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You are here: MacNN Forums > News > Tech News > Editorial: FCC, lawsuits, Net Neutrality, and The Bill of Rights

Editorial: FCC, lawsuits, Net Neutrality, and The Bill of Rights
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NewsPoster
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May 25, 2015, 04:06 PM
 
AT&T and several trade organizations in the telecom and cable industry have publicly posted statements of issues they intend to raise as part of their lawsuits against the FCC's ruling mandating net neutrality. While the statements aren't in-depth rundowns of the arguments the organizations that oppose the ruling intend to make, they do seem rather familiar to anyone who remembers the successful Verizon lawsuit of 2012 that acted as a catalyst for the Title II reclassification for ISPs in the first place. These issues indicate AT&T and others believe the FCC's ruling on net neutrality violates the First and Fifth Amendments to the Constitution of the United States, as well as the Communications Act of 1934 (as amended).

Regarding the amendments: Among other things, the First Amendment prohibits Congress from making laws that impede freedom of the press and freedom of speech. The Fifth Amendment is arguably most famous for its protections against self-incrimination, but also says that no person shall be "deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

References to the amendments begin in item three of AT&T's statement of issues. According to other statements of issues posted in the National Exchange Carriers Association (NECA) regulatory document database, CenturyLink, CTIA Wireless Association, and the US Telecom Association are raising similar issues. Statements from cable provider associations American Cable Association and the National Cable & Telecommunications Association are using either partial or no constitutional grounds in their issues statements.

The argument for the violation of AT&T's (et al) First Amendment rights stems from an idea that regulating how a provider manages speech over its network inhibits that provider's own free speech. The counter-argument made by some analysts is that the net neutrality rules, which prohibit certain types of traffic management often referred to as "throttling," instead protects the First Amendment rights of users by keeping a provider from blocking or slowing down Internet traffic to suit its own purposes or agenda.

The Fifth Amendment argument is of particular interest to the cable provider end. The corporations who opposed the FCC's regulatory approach have invested heavily in building out infrastructure for their own networks; now classified as common carriers, they would be obliged to give "right of way access" to smaller and evening competing providers on their (mostly) terrestrial networks. The rates they charge for this access is mandated to be "reasonable," with that word being defined by a body other than the provider who owns the network. The argument is that reclassification and the way the "right of way access" is regulated is akin to it being taken for public use without "just compensation."

The Constitutional arguments harken back to Verizon's 2012 lawsuit against the FCC, and to other cases in the past -- such as the breakup of the telephone monopolies and the rise of low-cost long-distance call providers 25 years ago, or more recently the availability of lower-cost options that take advantage of the infrastructure of common-carrier cellular providers, such as Virgin Mobile.

While the Verizon suit was successful in halting the first of the FCC's net neutrality efforts in 2012, the court cited not a violation of the amendments, but simply that the Commission was attempting to regulate providers as if they were common carriers without designating them as such. With the new ruling by the FCC, that discrepancy has been addressed. What remains to be seen is if the courts will find the reclassification valid according to the Communications Act, and if it changes its mind regarding the amendments.

While we are not in a position to predict how the courts will act, after much consumption of the Open Internet regulation we believe that the final codification of the FCC's rules appear to be designed specifically to withstand court challenges. Though the broadband and cellular data providers will paint a dire picture of trampled rights and burdensome regulation, the court is likely to take a look at the last two times this exact scenario has happened -- a clutch of huge communications industry players become abuse and hostile to consumers, routinely breaking weaker FCC rules and paying fines as the cost of doing business until the FCC designates them common carriers and forces them to play by consumer-friendly rules -- and the incredibly beneficial results that have come from such decisions.

In fact, following the telephone companies being classified as "common carriers," the cellphone voice providers -- mostly the same companies that are now protesting -- were brought under that tent as well, and have flourished while providing consumers with a much wider range of options. Now cellular data and broadband providers are being classified the same way, and we expect that what will happen is that customer service will improve, new providers will finally be able to enter the market, and the increased competition will improve both speed and price options for US customers -- finally bringing the US closer to closing the enormous quality gap in Internet services between it and the rest of the industrial world.

The arguments of the industry groups opposed to the FCC's rules are thinly-disguised attempts and wrapping the flag of freedom and corporate personhood around the notion that these companies -- which profit richly off the backs of the public in need of their essential services -- should have to be answerable to them. What's really happening is that the big broadband and cellular data carriers don't want to create "wider pipes" under supervision of the same organization that subsidizes them so that fast data becomes ubiquitous -- even to the point of hurting the US economy and the country's competitiveness -- because the companies see data as a stream that must be dammed and meted out at premium rates for the benefit of stockholders.

The providers are terrified that there will be oversight into how they handle customer service -- with most telecom providers ranked as some of the worst among all industries -- that will force them to be more transparent and customer-focused. They are scared that customer demand will force them to use profits to upgrade infrastructure instead of handing out executive bonuses, and they are furious that the FCC is trying to put the kibosh on the providers' blackmail schemes of charging deep-pocket content providers extra to ensure consumers get that material first, with the rest of the Net suffering as a result -- at least in the US, where such deals will put the US at a distinct disadvantage versus other countries' approaches.

We think there needs to be a new animated emoji of the world's smallest violin that can be texted to the big carriers when and if they finally lose in court on this fool's errand. Asking the corporations that control access to crucial resources like the Internet to be fair, transparent, and consumer-friendly -- and that's entirely what the FCC is demanding -- is not a burden: it should be, rather than just seeing how much blood they can get from a stone, the core mission of these companies.

Thus, we hope the courts will see through the specious "constitutional" arguments that corporations employ entirely too often -- that they have the same rights as people (when it suits them), but none of the responsibilities -- and reject this attempt to throw off even the lightest, most business-friendly level of regulation. It is all too rare for a government or governmental agency to almost wholly take the side of the taxpayer and consumer in a fight against big business. We hope the courts will encourage more of this behavior, not less, and ignore the industry's attempt to water down the FCC proposal.

-Charles Martin and Mike Wuerthele, with assistance from Michelle Elbert
( Last edited by NewsPoster; May 25, 2015 at 06:32 PM. )
     
Steve Wilkinson
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May 25, 2015, 06:38 PM
 
I'm sure it violates their Cash Cow principals.
------
Steve Wilkinson
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cgWerks | TilledSoil.org
     
TigerN28763
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May 26, 2015, 02:40 PM
 
Encore, Encore!!!
     
Flying Meat
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May 26, 2015, 07:57 PM
 
I have no sympathy for these companies.
     
Steve Wilkinson
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May 27, 2015, 01:13 AM
 
Me neither.... frankly, I hope they all go out of business.
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Steve Wilkinson
Web designer | Christian apologist
cgWerks | TilledSoil.org
     
   
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