Comment by declan | Hacker News Reader

Comment by declan | Hacker News Reader

Marvin, the author of the Wired.com opinion piece, is a smart fellow. But what he ignores is that Congress never handed the FCC the authority to impose Net neutrality regulations on the Internet. Such legislation actually came up for a vote in Congress, and it came close to passage: it was reported favorably out of a Senate committee but was defeated in a House floor vote in 2006: http://news.cnet.com/2100-1028_3-6081882.html

Even if you adore the principle of Net neutrality, it's reasonable to demand that federal regulatory agencies stick to what Congress authorized them to do. Otherwise you have illegal regulations and bureaucratic turf-grabbing that will not treat the Internet well. Remember Hollywood's successful efforts to lobby the FCC to impose "broadcast flags" on computers by bureaucratic fiat? A federal appeals court correctly struck it down as exceeding the agency's legal authority, as I wrote here in 2005: http://news.cnet.com/2100-1030_3-5697719.html

That same appeals court is currently considering the FCC's Net neutrality regulations. BTW, it's also the same court that slapped down the FCC's first attempt to impose Net neutrality regulations without legal authority in 2010: http://news.cnet.com/8301-13578_3-20001825-38.html

If Net neutrality violations become an actual problem, there's no shortage of publicity-hungry politicians in Congress (hi, Ed Markey!) who will hold hearings and push legislation forward. Obama will happily sign it. Until then, other government debacles including NSA domestic surveillance and Obamacare should make us wary of federal agencies exceeding their legal authority -- especially after Congress considered and rejected a law that would have given it to them in the first place.

There's a lot I disagree with in Declan's comment.

We disagree on what Congress gave the FCC authority to do. The 1996 Telecom Act clearly classified DSL and dial-up as something called a "telecommunications service" which was subject to a host of rules including nondiscrimination rules. On the other hand, things like Yahoo.com would be "information services," not subject to all those rules.

The FCC, adhering to a deregulatory philosophy, decided not to regulate cable modem service by claiming it was an "information service" through some pretty silly technical analysis. After this decision, the FCC decided that DSL and wireless Internet were also "information services" not automatically subject to the rules set out by Congress. (This is sort of like a financial regulator deciding that mortgage-backed securities are not insurance, even though they look like insurance, just to make sure all the laws applicable to insurance don't apply.)

But... the FCC claimed it could impose net neutrality rules on ISPs even though they were "information services" like Yahoo (or Hacker New or Facebook). A court struck down that attempt and the FCC is on try number 2, and before the same court.

The FCC can properly classify ISP service as a "telecommunications service."

The argument about Congress failing to pass a new statute authorizing net neutrality in 2006 is flawed because courts draw no inference from failed legislation. That's well-known statutory interpretation. Any member could introduce any law and it likely won't get passed; that 1 member's view doesn't have a legal impact.

Finally, the argument that Ed Markey can act whenever there's a NN violation misses the point that the FCC is the enforcement agency that should act. By adopting a law, they are simply setting up that enforcement process for people to file complaints, and the FCC can act. Markey on his own can't enforce anything; he can call hearings, but that's not enforcing an order.

(Also, the commenter is Declan McCulloch of CNET, or his biggest fan, since he links to Declan's articles and is named Declan... I'm Marvin, the author of the Wired.com opinion article. Declan is also quite a "smart fellow" and we get along swell, even if we disagree sometimes and are on opposite coasts.)

Thanks for following up. For what it's worth, you have a flawed view of Mortgage backed securities. By virtue of the mortgage behind it, it's a real product like a bond. It is the Credit Default Swap betting on mortgage (or corporate credit) performance that is insurance Against the mortgage backed security.

This is just nitpicking and doesn't alter your argument.

Marvin: No need to guess about my identity! My comment to which you replied said "as I wrote here in 2005" when linking to my CNET article. You did read my comment in full before replying, right? :)

Also I have links to my homepage and Twitter screen name in my HN profile: https://news.ycombinator.com/user?id=declan

In terms of the merit of your arguments, nobody claimed that Markey can do anything on his own; the point I made is that if there are actual NN problems -- as opposed to hypothesized handwaving ones -- Markey and others in Congress can and will advance legislation. In terms of the rest of your points, I think you're reaching. I look forward to continuing this conversation after the court rules!

PS: My last name is spelled "McCullagh."

> Even if you adore the principle of Net neutrality, it's reasonable to demand that federal regulatory agencies stick to what Congress authorized them to do.

Congress has already authorized it, the FCC is just trying to have its cake and eat it too. The FCC decides whether to classify last mile internet service as a "telecommunications service" that they have significant statutory authority over or an "information service" that they don't, and they picked the second one but are trying to impose regulations anyway, which is why they keep getting slapped down.

Choosing that classification was so controversial at the time that they got sued over it, and the Supreme Court ultimately said that the FCC was allowed to make that classification, not that they were required to. Now that everything that was once classified as a "telecommunications service" is being offered instead over the top using "internet service" it seems reasonable for them to revisit the classification.

If you believe that the FCC clearly unambiguously has the legal authority to advance Net neutrality regulations, then why would Congress have wasted its time drafting (and almost enacting) a law that would have given the FCC the legal authority to advance Net neutrality regulations?

A) It is possible that members of Congress wanted to grant the FCC the authority to advance network neutrality regulations without subjecting ISPs to the full gamut of regulations they would be subject to if classified as a telecommunications service.

B) You are presupposing that all members of Congress act rationally and have an expert knowledge of the existing state of the law.

When ATT and Verizon are allowed to set up their toll booths all over the internet, it's not really the internet any more.

"That'll be $60 for the gas. Oh wait -- where are you going with that gas? Boston? No problem. That's $40 extra if you want to go more than 25 miles an hour."

Once they begin prioritizing traffic, does this eliminate their safe-harbor status? Could be a double-edged sword for them.

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