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jeffersonlives posted:Eventually, but the case will probably take about another year and a half to two years to filter up at a minimum unless SCOTUS decides it wants it sooner (and if they really wanted that they could have reached the merits in Perry), and maybe longer. There's still a lot of steps to go. Bur does SCOTUS even really need to take it up unless the appeal courts start making different rulings?
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Jan 6, 2014 19:39
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Amused to Death posted:Bur does SCOTUS even really need to take it up unless the appeal courts start making different rulings?
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Jan 6, 2014 19:43
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Amused to Death posted:Bur does SCOTUS even really need to take it up unless the appeal courts start making different rulings? Technically no, but I don't think anyone wants to leave a hot button body of law in a piecemeal fashion based on reading between the lines of a five justice majority holding on a pair of cases that specifically ducked that exact question. Also just as a matter of conference politics, if inferior judges keep reading Windsor in this way, the four likely anti-SSM justices are going to want to grant certiorari to make the five likely pro-SSM justices actually write it explicitly since it's no-lose for the anti-SSM side.
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Jan 6, 2014 19:47
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jeffersonlives posted:Technically no, but I don't think anyone wants to leave a hot button body of law in a piecemeal fashion based on reading between the lines of a five justice majority holding on a pair of cases that specifically ducked that exact question. Also just as a matter of conference politics, if inferior judges keep reading Windsor in this way, the four likely anti-SSM justices are going to want to grant certiorari to make the five likely pro-SSM justices actually write it explicitly since it's no-lose for the anti-SSM side. Ah, good points. Well at least when the time comes we'll all already know the foregone conclusion.
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Jan 6, 2014 19:51
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Amused to Death posted:Ah, good points. Well at least when the time comes we'll all already know the foregone conclusion. I think that's very much the idea. I for one am not at all sure which way Kennedy would go at this point.
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Jan 6, 2014 22:18
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Kalman posted:Probably a 9-0, honestly, if it ever even gets taken by the Court - the idea that you can search electronic devices at the border isn't going to be terribly controversial, since electronic device searches aren't controversial during arrest and border searches get extraordinary leeway, and the case isn't going to be about the 100 mile range (that one already got litigated and lost.) One issue that they might tackle is that the "search" might take an excessive amount of time. A US citizen friend of mine who runs a small business had his laptop seized during a border search while coming back from Canada, and they held it for several weeks. At least he had all of his data backed up online, so he was "only" out the expense of purchasing a temporary replacement, but the length of time that searches of electronic devices take can certainly raise constitutional questions.
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Jan 7, 2014 09:39
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Konstantin posted:One issue that they might tackle is that the "search" might take an excessive amount of time. A US citizen friend of mine who runs a small business had his laptop seized during a border search while coming back from Canada, and they held it for several weeks. At least he had all of his data backed up online, so he was "only" out the expense of purchasing a temporary replacement, but the length of time that searches of electronic devices take can certainly raise constitutional questions. That'll just push them towards what border security is already inclined to do - take it, image it, and return it. It'd be an improvement, I guess? I wouldn't anticipate SCOTUS picking the case up just to decide length of time, they'll probably leave that to the circuits to decide using existing ideas of how long property can be seized if needed for search.
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Jan 7, 2014 10:44
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According to The Hill it appears that the D.C. Circuit Court of Appeals has decided against the FCC's approach to net neutrality in favor of Verizon. quote:By classifying Internet access as an “information service” as opposed to a “telecommunications service,” which is the classification used for traditional telephone companies, the FCC is not able to impose “anti-discrimination” and “anti-blocking” rules on Internet providers, the court said. Verizon v FCC The details are a bit over my head, but it seems to be a complex ruling that more or less punts the ball back to the FCC to see if they will reclassify broadband providers or whether they'll appeal. There will probably be plenty of knee jerk  , mostly stemming from the fact that the ruling is based on the idea that the FCC is stifling innovation by regulating the market and that it has failed to conclusively demonstrate that broadband providers have adequate "market power" to "raise prices while restricting supply," even in areas with one or two broadband providers (pages 71+ are a fun read).For those of you in the know, any idea if the SCOTUS would do anything except 5-4 on this one, were it to be appealed? Edit: Here's a much better summary of what happened: Ars Technica ElrondHubbard fucked around with this message at 20:40 on Jan 14, 2014 |
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Jan 14, 2014 20:19
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I had two observations/questions after skimming the opinion. First, what is the standard of review for fact-finding by administrative bodies? I would think it would be the same as with any other appellate court reviewing trial court findings and grant the agency's findings deference absence abuse of discretion. How then can the DC Circuit determine that there is not competition for broadband services or that service 4Mb/s doesn't count as adequate to compete with cable? Second, it sounds like the main objection the majority had was refusing to classify broadband providers as common carriers means the FCC doesn't have the authority to treat them as such. If so, couldn't the FCC just reclassify them? Why shouldn't the commission just do that?
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Jan 14, 2014 21:14
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KernelSlanders posted:I had two observations/questions after skimming the opinion. First, what is the standard of review for fact-finding by administrative bodies? I would think it would be the same as with any other appellate court reviewing trial court findings and grant the agency's findings deference absence abuse of discretion. How then can the DC Circuit determine that there is not competition for broadband services or that service 4Mb/s doesn't count as adequate to compete with cable? The DC circuit didn't determine either of those things. They determined that the FCCs regulations effectively place Title II requirements onto carriers the FCC has declined to regulate under title II, and that those restrictions are therefore invalid. The Commission has a few options. They can reclassify ISPs as title II carriers. They can rewrite the regulations to avoid the per se common carrier issue. Or they can do another round of rule making and provide more justifications for the overturned rules (which, for the anti blocking rule, the circuit has helpfully provided in their opinion as "hypotheticals").
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Jan 14, 2014 22:00
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Kalman posted:The DC circuit didn't determine either of those things. They determined that the FCCs regulations effectively place Title II requirements onto carriers the FCC has declined to regulate under title II, and that those restrictions are therefore invalid. Maybe I'm missing something subtle, but I don't see how this is different from my second point.
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Jan 14, 2014 22:06
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KernelSlanders posted:Maybe I'm missing something subtle, but I don't see how this is different from my second point. It's not. Kalman is saying that the two things you stated that the DC Circuit "determine[d]" - "there is not competition for broadband services" and "service 4Mb/s doesn't count as adequate to compete with cable" - were not actually determined by the DC Circuit.
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Jan 14, 2014 22:10
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Right. Those were things the FCC determined and the Court found reasonable.
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Jan 14, 2014 22:20
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I see. Then, let me return to the question, why doesn't the FCC just re-classify broadband providers? Is there some broader policy implication at stake?
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Jan 14, 2014 22:51
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KernelSlanders posted:I see. Then, let me return to the question, why doesn't the FCC just re-classify broadband providers? Is there some broader policy implication at stake? Internal resistance and the fact that there's a lot of (actually problematic) regulation that covers title II carriers that broadband providers are immune to right now. As examples, a title II broadband provider would have to file their exchange rates to all points with the FCC and couldn't change those without the FCCs permission. They'd also need to file for permission to construct new capacity outside of local capacity. They'd fall under 222 regulation of customer information - I think the current 701 regulation is more permissive, but I'd have to take a look to be sure and to think about whether one would be preempted, so that might be fine. There's likely other things that I'm not thinking of, but those are some big ones. They'd also be subject to CALEA in ways they aren't right now (which would make the FBI happy) and the FCC could legitimately require them to maintain traffic records (which would make the NSA happy.). Those are a different sort of issue.
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Jan 14, 2014 22:54
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KernelSlanders posted:I see. Then, let me return to the question, why doesn't the FCC just re-classify broadband providers? Is there some broader policy implication at stake? I think it's because the providers would scream bloody murder, have been screaming bloody murder at the prospect both in public and through their lobbyists, and are constantly concern trolling that it'll destroy innovation in the wireless industry (with legitimate and illegitimate points).
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Jan 14, 2014 22:56
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Thwomp posted:I think it's because the providers would scream bloody murder, have been screaming bloody murder at the prospect both in public and through their lobbyists, and are constantly concern trolling that it'll destroy innovation in the wireless industry. In fairness, there is some evidence that it wouldn't be a good thing. Common carrier regulation of DSL while cable was immune was one of the factors that retarded DSL development and growth in the US. Now, net neutrality wouldn't destroy innovation. But common carrier regulation is a much closer case - there's some significant drawbacks there that don't exist in net neutrality. It's possible that we may want to adopt it anyway, for other reasons (e.g. Universal service requirements) but it's probably not worth it just to get net neutrality rules in place, particularly when the DC Circuit opinion more or less says "rewrite your order and you can do this without needing to go through Title II."
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Jan 14, 2014 22:59
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Thwomp posted:(with legitimate and illegitimate points). There once was a time when people rented bell-owned telephones and men were free...
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Jan 15, 2014 00:19
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The Entire Universe posted:There once was a time when people rented bell-owned telephones and men were free... Ironically, the Bell monopoly was regulated under Title II/common carrier, since most of that was part of the 1934 Act, with some additions in the 1996 Act. Title II is very much not a panacea and does have some serious negative consequences.
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Jan 15, 2014 00:22
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The Entire Universe posted:There once was a time when people rented bell-owned telephones and men were free... My father still on occasion gripes about having to buy phones as opposed to paying minimal rent on the cast-iron rotary monstrosities the phone company used to give you (and one of which I swear he still has hooked up in the basement). As to the "concern trolling that it'll destroy innovation in the wireless industry (with legitimate and illegitimate points)" that Thwomp mentioned, NPR had a brief clip of one of their industry reps doing just that, in almost those exact words ("destroy innovation," to be precise).
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Jan 15, 2014 00:23
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Kalman posted:Ironically, the Bell monopoly was regulated under Title II/common carrier, since most of that was part of the 1934 Act, with some additions in the 1996 Act. Ironically, nobody claimed it was a panacaea, but the parts about universal service, interconnection, reasonable rates and fees, and addressing market entry barriers brought us the ability to use dial-up internet without being hosed around with too much by the phone company.
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Jan 15, 2014 03:58
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The Entire Universe posted:There once was a time when people rented bell-owned telephones and men were free... Well I guess it's a good thing these companies don't charge $5-10 a month to rent a single cable box or modem.
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Jan 15, 2014 04:05
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The Entire Universe posted:Ironically, nobody claimed it was a panacaea, but the parts about universal service, interconnection, reasonable rates and fees, and addressing market entry barriers brought us the ability to use dial-up internet without being hosed around with too much by the phone company. You know that most of those were only added in 1996, right? I seem to recall using dial up internet just fine before then. I mean, your post makes it seem like you think those provisions existed beforehand. (Universal service was an add on, not part of the 1934 Act. Same with interconnect and entry barriers regulations. Reasonable rates and fees existed, though. Of course, I believe telephone line costs have gone down over time, not up, so it's unclear just how effective that provision was.) Net neutrality is a good thing (within reason - I genuinely don't have an issue with provisions like paying for customer data, which is analogous to a collect or 800 call, or with paying for collocation to improve performance, both of which are situations that some versions of net neutrality think aren't acceptable), but there's better ways to achieve it than the Title II framework which have the benefit of requiring neither statutory changes nor the FCC to reclassify something into a regime that was designed for POTS. Particularly after the ILEC/CLEC debacle, interconnection doesn't actually strike me as something the FCC is capable of effectively enforcing (or even as a particularly good idea unless we go back to a monopoly structure and a separation between last mile carriers and long distance carriers, with all the problems that entails.) Kalman fucked around with this message at 04:25 on Jan 15, 2014 |
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Jan 15, 2014 04:19
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But the phone companies still couldn't restrict who you could call before 1996, right? The had no right to say you can't dial whatever mom-and-pop isp you wanted. Anyway, we might want to consider spinning this derail off at this point like we did with the patent thread.
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Jan 15, 2014 06:43
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Kalman posted:You know that most of those were only added in 1996, right? I seem to recall using dial up internet just fine before then. I mean, your post makes it seem like you think those provisions existed beforehand. (Universal service was an add on, not part of the 1934 Act. Same with interconnect and entry barriers regulations. Reasonable rates and fees existed, though. Of course, I believe telephone line costs have gone down over time, not up, so it's unclear just how effective that provision was.) I remember using dial-up prior to 1996 as well, but it was a complete shitshow. What I was getting at was that poo poo like being able to hook whatever you wanted into the phone system was already a thing in the 70s, allowing for acoustic couplers to come along. This is generally considered to be under the purview of interconnection since you could own the modem and ATT couldn't prevent you from connecting it (as long as is didn't cause harm) to the jack. A lack of interconnection (and I'll grant you the 1934 act didn't cover this but it was a non-issue before 1996) was THE barrier to entry for competitors, not whether a CLEC was sufficiently burdened with networking costs. Universal service was outlined in the text of the 1934 act as passed and I'm sorry about not splitting hairs on "to make available, so far as possible, to all the people of the United States, a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges" not meaning what I said because it didn't say universal service verbatim.The fact that these terms weren't used verbatim in regulation prior to 1996 (which is barely the case if at all) doesn't change the fact that the consumer internet was possible because people were able to hook what they wanted into the wall, and ATT couldn't do poo poo about it as a common carrier. Placing ISPs (and mobile carriers) under title 2 isn't going to cause another drat bubble because most of the people who own the sector lived through that poo poo. We already have MVNOs, nobody's complaining about an MVNO bubble. We have hosting resellers, there's no hosting bubble. The post-'96 chaos isn't likely to recur since people know what the deal is. Primarily the need for title 2 is the classification of data service providers (wired and wireless) as common carriers so that they are required by regulation to keep their drat hands off legal information transfer. It's easier to do that by reclassification than new legislation, sorry. And pay-for-content is just a cheery way of creating more market barriers and encouraging consolidation. If Sony suddenly offered to pay your power bill if you used their poo poo, it'd decimate the home appliance market. How about Whirlpool or Maytag paying your water bill? Good luck finding a decent selection of washers and dryers. The prospect of Apple draining its cash reserves to suffocate content providers like Netflix or Google or Rdio or Spotify or Pandora out of the mobile market is a loving horrible thing and that alone is reason enough to vehemently object to the notion as well as balk at someone who thinks it's a good idea. Unless you want to start regulating what revenues can be used where. E: phone post, edited to seem less stream-of-consciousness and more rebuttal. FAUXTON fucked around with this message at 07:13 on Jan 15, 2014 |
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Jan 15, 2014 07:07
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New legislation isn't required and the burden on the FCC for an NPRM implementing anti blocking rules is far less than the burden of an NPRM for reclassification. It's also far more politically feasible both inside the FCC and in the general DC political space. The one thing that almost guaranteed WOULD trigger new legislation is an FCC reclassification attempt.
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Jan 15, 2014 07:28
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I'm confused now - I thought the whole point of the decision was that the FCC actually can't implement anti-blocking / net neutrality rules on broadband providers under their current classification without legislation specifically granting them that authority. What am I misreading, because I know that I'm usually misunderstanding something when I'm confused.
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Jan 15, 2014 07:50
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They can't for the reasons they provided. The circuit explicitly set out what they could say to get at least anti blocking authority. Edit: the key here is that the ruling wasn't you don't have the authority to do it. It was you haven't sufficiently justified it under the authority you want to use. Kalman fucked around with this message at 08:19 on Jan 15, 2014 |
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Jan 15, 2014 08:07
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Kalman posted:New legislation isn't required and the burden on the FCC for an NPRM implementing anti blocking rules is far less than the burden of an NPRM for reclassification. Why would DC give a poo poo, exactly? It seems like reclassifying is the next logical step, if not their only step left.
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Jan 15, 2014 16:04
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Freakazoid_ posted:Why would DC give a poo poo, exactly? Well, Republicans will care because net neutrality and government regulatory overreach, while Democrats will care because there's a lot of political power in the ISPs (and don't assume Google it Apple or Netflix will necessarily weigh in heavily - they have reasons not to want Title II regulatory requirements to be imposed as well). The legacy telcos would be resistant as well, since they're trying to get out of Title II as they modernize, so they don't want expansion, which also means you being in CWA as against expansion, so labor will be weighing in against. There just isn't a lot of political capital for reclassification if it isn't necessary. Further, when an agency tries to do something and receives a legislative slap down, it tends to affect their willingness to act for decades to come. The FTC in the 70s is a good example - they were extremely aggressive in their antitrust work, so much so that they got severe pushback from Congress and the courts. As a result, they became a very timid regulator for nearly 30 years. So we probably don't want the FCC to go forward with reclassification unless it's necessary to achieve what we want. Which it isn't. Here's how we know they don't need to reclassify. DC Circuit posted:the Commission, we further hold, has reasonably interpreted section 706 to empower it to promulgate rules governing broadband providers treatment of Internet traffic So, the DC Circuit is agreeing that under existing authority - without reclassification - the FCC has statutory authority to issue rules regarding broadband providers handling of traffic. DC Circuit posted:Because the Commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order. However, what they didn't do is show how the rules are different from simply making them a common carrier. Since we aren't deciding that the rules are exactly the same thing, simply that the FCC hasn't shown they're different, we will vacate the order, leaving the FCC free to try again. DC Circuit posted:In Cellco, we recently confronted the similar question of whether a Commission regulation compelling mobile telephone companies to offer data roaming agreements to one (Cellco was a 2012 case dealing with a challenge to the Commission's data roaming requirement on mobile carriers.) In other words, the Circuit is showing the FCC a way to write an anti-discrimination rule that won't be a per se common carrier requirement - require service without _commercially_ reasonable discrimination. They're telling them "here's how you do this, without reclassification." DC Circuit posted:Significantly for our purposes, the Commission never argues that the Open Internet Order’s “no unreasonable discrimination” standard somehow differs from the nondiscrimination standard applied to common carriers generally—the argument that salvaged the data roaming requirements in Cellco. And here they're reiterating that all the FCC has to do is make the argument that it's different from common carriage (using the Cellco rationales) and they'd be fine. So that handles the anti-discrimination rule (shall not unreasonably discriminate - i.e., everyone gets equal treatment). Next, the Court turned to the anti-blocking rule. ("edge providers’ 'content, applications [and] services' must be 'effectively []usable.'", i.e., you can't block someone else's content entirely or render it such poor service as to be useless.) DC Circuit posted:At oral argument, however, Commission counsel asserted that '[i]t’s not common carriage to simply have a basic level of required service if you can negotiate different levels with different people.' ... Viewed this way, the relevant “carriage” broadband providers furnish might be access to end users more generally, not the minimum required service. In delivering this service, so defined, the anti-blocking rules would permit broadband providers to distinguish somewhat among edge providers, just as Commission counsel contended at oral argument. ... Whatever the merits of this view, the Commission advanced nothing like it either in the underlying Order or in its briefs before this court. This pretty much comes down to: "This argument might convince us, but you didn't make it until you were in front of us - go back and do it right." So, from the DC Circuit opinion which ostensibly struck down network neutrality, what we actually have is a roadmap for the FCC to reimplement these rules without the political headache of reclassification.
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Jan 15, 2014 17:56
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McAlister posted:We don't, actually. Have that information. I coded electronic claims processing software for three years as the data architect and there weren't any tables in our database for that level of detail. You had specific coverage events but not diagnosis details.
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Jan 16, 2014 02:18
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So for a dummy like me, Net Neutrality wasn't actually "struck down" then?
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Jan 17, 2014 07:57
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Shimrra Jamaane posted:So for a dummy like me, Net Neutrality wasn't actually "struck down" then? The current net neutrality rules were struck down with an open invitation to at least two routes to reinstate them or something close to them. The most important part of the ruling is the part that says that the FCC does have authority to implement net neutrality. The least important part was the one that everyone is upset about, saying that the rules as written conflict with another part of the statute.
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Jan 17, 2014 08:05
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Administrative law should be taught in high school.
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Jan 17, 2014 13:45
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ACLU put this up: https://www.aclu.org/know-your-rights-constitution-free-zone-map 
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Jan 18, 2014 10:51
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Doesn't "the border"also include a 100 mile radius around every international airport?
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Jan 18, 2014 17:24
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Didn't you post this in this thread in the last page?
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Jan 18, 2014 17:38
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WhiskeyJuvenile posted:Administrative law should be taught in high school. For us dummies who did not study law, do you know of a way to bone up on it?
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Jan 18, 2014 18:28
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Not that I don't appreciate a little hyperbole, but it is clearly settled law that what the ACLU describes the "Constitution Free Zone" only exists at the border itself or functional equivalents thereof, i.e. international customs for airports or international ferry stops. Where the 100 mile image meme comes from is that interior border checkpoints can theoretically be up to 100 miles inland of the border itself, but that image has been floating around for over five years now and even the ACLU acknowledges that it's being used out of context. The case recently in E.D.N.Y., Abidor v. Napolitano, is addressing an entirely different question than the 100 mile stuff, one that only applies at the border: what standard applies for border searches of electronic devices. The Supreme Court has long and pretty much uncontroversially held that the government has a general right to do routine border searches since the location itself makes them reasonable absent other circumstances, and that invasive border searches require a reasonable suspicion burden to be met. Where the lower courts have generally landed for electronic device searches, and where the Abidor case landed (though largely in dicta), is that electronic devices don't have any heightened protections that, say, a notebook or a picture album wouldn't have. They can generally be searched, but for more invasive or exacting searches you need a reasonable suspicion, and for most forms of copying or retention you need probable cause. I don't even think there's a Supreme Court decision coming on this one because they've declined to take cases that presented similar questions that were less procedurally tortured, and I suspect a Supreme Court decision would come out 9-0 or 8-1 in favor of the government, not 5-4. They did grant for later in the term an interesting pair of cases yesterday dealing with cell phone searches incident to lawful arrests, so the greater 4th Amendment questions about electronic device privacy are out there. oldfan fucked around with this message at 18:53 on Jan 18, 2014 |
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Jan 18, 2014 18:49
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ayn rand hand job posted:Didn't you post this in this thread in the last page?  I think given the last several decades that the hyperbole is worth using because it does not seem likely to remain hyperbole forever. (USER WAS PUT ON PROBATION FOR THIS POST)
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Jan 18, 2014 19:49
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