Given that the USTelecom v. FCC appellate challenge of the FCC’s Open Internet Order is so important to net neutrality, the FCC’s authority over the Internet, and broadband providers’ future, and given that Judge Tatel’s thinking is so important to the outcome of this case, wouldn’t it be important to better understand Judge Tatel’s personal reasoned public explanation of how courts adjudicate cases just like USTelecom v. FCC?
Author: Scott Cleland
The central overriding question in the USTelecom v. FCC case challenging the FCC’s Open Internet Order may be: did the FCC read Judge Tatel right in that he de facto guided the FCC to pursue Title II to create the most solid legal foundation for net neutrality? That has been the public legal mantra of the FCC and the net neutrality movement for well over a year.
Do not let the FCC’s likely unlawful means of broadband Internet regulation, i.e. Title II, distract you from the additional likelihood that two primary ends of supposed net neutrality “policy canon” i.e. bans against “paid prioritization” and “two-sided markets” (only users should pay), are also likely unlawful, even under Title II, sans new legislation.
Google is unique in its leadership, plans, and global marketpower to accelerate the majority of all global Web traffic “going dark,” i.e. encrypted by default. Google’s “going dark” leadership seriously threatens to neuter sovereign nations’ law-enforcement and intelligence capabilities to investigate and prevent terrorism and crime going forward.
You know there are big problems with the so called “principle” of net neutrality when the New York Times writes an editorial headlined “Why Free Can Be a Problem on the Internet” and their editorial has nothing to do with protecting consumers’ privacy/safety or protecting content from piracy, but it is only about the potential problem of consumers enjoying free Internet content for marketing purposes!
The U.S. government’s Internet priorities in Europe are upside down. It has chosen bits over bodies, prioritizing protecting the neutrality of innumerable inanimate Internet bits over protecting peoples’ privacy and personal data.
No surprise that political activist Larry Lessig, the intellectual leader of the net neutrality and anti-copyright movements, ran one of the most cynical, undemocratic, and stunt-driven Presidential candidacies ever, because that’s exactly the kind of cynical, undemocratic, stunt-driven campaigns his political followers have run to un-democratically dictate net neutrality and to undermine copyright protection online.
Google is cleverly and stealthily leveraging a Google-friendly-FCC and lax U.S.-Google antitrust enforcement to extend its global Android mobile operating system dominance to increasingly disintermediate and dominate the spectrum administration function embedded in the firmware of smartphones, connected cars, and Internet of Things devices.
Tim Wu, the self-described “policy advocate,” who coined the term “net neutrality;” who has been a leading activist for preemptively regulating broadband service like a utility despite scant evidence of any problem; who from 2008-2011 was Chair of the pressure group FreePress that ran the notoriously-deceptive “Save The Internet” campaign to force FCC net neutrality regulation that was overturned in court
There are troubling signals that the FCC is gearing up to further increase regulation of cable — on top of the extra-legal new utility regulation the FCC already did in its 2015 Open Internet Order.
What we have learned in the last two months is that Google is much more worried than it says about the risks it faces from a variety of real structural changes it may have to make in its core business overseas in the months and years ahead — where the vast majority of Google’s users are, and from where over 50% of its revenues come.
The FCC’s approach to special access is all wrong because they should be doing the exact opposite of what they are doing. The FCC should be price de-regulating special access, not signaling increased micro-regulation of special access rate terms and conditions.
Kudos to Senators Mike Lee and Orin Hatch, and Rep. Blake Farenthold for their leadership and wisdom in advancing the SMARTER Act, H.R. 5402, “Standard Merger and Acquisition Reviews Through Equal Rules.”
To try to justify mandating Title II utility regulation of broadband and the blocking of the Comcast-Time Warner acquisition, the Administration and FCC had to gerrymander broadband definitions to reach their political goal that wireless broadband service not be considered an official competitor to wireline broadband service.
The juxtaposition of Google tacitly accusing the EU with “digital protectionism” and “discrimination” as the EU’s Digital Chief, Günther Oettinger, visits D.C. and Silicon Valley, while the Google-created Internet Association this week asks for U.S. protection from ISP “discrimination” in an appeals court brief in support of the FCC’s Open Internet order – exposes exceptional hypocrisy.
It is timely to fact check the Federal Government’s storyline that broadband is a ‘core utility,’ given a new White House report that directs municipalities that broadband is a “core utility… like water, sewer and electricity;” and given that a senior FCC official recently encouragedlocal municipalities at the NATOA conference to build their own local broadband infrastructure with the FCC’s backing now that the FCC has claimed the legal authority to preempt State laws limiting municipal broadband.
The FCC’s latest legal brief defending its Open Internet Order, will represent the FCC’s “strongest possible” legal arguments for its Title II net neutrality case – a vainglorious legal fortress.
While cybersecurity risk may be the familiar and recognizable type of cyber systemic risk, it is only recognizable like the tip of an iceberg is recognizable, because most cyber systemic risk lurks well out of view, deep beneath the surface in the ocean of virtual ones and zeros.