On 02/28/2015 02:29 PM, Rob McEwen wrote:
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?
Having authority and choosing to exercise it are two different things.
Of course it was realized that they had this authority already; that's
why these regulations were fought so strongly.
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.
It's impossible to refute such a vaguely worded supposition. Refuting a
'could be' is like nailing gelatin to the wall, because virtually
anything 'could be' even at vanishingly small probabilities. I 'could
be' given a million dollars by a random strange tomorrow, but it's very
unlikely.
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.
Ok, I'll play along. So far, a reasonable analogy, except that such an
ex parte action (a 'little vote amongst themselves') wouldn't survive
judicial review. The FCC Commissioners didn't just 'have a little vote
amongst themselves;' they held a complete, according to statute
rulemaking proceeding. That is what our elected representatives have
mandated that the FCC is to do when decisions need to be made.
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.
This is where your analogy drops off the deep end. The FCC will hear
complaints from complainants who must follow a particular procedure and
request specific relief after attempting to resolve the dispute by
direct communication with the ISP in question. There aren't any 'raids'
provided for by the current regulation; have you ever heard of any raids
from a Title II action previously? There is no provision in the current
regulation as passed for the FCC to do any monitoring; it's up to the
complainant to make their case that the defendant violated 47CFR§8.
This doesn't change the statute, just the regulations derived from the
statute.
To go with your analogy, as part of the newly added powers of the EPA
under your hypothetical, it would now be possible for a complainant,
after attempting to satisfy a 'inside the building unclean air'
complaint with a particular establishment but failing, and having to go
through a significant procedure, to get the EPA to rule that the owner
of that establishment must provide relief to the complainant or be
fined. No authority to raid, just authority to respond to complaints
and fine accordingly. Any change to that rule requires another
rulemaking proceeding.
Before the FCC can change the wording to add any of your supposed power
grab increases they will have to go through another full docket, with
required public notices and the NPRM. And the courts can throw it all out.
The FCC's primary power is economic, by fining.
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)
The telecommunications infrastructure is in reality public space, not
private, and has been for a really long time. Or are there any
physical-layer facilities that are not regulated in some way? Let's
see: 1.) Telephone copper and fiber? Nope, regulated as a common
carrier already. 2.) Satellite? Nope, regulated. 3.) Wireless (3G,
4G)? Nope, regulated, and many of the spectrum auctions have strings
attached, as Verizon Wireless found out last year. 4.) 2.4GHz ISM?
Nope, regulated under §15 and subject to being further regulated. 5.)
Municipal fiber? Nope, it's public by definition. 6.) Point to point
optical? Maybe, but this is a vanishingly small number of links; I
helped install one of these several years back. 7.) Point to point
licensed microwave? Nope, regulated; license required.
Even way back in NSFnet days the specter of regulation, in the form of
discouragement of commercial traffic across the NSFnet, was present. I
don't understand why people are so surprised at this ruling; the
Internet is becoming a utility for the end user; it's no longer a
free-for-all in the provider space.
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.
FCC Commissioners are appointed, confirmed by the Senate, and have five
year terms. Accountability here is from all three branches of the
government, as it is possible to sue the FCC.
