House of Eratosthenes

U.S. regulators would get authority over Internet-traffic practices of companies such as AT&T Inc. and Comcast Corp. for two years in a plan being weighed by congressional staff, two people involved with the talks said.

Legislation letting the Federal Communications Commission regulate Internet service providers was being discussed with industry representatives yesterday by aides to Representative Henry Waxman, chairman of the House Energy and Commerce Committee, according to the people, who asked not to be identified discussing the private talks.

The two years would give the FCC and Congress time to permanently resolve a long-running fight over rules on net neutrality. Internet-service providers would be barred under such regulations from selectively blocking or slowing content going to subscribers while favoring their own offerings and those of business partners.

“I’m pleased that Chairman Waxman and the other members of Congress who are involved are making a real effort,” FCC Chairman Julius Genachowski said today at a news conference in Washington. “I admire and I appreciate the effort and I hope it succeeds.”

The compromise would let the FCC claim authority over Web service delivered over wires, such as by cable and fiber-optic lines, while allowing the agency to write less-stringent rules for wireless services such as mobile phones, the people said.

The smackdown actually happened several months ago. You might have missed it — fellow Right Wing News contributor Melissa Clouthier captured the decision, linking to a Google cache from Wall Street Journal:

A U.S. appeals court ruled Tuesday that the Federal Communications Commission overstepped when it cited cable-giant Comcast Corp. for slowing some Internet traffic on its network, dealing a blow to big Web commerce companies and other proponents of “net neutrality.”

In a unanimous decision, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit said the FCC exceeded its authority when it sanctioned Comcast in 2008 for deliberately preventing some subscribers from using peer-to-peer file-sharing services to download large files.

The push is on to somehow — any way it can possibly be done — put the Government in the driver’s seat. What is strange about this situation, what the public doesn’t really understand, is this: The situation has been made more urgent for those who support Net Neutrality, in the wake of a policy framework agreement between Google and Verizon. Which brings about some, although by no means all, of what they were wanting.

It lets some of the pressure out of their movement. It allows a portion of the crisis to go to waste.

ZDNet did a decent write-up on it a few days ago:

The proposal offered by the companies contains seven elements. They are:

* Make the FCC’s current wireline broadband openness principles fully enforceable at the FCC. Those principles ensure that consumers have access to all legal content on the Internet and can use any application, service or devices of their choosing. The Comcast court decision called the enforcement of those principles into question, the companies said.
* New enforceable prohibition against discriminatory practices would prohibit wireline broadband providers from discriminating against or prioritizing content, applications or services that cause harm to users or competition. The principle includes a presumption against prioritization of Internet traffic – including paid prioritization.
* Transparency rules. The proposal creates enforceable transparency rules for both wireline and wireless services which requires broadband providers to give consumers clear, understandable information about the services they offer and their capabilities and to provide app and content providers with the information they need about network management practices.
* The FCC’s role and authority. The proposal provides for a new enforcement mechanism for the FCC. Specifically, the FCC would enforce these openness policies on a case-by-case basis, using a complaint-driven process and could move swiftly to halt violators, including the authority to impose a penalty of up to $2 million.
* Allow broadband providers to offer additional, differentiated online services, in addition to the Internet access and video services offered today. The companies note that it’s too soon to predict how these new services will develop, but examples might include health care monitoring, the smart grid, advanced educational services, or new entertainment and gaming options. The proposal includes safeguards to ensure that such online services are distinguishable from traditional broadband Internet access services and are not designed to circumvent the rules.
* Different rules for wireless – for now. The still-nascent mobile landscape is changing rapidly. Under the proposal, most of the wireline principles would not apply to wireless, except for the transparency requirement. Also, the Government Accountability Office would be required to report to Congress annually on developments in the wireless broadband marketplace.
* Finally, the proposal supports the reform of the Federal Universal Service Fund, so that it is focused on deploying broadband in areas where it is not now available.

The Hard Left, which generally seems to move on things like this as a singular entity, is not cool with this. The unicellular organism, aptly represented by Susie Madrak and Josh Silver, is apoplectic.

The deal marks the beginning of the end of the Internet as you know it. Since its beginnings, the Net was a level playing field that allowed all content to move at the same speed, whether it’s ABC News or your uncle’s video blog. That’s all about to change, and the result couldn’t be more bleak for the future of the Internet, for television, radio and independent voices.

Which I find at once both amusing and sad. Silver’s argument is an ultimate absurdity: We’ve gots ta have some new rules, because the way things have worked up until now is just great.

What Google and Verizon have done, is cobble together a modern-day version of the Hays Code. Not so much in the content of their framework, as in its motive:

In the early 1920s, three major scandals rocked Hollywood: the manslaughter trials of comedy star Roscoe “Fatty” Arbuckle, who was charged with being responsible for the death of actress Virginia Rappe at a wild party in San Francisco during Labor Day weekend of 1921; the murder of director William Desmond Taylor in February 1922 and the revelations regarding his bisexuality; and the drug-related death of popular actor Wallace Reid in January 1923.[citation needed]

Other allegedly drug-related deaths, of stars Olive Thomas, Barbara La Marr, Jeanne Eagels, and Alma Rubens, resulted in persistent calls for censorship and “cleaning up” of Hollywood through the 1920s. These stories were sensationalized in the press and grabbed headlines across the country. They appeared to confirm a widespread perception that many Americans had of Hollywood — that it was “Sin City”.

Public outcry over perceived immorality in Hollywood and the movies, as well as the growing number of city and state censorship boards, led to the creation in 1922 of the Motion Pictures Producers and Distributors Association (which became the Motion Picture Association of America in 1945), an industry trade and lobby organization. The association was headed by Will H. Hays, a well-connected Republican lawyer who had previously been United States Postmaster General and the 1920 campaign manager for President Warren G. Harding. Hays immediately banned Roscoe “Fatty” Arbuckle from the movies, in spite of Arbuckle’s innocence, and instituted a morality clause to apply to anyone working in films. He also derailed attempts to institute federal censorship over the movies.
:
An amendment to the Code, adopted on June 13, 1934, established the Production Code Administration (PCA) and required all films released on or after July 1, 1934, to obtain a certificate of approval before being released. The first film to receive an MPPDA seal of approval was The World Moves On. For more than thirty years following, virtually all motion pictures produced in the United States adhered to the code. The Production Code was not created or enforced by federal, state, or city government. In fact, the Hollywood studios adopted the code in large part in the hopes of avoiding government censorship, preferring self-regulation to government regulation. [emphasis mine]

So it is exactly the same principle being applied. The industry convinces Congress, and the American People, that it is to some degree self-regulating. The pressure behind the legislation is somewhat bled off.

The major difference being — the Hays Code did not voluntarily empower a government agency to enforce rules against it, as the Google/Verizon agreement has done.

We see, once again, there really isn’t any way to gratify the hard left. They don’t accept compromises, even after having walked into the negotiations with absolutely nothing. The decision by the three-judge panel from half a year ago was unequivocal. Comcast, an evil monolith of a money-grubbing corporation, had been engaged in precisely the shenanigans feared by those who support Net Neutrality: They had blocked BitTorrent, a peer-to-peer file sharing service, on their network. The FCC stepped in to say, shame-shame-everybody-knows-yer-name, we’re here to enforce a level playing field. Comcast took them to court, and they won.

So the rule of the law is clear. The decision that favored Comcast had nothing to do with “how do we get a level playing field,” it had everything to do with authority. The FCC simply didn’t, and does not, have it — game-set-match.

Now the industry, or at least two giants within the industry, is giving the FCC a sort of voluntary authority anyway. The left isn’t happy. The left is howling. It sees corporate skulduggery.

They aren’t representing the public will. The public is against this kind of regulation. Now why is that; don’t they want that level playing field? Do they want to have secrets kept from them?

Perhaps it would be good to explore my own opinion about it. On this issue, I don’t enjoy much potential for speaking for the majority; I’m a fringe kook. I’m really way out there. You probably don’t know anyone who sees this thing my way. But there is a likelihood that, once we explore my thoughts on it, we might come to understand what the average citizen thinks.

Think of a private meeting taking place within a private rental hall. If I act as the officer of an organization, and use those organization’s funds to rent the hall — or maybe we own the hall — can I, in the course of a meeting, interrupt someone in the audience, cut off his microphone, ask security to have him removed?

Yes, yes and yes. This would not be violating the First Amendment. It would be exercising the First Amendment. My hall.

Let’s go back and consult the rules again shall we:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances [emphasis mine]

You say: There it is in black and white, Freeberg! Everyone gets to say everything!

No, go back and read it again. Slowly. One word at a time:

Congress shall…

You can stop now.

It’s “Congress shall not,” not “Comcast shall not.” Comcast has a rental hall; it owns a network. It gets to shut people up there.

You see, we have been on a wrong path for a whole lot of years now. We took a wrong turn before the FCC even came into existence. Supposedly, because radio station frequencies constitute a “scarce resource” in the aggregate, the Federal Government gets to use the Commerce Clause from Article I of the U.S. Constitution, Section 8, to overrule the First Amendment. This is just wrong. Yes, I’m saying in the late 1920’s, we were wrong. The Commerce Clause does not amend the First Amendment; it’s the other way around.

You say “Freeberg, are you saying the FCC doesn’t have the authority to regulate radio stations and it should let them run all hog wild like that?” And I say — yes. That’s exactly what I’m saying.

If the Supreme Court itself says something contrary, it’s just wrong.

And SCOTUS did say something contrary…and it was wrong. The occasion was the Red Lion case from 1969. One of the last from the Earl Warren court, which by itself is a powerful reason to overturn it in my book.

The decision goes like this: Because radio stations are a scarce resource, the Government gets to restrict, abridge, censor, regulate, even though it isn’t supposed to restrict, abridge, censor or regulate.

So now my viewpoint, whether you agree with it or not, is perhaps becoming clear. I do not respect the prior decisions that put the Government in charge of anything related to communication; in my book, “regulate” is functionally synonymous with “abridge.” I don’t see a need for a centralized authority that assigns radio station numbers, no matter how technologically compelling is the argument in favor of having one, to possess any effect whatsoever in the endeavor to conjure up federal authority where it does not exist — in fact, has been out-and-out banned.

Yes, I do think those old dead white guys from the 1790’s, were thinking of the Internet. We have abused their design on a fundamental level.

But here we come to the part where a Dictator Freeberg would really run roughshod over our existing frameworks, statutes and protocols. Here is where I would rip the heart right out of the beast.

And the odd thing is, here is where, I think, the majority sides with me.

I do not respect the authority of the Federal Government to codify, or enforce, any rules anywhere that deal with “non-discrimination.” I do not acknowledge any intrinsic ability within the government to enforce the very concept of such rules — or even to comprehend such a concept.

The Government discriminates. Period.

It engages in double-talk. It passes a supposed “Equal Protection Clause” within a constitutional amendment, and a century or so later it engages in something called “affirmative action.”

You see, the truth of the matter is this: Public agencies have an unfortunate tendency to view the world in terms of good guys and bad guys. They are friendly to some demographic groups and hostile to others. And I hate to break it to people who are still in the process of learning this, but it’s always going to be that way.

Companies see the world in terms of good guys and bad guys too. But the difference is, when the “bad guy” starts helping to pay the bills he suddenly becomes a good guy. So a privately held company will discriminate, and then at a moment’s notice, flip-flop. Rather comical to watch, really.

Government isn’t going to flip-flop until one voting bloc starts to outnumber another, a process which can take generations. Until then, the good guy stays good and the bad guy stays bad. Government discriminates. It really comes down to this: Government wouldn’t know “non-discrimination” if non-discrimination ran up behind it and kicked it square in the ass.

And this gets down to the heart of the matter. Go back and read the articles put up by devoted lefties Silver and Madrak. In my worldview, their sanity is being subjected to serious question. The chief executive of the Government — our President — six years in every randomly-selected ten, he’s a Republican, someone who is evil in every conceivable way according to these two. And their argument boils down to what? They’re upset not so much about what will be decided later on, but more on the question of who gets to do the deciding. They want more power to be entrusted in this entity that they think is thoroughly corrupt sixty percent of the time.

I’d rather listen to the U.S. Constitution…and to history. This is a situation in which they both say the same thing: If you really want something you could somewhat sensibly call “fairness” — you keep the Government out of it.

And yes, to oppose the Government’s regulation of the assignment of radio station numbers, is often ranked right up there on the scale of libertarian lunacy with opposing sidewalks, fire halls and police stations. Well, maybe people associate it with those but that isn’t how I see it. I’ll favor the sidewalks and firemen and policemen.

But Government has no role in “leveling” a playing field on the Internet. It is specifically barred from restricting our speech, and that means they can’t regulate it. They can’t tell us how to say it, where to stand when we’re saying it, and they don’t even have a role in protecting us if someone is trying to shut us up. Not if that guy owns the forum.

Why am I arguing that it’s “free speech” to shut people up? Because when public-sector busybodies ensure “everyone gets to have a say,” all too often this translates to making sure someone else doesn’t have a say; someone who isn’t part of the “everyone.” Yes, you can use free speech to make sure someone else doesn’t have free speech. It’s been done. Our Government has done it over and over again.

It comes down to respect for the right to property. That has to be the foundation of our other rights — because if it isn’t, then we have that situation where our rights come from the Government. And if our rights come from the Government, then that Government gets to take those rights away any time it pleases, and there will be no recourse, no appeal.

“A government big enough to give you everything you want is a government big enough to take from you everything you have.”

— Misattributed to Ronald Reagan, apocryphal quote by Thomas Jefferson

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On “Network Neutrality”Monday, September 27th, 2010

On “Network Neutrality”
Monday, September 27th, 2010