Net Neutrality's Court Fate Depends on Whether Broadband is 'Telecommunications' (arstechnica.com) 84
As the FCC leans towards reinstating net neutrality and regulating ISPs under Title II, the broadband sector is set to challenge the move. Previously, courts have upheld FCC's decisions. However, legal experts believe the Supreme Court's current stance may hinder the FCC's authority to classify broadband as a telecommunications service. ArsTechnica: The major question here is whether the FCC has authority to decide that broadband is a telecommunications service, which is important because only telecommunications services can be regulated under Title II's common-carrier framework. "A Commission decision reclassifying broadband as a Title II telecommunications service will not survive a Supreme Court encounter with the major questions doctrine. It would be folly for the Commission and Congress to assume otherwise," two former Obama administration solicitors general, Donald Verrilli, Jr. and Ian Heath Gershengorn, argued in a white paper last month. According to Verrilli and Gershengorn, "There is every reason to think that a majority of the Supreme Court" would vote against the FCC.
Verrilli and Gershengorn express their view with a striking level of certainty given how difficult it usually is to predict a Supreme Court outcome -- particularly in a case like this, where the agency decision isn't even finalized. While litigation in lower courts is to be expected, it's not even clear that the Supreme Court will take up the case at all. The certainty expressed by Verrilli and Gershengorn is less surprising when you consider that their white paper was funded by USTelecom and NCTA -- The Internet & Television Association, two broadband industry trade groups that sued the Obama-era FCC in a failed attempt to overturn the net neutrality rules. The groups -- which represent firms like AT&T, Verizon, Comcast, and Charter -- eventually got their way when then-FCC Chairman Ajit Pai led a repeal of the rules in 2017. But the industry-funded white paper has gotten plenty of attention, and the FCC is keenly aware of the so-called "major questions doctrine" that it describes. The FCC's Notice of Proposed Rulemaking (NPRM), which is pending a commission vote, will seek public comment on how the major questions doctrine might affect Title II regulation and net neutrality rules that would prohibit blocking, throttling, and paid prioritization.
Verrilli and Gershengorn express their view with a striking level of certainty given how difficult it usually is to predict a Supreme Court outcome -- particularly in a case like this, where the agency decision isn't even finalized. While litigation in lower courts is to be expected, it's not even clear that the Supreme Court will take up the case at all. The certainty expressed by Verrilli and Gershengorn is less surprising when you consider that their white paper was funded by USTelecom and NCTA -- The Internet & Television Association, two broadband industry trade groups that sued the Obama-era FCC in a failed attempt to overturn the net neutrality rules. The groups -- which represent firms like AT&T, Verizon, Comcast, and Charter -- eventually got their way when then-FCC Chairman Ajit Pai led a repeal of the rules in 2017. But the industry-funded white paper has gotten plenty of attention, and the FCC is keenly aware of the so-called "major questions doctrine" that it describes. The FCC's Notice of Proposed Rulemaking (NPRM), which is pending a commission vote, will seek public comment on how the major questions doctrine might affect Title II regulation and net neutrality rules that would prohibit blocking, throttling, and paid prioritization.
predict a Supreme Court outcome (Score:2, Insightful)
Easy. Thomas already said his objective is make liberals "miserable" so we know his voting. https://www.businessinsider.co... [businessinsider.com]
The rest will obey their corporate masters who fund the party.
The problem isn't an offhand comment (Score:5, Insightful)
Post election we will probably see criminal investigations. I don't expect them to go anywhere, we don't spill the blood of kings 'round here. But at least they'll resign and be replaced by someone who isn't corrupt.
For contrast, Thomas didn't report a half million dollar RV he was "gifted" by a "friend". Justice Kagan reported some bagels she ate at a University Speech.
Re:The problem isn't an offhand comment (Score:4, Insightful)
what absolute cope to mark this troll. you can say maybe the word "bribe" is a bit too far but we have to acknowledge what Thomas and Alito have engaged themselves in looks fucking terrible for what is considered a position of such prestige and the appearance of impropriety. these people are set for life with the highest honor in their profession and its still not enough. not enough money, not enough fame, not enough influence. its gross and it should be unacceptable to anyone no matter what party they are on.
conservatives should be the most upset about this, it makes all their court victories appear hollow and meritless but they could never, ever, ever agree with the liberals about anything. that is the greatest sin.
if any of the liberal justices had the same things brought up it would be all over fox and conservative media non-fucking stop. the side that always claims double standards engages in them recklessly and shamelessly.
Re: The problem isn't an offhand comment (Score:3, Funny)
The word "bribe" is perfectly accurate here. No need to back down the claim. The Catholic Court is just as corrupt as the name would imply. They just had to branch out because they couldn't find any Borgias.
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In any other court if a judge was found to have accepted a lavish gift and then later ruled favorably for the gift giver the case would immediately get tossed. Hell it's even in the constitution. https://www.law.cornell.edu/we... [cornell.edu] Rules for thee and all that.
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The gift was helping to finance a loan (for an RV), which was repayed.The loan was from a long-time close family friend (children of the judge even named after this friend). All of this happened decades before Thomas was a federal judge.
Partisans who disagree with perfectly well reasoned USSC decisions troll up nonsense about "bribes".
Yawn.
Re:The problem isn't an offhand comment (Score:4, Informative)
We don't actually know that though:
He provided Justice Thomas with financing that experts said a bank would have been unlikely to extend — not only because Justice Thomas was already carrying a lot of debt, but because the Marathon brand’s high level of customization makes its used motor coaches difficult to value.
In an email to The Times, Mr. Welters wrote: “Here is what I can share. Twenty-five years ago, I loaned a friend money, as I have other friends and family. We’ve all been on one side or the other of that equation. He used it to buy a recreational vehicle, which is a passion of his.” Roughly nine years later, “the loan was satisfied,” Mr. Welters added. He subsequently sent The Times a photograph of the original title bearing his signature and a handwritten “lien release” date of Nov. 22, 2008.
But despite repeated requests over nearly two weeks, Mr. Welters did not answer further questions essential to understanding his arrangement with Justice Thomas.
He would not say how much he had lent Justice Thomas, how much the justice had repaid and whether any of the debt had been forgiven or otherwise discharged. He declined to provide The Times with a copy of a loan agreement — or even say if one existed. Nor would he share the basic terms of the loan, such as what, if any, interest rate had been charged or whether Justice Thomas had adhered to an agreed-upon repayment schedule. And when asked to elaborate on what he had meant when he said the loan had been “satisfied,” he did not respond.
“‘Satisfied’ doesn’t necessarily mean someone paid the loan back,” said Michael Hamersley, a tax lawyer and expert who has testified before Congress. “‘Satisfied’ could also mean the lender formally forgave the debt, or otherwise just stopped pursuing repayment.”
Justice Thomas, for his part, did not respond to detailed questions about the loan, sent to him through the Supreme Court’s spokeswoman.
https://www.nytimes.com/2023/0... [nytimes.com]
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Also this loan was in 1999 and he was seated to the Court in 1991.
Vehicle loans are generally exempt from those reporting requirements, as long as they are secured by the vehicle and the loan amount doesn’t exceed its purchase price. But private loans like the one between Mr. Welters and Justice Thomas can be deemed gifts or income to the borrower under the federal tax code if they don’t hew to certain criteria: Essentially, experts said, the loan must have well-documented, commercially reasonab
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The gift was helping to finance a loan (for an RV), which was repayed.The loan was from a long-time close family friend (children of the judge even named after this friend). All of this happened decades before Thomas was a federal judge.
Partisans who disagree with perfectly well reasoned USSC decisions troll up nonsense about "bribes".
Yawn.
Not sure how owing a bunch of money to a friend for ten years is a better look for a judge.
I think the best we can hope for (Score:2)
If it happens during Biden's second term we'll get 2 right of center judges (that's the only thing you can get through Congress) but at least they won't be openly corrupt.
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The courts are so partisan & pro-corporate now (Score:2, Interesting)
For folks who aren't knee deep in politics, the last 2 major rulings from the Supreme Court were a disaster for your rights.
The Abortion one (Dobbs) referenced a literal witchfinder general from the 1600s (i.e. before the US Constitution was written) to reach it's dubious conclusion. The original ruling, Roe v Wade, wasn't about abortion, it was about privacy. Dobbs overturning it torpedoed virtually all privacy r
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The Roe is decision was nothing less than legislating from the bench findings rights to privacy where non exists anywhere in the texts and setting completely arbitrary rules for what can and can't be legislated around viability etc, found non where in law. Its exactly the kind of thing that undermined the courts legitimacy. Taking as long as they did to over turn it is what continued to hurt the court. The left only says the opposite because you ONLY really care about outcomes.
Relying on English decisions
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Re: The courts are so partisan & pro-corporate (Score:1)
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Thats some try hard copium level shit.
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Re:The courts are so partisan & pro-corporate (Score:4, Insightful)
Relying on English decisions is entirely legitimate because our code is based on English common law.
Alito, in his draft opinion, invokes “eminent common-law authorities,” including Hale, to show how abortion was viewed historically not as a right, but as a criminal act. “Two treatises by Sir Matthew Hale likewise described abortion of a quick child who died in the womb as a ‘great crime’ and a ‘great misprision,’” Alito wrote.
Even before “quickening” — defined by Alito as “the first felt movement of the fetus in the womb, which usually occurs between the 16th and 18th week of pregnancy” — Hale believed an abortion could qualify as homicide. “Hale wrote that if a physician gave a woman ‘with child’ a ‘potion’ to cause an abortion, and the woman died, it was ‘murder’ because the potion was given ‘unlawfully to destroy her child within her,’” Alito wrote.
Yes I want all my medical advice based on the opinion of a 16th century English justice.
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The party of small government and personal responsibility strikes again. Like the old saying goes if men could get pregnant you'd have abortion clinics on every street corner.
The problem isn't advise from Witchfinders (Score:3, Interesting)
He had to go back over 100 years before the US Constitution to come up with some vague excuse. That is extremely bad legal precedent. I mean, go back far enough and you can find justification for anything.
Re: The courts are so partisan & pro-corporate (Score:3)
"Congress passed a law, four times, that says the Secretary of Education may waive any aspect of student loan law in a Presidentially-declared emergency, but we don't think they c
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that we're seriously asking if the internet is telecommunications. Jesus, what a world.
The question is if it's "telecommunications" as defined by the FCC's charter. Historically it's meant point to point communications between two individuals over phone lines. It was slightly expanded to include TTY equipment. It was never clearly defined to include data services, which falls under a separate regulatory regime. Congress can fix all of this easily by creating a new classification for the internet, which is absolutely what should be done, as it isn't a phone and it isn't cable TV, nor a tradit
Re:The courts are so partisan & pro-corporate (Score:4, Informative)
The radical right justices enjoy ignoring past rules and laws to eviscerate current ones to serve their radical right agenda.
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Uhm...you apparently are missing the key point here for which you even alluded to but missed. The Act you reference was actually passed by Congress (he who has the purse strings), but Biden unilaterally writing a check (he who does not own the purse strings) that can't be cashed. Please re-read the U.S. Constitution and under that one of the key themes throughout the document is the separation of powers. Nowhere does the ruling say the debit couldn't be wiped clean, it simply says the Executive branch does
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Facts? Facts? What are facts? You're talking to a wall. The Repubs are the greatest projectors of all time.
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Nowhere did they say they waive all of the responsibility. They clearly put bounds when they waived for the veterans. Big difference.
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Stop. Facts are not welcome in discussions about political issues.
Seriously...
Any time the courts constrain an agency action because it runs afoul of the MQD, Congress can simply pass a law to give the agency the power that the court determined it didn't have under existing law. If Congress, elected by voters through a democratic process, doesn't think the agency should have that power, no such law will be passed. If Congress does think the agency should have that power such a law will be passed.
Complaining
We both know Congress can't fix this (Score:3)
That said, I'm not sure it matters what Congress does at this point. The judges have repeatedly signaled they don't care.
As for "data services" we're stretching that definition. Is our conversation here a data service? Not so much. The parts of the Internet that matter most are for communication, even if the
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That severely constrains the power of POTUS to administrate and completely changes the relationship between SCOTUS & POTUS. Congress can grant POTUS a power and along comes SCOTUS to say "Nope, that's too much money, go back to Congress and make them spell it out word for word".
Congress has to not only grant the President the power to do <whatever>, they also need to pass a budget for whatever it costs to do <whatever>.
In order for large-scale student loan forgiveness to be a thing, Congress needs to pass a budget with a line item reading "Department of Education -- student load forgiveness -- $400B", or whatever other amount they want. They could allocate the money as "discretionary", but large slush funds are a Bad Idea.
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No, it hasn't. The non-delegation doctrine, maybe, but that just requires agency action to be guided by an intelligible principle found in legislation. The Chevron case also has nothing to do with the major questions doctrine- it says that when agency power is implicit rather than explicit, a court must not substitute its own interpretation for any reasonable interpretation by the agency. The major question
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I won't even get into how wrong you are about the student loan situation, other than to ask how not collecting money is an expenditure. Okay, I hear you- now find me the statutory authority for the IRS to accept less in tax payments than a corporation or person owes by statute... isn't that an expenditure?
It's not that not collecting money isn't an expenditure. It's that reimbursing the banks for the loans that can no longer collect on is an expenditure, and requires Congressionally-budgeted funds.
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The federal government is not one monolithic block - Congress budgets each part of the government separately - so much to Dept. of Education, this much to Dept. of State, this much to Dept. of Defense, for example. It is much, much finer grained than that of course.
So when loans are forgiven that are originated, funded, held, and owned by *one part* of the federal government, they damn well have to balance their books. And that's an expenditure. And you know it.
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The internet has replaced the phone and the cable TV though!
Yes, congress could act. But congress hasn't acted in years, it only shows re-runs. When congress fails to act, then the president or the court end up effectively legislating through non-legislative means.
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Roe v. Wade was a horrible decisions on all fronts, it made up the right to privacy out of whole cloth.
Biden v. Nebraska is basic civics - Congress controls the purse, don't like the purse, vote different
This one will come down to the definition of Title I within the FCC. FCC can't simply re-classify the Internet as a wire or radio service at will in order to extract fees from broadband providers. Title I and II of the 1934 Communications Act was very specific in what it was allowed and not allowed to regul
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1) The FCC is needed to manage the PUBLIC airwaves and to a limited extent the PUBLIC common land that connects everybody; abandon this is to hand it over to agents of chaos at best, warlords at worst. Simply foolish to forgo a necessity simply because of a flawed instance.
Ex: Give up all cars because you bought a lemon.
The FCC has congressional oversight; it can be drastically restructured at any time or even destroyed by congress. The Exec has delayed and limited power to change management and the courts
535 people already made that decsion (Score:2)
That's what everyone seems to be missing. The court didn't dispute Biden's right to do this as it was delegated by Congress. They said "it's too much money, so Congress can't delegate that authority unless they spell it out word for word".
It's painfully obvious they were grasping at straws and coming up with excuses why Biden can't do debt forgivenes
Re: 535 people already made that decsion (Score:1)
Just by reading it, I can tell that the radical right wing justices are reinventing law and completely ignoring precident for their own political gains. The SC is now the equivalent of the Russian judge at the Olympics.
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1) The FCC is needed to manage the PUBLIC airwaves and to a limited extent the PUBLIC common land that connects everybody; abandon this is to hand it over to agents of chaos at best, warlords at worst.
The FCC has done a great deal of damage in the area of wireless telecommunications in this country. They created auctioning schemes that not only regressively extracted hundreds of billions of dollars from the public they assured continuing dominance of large established operators with the biggest pockets ensuring everyone will continue to get ripped off forever.
While I don't support no rules the traditional roles of FCC can be mostly obsoleted by technological means enabling dynamic sharing of available s
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YEAH! FUCK THE 4TH AND 5TH AMENDMENTS! CUNTS!
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Roe v Wade wasn't about abortion? C'mon, man! Privacy was the justification for a ruling about abortion, not vice versa. The problem that scotus had at the time was that there was obviously a right to an abortion, and consequently laws that forbade it were unconstitutional, but it was hard to find something in the Constitution to support that.
Furthermore, abortion really has nothing to do with privacy; it has to do with a right to control your own body versus the rights of the fetus, not about whether s
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Hilldog (Score:1)
Break it down. (Score:2)
tele-
Etymology
From Ancient Greek (têle, “at a distance, far off, far away, far from”).
telecommunication
Etymology
From French télécommunication. Equivalent to tele- + communication.
Noun
1. (uncountable) The science and technology of the communication of messages over a distance using electric, electronic or electromagnetic impulses. [1932]
Seems pretty cut and dry given that this word has been in use since 1932. However, it's really hard to tell how judges will rule because of partisanship.
Really? Corruption is already at this level? (Score:2)
We've arrived at a corruption level that we can actually question whether transferring data over long distances is telecommunication so a couple corrupt judges can get more money from corporations to decide in their favor?
And there are no checks and bounds left that kicks those fuckers from their comfy chairs?
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Careful there, history shows that voting has routinely been outlaws as soon as those in power noticed that it could actually change something. Better not try that or you might find that suddenly it doesn't work anymore.
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Also, please keep in mind that these people are put into their position for life. And as far as I know, the only way possible to remove them from office is still illegal.
Please make sure to tell me should this change.
Title II controls (Score:2)
I think the Court would run into a fundamental problem applying the "major questions" doctrine: Title II expressly gives the FCC authority over Internet services and how to classify them. Trying to apply the "major questions" doctrine lands the Court squarely having to confront that, and to remove the FCC's authority would require ruling that Congress didn't say what it said in the text. I think at least Roberts isn't going to go for that argument.
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Since the changes were the ones that allowed the FCC to classify internet service providers as data service providers rather than telecommunications service providers, that would leave the FCC no choice but to classify them as telecomm service providers and put them under the full set of regulations including network neutrality. ISPs would scream bloody murder if the Court went in that direction, putting the GOP in a real bad spot over it.
Legal definition (Score:2)
(50) Telecommunications
The term “telecommunications” means the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.
Make Being a Non-Telecom Undesirable (Score:2)
It's really about reversals (or it was last time) (Score:4, Interesting)
Re:It's really about reversals (or it was last tim (Score:2)
The FCC has reversed course on this classification multiple timesThere's a principle of legal consistency which the FCC is violating by reversing on this so much, it's just a question of how much of that the courts are going to allow them to get away with.
The FCC has not “reversed course on this classification multiple times”. They’ve reversed course exactly once, and it was in 2017 under Pai. This idea that they’ve been flip-flopping is not historically factual, despite how quickly it seems to have become the common perception.
Dialup and DSL ISPs were always Title II (because of Ma Bell) and were regulated as such, whereas cable ISPs, owing to their cable TV roots, were not. As cable ISPs became commonplace in the late ‘90s and
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It was a dumb reason in 2002 also, everyone knew it would cause problems. Nothing that happened was surprising. Eventually the courts are going to stop them from flipp
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They classified cable ISPs as Title 1 information services in 2002
I completely forgot that they did [fcc.gov]. For some reason, my head canon had it grandfathered in somehow, but I forgot that they had to provide an initial classification. That significantly colors nearly everything I said because I didn't account for it in my thinking, so thank you for the correction/additional info.
You say that yourself, you just claim that because they gave a reason for it in 2015 that it doesn't count.
The point I was making—which is moot now—wasn't about the reason they provided. You had said they reversed course "multiple times", which means they would have needed to (1) classify once,
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You should stop using the word FCC to describe a government ruled either red or blue where each colour has as a core governing policy to undo / simply not do what the other did.
This isn't about commissioners or corruption. The FCC is a political minion of the ruling government of America. If you want the FCC to stop flipflopping you're going to need to address the 2 party fuckery that is going on. And I use the word "fuckery" because we're well beyond calling it a "system" now given all the fuckery that is
Read the decision (Score:4, Interesting)
Go read the FCC decision defining internet service as not being "telecommunications." It contains the most tortured "logic" I've ever seen. It hangs on the notion that ISPs provided (1) email services and (2) DHCP. (1) is entirely optional, and assuming you may want to change ISPs at some future point, not something I'd recommend. (2) Simply provides a provisioned IP address to send & receive packets from. Telephone systems long had numbers to call that would report your own phone number. It was the existence of these "value-added" services that the FCC hung their hat on.
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I'm sure it would have looked less tortured in 1996. Back then, an ISP account mostly involved modems, e-mail service and maybe some web space. What it is now is quite different. The key point probably should turn on the fact that back then, you'd have to use a telecommunications service (a POTS line) to get access to your internet, and now you don't. The actual cable service/fiber/DSL is now the telecommunications service. Anyway, to a lot of judges, it's still a series of tubes.
I think the bottom lin
It's about who's job it is to make that call (Score:2)
The FCC, like so many other government agencies, has been making unilateral decisions with zero accountability. The most egregious is the bullshit CFPB. Lately, SCOTUS rulings have been correcting that. They aren't issuing opinions on the underlying subject matter. What they are doing is saying "This issue cannot be decided by a government agency that doesn't answer to the people via Congress or the states as the case may be." IMHO, this is long overdue.
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SCOTUS is the quintessential government agency making unilateral decisions with zero accountability.
How is this even a question? (Score:2)
How was 'broadband' ever not a telecommunications service?
Today's internet packet switching communications services are just an evolution and massive improvement on our older circuit based phone systems.
Internet communications definitely and obviously fall under the umbrella of telecommunications.
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This would be like deciding the 2nd amendment doesn't apply to modern guns because they are much more advanced and capable than the muskets and rifles of the late 1700s.
This would be like saying today's guns aren't arms.
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A question of definitions (Score:1)
Is broadband telecommunications? What even is telecommunications? What is anything?
As we've been reliably informed, it depends on what the definition of "is," is.