Advanced Legal & Economic Public Policy Studies, a conservative think tank that has filed a friend-of-the-court brief siding with the telecommunications companies.
"I think we're reasonably pleased with the panel," said one lawyer for industry groups challenging the rules. That panel also includes Judges Stephen Williams, a conservative who has been a critic of the agency, and Sri Srinivasan, an Obama administration appointee seen as liberal but business-friendly.
The big phone and cable companies -- along with congressional Republicans -- say the FCC still lacks a legal basis to impose the net neutrality rules, even after trying to reclassify the firms as telecommunications providers to buttress its authority. But Republicans so far have lacked the votes in Congress to roll back the rules.
The FCC and its backers contend Judge Tatel's opinion in 2014 clearly left open the door to the sweeping action it ultimately took. Now he is well positioned to validate the agency's actions, they say.
"Judge Tatel's inclusion on the panel is probably good for net neutrality advocates," said Marvin Ammori, a lawyer and net neutrality activist.
"In the previous case, he provided a legal road map for the FCC to follow. The FCC carefully followed Judge Tatel's road map. And nobody would understand that better than Mr. Tatel himself."
Whoever is right, the latest appeal likely will come down to what Judge Tatel thinks.
"Given his interest and his knowledge, it is overwhelmingly likely that he will be in the majority and write the opinion," said Andrew Schwartzman, a Georgetown law professor.
In addition to being steeped in the net neutrality fight, the 73-year-old Judge Tatel is widely recognized for his expertise in the technology arena more broadly.
The debate over net neutrality rules has been protracted and difficult, in part because the Internet has evolved so rapidly while the laws governing it haven't.
The main statute, the Telecommunications Act of 1996, was passed when the government was actively encouraging the Internet's growth through limited FCC oversight.
The FCC has attempted to reclassify Internet service providers as telecommunications firms subject to a modernized version of its old-school common carrier requirements, giving itself the authority to impose net neutrality rules.
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Obama phones? Your boy George Bush started that program.
