Ajit Pai calls California’s net neutrality rules “illegal”
arstechnica.com
arstechnica.com
So in early August, we adopted a policy that would allow a single entity to do the requisite work on the utility pole—a policy commonly known as “one-touch make-ready.” This policy could substantially lower the cost and shorten the time to deploy broadband on utility poles.
But according to https://arstechnica.com/tech-policy/2018/08/fcc-gives-google...:
Despite today's vote, the FCC hurt the cause of faster pole attachment when it deregulated the broadband industry last year, according to Electronic Frontier Foundation (EFF) Legislative Counsel Ernesto Falcon. The FCC's anti-net neutrality vote removed the classification of broadband as a common carrier service—that now-repealed classification "ensure[d] that every broadband provider has the legal right to gain access to many of the poles that run along our roads," the EFF wrote last year.
"I wonder if the anti-net neutrality crowd understands that Title II's regulation of poles and conduit is now limited to telephone/cable TV thanks to [the] Restoring Internet Freedom Order," Falcon tweeted today. "The ISPs that are broadband-only will not get the benefit, thus limiting its positive impact."
I’ve recently moved to the greater Seattle area and where I live my choices for internet are Comcast and centurylink. I was pretty disappointed as I had fios at my last house.
In general principle I am pro letting Comcast throttle whatever. Mainly because of property rights. But at a personal level it would totally suck if they throttled Netflix to the point that it affected me.
But forcing Comcast to be “good enough” by law might be an adequate bandaid for the short term, it actually helps reinforce their local monopoly.
When a service is subpar, that opens the door for competition and disruption. Ref: https://news.ycombinator.com/item?id=17948412
Chris is charging a lot for his service, but the differential from existing is enough he is surviving and growing.
When a service is good enough, competition has a harder time.
So giving the incumbents enough rope to hang themselves might be better in the longer term.
Me too. I moved last year away from flawless 100/100 with a local Seattle ISP, to flawless gigabit for $45 with a local Seattle ISP, and now I'm 5 or so miles south of Seattle and I had to settle with Comcast since Centurylink DSL was my only other choice. Seattle DOES have good ISP's, but only really new buildings & downtown get that luxury.
Comcast does give me good speeds and reliability so far however, for a reasonable price. I still dislike them, and the sign-up process as well as the spam calls I received for weeks were terrible. They tried to get me to sign up for 10 TV channels I already had on my antenna in higher quality so they could gouge me on their TV rental equipment fees.
Regulatory policy that apparently he wants to set - but specifically gave that ability to the FTC.
Seems like he wants to have his cake and eat it too? Am I misunderstanding this?
Hum, it either recognizes both state and nation-state lines, or neither. Since the FCC can regulate ISPs, then it clearly recognizes nation-state lines, and thus state lines.
-- Pai
Interesting argument. Could his reasoning be used to block attempts by states (NC, I'm looking at you!) to interfere with municipal broadband?
The California bill merely controls which vendors that the State of California can purchases services from. This type of regulation is premised on a long-established limitation on the extent of Federal powers; namely, that the Federal Government has no power to directly regulate State policies, and in particular its choice of vendors. The logic is that a State is a sovereign political entity, and sovereignty means that there must be a bright line somewhere where the State is completely independent.
As that line stands today, the vast majority of legal scholars would tell you that California is well within its rights to control the contractual terms with its vendors, free from Federal constraints.[1] In fact, the original bill was pulled and amended so ensure it fit squarely within these allowances. (At least, that's the story of the committee members who delayed it.) The closest SCOTUS has allowed the Federal government to control contractual policies of the State involved employment, where SCOTUS permitted enforcement of the Fair Labor Standards Act against State government employers. But it was a close call, most of the conservatives were in dissent, and almost all conservatives have subsequently at least paid lip-service to criticisms of that decision.
That said, there may be strong legal arguments that permit the Federal government to interpose themselves between the State and municipalities without moving that bright line. There are many ways to distinguish and distance municipalities from the State itself.
Also, it's becoming difficult to deny at this point that as conservatives have come to dominate the Federal government, conservative policy arguments have become increasingly supportive of stronger Federal regulatory powers. It's excused as a necessary evil for defending laissez faire economic principles[2], but that's just face-saving. And these arguments are being adopted by conservatives across the spectrum, including (and especially?) among jurists.
[1] At least constraints flowing from Commerce Clause powers. Constraints flowing from the 14th Amendment are a different matter because the 14th Amendment imposes explicit limitations on States and explicitly gives Congress legislative powers to enforce those limitations. But even then there's a bright line Congress cannot cross, albeit a more narrowly circumscribed line.
[2] And don't even get me started on the fact that Net Neutrality is, IMHO, a very pro free market policy. It's no more restrictive of a "free market" than are crimes prohibiting fraud. There comes a point at which one's freedom impinges upon the freedom of others to the extent that there's a net loss of economic freedom. Furthermore, there are many examples of market legislation intended to overcome transactional inefficiencies that inhibit or prevent markets from reaching more optimal outcomes. Its why we even have laws at all, rather than relying upon everybody to explicitly contract with everybody else for every little interaction.
And Pai lost all power to preempt anything, when he himself removed FCC from overseeing ISPs and pushed that to FTC.
After his time in the FCC, if he doesn't continue working in government, he needs to work in the private sector, the only private sector business that he could even possibly work in after this, is Verizon/Comcast/ATT/GenericBigCorp, companies which would have some need/desire for his experiences and contacts in the government.
Whether or not you defend his actions, working anywhere else is untenable now...
That isn't to say that the revolving door nature of these regulators and private industry can't or even doesn't lead to corruption, but what are the alternatives? The regulators should obviously be experts in the industry they regulate. If you forbid anyone high up at the FCC from ever working in the communications industry, what experts are left? You would basically limiting these jobs so they can only be done by academics, which would introduce its own set of problems.
I don't see any benefit to someone in charge of regulating the communications industry having ever worked in communications. An intelligent person - and not necessarily an academic - a lawyer would be capable, for instance - with no personal connections to people high up in the industry is immensely preferable and has much less potential for corruption.
If you replace "communications" with "construction", you're advocating that the people regulating building codes should have absolutely no prior experience actually building things, and I imagine that is not a stance you would take. Why then is communication so different from construction?
The point of regulatory agencies is to take the aspirational goals of laws passed by the legislature and turn them into concrete, executable frameworks. This means you need people who are far more experienced on how companies are going to react to changes in regulation than the people who write the laws. Without personal experience, people are going to have rely a lot more on the corporate lobbying to make sense of what's going on, and they're going to have less basis to understand intentional misdirection in corporate responses.
EDIT: It seems many of them go to this place: https://www.aspeninstitute.org/ (source: https://thehill.com/policy/technology/314248-fcc-chair-to-ta...). Not sure what to make of that.
There is no basis to advocate status quo by setting up false choices and appeals to expertise in the face of overwhelming evidence.
The impact in the financial industry, telecom, pharma and literally any segment shows incredibly damaging consequences. This is simply too high a cost to pay for some people's feelings of how the world should work versus how it actually does.
[1] http://www.sciencemag.org/news/2018/07/fda-s-revolving-door-...
I had a conversation with a lead researcher at a pharmaceutical company (also a friend) where she discussed her plans to work at the FDA for a few years and then return to private industry. She was very explicit about her reasoning: companies pay a premium for researchers with FDA experience because such people are more adept at navigating funding and approval processes.
When I asked whether she considered that she would be participating in a corrupting (if not corrupt) process, she simply waved the notion away--this is how it works and what you need to do to advance your career. This person leans very liberal from a social and political perspective.
This is where we're at as a society. The machinery of the administrative state is consuming everything in its path. I'm not anti-government or anti-regulation. But the centralization of power is extremely problematic; not just conceptually, but literally.
Once upon a time the Federal government had an explicit (if informal) policy of placing administrative offices across the country. This was, I believe, largely a matter of sharing the employment opportunities across the states. But it also had the effect of disincentivizing government work for highly ambitious people. (Moving to D.C. is far easier to justify than moving to Oklahoma City.) These administrative offices are increasingly centralized geographically around D.C. This has attracted industry. The phenomenon is one example of many that has promoted corrupting processes such as the revolving door between regulators and industry.
On the bright side, it means there are very concrete countermeasures that we could begin instituting. For example, instate an explicit, formal policy of locating administrative agencies--especially executive offices--far outside the Beltway. Yes, this will be costly in terms of administrative efficiency. But safeguarding democratic institutions is costly; if we're not prepared to pay the price then we deserve what we get.
The broader problem is that California's micromanagement poses a risk to the rest of the country. After all, broadband is an interstate service; Internet traffic doesn't recognize state lines. It follows that only the federal government can set regulatory policy in this area. For if individual states like California regulate the Internet, this will directly impact citizens in other states.
What?! I can’t even begin to express how infuriating this is, the sheer hypocrisy and wanton dishonesty, from someone who is nominally in the position of protecting Americans’ interests. Forget the interstate commerce clause, forget Republican’s supposed respect for state’s rights, forget giving people a necessary service, let’s use a warped interpretation of the law as a hammer to empower crooked bureaucracy.
This line of argument fails the smell test; California (and other states) regulates phone networks, including long distance calling from within its borders, and the FCC doesn't whine about that.
So much for the party that claims they back state rights.
We could hope to repeat the history of vehicle emissions controls, where CA introduced regulations and auto makers eventually found it cheaper to make one kind of vehicle than two. But the incentives for non-net-neutral policies are so large that if major states have different rules, we'll end up with a huge mess. And regulatory messes tend to favor large incumbents, because they can devote the resources to them. That's why, for example, we have no new banks (which are regulated by states.)
CA doesn't think twice about making laws that contradict federal laws or are in direct violation of the constitution.
Pai is, charitably speaking, in the pocket of industry.
I think CA is within its rights this time around and wins this one fair and square though despite not having an awesome coffee mug.
It's been my naive observation that state laws are, in some practical context, "allowed" to contradict federal laws, in the sense that perhaps they are simply given some de facto leeway. Am I totally off base? Does this reduce the hypocrisy?
Some of their policies regarding illegal aliens (though this is more of a city by city thing) are arguably in direct contradiction with federal law.
A lot of the rulings the 9th circuit has come up with over the years look like they came out of left field with regard to the constitution and the precedent being set.
I can dig up specific examples if you want.
I'm not passing a value judgement here, just saying that CA likes to interpret the constitution rather freely, for better or worse.
There would not be such a fight if Ajit were to actually regulate in the public interest.
I see someone already made the comment, "didn't he give all that to the FTC?"
Indeed.
But since <5k people understand BGP routing configuration we pretend it is neutral.
everything else is policy - which means there is a choice. that choice might be heavily driven by economics, or by some kind of business strategy. but its pretty indefensible to say 'the crew in white coats down in the basement told me we just had to do it that way (shrug)'
so in the absence of speed-of-light issues, 'technical reasons' in this case is just a planet-sized loophole.