Tuesday, May 20, 2014

How to make the FCC play fair with the Internet

I've had this idea, a sort of wild fantasy, on my mind now for several days. It all got started while reading about how Antonin Scalia totally gets net neutrality. That article cites the Brand X case in which the Supreme Court ruled that when the law is vague, courts must defer to the agency in charge of enforcing the law to interpret the law. That much is given.

But here is the interesting part about the Brand X. Scalia, a noted conservative, was joined by two other liberal justices in his dissent. To me, that's really cool. But the best part is that Scalia observed that the cable companies provide physical access to the internet, making them telecommunications companies. To cap that off, he says that the FCC acted outside of its authority by classifying cable companies as information service providers rather than telecommunications providers.

In other words, if you own the pipes, you're a telecommunications provider, and are subject to regulation as a common carrier under Title II of the Telecommunications Act of 1934. If I read Scalia's dissenting opinion correctly, the FCC is prohibited from classifying anyone who owns the pipes as anything but Title II common carriers.

I have a friend of 20 odd years who was way more into the law than I am. He's observed that often, dissenting opinions tend to take hold over time. I believe that we can speed things up a bit on that.

Consider: we have a Supreme Court filled with 5 conservatives who claim to believe in a free market. Scalia is one of them and gave the FCC the green light more than 10 years ago to reclassify the ISPs that own the pipes as Title II common carriers. Why is this important?

As common carriers, the ISPs who own the pipes must share access to their networks to competitors and resell access at wholesale rates. You know, like they do in Japan. In Japan they have thousands of ISPs competing for business. We want that kind of competition, too. Then gigabit access for $40 a month is no longer a fantasy here, in America.

Here's the part that is my fantasy:

We start a project on Indiegogo or Kickstarter to fund litigation to sue the FCC in federal court to compel the FCC to reclassify every last mile ISP as a common carrier, a telecommunications service. We're talking about Comcast, Verizon, AT&T, Time-Warner, Cox Communications, everyone that connects the home to the internet gets nailed. Except for community broadband providers. They already get it that they're common carriers. They're some of the good guys.

The FCC would fight, most likely, all the way up to the Supreme Court. Why? Because they're captured regulators who serve the industry before they serve the People. But to win that fight, that would take real money to do it. A crowd-sourced project to do it would show national initiative and popular support for such work to be done.

I believe that the Supreme Court would agree with the premise of the lawsuit: if you own the pipes, you're a common carrier. I believe that the People would prevail in such a lawsuit. I believe that there are thousands if not millions of people willing to fund that project.

What do you think?
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