NNSquad - Network Neutrality Squad
[ NNSquad ] re AT&T: FCC has never had regulatory power over broadband
----- Forwarded message from Dave Farber <dfarber@me.com> ----- Date: Wed, 14 Apr 2010 16:59:20 -0400 From: Dave Farber <dfarber@me.com> Subject: [IP] re AT&T: FCC has never had regulatory power over broadband Reply-To: dave@farber.net To: ip <ip@v2.listbox.com> Begin forwarded message: > From: Richard Bennett <richard@bennett.com> > Date: April 14, 2010 4:40:10 PM EDT > To: George Ou <George.Ou@digitalsociety.org> > Cc: Stagg Newman <lsnewmanjr@yahoo.com>, "dave@farber.net" <dave@farber.net>, Lauren Weinstein <lauren@vortex.com> > Subject: Re: [IP] AT&T: FCC has never had regulatory power over broadband > > OK, I thought this was fishy so I looked it up. The 2000 case was ATT v. Portland, which arose because the City of Portland wanted to impose an open access requirement on AT&T cable (the former @Home system sold to AT&T Broadband). The Ninth Circuit ruled that cable Internet is a telecommunications service under the law, and therefore a creature for the FCC to regulate, not the freaking City of Portland's to regulate under the video franchise agreement. So that was "telecom" in the loose sense, not in the strict Title II sense. Thus the court *struck down* an open access requirement for cable, and both sides declared victory. See: http://www.cybertelecom.org/states/or.htm#oa > > RB > > On 4/14/2010 4:32 PM, George Ou wrote: >> >> A 2000 court decision (9th circuit) effectively put Cable Broadband under both the Title I and Title II umbrella since they argued that it exhibited both information services and telecommunications properties. The 9th circuit ruled that Cable companies must share their infrastructure with competing ISPs. The FCC “freed” the cable guys from that 9th circuit ruling with an explicit order in 2002 classifying cable as Title I, but the ISP “Brand X took it back to the 9th circuit and the 9th circuit slapped down the FCC. The FCC appealed to the supreme court in 2005 and won the famous “Brand X” decision. >> >> I think the FCC had also been trying to move DSL transport to Title I for years and they finally succeeded in late 2005 after they were vindicated by the courts on their 2002 order to declare cable a Title I. >> >> Also, the FCC has been trying to move away from Title II Internet since Bill Kennard under Bill Clinton and the two subsequent FCC Chairmen under W. Bush. >> >> >> >> George >> >> From: Stagg Newman [mailto:lsnewmanjr@yahoo.com] >> Sent: Wednesday, April 14, 2010 1:10 PM >> To: Richard Bennett; George Ou >> Cc: dave@farber.net; Lauren Weinstein >> Subject: Re: [IP] AT&T: FCC has never had regulatory power over broadband >> >> It is a complicated history. As a non-lawyer I certainly find it confusing. >> >> And then I remember what Scalia wrote via a vis the Telecom Act of '96 >> and take some comfort that I am not the only one who finds this confusing >> "Not only is this act not a model of clarity, it is in fact a model of ambiguity and self contradiction ...." - Anton Scalia >> >> Can one of the lawyers provide more details of what the FCC ruled on in 2002 and the context? >> >> From: Richard Bennett <richard@bennett.com> >> To: George Ou <George.Ou@digitalsociety.org> >> Cc: "dave@farber.net" <dave@farber.net>; Lauren Weinstein <lauren@vortex.com>; "lsnewmanjr@yahoo.com" <lsnewmanjr@yahoo.com> >> Sent: Wed, April 14, 2010 3:42:45 PM >> Subject: Re: [IP] AT&T: FCC has never had regulatory power over broadband >> >> Cable modem was never a Title II service, so there's no history of "freeing Cable Broadband from Title II." There was some ancillary authority trick prior to the 2002 ruling, but never a Title II status for Cable. >> >> RB >> >> On 4/14/2010 1:36 PM, George Ou wrote: >> The FCC had never had Title II powers over broadband on the IP layer (Layer 3). What they had was price regulation powers (Title II) over DSL transport (Layer 2) through the use of ATM PVCs in the DSLAM up until 2005. The FCC had regulated wholesale prices of the sharing of twisted pair and DSLAMs. >> >> In July 2005, the FCC won the “Brand X” case affirming its 2002 ruling that freed Cable Broadband from Title II. In August 2005, the FCC went further and freed DSL transport from Title II classification and no longer regulated wholesale prices for DSL transport. >> >> >> What the Open Internet Coalition and others are now is asking is that the FCC should regulate broadband on all levels under Title II such that its actions on Comcast and its NPRM can be justified. That would have to include layer 3 IP services, Internet transit, IP interconnect (peering), and maybe even CDN. But from what I am reading, the FCC is limited in power to regulate prices even on things like Video on Demand, so I can’t see how they would justify price regulating the whole darn Internet and everything it encompasses. I mean can the FCC regulate the price of Amazon’s virtual “Elastic Cloud” servicers? >> >> >> >> >> George Ou >> >> From: Dave Farber [mailto:dave@farber.net] >> Sent: Wednesday, April 14, 2010 5:56 AM >> To: ip >> Subject: [IP] AT&T: FCC has never had regulatory power over broadband >> >> >> >> >> Begin forwarded message: >> >> From: Stagg Newman <lsnewmanjr@yahoo.com> >> Date: April 14, 2010 8:50:37 AM EDT >> To: dave@farber.net, ip <ip@v2.listbox.com> >> Subject: Re: [IP] AT&T: FCC has never had regulatory power over broadband >> >> The FCC has regulated Frame Relay, ATM, and SONET and other high speed private line services as Title II services. >> Those service are in the family of broadband services. >> >> The FCC did not regulate Internet service as Title II. >> >> There is a deft change in the email below from broadband to Internet. They are not synonymns. >> >> From: David Farber <dave@farber.net> >> To: ip <ip@v2.listbox.com> >> Sent: Tue, April 13, 2010 4:58:38 PM >> Subject: [IP] AT&T: FCC has never had regulatory power over broadband >> >> >> >> Begin forwarded message: >> >> From: dewayne@warpspeed.com (Dewayne Hendricks) >> Date: April 12, 2010 2:44:14 PM EDT >> To: Dewayne-Net Technology List <xyzzy@warpspeed.com> >> Subject: [Dewayne-Net] AT&T: FCC has never had regulatory power over broadband >> >> AT&T: FCC has never had regulatory power over broadband >> The Hill >> By Kim Hart >> >> AT&T lobbyist Hank Hultquist disputes that the FCC ever had the authority over broadband that it seeks today. >> >> His comments in a blog post fuel the fast-growing fight over whether the FCC can or should reclassify broadband as a "Title II" service, rather than the "Title I" service it is today. The D.C. Circuit clearly said last week that the FCC cannot impose net neutrality rules with the current classification. >> >> A host of legal experts and lobbyists have made the case that the FCC should be able to revert back to Title II, since the agency used to have regulatory authority over DSL and other broadband services until 2002, when they were reclassified as Title I. >> >> <http://thehill.com/blogs/hillicon-valley/technology/91603-atat-fcc-has-never-had-regulatory-power-over-broadband>RSS Feed: <http://www.warpspeed.com/wordpress> >> >> >> >> >> ------------------------------------------- >> Archives: https://www.listbox.com/member/archive/247/=now >> RSS Feed: https://www.listbox.com/member/archive/rss/247/ >> Powered by Listbox: http://www.listbox.com >> Archives >> >> > ------------------------------------------- Archives: https://www.listbox.com/member/archive/247/=now RSS Feed: https://www.listbox.com/member/archive/rss/247/ Powered by Listbox: http://www.listbox.com ----- End forwarded message -----