Verizon Policy Statement on Net Neutrality

[lowen at pari.edu (Lamar Owen)]

On 02/28/2015 02:29 PM, Rob McEwen wrote:
> For roughly two decades of having a widely-publicly-used Internet, 
> nobody realized that they already had this authority... until suddenly 
> just now... we were just too stupid to see the obvious all those 
> years, right? 

Having authority and choosing to exercise it are two different things.  
Of course it was realized that they had this authority already; that's 
why these regulations were fought so strongly.

> Nobody has refuted my statement that their stated intentions for use 
> of this authority, and their long term application of that authority, 
> could be frighteningly different.

It's impossible to refute such a vaguely worded supposition. Refuting a 
'could be' is like nailing gelatin to the wall, because virtually 
anything 'could be' even at vanishingly small probabilities.  I 'could 
be' given a million dollars by a random strange tomorrow, but it's very 
unlikely.

>
> FOR PERSPECTIVE... CONSIDER THIS HYPOTHETICAL: Suppose that the EPA 
> was given a statutory power to monitor air quality (which is likely 
> true, right)... decades later, a group of EPA officials have a little 
> vote amongst themselves and they decide that they now define the air 
> INSIDE your house is also covered by those same regulations and 
> monitoring directives for outside air. 

Ok, I'll play along.  So far, a reasonable analogy, except that such an 
ex parte action (a 'little vote amongst themselves') wouldn't survive 
judicial review.  The FCC Commissioners didn't just 'have a little vote 
amongst themselves;' they held a complete, according to statute 
rulemaking proceeding.  That is what our elected representatives have 
mandated that the FCC is to do when decisions need to be made.

> Therefore, to carry out their task of monitoring the air inside your 
> home, they conduct random warrent-less raids inside your homes, thus 
> violating your 4th amendment rights. 

This is where your analogy drops off the deep end.  The FCC will hear 
complaints from complainants who must follow a particular procedure and 
request specific relief after attempting to resolve the dispute by 
direct communication with the ISP in question.  There aren't any 'raids' 
provided for by the current regulation; have you ever heard of any raids 
from a Title II action previously?  There is no provision in the current 
regulation as passed for the FCC to do any monitoring; it's up to the 
complainant to make their case that the defendant violated 47CFR§8.  
This doesn't change the statute, just the regulations derived from the 
statute.

To go with your analogy, as part of the newly added powers of the EPA 
under your hypothetical, it would now be possible for a complainant, 
after attempting to satisfy a 'inside the building unclean air' 
complaint with a particular establishment but failing, and having to go 
through a significant procedure, to get the EPA to rule that the owner 
of that establishment must provide relief to the complainant or be 
fined.  No authority to raid, just authority to respond to complaints 
and fine accordingly.  Any change to that rule requires another 
rulemaking proceeding.

Before the FCC can change the wording to add any of your supposed power 
grab increases they will have to go through another full docket, with 
required public notices and the NPRM.  And the courts can throw it all out.

The FCC's primary power is economic, by fining.

> I know that hypothetical example is even more preposterous than this 
> net neutrality ruling... but probably not that much more! (in BOTH 
> cases, the power grab involves an intrusion upon privately-owned 
> space.. using a statute that was originally intended for public space)

The telecommunications infrastructure is in reality public space, not 
private, and has been for a really long time.  Or are there any 
physical-layer facilities that are not regulated in some way?  Let's 
see: 1.) Telephone copper and fiber?  Nope, regulated as a common 
carrier already.  2.) Satellite?  Nope, regulated.  3.) Wireless (3G, 
4G)?  Nope, regulated, and many of the spectrum auctions have strings 
attached, as Verizon Wireless found out last year.  4.) 2.4GHz ISM?  
Nope, regulated under §15 and subject to being further regulated.  5.) 
Municipal fiber?  Nope, it's public by definition. 6.) Point to point 
optical?  Maybe, but this is a vanishingly small number of links; I 
helped install one of these several years back. 7.) Point to point 
licensed microwave?  Nope, regulated; license required.

Even way back in NSFnet days the specter of regulation, in the form of 
discouragement of commercial traffic across the NSFnet, was present.  I 
don't understand why people are so surprised at this ruling; the 
Internet is becoming a utility for the end user; it's no longer a 
free-for-all in the provider space.

>
> But the bigger picture isn't what the FCC STATES that they will do 
> now.. it is what unelected FCC officials could do, with LITTLE 
> accountability, in the future.
FCC Commissioners are appointed, confirmed by the Senate, and have five 
year terms.  Accountability here is from all three branches of the 
government, as it is possible to sue the FCC.