FCC Outlines Plan To Crush Awful State Protectionist Broadband Laws

from the it's-about-time dept

Mon, Mar 16th 2015 8:00am — Karl Bode

On the same day the FCC voted to approve new net neutrality rules, we noted that the agency took steps on an issue that might actually be more important: municipal broadband. While net neutrality rules are designed to protect consumers from a lack of last-mile competition, the agency's moves on municipal broadband are intended to actually strike at the issue of limited competition at the root. As we've noted a few times, ISPs (with ALEC's help) have passed laws in twenty states preventing those towns and cities from deciding their own infrastructure needs for themselves.

It's pure, unabashed protectionism: the bills do little more than protect regional duopolies from change while hamstringing local communities desperate for better service. Usually the laws are passed under the auspices of protecting taxpayers from themselves, ignoring that the bills' sole purpose is to protect duopoly revenues. Petitioned by muni-networks in Tennessee and North Carolina that have been blocked from expanding, the FCC plans to use its authority to preempt the protectionist portions of these awful laws.

In much the same way the municipal broadband issue was overlooked on vote day, so too was the actual plan when it was released alongside the agency's new net neutrality rules last week. The full Memorandum Opinion and Order (pdf) clarifies that the FCC intends to use Section 706 of the Telecommunications Act of 1996 to preempt state laws that conflict with federal regulation of interstate commerce for the good of local communities. The agency lists five legal principles it claims give it the right to put these protectionist laws out to pasture:

Article I, section 8 of the Constitution gives Congress the power to regulate interstate commerce.

Internet access unquestionably involves interstate communications, and thus interstate commerce. Broadband subscribers pay for the right to go to any lawful destination on the Internet, wherever located.

Congress has given the Federal Communications Commission the authority to regulate interstate communications. Indeed, section 1 of the Communications Act of 1934, as amended (Act), specifically gives the Commission jurisdiction over “interstate and foreign commerce in communication by wire and radio."

The Commission has previously exercised its authority to preempt state laws that conflict with federal regulation of interstate commerce, for example with respect to state regulation of VoIP, the deployment of wireless facilities, and its order prohibiting local franchising authorities from unreasonably refusing to grant competitive cable franchises. These preemption decisions all further competition.

Finally, section 706 of the 1996 Act directs the Commission to take action to remove barriers to broadband investment, deployment and competition. There is no question that provisions of the state laws in question do limit broadband deployment — they expressly prohibit Wilson and Chattanooga from providing broadband services to more people in more places, even places where there is no broadband currently available

Unsurprisingly, the broadband industry isn't particularly happy that the FCC has woken up from a decade-long coma on this issue and is finally addressing these ISP-constructed obstructions. Marsha Blackburn, flush with broadband industry campaign cash, has been busy fighting the FCC's push under the pretense that she's just ultra worried about states' rights (that protectionist law written by corporations crushes local rights en masse isn't, apparently, a worry). As such she's introduced a law (that has no chance of passing) aimed at gutting FCC authority.

ISPs have also threatened to sue, but given AT&T and Comcast's interests in getting their mergers approved -- and Verizon busy trying to kill the net neutrality rules -- they may find it a bridge too far to open up an entirely new legal fight. Then again, one of the benefits of duopoly power is the extra income necessary to help pay to keep things that way.

The best way for the broadband industry to stop towns and cities from getting into the broadband business? Provide better service. These towns and cities aren't getting into the business because it's fun or because they're mean and want to make Comcast's CEO cry. They're doing so because they've spent a decade in the firm grasp of utterly apathetic monopolies and duopolies, and they're refusing to take it anymore. And while there are certainly plenty of examples of federal overreach, in this instance the FCC finally helping them is a good thing.

FCC 15 25A1 (PDF)FCC 15 25A1 (Text)

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Filed Under: broadband, competition, fcc, muni broadband, municipal broadband, rules

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Spaceman Spiff (profile), 16 Mar 2015 @ 7:14am

$$talk$
In my community in central Illinois, we had a vote some years ago to implement a community-owned internet fiber broadband plan. It was voted down because of major $$ from AT&T, Comcrap, et al to the opposition of this bill. Recently, I interviewed a number of my neighbors who voted against the bill, and without exception, they all regretted their vote! I am trying to get our city government to revisit this initiative. Maybe with this change in the FCC, it will be a viable option... (one can only hope).
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Ninja (profile), 16 Mar 2015 @ 7:29am

Unsurprisingly, the broadband industry isn't particularly happy that the FCC has woken up from a decade-long coma on this issue and is finally addressing these ISP-constructed obstructions.

Considering the coma may have been maintained by a constant injection of ISP cash one has to wonder if some Verizon employee at the Bribe-Team.. Ahem, Government Relations team has made one of these mom-jokes and Wheeler took offense (remember, he's an ex-ISP representative). Verizon because they seem to be the ones that shot themselves in the feet with more frequency.

Verizon employee (VE): Hello Mr Wheller, here's your cash.
Wheeler (W): Thank you, minion. I'll buy some stuff to my mom, her clothes aren't fitting anymore.
VE: *giggles* So it's one of those "your mom is so big that if I paint an H in her back a helicopter may try to land on her" issues, no?
W: ..............
VE: Oh crap. Would it help if I said it was just an innocent joke?
W: ..............

Next day: FCC announces it will move forward with Title II reclassification.
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Anonymous Coward, 16 Mar 2015 @ 8:09am

> Broadband subscribers pay for the right to go to any lawful destination on the Internet, wherever located.

They really introduced this "lawful" thing everywhere? That doesn't smell right. It seems done on purpose - like they already had the intention of blocking some stuff.
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Anonymous Coward, 16 Mar 2015 @ 8:21am

Giving the hard-working, busy American people choices will distract them from the more important things in life. Things such as maintaining their households, taking care of their children and spouse and taking their focus away from their careers.
It's easier on the people if one of the many things in life they didn't have to worry about was their cable internet. If you are given only a single choice of our wonderful internet providers, it makes it a much less stressful decision and leads to more time doing the more important things. They'll make sure everything is taken care of so that you can spend more time with your families.
When there is only one provider, you can rest assured they'll provide you with the best possible service in your area.
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Anon, 16 Mar 2015 @ 8:23am

Weird...
I've never understood all this. I used to read about 15 years ago about Jerry Pournelle's trials and tribulations getting broadband service in the center of the universe, the Los Angeles are, in the middle of one of the largest urban areas in North America. Nothing technical worked and bureaucracy was convoluted. Yet when about the same time I got DSL service in small town Canada - they gave me a modem, I went home and plugged it in, logged in, and - it worked from then onward without glitches.

Why should any company get government protection from competition, especially if it seems to simply foster incompetence and poor service?
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That Anonymous Coward (profile), 16 Mar 2015 @ 8:25am

For years they have screamed how unfair it was, and once they stopped them... they never came to town to meet the market demand. It really is time for there to be drop dead clauses in these special rules protecting them, that if they do not meet what the locals could offer the law blocking it dies. In a perfect world the old guard would be forced to pay for the build out they couldn't be bothered to do in return for locking the public into a service they aren't delivering.

The other problem with this idea is anyone thinking it might motivate the players to step up their game.
Given all of the cash they have been paid already (and sweetheart deals) they have proven they will just take the money and walk away scot-free. They have proven themselves to be untrustworthy, and willing to outright lie.

They need to face actual competition, and the only players who can even get on the field are municipalities. People will discover pretty quickly that you can have much more than the old guard wants to offer, at better prices. If the old guard doesn't want to adapt, they will fall and soon there will be new players to replace them as more stupid rules locking out competition fall to the pages of history.
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Michael, 16 Mar 2015 @ 8:28am

Re:
People should focus on more important things, like paying their taxes.
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Michael, 16 Mar 2015 @ 8:34am

Re:
It really is time for there to be drop dead clauses in these special rules protecting them, that if they do not meet what the locals could offer the law blocking it dies

This is a bit tough to argue. Lots of municipal broadband implementations have been dismal failures. The big broadband players are not totally wrong when they argue that they can do it better and faster and have a proven track record. What they are leaving out is how they treat their customers once they are in place.

I live in one of the wonderful areas in which there is only one broadband provider (Comcast) because AT&T pulled their dsl and U-Verse is not available where I live. While I would be happy to try a municipal option, I would be terrified that my city would actually be worse than Comcast in customer non-service. I really do think it is an important option to have, but to me it is like salting a turd - it's still going to taste like a turd.
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Anonymous Coward, 16 Mar 2015 @ 8:34am

Random, not-terribly-well-thought-out-idea:

Have the municipalities seize the infrastructure (eminent domain, maybe?) and let Telcos/ISPs submit bids to manage the network for 1-2 years. If they provide good service, the management contract can be renewed and they can continue to provide service. If not, they're out, and new companies can bid for the management contract.

This would allow for some serious competition, as new companies wouldn't have to invest massive amounts of money for their own network buildout.

This could be done for other public utilities as well.
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That One Guy (profile), 16 Mar 2015 @ 8:45am

Re: Re:
The big broadband players are not totally wrong when they argue that they can do it better and faster and have a proven track record.

... of taking massive amounts of money and/or tax breaks in exchange for promising excellent service and networks, doing nothing for years until the deadline starts approaching, and then doing everything they can think of to get out of actually having to fulfill their side of the bargain.

Yeah, you're right, they do indeed have a proven track record, and it's not that great.
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Anonymous Coward, 16 Mar 2015 @ 8:50am

Worried about states' rights?
Someone should inform Marsha Blackburn that she has the right to remain silent.
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avideogameplayer, 16 Mar 2015 @ 8:56am

I'm picturing massive lawsuits in the future over this...
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Anonymous Coward, 16 Mar 2015 @ 9:00am

Re: Re:
I agree, when it comes to customer service governments are worse than worthless. Government employees get good pay yet there are street lights that have been out for well over a year and nobody does anything about it.
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Shmerl, 16 Mar 2015 @ 10:01am

Re: $$talk$
How exactly did money from ISPs affect your neighbors' votes though? Did they push some PR campaign against community network? Or they just paid them outright?
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That Anonymous Coward (profile), 16 Mar 2015 @ 10:02am

Re: Re:
The big players refuse to service areas.
They demand laws saying they MIGHT come into town so no muni systems... then leave them bereft.

Even shitty muni service gives you the ultimate power for consumers, "Comcast you suck I'm going with my other option". Comcast might actually give better service if people can leave them for another provider.

We just had some idiot running a cable system who wants to drop people who DARE to try and get the best price possible by threatening to switch providers. When you feel you no longer need customers and don't need to compete... a real business would fold if not propped up by laws protecting them from the real world where if you are a shitty provider you fail.

And if the muni-system fails, gee the whole town is wired what to do what to do. Lease it to an upstart to recoup the buildout?
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John Fenderson (profile), 16 Mar 2015 @ 10:04am

Re: Re:
" The big broadband players are not totally wrong when they argue that they can do it better and faster and have a proven track record."

I'd like to see the evidence that they're right when they claim this, though.
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That Anonymous Coward (profile), 16 Mar 2015 @ 10:08am

Re: Re: $$talk$
They roll in and blanket the town with flyers & ads talking about how it will kill children, raise the dead, and keep Obama president for 3 more terms.
(I've seen examples of some of the flyers online, and I am only slightly exaggerating)

They promise all of the wonderful things they COULD do but will not if the muni builds out. Annnd a couple free months of HBO thrown in and boom a bill protecting their monopoly and doesn't require them to live up to any promises.

Cut to a couple months later where people figure out they were lied to and somehow they actually got worse service now. (Cuts had to be made to recoup the cost of the advertising blitz, and once they made back that money they noticed they liked having more money and looked for more things to cut).
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Anonymous Coward, 16 Mar 2015 @ 10:29am

might be a good idea to educate those who supposedly know all there is to know about what the FCC is up to and who want to stop the change to Title 11 becoming permanent, because it will remove the choice of these states to be burdened and hindered as they like! Blackburn is one that comes to mind. she and her co-conspirator would do well do be careful that the full, real reason going on this cancellation trip doesn't come back to bite them, seeing as how they are sponsored by those who want the FCC hung, drawn and quartered!!
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Mason Wheeler (profile), 16 Mar 2015 @ 10:49am

From bullet point #4:
These preemption decisions all further competition.

Every time I try to parse that sentence, my brain throws an exception.
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Karl Bode (profile), 16 Mar 2015 @ 10:58am

Re: Re: Re: $$talk$
Yes, they've been doing this kind of nonsense for YEARS now. That includes push pollsters, who'll call and fill voters heads with all manner of nonsense. I saw one push pollster hired by Cox and AT&T in the Southwest informing locals that if they approved a local municipal broadband operation, the government would attempt to ration their TV viewing AND block their access to religious programming.

I remember AT&T and Comcast used very similar tactics in St. Charles and those other Illinois communities that were considering it.
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Anonymous Coward, 16 Mar 2015 @ 12:22pm

Question about the article: shouldn't

"These towns and cities aren't getting into the business because it's fun"

and

"or because they're mean and want to make Comcast's CEO cry"

just be:

"These towns and cities aren't getting into the business because it's fun"
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sorrykb (profile), 16 Mar 2015 @ 12:54pm

Re: Re:
"Better the devil you know"?

Apparently Comcast and the like have us so well-conditioned to accept the crap they offer (and their ever-increasing prices) that we're terrified of leaving for fear something else might be worse.

It's almost like an abusive spouse who's convinced his target to stay in the abusive relationship, because it's rough out there in the world and at least here you know what to expect and there's a roof over your head.

(P.S. I don't mean in any way to trivialize domestic violence, which is obviously a far more serious problem.)
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MrBadNews, 16 Mar 2015 @ 1:04pm

Dead on Arrival
Not going to work.

In the U.S. the local governments are literally creatures of the states not the National Government. Unless a particular state's constituition limits the power of that state's legislature/executive, the state can do anything they want with or to cities, counties, towns, villages etc. If a state law prohibits/controls local government providing broadband, that is the governing legal authority. Nothing in the cited FCC text repeals or could repeal the Ninth, Tenth and Eleventh Amendments, nor does it overturn Supreme Court decisions concerning state sovereignty.

This oopsie was one of the early screwups in the Obamacare law. The Supremes have already said 'Nope'.

Mind you, if a state tried to order cities to provide broadband, THEN the FCC could prohibit interstate connections if it wanted to; but the Feds can't REQUIRE it, or overturn state control of the local governments prohibiting it.

As much as Comcast/TWC disgusts me, the only way to fix their sorry ...ahm service, is to fix the state governments. Sigh. One state at a time.

For real: If you really want to fix this, find out who your state reps are and go talk to them. Yes. Really. Explain why local broadband is a good thing for their district.

Even better, every one of those reps has a >LOCAL
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MrBadNews, 16 Mar 2015 @ 1:13pm

Dead on Arrival
Not going to work.

In the U.S. the local governments are literally creatures of the states not the National Government. Unless a particular state's constituition limits the power of that state's legislature/executive, the state can do anything they want with or to cities, counties, towns, villages etc. If a state law prohibits/controls local government providing broadband, that is the governing legal authority. Nothing in the cited FCC text repeals or could repeal the Ninth, Tenth and Eleventh Amendments, nor does it overturn Supreme Court decisions concerning state sovereignty.

This oopsie was one of the early screwups in the Obamacare law. The Supremes have already said 'Nope'.

Mind you, if a state tried to order cities to provide broadband, THEN the FCC could prohibit interstate connections if it wanted to; but the Feds can't REQUIRE it, or overturn state control of the local governments prohibiting it.

As much as Comcast/TWC disgusts me, the only way to fix their sorry ...ahm service, is to fix the state governments. Sigh. One state at a time.

For real: If you really want to fix this, find out who your state reps are and go talk to them. Yes. Really. Explain why local broadband is a good thing for their district.

Even better, every one of those reps has a LOCAL political party/committee. Go talk to them, explain why they should push for local broadband.

And no, you don't need big money (or otherwise broadband is the least of your government problems).

PS: DON'T SEND SOMEBODY AN EMAIL, and expect that to be it. Get on the phone. Actually go visit them in the actual physical corporality.

J.G.

PPS: Preview is your friend. Oops.
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That One Guy (profile), 16 Mar 2015 @ 1:47pm

Re: Re: Re: Re: $$talk$
I'm not sure which is sadder, that they would go for such blatant fearmongering in their attempts to stop local competition, or the fact that it apparently works.
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Anonymous Coward, 16 Mar 2015 @ 2:09pm

Funny thing on the way to GoogleFiber
Funny thing happens when Google Fiber moves into a community. Suddenly, Cox, Comcast, TimeWarner, and others, suddenly discover that, yes, they CAN offer Gigabit service at a reasonable price.
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John Fenderson (profile), 16 Mar 2015 @ 3:00pm

Re: Funny thing on the way to GoogleFiber
No, they discover that they can promise such service at a reasonable price. I haven't heard of them actually delivering it.
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ltlw0lf (profile), 16 Mar 2015 @ 3:03pm

Re:
Ahem, Government Relations team has made one of these mom-jokes and Wheeler took offense (remember, he's an ex-ISP representative).

I actually think the thanks goes to John Oliver and the Dingo bit. Not only did he attract everyone's attention to the issue (causing a lot more people to write FCC complaints,) but he also riled up Wheeler to prove him wrong.

I really wish HBO would kick Apple out and open HBO Now up to everyone....I'd love to pay $15/mo just to watch John Oliver's show.
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ltlw0lf (profile), 16 Mar 2015 @ 3:23pm

Re:
Giving the hard-working, busy American people choices will distract them from the more important things in life. Things such as maintaining their households, taking care of their children and spouse and taking their focus away from their careers.

I agree. We should ban all restaurants with any choices on their menus. Hell, ban any restaurant that doesn't serve soilent green, since having restaurants that serve different types of foods causes too much choice. In fact, lets just set up a system where a single provider bids on each area to be the incumbent restaurant, incumbent supermarket, etc.

I hate going to a restaurant that has too many choices on their menu...it makes me take considerable time out of my busy life choosing what I want to eat.
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yankinwaoz (profile), 16 Mar 2015 @ 3:33pm

Re: Re:
You do realize that That Anonymous Coward was being sarcastic. Right?
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ltlw0lf (profile), 16 Mar 2015 @ 3:50pm

Re: Re: Re:
You do realize that That Anonymous Coward was being sarcastic. Right?

You do realize that I was being sarcastic, right?

I was sloping some more sarcastic on top of the parent's sarcasm.
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sorrykb (profile), 16 Mar 2015 @ 3:57pm

Re: Re: Re: Re:
It's so hard to tell these days. My sarcasm detector breaks down constantly. It was never meant to run continuously.
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JP Jones (profile), 16 Mar 2015 @ 7:56pm

Re: Re: Re: $$talk$
They roll in and blanket the town with flyers & ads talking about how it will kill children, raise the dead, and keep Obama president for 3 more terms.

Wait a minute...municipal broadband will raise the dead? That's awesome. It even negates the first issue, because if we can raise the dead kids, no harm, no foul!

Er, never mind, I got distracted. Your point is valid =).
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JP Jones (profile), 16 Mar 2015 @ 8:24pm

Re: Re:
I really wish HBO would kick Apple out and open HBO Now up to everyone....I'd love to pay $15/mo just to watch John Oliver's show.

Me too; I'd gladly pay for Last Week Tonight if they'd let me.
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JP Jones (profile), 16 Mar 2015 @ 8:26pm

Re: Re: Re: Re: Re:
Meh, my sarcasm communicator just won't stop running!
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JP Jones (profile), 16 Mar 2015 @ 8:29pm

Re:
Glad I'm not the only one. I'm fairly sure the syntax error is somewhere in the area of "further competition" but I probably just left a semicolon off somewhere again =)
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470ohm, 16 Mar 2015 @ 10:46pm

WHO Changed the FCC?
What gets under my skin is the fact that we had a perfectly good FCC in the beginning who regulated power and frequency across the public spectrum via their board's engineers, all in the public interest. The FCC even had an inspired mission statement holding the public future's vision to this same task.

Then somewhere along the way, they scrubbed their mission statement and the whole thing became about cheap phones. with at least two (I counted) mission statements, both of which were FASCIST based, instead of in the public interest. It literally made their mission statement somewhere along the lines of you have free speech with your mobile phone. That's what these Socialist Marxists TRADED the 1st amendment for.

Nobody questioned it. They just wanted a cheap mobile that when you pop it open it connected to that original motorola-lockheed-mitsubishi-at&t system and that doing so was dirt cheap.

But if you audit the FCC, you find they have NOT managed the public spectrum very well, as most of the public spectrum is being used up by corporate owned interests. With very little PEG programming.

I believe this is because the FCC has the POTUS connections.

But it don't matter what I believe, as they have a bad case of MISSION CREEP and have expanded into our CAT 5's now which is totally horse dung as far as I am concerned as they already have a history of FAIL with power and frequency. But you probably love your net neutrality whatever the hell that is. Meanwhile your CAT 5 emissions will be regulated. And I am sure that regulation while maybe not today, but tomorrow their vision for this regulation will be to FILTER your CAT5 emissions.

My solution is

1. To Change the FCC board's CONTROL.
2. and the FCC's policy on Commercial interests operating on the Public Spectrum.

SO with 1, I want the PUBLIC to vote for what the BOARD used to tell the engineers. In other words, your going to decide, if BPA should be allowed to knock out ham radios. You'll decide how many patterns can be used in spread spectrum. You will decide if someone on 10 meter can use their equipment on 11 meter. You will decide if ABC keeps their frequency allocation. The network's PUBLIC FILE situation WILL BE upgraded to be available online. IF you want to bitch about your local station to the FCC, you simply load fcc.gov and bitch and it GOES IN their public file.

Anyway, I ain't thinking inside YOUR boxes here. These are MY thoughts on the matter. They take a different approach to the entire snafu. One that HEALS everything ultimately.

Power and frequency ought to be regulated fairly (by the People) and with common sense (logic) and guided by SAFETY (FCC EMISSIONS so you don't burn your god damn eyes out), beyond that no human has a right to cut everyone else off for any reason, with the ONE EXCEPTION OF .GOV since they have to have their freq's civil and military to operate, but that will only be 2% of the total Freqs -imo, you could even ROUND IT UP to 4% or 6% safety factor. I mean come on, there's an entire freaking spectrum here, and we just started using these newer emission digital signals on it.

Anyway, my bottom line point is the FCC currently is controlled by the WhiteHouse/POTUS, that needs to change immediately.

Please, Consider what I say. It's probably the NICEST way I ever explained it with out going completely ape shit angry cussing about commie oath breakers ;o)
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John Fenderson (profile), 17 Mar 2015 @ 8:12am

Re: Re:
"I really wish HBO would kick Apple out and open HBO Now up to everyone"

You'll get you wish. Apple's deal is a limited time thing, the plan is that it will be available on all devices once the exclusivity period expires in 3 months.
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John Fenderson (profile), 17 Mar 2015 @ 8:16am

Re:
"Things such as maintaining their households, taking care of their children and spouse and taking their focus away from their careers."

That's right! Work hard and reproduce like a good little drone. Don't be distracted from your duty. Forsake comfort, pleasure, joy, or anything else that might cause you notice that there's more to life than work and making new workers.
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That Anonymous Coward (profile), 18 Mar 2015 @ 1:45am

Re: Re: Re: Re: Re: $$talk$
There are still people this far after the first election who are chasing the dream that POTUS is a kenyan terrorist turning us over to Islam, and just as soon as they can get the REAL birth certificate...

It works because we can't see outside of ourselves.
My current favorite example is 3 people at a table representing rich, middle, poor. There are 12 cookies. Rich takes 11 cookies and tells middle the poor guy is gonna take his.
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That Anonymous Coward (profile), 18 Mar 2015 @ 1:48am

Re: Re: Funny thing on the way to GoogleFiber
I thought AT&T was somewhere, and then if you didn;t want deep packet inspection you had to pay an extra $40 on top that still might not keep you from being deep packet inspected.
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John Fenderson (profile), 18 Mar 2015 @ 8:18am

Re: Re: Re: Funny thing on the way to GoogleFiber
Right, which means their advertised price isn't accurate. I don't think that counts as providing the service at a reasonable price.
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That Anonymous Coward (profile), 19 Mar 2015 @ 4:13am

Re: Re: Re: Re: Funny thing on the way to GoogleFiber
nono they give you the same google speed... just with deep packet lovin.
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