[henriquez]

To drastically oversimplify, the FCC's position is: 1. we refuse to regulate ISPs, 2. nobody else can either

A look at other regulatory law, such as California's CARB and more stringent emissions standards than federal would seem to make Pai's position an uphill battle for the FCC.

By refusing to do his job and by revoking the Title II regs (in an arbitrary and capricious fashion, no less), Pai has opened the door to a much more complicated scenario where ISPs are at the mercy of state regulators and their compliance costs just got 50x more complicated. Obviously the lobbyists don't like that, but everyone involved has been behaving in an extremely short-sighted fashion.

[maxk42]

I'll probably be downvoted for this but I actually read most of the 900+ combined pages of the Obama-era net neutrality order plus the Communications Act of 1960.

Pai isn't actually making a bad decision here. The problem is that "net neutrality" isn't a bad idea but that's not what the ruling promotes at all. The ruling seeks to interpret ISPs as common carriers: That much is true. But the knock-on effects of that are not at all as advertised. Among other problems, in order to lay new fiber ISPs must seek approval from the DOD and Secretary of State. This is a tremendously high hurdle to meet making it difficult for small players to enter the market and making the market ripe for exploitation. Arguably, it lead directly to the situation much of the US faces with vast swathes of area being controlled by only one or two entrants. Since the ruling was repealed several years ago, we've actually seen an explosion in new fiber and average internet speeds rise rapidly across the US. This is a good thing. All the language about "internet fast lanes" was mere propaganda: It didn't happen before the ruling and it didn't happen after the repeal.

I haven't read the California legislation and I don't plan to. But given the surprisingly positive results of Pai's work so far, I have faith his position is couched in reason and understanding. Another hundred articles saying we'll get "internet fast lanes" if the common carrier rule isn't applied to ISPs doesn't change the fact that applying that particular rule has powerful drawbacks completely unrelated to people's position.

The strange thing is if we drafted a new law which completely omitted any consequences relative to the Communications Act of 1960 and explicitly forbade internet fast lanes I would support it and I suppose Pai might as well.

Edit: Changed typo "is" to "isn't" in 2nd to last sentence.

[takeda]

I think you're confused. The old law that we had that already forbade prioritization was the Title II, and that's what Wheeler classified Internet as. Pai basically reversed that decision, so it was a step backward.

Wheeler when he classified Internet as Title II, made exclusion that ISPs that currently have infrastructure are not required (under Title II they are) to lease it to competitors. We don't need 10 different fiber wires coming to our house, since most likely we will only use one, all we need is to be able to chose between ISPs and that ISP can reuse existing infrastructure, kind of like it was with selecting long distance call provider on land lines, or ISP on DSL (which was automatically under Title II already, do you remember how much competition was back then? if you had phone line from PacBell, you didn't have to have internet from them, we had sites like dslreports where people could compare and chose the best one).

What residential Internet needs, is separation of the last mile with the ISP (kind of like it is in data centers, you have separate company that maintains all wiring and separate company that provides service).

Since neither FCC chairman wanted this simple solution to enable competition once again. We need consumer protection, and this comes down to net neutrality. NN forbids ISPs from interfering with the service, that's it, the California law basically reinstated those protections. We desperately need them because the "propaganda" is not far from the truth. Just look at the latest acquisitions. Comcast now owns all content from NBC Universal, AT&T owns all content from TimeWarner. Why would ISPs enter this market if they wouldn't see some benefits of their current position. Now they are already bundling those services together, and with lack of net neutrality they can prioritize their content over others. Why did we even allowed to get to this point?

[maxk42]

> NN forbids ISPs from interfering with the service, that's it

Again - that would have been great if it were what the ruling actually did. It's not.

[takeda]

The ruling was because around 2002-2003[1] Internet was reclassified as Title I (Information Services). Since then ISPs started doing shenanigans, like throttling and in some cases outright blocking (first major attack was VoIP). Each time, it happened FCC stepped in, fined them, the company paid the fines and stopped doing what they were doing.

Around 2014 (IIRC) Verizon, sued FCC saying that they have no right of controlling ISPs and court ruled that Verizon was right. That ruling basically removed FCC right to control the Internet, but it hinted that they can reclassify it.

Immediately petitions and protests started asking FCC to reclassify Internet back to Title II (communication service[2]).

Obama sided with population, and Wheeler reclassified internet to Title II in 2015 (with some exemptions, like the requirement to lease infrastructure). After Trump wins he immediately started dismantling everything Obama did, which included the reclassification back to Title I (which according to the ruling FCC has no control anymore).

So as you see the ruling wasn't about NN but about whether FCC has control over service classified under Title I (information services). It has nothing about Title II (communication services).

[1] You might also notice that ISPs (which was a lot of them in late 1990 and early 2000), started disappearing around that time

[2] Despite the misinformation, Internet started as Title II, since it was initially provided by telcos, which were under Title II. Unlike today, back then we had large choice of ISPs o chose from since Title II required leasing lines to competitors.

[vel0city]

You seemed to have missed the parts where requiring approval from the DOD and SoS to lay new fiber were forborne, along with hundreds of other Title II laws. Its kind if incredible you missed that as the term "forbearance" appears 300 times in the Open Internet Order of 2015.

Also strange you bothered to mention the Communications Act of 1960. It would be far more relevant for you to have read the Telecommunications Act of 1996, as that made some significant changes to the law since 1960.

I guess you need to go back and re-read those documents.

[dragonwriter]

> I'll probably be downvoted for this but I actually read most of the 900+ combined pages of the Obama-era net neutrality order plus the Communications Act of 1960

Do you mean the Telecommunication Act of 1996 or the Communications Act of 1934? Or the Communications Amendments Act of 1960?

Because the first and second are relevant here, but while the last did make changes to the 1934 Act, those aren't really germane to the 2018 Open Internet order.

> Among other problems, in order to lay new fiber ISPs must seek approval from the DOD and Secretary of State.

No, it did not require that.

> Arguably, it lead directly to the situation much of the US faces with vast swathes of area being controlled by only one or two entrants.

No, unless you suggest retrocausality, that's not at all arguable; that situation was in place well before the 2015 order at issue, which was in effect for less than 3 years and not enforced for much of that time because the Pai opposed it even though it was on the books and nominally in force.

> Since the ruling was repealed several years ago

It was only two years ago (the repeal became effective in June 2018.)

[WillPostForFood]

Like you said, the FCC position was "1. we refuse to regulate ISPs, 2. nobody else can either". That does not open the door to "ISPs are at the mercy of state regulators". However, the FCC was sued, and the courts overturned #2 (nobody else can either). Now the door is open, but that's not the intent of the FCC, which is why the Federal Govt is continuing to litigate.

[kstrauser]

It does, actually. FCC reigns supreme in telecom regulations when they regulate something. However, they claimed that federal net neutrality was out of scope of the FCC's regulatory power. Because of that, by their own words they lack standing to prevent the states from doing their own thing.

For instance, the FCC can't sue California over smog controls because clean air isn't under the FCC's jurisdiction. Well, the FCC has claimed, in court, that net neutrality is also not under their jurisdiction. Their claims under oath are contradictory: either they have the power to enforce net neutrality (in which case it should still be federal law) or they don't (in which case they don't have grounds to tell California that CA can't enforce it).

[dragonwriter]

> A look at other regulatory law, such as California's CARB and more stringent emissions standards than federal would seem to make Pai's position an uphill battle for the FCC.

I think the FCC position is wrong, but the Clean Air Act has an express allowance for California Waivers (for which there are limited reasons the feds can deny) to issue stricter standards (and for other states to adopt exactly standards for which California has received a waiver) notwithstanding general preemption of state regulation under the Act.

So that's not really a good analogy, since there's nothing parallel to that with regard to telecom law.

[lersrvwtogether]

Where is the power to regulate intrastate ISP commerce granted to the federal government?

Certainly not in the US Constitution.

What a slippery slope.

[jcranmer]

SCOTUS first held in 1824 that the Commerce Clause gives the federal government the right to regulate intrastate commerce in a 6-0 decision.

You're about 200 years too late to be arguing that there's no basis in the US Constitution.

[seisvelas]

Gibbons v. Ogden was about Congress's right to regulate interstate commerce, not intrastate commerce.

The massive expansion and erosion of the meaning of interstate commerce didn't begin until Wickard v Filburn in 1942.

[jcranmer]

Gibbons v Ogden was about New York's granting of a monopoly on all steamboat services within New York, and the ruling held that "Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior"--in other words, that the right to regulate interstate commerce necessarily intrudes on the right to regulate intrastrate commerce to some degree.

Wickard v Filburn held that the Commerce Clause extends to regulating the growing of wheat for personal consumption, that involved no commercial transactions whatsoever.

[vel0city]

Ah, good thing the internet stops at each state's borders.

[lersrvwtogether]

If the framers of the constitution had intended for the federal government to have unlimited regulatory authority, they wouldn't have referred to Interstate Commerce. They would've just said: the federal government can do whatever it wants.

Redefining "interstate" is a mistake that one would hope that at least libertarian conservatives (who deliberately avoid expansionary scope creep without limit) would oppose.

[BurningFrog]

"It took about 150 years, starting with a Bill of Rights that reserved to the states and the people all powers not explicitly delegated to the federal government, to produce a Supreme Court willing to rule that growing corn to feed to your own hogs is interstate commerce and can therefore be regulated by Congress."

    --- David Friedman

[wahern]

> to produce a Supreme Court willing to rule that growing corn to feed to your own hogs is interstate commerce

That gloss on Wickard v. Filburn was a self-fulfilling prophecy. Filburn both sold his wheat crop and used it to feed his livestock which he also sold on the market.

I never understood why legal scholars, especially conservative legal scholars, so adamantly adhered to the notion that Wickard would clearly apply to purely private use. I tend to think it's out of spite--so upset about a decision that they promoted an unreasonable interpretation as a way to vindicate their ire.

It wasn't until Gonzales v. Raich (2005) that the court clearly stated Commerce Clause powers could extend to purely personal harvest and use, where neither the product (wheat, marijuana) nor derivatives (hogs, THC brownies) would be sold[1]. And ironically (or not so ironically), it was Scalia that cast the deciding vote.[2] And why did he do it? Basically because of reliance interests--Scalia worried the legal basis for the War on Drugs would come crashing down, and that would be too disruptive. But that's tautological--it only makes sense if you ignore the facts in Wickard and the commercial nature of the drug trade. Self... fulfilling... prophecy.... :(

[1] The counter-argument is that the Wickard opinion talks about the excess wheat consumed on the farm displacing demand for purchasing wheat. But he was already a commercial farmer--it was a matter of regulating commercial demand and commercial supply. And wheat is perfectly fungible, afterall, so of what matter is it that some small portion of the wheat might have gone directly to his table? The quotas were well in excess of what would be needed for purely personal consumption, direct and indirect. The notion of displaced demand can be easily cabined to the context of a commercial enterprise, and it strains credulity to believe the Wickard justices thought otherwise. Filburn wasn't a subsistence farmer, and wheat was a direct input to his commercial livestock. So analogizing that situation to homegrown marijuana displacing demand for, e.g, commercial medications is ridiculous (or, at the very least, an analogy one could just as easily reject as accept, again circling back to this notion that the parade of horribles from Wickard was wholly self-inflicted).

[2] And because of his Gonzales decision, for the Obamacare personal mandate Scalia was forced to retreat to a tenuous distinction between mandates and prohibitions, a distinction that would have been entirely unnecessary if he wasn't committed to the Wickard mythos[3]. If he had sided with the other conservatives in Gonzales, it would have been clear that the Commerce Clause couldn't support an individual mandate any more than a private use prohibition. (That would still leave open taxing powers as a basis, however, just as Roberts concluded.)

[3] Apropos HN, s/mythos/cargo cult/

[int_19h]

Wickard was still ultimately about a restriction on personal consumption. "But he participated in commerce otherwise" is a distraction - who of us doesn't, when you get down to it? When it comes to weed grown for private consumption, it could be argued to affect one's participation in the labor market; i.e. one's ability to sell one's labor - or, perhaps, the quality and/or quantity of that labor.

Besides, why even focus on selling in the first place? The Commerce Clause doesn't make a distinction between selling and buying, so if participating in the market as a seller is enough to put any activity that affects your supply within scope, then why wouldn't participating in the market as a buyer do so just the same for any activity that affects your demand?

You're claiming that it didn't readily follow - but, well, if it wasn't until Raichs that anybody even tried seriously challenging that notion in court, then it sounds like it did readily follow in practice.

[BurningFrog]

Thanks for the hyper informed rebuttal I probably don't agree with.

Quality work!

[supernova87a]

Well, I believe the interpreted scope of the interstate commerce clause is a heavily debated (and shifting) topic that is perenially to at least someone's dissatisfaction, so at least know that you're not alone.

[jychang]

Let me know when you can guarantee none of your ISP's packets don't go over state borders.

Arguments over the interstate commerce clause of the constitution aside, I find it really hard to believe an _Internet_ service provider doesn't move anything over state lines, which is clearly within the federal government's jurisdiction.

[Taniwha]

But this is about what your ISP does to your packets between when they receive them an d when they pass them to you - it would only be interstate if your ISP processed your packets in a different state (maybe your fiber crosses into another state)

[chipotle_coyote]

My ISP is Comcast. Their network is nationwide. They actually run major IP backbones. There's an excellent chance that packets destined for me are entering their network in a different state than the one I reside in.

It's huge, national providers like Comcast and Time Warner that are sparking the majority of concerns around net neutrality. On a practical level, nobody is super worried about predatory behavior from, say, Cruzio, an independent ISP serving Santa Cruz County.

[wool_gather]

Well, there is this hilarious statement by SCOTUS (an opinion penned by Scalia):

> Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.

From 2005's Gonzales v. Raich

[throwaway0a5e]

I haven't read the case but he was likely paraphrasing Wickard v. Filburn when he wrote that since that's where federal judicial approval of that sentiment comes from. The idea that feds can regulate noncommercial intrastate activity in order to affect interstate commerce is way older than 2005.

[wool_gather]

Yeah, you're not really wrong, and I'm only an amateur SCOTUS watcher anyways. I just find the contortions of that sentence, and especially the fact that Scalia, the arch-originalist, wrote it, wryly amusing.

[lersrvwtogether]

One might've thought that a conservative court would halt inappropriate expansion of federal power in order to preserve small, limited government and liberty.

Liberty of the governed to set laws at a local level (where they do not conflict with Constitutionally-protected rights and powers enumerated to the federal government).

[fuzzer37]

Well there's the interstate commerce clause, not sure why them being an ISP changes anything.

[cat199]

op said 'intrastate', not sure if that relates to your point.

an argument can be made that intrastate impacts interstate, but not sure where the threshold lies - AFAIK you don't have alcohol companies suing in court to oppose local alcolhol regulations on this basis, etc, as an example (though I'm sure they lobby heavily).

[int_19h]

That threshold is defined by Gonzales v. Raichs at the moment, and it's low enough that it's possible for the feds to ban growing cannabis purely for personal consumption.

For state and local laws, it would be a matter of the corresponding state constitution - but it's less of an issue on that level, because state constitutions are generally not written in such a way as to restrict the power of the government to a few explicitly enumerated things.

[dkdk8283]

> A look at other regulatory law, such as California's CARB

Let’s hope this is not followed. CARB is terribly implemented. The agency is corrupt and considered rogue.

One of many resources online: https://www.ocregister.com/2015/05/29/california-air-resourc...

[camgunz]

Oh no they implemented cap and trade, the horror.