[178559] in North American Network Operators' Group
Re: Verizon Policy Statement on Net Neutrality
daemon@ATHENA.MIT.EDU (Lamar Owen)
Sat Feb 28 15:25:58 2015
X-Original-To: nanog@nanog.org
Date: Sat, 28 Feb 2015 15:25:56 -0500
From: Lamar Owen <lowen@pari.edu>
To: nanog@nanog.org
In-Reply-To: <54F21735.9070608@invaluement.com>
Errors-To: nanog-bounces@nanog.org
On 02/28/2015 02:29 PM, Rob McEwen wrote:
> For roughly two decades of having a widely-publicly-used Internet,=20
> nobody realized that they already had this authority... until suddenly=20
> just now... we were just too stupid to see the obvious all those=20
> years, right?=20
Having authority and choosing to exercise it are two different things. =20
Of course it was realized that they had this authority already; that's=20
why these regulations were fought so strongly.
> Nobody has refuted my statement that their stated intentions for use=20
> of this authority, and their long term application of that authority,=20
> could be frighteningly different.
It's impossible to refute such a vaguely worded supposition. Refuting a=20
'could be' is like nailing gelatin to the wall, because virtually=20
anything 'could be' even at vanishingly small probabilities. I 'could=20
be' given a million dollars by a random strange tomorrow, but it's very=20
unlikely.
>
> FOR PERSPECTIVE... CONSIDER THIS HYPOTHETICAL: Suppose that the EPA=20
> was given a statutory power to monitor air quality (which is likely=20
> true, right)... decades later, a group of EPA officials have a little=20
> vote amongst themselves and they decide that they now define the air=20
> INSIDE your house is also covered by those same regulations and=20
> monitoring directives for outside air.=20
Ok, I'll play along. So far, a reasonable analogy, except that such an=20
ex parte action (a 'little vote amongst themselves') wouldn't survive=20
judicial review. The FCC Commissioners didn't just 'have a little vote=20
amongst themselves;' they held a complete, according to statute=20
rulemaking proceeding. That is what our elected representatives have=20
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=20
> home, they conduct random warrent-less raids inside your homes, thus=20
> violating your 4th amendment rights.=20
This is where your analogy drops off the deep end. The FCC will hear=20
complaints from complainants who must follow a particular procedure and=20
request specific relief after attempting to resolve the dispute by=20
direct communication with the ISP in question. There aren't any 'raids'=20
provided for by the current regulation; have you ever heard of any raids=20
from a Title II action previously? There is no provision in the current=20
regulation as passed for the FCC to do any monitoring; it's up to the=20
complainant to make their case that the defendant violated 47CFR=A78. =20
This doesn't change the statute, just the regulations derived from the=20
statute.
To go with your analogy, as part of the newly added powers of the EPA=20
under your hypothetical, it would now be possible for a complainant,=20
after attempting to satisfy a 'inside the building unclean air'=20
complaint with a particular establishment but failing, and having to go=20
through a significant procedure, to get the EPA to rule that the owner=20
of that establishment must provide relief to the complainant or be=20
fined. No authority to raid, just authority to respond to complaints=20
and fine accordingly. Any change to that rule requires another=20
rulemaking proceeding.
Before the FCC can change the wording to add any of your supposed power=20
grab increases they will have to go through another full docket, with=20
required public notices and the NPRM. And the courts can throw it all ou=
t.
The FCC's primary power is economic, by fining.
> I know that hypothetical example is even more preposterous than this=20
> net neutrality ruling... but probably not that much more! (in BOTH=20
> cases, the power grab involves an intrusion upon privately-owned=20
> space.. using a statute that was originally intended for public space)
The telecommunications infrastructure is in reality public space, not=20
private, and has been for a really long time. Or are there any=20
physical-layer facilities that are not regulated in some way? Let's=20
see: 1.) Telephone copper and fiber? Nope, regulated as a common=20
carrier already. 2.) Satellite? Nope, regulated. 3.) Wireless (3G,=20
4G)? Nope, regulated, and many of the spectrum auctions have strings=20
attached, as Verizon Wireless found out last year. 4.) 2.4GHz ISM? =20
Nope, regulated under =A715 and subject to being further regulated. 5.)=20
Municipal fiber? Nope, it's public by definition. 6.) Point to point=20
optical? Maybe, but this is a vanishingly small number of links; I=20
helped install one of these several years back. 7.) Point to point=20
licensed microwave? Nope, regulated; license required.
Even way back in NSFnet days the specter of regulation, in the form of=20
discouragement of commercial traffic across the NSFnet, was present. I=20
don't understand why people are so surprised at this ruling; the=20
Internet is becoming a utility for the end user; it's no longer a=20
free-for-all in the provider space.
>
> But the bigger picture isn't what the FCC STATES that they will do=20
> now.. it is what unelected FCC officials could do, with LITTLE=20
> accountability, in the future.
FCC Commissioners are appointed, confirmed by the Senate, and have five=20
year terms. Accountability here is from all three branches of the=20
government, as it is possible to sue the FCC.
