Court Tells FCC It Has No Mandate To Enforce Net Neutrality (And That's A Good Thing)
from the got-it-right dept
This should come as no surprise, given that the court indicated this a few months back, but it's now official that the FCC has no power to mandate net neutrality or to punish Comcast (even with a gentle wrist slap) for its traffic shaping practices. Lots of people seem upset by this, but they should not be. This is the right decision. The FCC was clearly going beyond its mandate, as it has no mandate to regulate the internet in this manner. In fact, what amazed us throughout this whole discussion was that it was the same groups that insisted the FCC had no mandate over the broadcast flag, that suddenly insisted it did have a mandate over net neutrality. You can't have it both ways (nor should you want to). Even if you believe net neutrality is important, allowing the FCC to overstep its defined boundaries is not the best way to deal with it. So for those of you upset by this ruling, look at it a little more closely, and be happy that the FCC has been held back from expanding its own mandate. Otherwise, the next time the FCC tried to do something like the broadcast flag or suddenly decided it could enforce "three strikes," you'd have little argument.That doesn't mean that Comcast should get off free for its actions. It should still be punished -- but by the FTC, rather than the FCC -- for misleading its customers about what type of service they were getting, and what the limitations were on those services. As for the FCC, if it really wants a more neutral net, it should focus on making sure that there's real competition in the market, rather than just paying lip service to the idea in its broadband plan.
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Filed Under: cable, fcc, mandates, net neutrality
Companies: comcast, fcc
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Legislation needed
But somebody needs to have it and enforce it. Mike touches on the most important remedial factor and that is lack of competition at the micro-local level. Without that, the enforcement must happen from the government.
But making sure an ISP provides equal and fair access to its network for things its own customers request is not something we should have to debate. Imagine if the contractor who paved the roads, also had a financial stake in certain business and made sure the roads to that business were significantly better. Or worse, deliberately downgraded roads to other businesses.
It's simply not acceptable for a content provider to also be the service provider without proper separation and regulation of the actions of such combined entities.
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Re: Legislation needed
> also had a financial stake in certain business
> and made sure the roads to that business were
> significantly better. Or worse, deliberately
> downgraded roads to other businesses.
While I mostly agree with your position on net neutrality, your comparison isn't quite analogous. The roads are public property, owned by the government. An ISP's infrastructure is private property and thus inherently under their sole control.
Like I said, I agree with net neutrality on a philosophical level, but at the same time I don't want to see yet another government encroachment on private property rights, either.
It's a tough call.
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Re: Re: Legislation needed
The scary part is, some people actually believe what I just typed above...
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Re: Re: Re: Legislation needed
Another issue that tends to be overlooked by many who raise the "private ISP line" is that you are hiring the ISP to deliver your packets. So if you pay the ISP $X per month for internet access, would you accept the premise that the ISP has no obligation to actually deliver your packets. Imagine you go to the UPS store an pay to have a package delivered, but its inconvenient for the UPS to deliver it so they simply toss the package in the garbage.
The internet lines may be "private" but the ISPs have an obligation to serve you. It is not really their money, you have paid them through your subscription to their service.
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Re: Re: Re: Re: Legislation needed
Obviously, I don't believe that no tax dollars ever EVER went into ISP lines. I was, in fact, being facetious.
I was commenting on the complete, abject stupidity of people like btr1701 who can assert that ISPs are fully private companies, even though their infrastructure is not only built on public land but funded by public dollars.
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Re: Re: Re: Re: Re: Legislation needed
The ISPs aren't shaping traffic out on the lines buried under your street. They're shaping it inside their servers which aren't on public property and aren't paid for by tax money.
Talk about complete, abject stupidity...
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Re: Re: Re: Re: Re: Re: Legislation needed
The courts seem to think so. Perhaps you've never heard of the watering restrictions that many places have.
Talk about complete, abject stupidity...
Indeed.
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Re: Re: Re: Re: Re: Re: Re: Legislation needed
> > you can cannot do with the water once it gets to your sink?
> Perhaps you've never heard of the watering restrictions that
> many places have.
You water your lawn from your sink. With stupidity like that, maybe you *do* need to be regulated.
> > Talk about complete, abject stupidity...
> Indeed.
Yes, indeed... though I suspect not the way you believe.
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Re: Re: Re: Re: Re: Re: Re: Re: Legislation needed
It makes no difference where I connect my hose: the laws exist, despite your claims to the contrary. (And by the way, my wife once had a "plant watering hose" that did connect to the sink.)
With stupidity like that, maybe you *do* need to be regulated.
Ad hominem: the last refuge of those with no valid argument.
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Legislation needed
Which you've engaged in yourself in this very thread.
Hypocrite much?
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Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Legislation needed
No, actually I haven't.
Hypocrite much?
Liar much?
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Re: Re: Re: Re: Legislation needed
Then that's a breach of contract issue that should be settled like any other contractual dispute between private parties: in court. Not a matter for regulation by the government.
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Re: Re: Re: Legislation needed
Also, in terms of Wireless networking, they rent the spectrum from the government.
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Re: Re: Legislation needed
The infrastructure 'lines' are most definitely on public rights of way.
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Re: Re: Re: Legislation needed
> on public rights of way.
But the traffic shaping isn't occurring on the infrastructure lines. It's occurring deep in bowels of the servers located in Comcast HQ, which is not public property and is not paid for by tax dollars.
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Re: Re: Legislation needed
Their most valuable asset is their public utility right-of-way access, which is NOT private property but public property.
Like I said, I agree with net neutrality on a philosophical level, but at the same time I don't want to see yet another government encroachment on private property rights, either.
Then evict private companies from public utility right-of-ways.
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Re: Re: Re: Legislation needed
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Re: Re: Re: Legislation needed
> utility right-of-way access, which is NOT
> private property but public property.
Doesn't matter if it's their most valuable asset. What matter is which asset is used to do the traffic shaping and its not the lines running under your street. Its done in the servers in their buildings, which aren't public property at all.
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Re: Re: Re: Re: Legislation needed
Doesn't matter where they physically locate the filters. What matters is the purpose and effect.
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Re: Re: Re: Re: Re: Legislation needed
Actually, yes it does. If they physically locate them on their private property, and do the shaping with their private property, then you can choose to be a customer or not. The government has no say.
> What matters is the purpose and effect.
No, what matters is who owns the property and equipment at issue. (And, of course, what the contract between the business and the customer stipulates.)
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Re: Re: Re: Re: Re: Re: Legislation needed
No one is claiming that you are forced to be a customer, so where did you come up with that one? Straw man much?
The government has no say.
Just because you do something on or with "private property" doesn't mean the government has no say in it. I'm sure that as a lawyer you know that, so you're sinking to downright dishonesty now. No wonder people say bad things about lawyers.
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Re: Re: Re: Re: Re: Re: Re: Legislation needed
> mean the government has no say in it.
I assumed you'd understand the context of the discussion and therefore the implied limitation on my comment. I see I gave you too much credit. That was my mistake and I apologize. As you seem to require it, I'll try to be more pedantic for you in the future.
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Re: Re: Re: Re: Re: Re: Re: Re: Legislation needed
Oh, that's right. We were talking about ISPs and of course ISPs are above the law. [/sarcasm]
I see I gave you too much credit. That was my mistake and I apologize.
No, the mistake you made was in thinking that you could get away with a blatant falsehood. If you wish to apologize for something, let it be that.
As you seem to require it, I'll try to be more pedantic for you in the future.
What I require is truthfulness (something you seem to have a problem with). I suggest you try that in the future.
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Re: Re: Legislation needed
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Re: Re: Re: Legislation needed
Rememb er, it is okay to read a comment all the way through before replying. The posts are not going anywhere. In fact, if you do read each post all the way through, sometimes you will be surprised at what you can learn. The instant you see a sentence you think you disagree with, the correct response is not to instantly stop reading and refute it blindly. Sometimes there is more information further in the post which might have changed your reply.
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Re: Re: Re: Re: Legislation needed
It's also okay to learn how to follow threads and note which one you are following before attempting snark. The posts are not going anywhere. In fact, if you do learn to follow threads, sometimes you will be surprised at what you can learn. Just use that (Flattened / Threaded) option up there at the top of the reader comments section.
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Re: Re: Re: Legislation needed
We build and own the cable in our area, from the headend to the fiber to the coax to the back of your set. We own and operate the DNS, email and LDAP servers, routers, combiners, multiplexers and lasers.
We rent the space in the R.O.W. from the electric company; ask them for that money, if you think it's important.
Unlike common carriers, we build cable at our own risk; I have seen several subdivisions go belly-up in our area, and we just have to eat the cost (electric and phone get paid upfront and are heavily subsidized by us, the taxpayers.)
Granted, we have to hook into the larger network to move packets across the world, but so does everybody else.
I am neutral on the idea of net neutrality, but I can tell you that network management is a huge part of our customer service; we have had issues in which several power users have effected the network responsiveness for everybody in the area-- while there are other responses that are possible (making smaller nodes is one of them, and I can tell you for a fact we are doing that), being able to control the flow and usage is much more immediate.
I would prefer metered Internet; I don't think we should want to control specific packets from specific programs, and I don't think anyone should be limited as to what they can do, but I liken it to the post office: if you want to send a letter, you pay 0.44. If you want to send a 5 lb package, you pay (I dunno) 5 bucks, etc, etc.
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Re: Re: Re: Re: Legislation needed
Who said otherwise?
We rent the space in the R.O.W. from the electric company; ask them for that money, if you think it's important.
Yes, you make a token payment that is nowhere near it's market value or what it would cost you in the free market to lease private property for the same purpose. And what's more, that access, even with its token charge, isn't freely available for purchase on the open market.
I am neutral on the idea of net neutrality, but I can tell you that network management is a huge part of our customer service;
But not nearly the expense that leasing private property on the open market would be for you if you didn't receive the subsidized benefits (ROW) that you do now.
I would prefer metered Internet; I don't think we should want to control specific packets from specific programs, and I don't think anyone should be limited as to what they can do, but I liken it to the post office: if you want to send a letter, you pay 0.44. If you want to send a 5 lb package, you pay (I dunno) 5 bucks, etc, etc.
And on this point I wholly agree with you.
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Re: Re: Re: Re: Legislation needed
Granted, the cablecos haven't been subsidized to the extend that the telcos have, but the utility right-of-way access you have been afforded is priceless.
"We rent the space in the R.O.W. from the electric company; ask them for that money, if you think it's important."
If you had to pay what it's really worth you'd be out of business in a blink.
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Re: Re: Re: Re: Legislation needed
I doubt that. What you're probably paying for is the use of their poles in the right-of-way, not for the right-of-way itself. It's called pole rental.
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Re: Re: Legislation needed
All of the roads in my brother's development are privately owned and maintained by the housing complex. These appear no different than other roads, but they can and *DO* prevent cars and trucks they don't like from driving them.
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Re: Re: Legislation needed
Bad metaphor.
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Re: Re: Legislation needed
There seems to be some expectation that the FCC will now treat net providers as common carriers like telecom companies instead of like cable companies. They never should have been allowed to sell both access and content, and the reaction to this ruling will probably force the FCC to finally correct that huge error. Maybe the US will finally even achieve first world connectivity levels, who knows?
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Re: Legislation needed
The phone company is paid by Dominoes to degrade, or even prohibit phone calls to Pizza Hut. To make matters worse, they don't disclose this fact to the consumers. The consumer just thinks that Pizza doesn't answer their phone.
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Re: Re: Legislation needed
So what would be wrong with that? It sounds like a great business plan to me. If Pizza Hut doesn't like it, then they should just out-bit Dominoes and turn the tables. Simple. That's how capitalism works: use money to make more money.
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Re:
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just bend over give up
govt by corporation
musilini did it
hitler did it
NOW THE USA will try it
"now watch as the bureaucrats ...."
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Re: just TEABAG ME already
Go Beck yourself.
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Re: Re: just TEABAG ME already
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I actually completely agree with your assesment here. It's spot on. The problem however, is what happens in the mean time before the FCC starts to "focus on making sure that there's real competition in the market". This could take years, or never happen. Seeing the current Administrations complete lack of focus on domestic issues (other than spying and shoving taxes down our throats), I won't be holding my breath for the "competition" to appear. Current broadband providers have effective regional monopolies,and basically, we as consumers, are screwed. Just as with bank regulation, or environmental regulation, there is just too much money being made for anyone to give a $hit. I'm not calling for more regulation. I'm calling for enforcement of laws against anti-competative monopolies. Prepare to see Comcast, Verizon, and countless other companies to run roughshot over Federal regulators at new levels, and countless traffic shaping to come. Hurray!! =(
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Re:
And thus we should let the FCC break its mandate, and potentially open up pandora's box of other outside-of-its-mandate decisions the FCC might make? No thanks...
I'm not calling for more regulation. I'm calling for enforcement of laws against anti-competative monopolies.
That would be a DOJ issue, not an FCC issue...
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Re: Re:
By handing this off to the FTC, all that will happen is the bandwidth caps and throttling etc will be disclosed in small print somewhere on a piece of paper or worse on some web site.
The FTC has not authority to negotiate any outcome, just enforce that the user gets what they are paying for.
Where the FCC may not have the authority to directly implement net neutrality, thet do have the muscle to say that if the industry doesn't regulate it's self they will open the doors for competition in markets where it is being abused.
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And therein lies the double-edged sword pointed out by Anony1. Now that the courts have effectively ruled out any government intervention (as the FTC is known to drag issues out for decades and no other gov't agency has jurisdiction), these companies are now left to mandate themselves.
And we all know how well that works, now don't we? If given the FCC's involvement or left up to companies who are effectively pushing the FCC to get involved, which of the lesser of two evils do we take?
Think about this. The FCC wouldn't have had to get involved if companies did right in the first place.
I do agree the ruling was right, but it's going to be a very, very costly decision. Consumers have been complaining about cable, broadband, and telephone for decades, and the only thing to come from all this is the breakup of AT&T, which had it been left alone, probably would have been the better choice.
Hard to say, but I do not find it a coincidence we're all now struggling with net neutrality and it's going to get much, much worse before it gets one step better.
And guess who's going to pay. It certainly isn't the companies or the FCC, now is it?
Tough call indeed.
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The FCC/Congress/court/FTC issue is no different. All allegedly seek to help the consumer in one respect and harm them in another and all of their attempts to help get destroyed by someone else's attempt to harm but each of their attempts to harm succeeds. The FCC wants to regulate corporations to force them to provide a reasonable service, but that's not their job, the FTC does that. End result? It never gets done and the consumer gets the worst case scenarios for consumers in this respect, the attempted good the FCC does is negated. On the other hand, the FCC wants to limit public airwaves in a way that makes it very difficult for anyone to freely distribute information across them (making it difficult for consumers to turn it into their own internet). End result, worst case scenario for consumers as well, AGAIN. Congress wants to pass anti trust laws but the courts rule against their enforcement due to alleged natural monopoly benefits. The DOJ won't pursue the issue even though it's their job to stop monopolies, perhaps in part because the courts side with this idea of a natural monopoly as well. The whole idea behind a natural monopoly was that the government gives you a monopoly but they get to regulate it to ensure good quality service at a decent price. End result, worst case scenario for consumers in this respect too, they end up tolerating unregulated government granted monopolies; those that want to regulate it can't because others won't let them, those that want to stop local governments from granting monopolies can't because others (courts) won't allow them to. In every instance the consumer only gets the worst of all worlds.
It's exactly the same thing with the democrats vs Republican fiasco. Democrats have some good ideas, some bad ideas, Republicans have good ideas where democrats have bad ideas and vice versa, and the consumer gets stuck with the worst of both worlds.
One would think this was intentionally orchestrated this way.
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I didn't say that Mike, and I hope you understand that. I was more lementing the fact that whatever the FCCs involvement on competition is, within its mandate, it isn't likely to act soon enough.
That would be a DOJ issue, not an FCC issue...
Again, this would take an DOJ actively pursuing a domestic agenda with technically competent staff. AGAIN, I'm not holding my breath.
This ruling while correct, points out the pathetic state of broadband competition in the US. I don't file trade using bit torrent, but I'm sure some grand traffic shape plan will soon make that a moot point.
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Common Carriers
Cable Internet lobbied for, and got, reclassified as title 1 "information service" which the FCC has very little power over, rather than the "common carrier" title 2 that they actually are.
The FCC has much broader powers to regulate industries classified as "common carriers".
This allowed the Cable companies not to have to share their lines, nor follow anything resembling network neutrality. Shortly there after the telco's; Bell Atlantic, etc. sued to have their internet services also reclassified as "information systems" and that was the day that CLEC's providing broadband died. The telco's were no longer required to share their lines.
At the time they claimed that 'competition' would ensure more investment, more choice, faster speeds and all the rest of the usual pack of lies we've heard over the years.
Result; little to no competition, limited investment, limited penetration, speeds that are the laughing stock of the first world, and ISP's that play all sorts of havoc with your data, simply because they can.
Now that they (the FCC) want to actually DO something, they can't. They've inadvertently emasculated themselves.
The first thing they (FCC) need to do is to properly classify them (ISP's) as "common carriers". Then they need to ensure that they act like one. If Comcast doesn't think they'll make enough money they are free to go out of business.
If working as reliable dumb pipes isn't profitable 'enough' then perhaps the information-highway needs to be run like the physical highway.
In any event consumers and other businesses should be able to get equitable, stable, reasonable means to conduct their lives and their business.
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This is what we will be faced with if some form of net neutrality isn't enforced.
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Enough of this. I'm glad I canceled my cable modem and TV packages.
Did you know that Comcast makes most of their money off of "adult entertainment"? Some 60% of their profit margin comes from that content.
Now they are in the middle of buying NBCU instead of investing in their network to make primetime TV into some al-la-carte Pay-Per-View system where you get to pay for everything al-la-carte.
It's not hard to see where this is going.
Someone's getting screwed, and it looks like it's the customer's hand. Now, pay up!
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So how long will it be before Comcast rolls out with tiered internet pricing and services?
http://skeptisys.files.wordpress.com/2007/09/5z6vt4n3.jpg
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It's a good thing in limiting overbearing regulation by the government. Others have clearly pointed out here that the FCCs own mismanagement (see:common carrier vs. information service), and other agencies lack of management (see: DOJ, public right of access) and use of their current authority.
It isn't that the government can't or shouldn't regulate in some form, rather, the agencies in question have either mismanaged their role, or have chosen not to intervene properly where they are authorized. So the court decision is good. It does make obvious the lack of proper regulation by the respective government agencies in chagge of access and competition, which is why it appears bad. It really only highlights the poor management from other parts of the Federal government.
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FCC Mandate
Sounds like Congress needs to expand the FCC's mandate then.
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Re: FCC Mandate
Yeah, that's all we need. An FCC with even greater power to meddle in things.
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Re: Re: FCC Mandate
Sounds like someone maybe has some ISP stock.
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Although I'm too self-rightous or important to apparently point out which half...
Granted, we have to hook into the larger network to move packets across the world..
which makes your buisness rest on the backs of tax payer built network...you were saying?
I would prefer metered Internet...
making you a person who wants to control how people access the internet. Yes...you sound so neutral.. (/SARCASM)
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The Lament of the Self-Righteous
Sure, you built it in the sense that your people did the labor and bought the equipment. But it was funded in large part through TAXPAYER SUBSIDIES, some of which ARE STILL CHARGED TO THIS DAY on every bill.
Dont get all self-righteous and try to spin this part of history as some kind of self-sacrificing huge risk-taking on the part of the struggling cable company. They were FUNDED for this purpose with TAXPAYER MONEY. WE the people OWN (or should) a large part of this infrastructure. WE the people paid for most of it.
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FCC
While I agree that it is not the FCC's responsibility, do the Terms of Service indicate they may change their responsibilty to you? Just a bout all of them do that I have read, so long as it is not criminal.
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Isn't this how it is supposed to work?
In the case of Broadcast Flag, the argument was that the FCC overstepped its bounds because the rule would "make digital television cost more and do less, undermining innovation, fair use, and competition." Sounds like the courts ruled that the FCC was not acting in the interests of "the people" as much as they were saying "FCC, you don't have the mandate to do this." Or perhaps the court was saying "your mandate does not extend to screwing consumers."
In this case, the courts have ruled that the FCC has no mandate, but this is an important consumer protection of communications networks - if the FCC has no mandate, who does? You mention the FTC, but that will only lead to disclosure and not neutrality. Disclosure simply looks like the graphic linked by Greevar:
http://cache.gawker.com/assets/images/4/2009/10/500x_netneut_01.jpg
Neutrality turns it into a pipe. It even allows for metered pricing as suggested by Anony1. I don't particularly like metered use, but neutrality is of greater importance as it has a greater potential for abuse. Competition can take care of metering if the pipes are neutral.
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Re: Isn't this how it is supposed to work?
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other parts
... i recall something about a story here involving, "micro-level," (if i have the terminology you are using correct) attempts at competition wherein the city was sued by an ISP because they were willing to do it themselves when the ISP would not. Which seems to fall into FTC territory (how'd the DOJ get into this)
"It is important to remember that no public tax dollars ever EVER went into private ISP lines."
So how does that there DSL work? Is it like ISDN where they run special lines to your place of dwelling, or do they use fed subsidized lines? Does this mean that the FCC can only regulate DSL from the switch to your house, after that they can do whatever? Or is it the part where companies get fed cash to build the infrastructure that somehow means what you said was true. Serious or troll?
p.s. has anyone had DSL with a crappy filter and listened to it? Sound like and analogue modem but faster.
p.p.s. see name.
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Interesting infographic that shows how valuable infrastructure investing is.
http://img594.imageshack.us/img594/3105/internetspeedsandpricin.jpg
For example, in Japan it costs 27¢ for 1mbps, and the average connection speed to a Japanese user is 61mbps
In the US, speeds average 4.8mbps at a price of $3.33 per mbps of bandwidth.
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Re: Interesting infographic that shows how valuable infrastructure investing is.
Hey, at least the US is still ahead of Slovakia. That's more that the UK can say! (Although I saw another study that actually put the US behind Slovakia now.)
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yep
I was thinking that?
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Comcast
It is significantly more than most providers. And I recently got a free upgrade from 10 Mbs to 15 Mbs.
Actual speeds vary according to time of day (traffic load). I'm pretty satisfied with the service. And they throw in up to 5 free copies of Norton anti-virus.
I'm satisfied.
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Comcast
That doesn't seem too far out of line given the generally larger distances and lower average density of the USA.
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Subsidy
If you had to pay what it's really worth you'd be out of business in a blink.
====================
So the electric companies are subsidizing the cable companies?
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Re: Subsidy
The government is subsidizing both of them.
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Net neutrality and the FCC
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Please don't make me GAG. I detest metered pricing.That was
suggested by your friendly neighborhood "CableGuy". Metered pricing for something built from ARPA? No thanks. Even though I am semi-anonymous, I still don't appreciate an incorrect attribution.
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Less power to the FCC
Btw, a money saving tip I've found if you have print needs... I have yet to find print prices this low!... BrumPrint.com.
[ link to this | view in chronology ]
[ link to this | view in chronology ]