Ahh, Memory Lane..."Obama's Bad Pick: A Former [Cable Industry] Lobbyist at the FCC"

[Maven]

From the New Yorker:

Memo to a President who said, in November, 2007, “I am in this race to tell the corporate lobbyists in Washington that their days of setting the agenda are over”: If you are going to name a former lobbyist for big cable and wireless companies as head of the federal agency that regulates the cable and wireless industries, you had better find a public-interest-group advocate to say something positive about him (or her) before you make the announcement.

Job done.

By Wednesday, when the White House confirmed that it was nominating Tom Wheeler, a veteran Washington insider who has headed not one powerful industry association but two, as the next chairman of the Federal Communications Commission, the nomination had already secured the support of Public Knowledge, an advocacy group that promotes open and unlimited access to the Internet. “Certainly we will have disagreements with the new Chairman (assuming Wheeler is confirmed), but we expect that Wheeler will actively work to promote competition and protect consumers,” Harold Feld, a senior vice-president at Public Knowledge, wrote in a blog post.

Well, I guess we know how that turned out. Welcome to the new corporately controlled internet.

[msanthrope]

1. So bad that Warren, Sanders, and Franken voted for him, unreservedly? Your OP is facile, because

you fail to mention this case from January.....which killed net neutrality....

http://www.cadc.uscourts.gov/internet/opinions.nsf/3AF8B4D938CDEEA685257C6000532062/$file/11-1355-1474943.pdf

When you are done reading that case, why not tell us exactly how the new rules should conform to that ruling????

[Maven]

2. Unreservedly you say?

Sanders Raises Questions on FCC Nominee

“I also am troubled that President Obama would appoint the former head of two major industry lobbying associations to regulate the industry. The head of the FCC should be looking out first and foremost for the public interest and may have to stand up to some of our nation's biggest media and telecom companies.

[msanthrope]

3. Apparently, Sanders kept an open mind, kept his promise, and met with Wheeler and voted for him....

“I look forward to hearing from Mr. Wheeler regarding his views on media consolidation and other important issues that will come before the commission.”

Funny how you didn't include that.

Now....read the decision yet????

[Maven]

6. "Senators Urge FCC Chairman Tom Wheeler to ‘Move Quickly’ to Preserve ‘Open Internet'"

Five U.S. senators have sent a letter to FCC chairman Tom Wheeler in which they call on him to “act with expediency” to come up with a plan after the D.C. Circuit Court overturned the agency’s Net neutrality rules last month.

The Democratic senators — Ron Wyden of Oregon, Edward Markey of Massachusetts, Richard Blumenthal of Connecticut, Jeff Merkley of Oregon and Al Franken of Minnesota — urged Wheeler to “quickly adopt enforceable rules to prevent the blocking and discrimination of Internet traffic.”

But Verizon challenged the rules, claiming that the agency didn’t have the authority to impose them. The D.C. Circuit did support the FCC’s ability to regulate Internet providers, but found fault with the way that it went about doing it. The judges ruled that the FCC was treating Internet providers as “common carriers,” akin to a landline phone company, without explicitly classifying them as such.

...

Wheeler has not said whether he will seek an appeal of the ruling or attempt to devise a set of new rules. He has hinted at taking a case-by-case approach, with speculation on Wall Street that the agency would come up with a set of industry standards that would essentially put Internet providers on notice for any anti-competitive behavior.

There were multiple actions Wheeler could have taken in response to the ruling. Reclassifying Internet providers was one. Appealing was another. Devising a new set of rules that didn't completely cave to industry demands was yet another. But the ruling provides a convenient cover for the end result doesn't it? Certainly for certain useful apologists for the administration.

[msanthrope]

7. I asked on another thread just how the reclassification was going to survive the same court...since

the FCC reclassified 10 years ago. I got crickets then, so I'll ask you:

Kindly provide a legal argument that supports reclassification in light of this ruling:
http://www.cadc.uscourts.gov/internet/opinions.nsf/3AF8B4D938CDEEA685257C6000532062/$file/11-1355-1474943.pdf


Appealing to SCOTUS? Okay.....
Kindly provide the legal argument that supports your appeal. Seriously...what is the basis for your appeal?????


Sure, you can say that Wheeler had actions other than the one he took.....and so I expect that you can provide a legal justification for them. Right????

I'll be waiting.

[Maven]

10. What? The FCC did not reclassify.

They failed to reclassify which is why we're in this situation today. Prior to their own "Open Internet Order" which is heavily cited in the court's decision (I have the link, btw, thank you) the FCC classified ISPs as information services instead of telecom services. Therefore they took away their own ability to argue that ISPs should be treated the same way as telephone companies, for example, and the court used the Open Internet Order to actually argue against the FCC's position. It did not say the FCC couldn't reclassify if it wanted to:

The FCC's problem was that several years before its 2010 Open Internet Order, it classified ISPs as information services instead of telecommunications services, exempting them from common carrier rules. As Ars wrote in 2010, the common carriage part of US communications law is "the one that said public networks like the telephone must be open to all comers at the same rate and could not discriminate. Even though the old AT&T ran a private network, the company had to complete everyone's calls; blocking critics from using the network was illegal."

If the FCC said broadband providers were common carriers, it would be easier to dictate the terms under which they must pass traffic from content providers to home Internet users. Because the FCC didn't go the common carriage route but still enacted anti-blocking and anti-discrimination rules, the commission had to do some legal gymnastics to justify the Open Internet Order.

...

The appeals court remanded the case back to the FCC "for further proceedings consistent with this opinion." The court did not dispute the FCC's authority to declare ISPs common carriers. Consumer advocacy group Public Knowledge urged the FCC to take today's ruling as an opportunity to classify broadband as a common carriage service or "craft open internet protection[s] that are not full fledged common carrier rules."

Public Knowledge Senior VP Harold Feld acknowledged to Ars that "such a reclassification would be subject to court challenge. But the Court here was pretty clear that it is up to the FCC to make a choice on classification."

Of course, that was not on the agenda for Tom Wheeler, a/k/a Mr. "I am a firm believer in the market."

[msanthrope]

12. Yes--they did...10 years ago. In the 2002 case. So now, kindly explain to me how the FCC, as

an independent federal agency is supposed to override this--


http://transition.fcc.gov/Bureaus/Cable/News_Releases/2002/nrcb0201.html


Give me your legal argument for your override of the 2002 classification???? I suggest reading the WHOLE decision, plus the prior Verizon case, referenced in the decision.

FYI--I want cheap Internet, and fast streaming as much as anyone. If there's a way to do it, let's hear it. Other than pushing for municipal broadband and shutting these fcukers down, I don't see it.

[Maven]

13. Correct, the FCC classified ISPs as an "information service", not a telecom...EXACTLY as I said

Read your own link!

"In a Declaratory Ruling adopted today, the FCC concluded that cable modem service is properly classified as an interstate information service and is therefore subject to FCC jurisdiction."

The FCC could have classified ISPs as a telecom service (i.e., common carrier) but DID NOT DO SO.

I don't think you understand how legislatively empowered regulatory bodies work. The FCC has the power to conduct its own rulemaking within the ambit of its legislatively granted powers. It doesn't need a "legal argument" to change its own rules. Its regulations may be subject to court challenge, but courts generally give deference to regulatory decisions that don't directly contravene enacted legislation.

The problem the FCC faced in the Jan. 2014 case is that its own choice of classification contradicted the position it was taking in support of the net neutrality rules.

[msanthrope]

14. Yes--it actually does need a legal reason to change its own rules. That's how a democracy works.

The feds don't get to change things without providing an actual reason based in law. Not just because they think it's a good idea, or because we want cheap Internet.

You wrote something amazing---

Its regulations may be subject to court challenge, but courts generally give deference to regulatory decisions that don't directly contravene enacted legislation.

HELLO????? Did I not just give you the ruling where they WERE NOT given deference???

Have you been paying attention to the SCOTUS over the last 30 years??? What the heck do you think Scalia and his crew are doing with their judicial activism? Providing deference to Congress and the Executive branch??? It's been the EXACT OPPOSITE.

So...give us the legal reason why the 2002 classification can be changed. Still waiting.

[Maven]

16. No, actually, you did not give me such a ruling.

In fact, the ruling, as I pointed out to you clearly, did not dispute the FCC's authority to declare ISPs common carriers.

Administrative bodies don't function democratically. They are subject to certain checks and balances but they are governed by appointees. They may hold hearings but they don't require "arguments" to make a decision.

You're still waiting on nothing and you'll get nothing because you refuse to acknowledge reality, in deference to your particular pro-administration agenda. I think I've made my point and we're done here.

[msanthrope]

17. I understand you backing down. But I really would like for you to tell us all exactly the legal

basis for changing the 2002 FCC ruling.

You seem to be conflating "authority" with "legal reasoning."

Let me give you an example of what I mean. President Obama has the authority to order the troops under his command to attack Russia. But as we are a representative democracy, he is compelled to provide the legal reason for why he ordered such a strike.

It's the same with Wheeler....he may have the authority to enact rules, but he also has the responsibility for explaining them. I'm asking you for the explanation.

[Maven]

18. I'm not backing down at all. You're simply wrong, you don't understand how to read the decision

you've cited, and are now relying on blanket statements and false analogies to make your point.

The fact is the FCC has the power within its own rulemaking authority to classify ISPs as telecommunications services instead of information services. Doing so would make broadband providers akin to "common carriers" for the purpose of the Telecommunications Acts of 1934 and 1996. The fact that they failed to do so is why the appeals court in January struck down the net neutrality rules, because the FCC was seeking to regulate an "information service" in the way only "telecommunications services" can be regulated. In other words, the FCC hamstrung itself with its own classification. The fact that Tom Wheeler has now decided to give Comcast et al exactly what they want on a silver platter, instead of reclassifying broadband or at least attempting to rewrite the rules to withstand judicial scrutiny, is part and parcel of appointing a cable and wireless industry shill to the administrative body that regulates the wireless and cable industries. Period. End of story.

I actually want to thank you, because you've forced me to put together a body of references documenting why exactly this is a corporatist cave by the FCC. Have a good day.

[msanthrope]

20. Again...tell me the legal justification for the rule change. It's a pretty simple question, and you

seem to not want to answer it.

FYI--I think you want to reference the Telecommunications Act of 1996....not 1934.

[Maven]

22. see e.g. NATIONAL CABLE & TELECOMMUNICATIONS ASSOCIATION ET AL v. BRAND X INTERNET SERVICES ET AL

(SCOTUS decision, 2005)

Upholding the FCC's authority to make classifications under the 1934/1996 acts so long as the classification doesn't directly contradict statutory authority. Case brief here:

http://cicsworld.centerforics.org/2013/04/ncta-v-brand-x-case-brief-and-discussion/

As the wording of the Telecommunications Act of 1996 is fairly vague in defining the difference between Information services and Telecommunication services, Justice Thomas pointed to the Chevron U.S.A. Inc. v Natural Resources Defense Council, Inc. He states: “In Chevron, this Court held that ambiguities in statutes within an agency’s jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in reasonable fashion.” (§ III, A).

In other words, the difference between "information services" and "telecommunications services" are ambiguous enough as defined in the Telecom Acts that the FCC has discretion (per the SCOTUS) to make its own administrative ruling as to classification of service providers without court interference.

[msanthrope]

23. What? You've cited an opinion where SCOTUS agrees that the classification of "information services"

is reasonable.

Is that what you meant to argue?

Further, it's kind of apparent you didn't read the whole case you are citing, since the Court approves of the two step Chevron process the FCC used to classify as "information services."

So--taking this case, which really does nothing for your argument, describe to us, as the majority opinion suggests that you do, your Chevron analysis for why Declaratory Ruling 4823 should have been different, and why SCOTUS should have ruled differently? (I guess...I really don't think you picked a very good summary of this case.)

If you are going to cite cases, it's kind of best to read them. Not just the summary of them.

[Maven]

24. You're confusing the holding of the case with its outcome.

The holding of the case is that the FCC, as an administrative body, has complete discretion to determine whether service providers are "information services" or "telecommunications services" because the definitions accorded to each in the telecom acts leave room for the agency, in the reasonable exercise of its authority, to fill in the statutory gaps and make a decision, without interference from the courts.

The result, in this particular instance, was that the FCC's decision to classify cable broadband as an "information service" was allowed to stand without judicial scrutiny by the Court. However, Stevens' concurrence makes clear that an opposite decision by the FCC (i.e., classification as a "telecommunications service&quot would be just as kosher, for the same reason. The Court does not evaluate the substantive question of whether cable broadband actually IS an "information service" except to the extent it finds no evidence that the FCC's decision directly contradicts what's written in the statute. That's the whole point: the Court is saying that under current law, courts have no place to question the FCC's classification either way.

Chevron is cited in support of courts deferring to administrative bodies' rule-making authority in the absence of any clear violation of statute. It has absolutely nothing to do with the FCC's internal decision-making process, Declaratory Ruling 4823, etc. It was not cited in support of the FCC's actual classification of cable broadband as an "information service", but rather in support of leaving the classification alone.

By the way, I read from the actual decision but provided the brief as a courtesy.

[msanthrope]

25. Um, no. Your problem is that you still haven't provided a legal basis for changing the

classification. You seem to be pushing a legal theory that the FCC can just change the classification because it feels like doing so---as in, Wheeler has complete authority to wake up tomorrow and preserve net neutrality by calling service providers "telecommunications services" now, in contravention of the 2002 directive. All he has to do is wave a wand!!! What could be easier!!!

Of course, you've failed, utterly to provide a rule or a statute that says he can do just that....but it seems you are NOW arguing that a Steven's concurrence from 2005 gives Wheeler the go ahead?

Let me see if I have this correctly, now....you are honestly arguing that a concurrence by a single, now retired Justice from 2005 is what, precisely?

Next, I expect to read about how it is all Obama's fault because he won't do an Executive Order to grant wishes.....

[Maven]

27. Not because it feels like doing so.

Government agencies can't make decisions that are "arbitrary and capricious". That is the standard they are held to. However there are plenty of arguments (not legal ones, per se - logical ones perhaps) for treating cable broadband providers as telecom services, many of which were made by the plaintiffs in the case I cited to you, and have been made by many others since. The FCC has the power to change this classification and its decision would be given deference by the courts.

I really don't think there's any purpose in continuing this fruitless interaction. You are not interested in inconvenient facts and with all due respect, you're simply not analyzing these complex rules properly. However, I am glad others will have a chance to read up on some of the background and learn why this latest development was far from necessary, and in fact, a sellout by a former lobbyist serving his old corporate masters.

As I said before, have a good night.

[msanthrope]

28. If there are plenty of legal arguments, then would you please LIST THEM?????

Is it so much to ask that before you demand government action you provide a reasonable basis for it?

Look, I'm all ready to jump on the classification bandwagon, just as long as someone....anyone....explains to me exactly how and why that should be done.

[onenote]

32. I'll jump in here: the FCC does not have "complete discretion" to change a previous position

While the FCC's decisions interpreting and applying the provisions of the Communications Act are typically accorded deference by the courts, a decision changing a previous ruling will be deemed to be arbitrary and capricious if the agency cannot provide a good reason why it has changed its position. In other words, if the agency has to make a choice between A and B and both are reasonable, the court will defer to the choice. But if, after picking interpretation A it decides to change its mind and go with interpretation B, the courts will not only review to see if B is still a reasonable interpretation, but also will review to see whether the agency has provided a reasoned explanation for concluding that B is the better interpretation.

And merely saying that "we prefer interpretation B because it lets us do things that interpretation A didn't" won't cut it.

I might add that there is another factor to consider: Wheeler alone can't do anything. He needs three votes. I'm not sure he would have them. Clyburn more likely than not would be with him, but Rosenworcel is a bit of a question mark, having stated during her confirmation hearing that "I do not believe all the requirements of Title II of the Communications Act should apply to all new services.

"Regulations designed for the era of basic telephony are not uniformly appropriate for the technologies and services of the digital age."

[Cali_Democrat]

8. LOL. It's so refreshing to read the words of people like Sanders and Warren

They are sane.

Nothing like the fire breathing arm chair pundits on DU.

Hilarious.

[msanthrope]

9. Oh...I'm waiting for the legal analysis of the appeal from this thread.....

http://www.democraticunderground.com/?com=view_post&forum=1014&pid=786839


with baited breath. Obviously, Obama used the Presidential Time Machine to stack the DC Circuit Court with the judges who provided a 3-0 ruling....

[Maven]

11. The words of Sanders...

you mean like these?

Sen. Bernie Sanders 'troubled' by FCC pick's lobbying past

[msanthrope]

15. Nice article where the Republicans express their dislike of Wheeler for proposing more regulations..

thank you.

[Maven]

19. His nomination was music to the telecom industry's ears

AT&T, which clashed frequently with the FCC under Genachowski, called Wheeler an "inspired pick."

"Mr. Wheeler’s combination of high intelligence, broad experience, and in-depth knowledge of the industry may, in fact, make him one of the most qualified people ever named to run the agency," Jim Cicconi, an AT&T vice president, said in a statement.

USTelecom CEO Walter McCormick called Wheeler an "extraordinary choice" and urged the Senate to quickly approve his nomination.

[msanthrope]

21. Indeed--and Wheeler proposed regulations against AT&T when they tried to merge. The fact

that the Republicans didn't like him, but the industry seemed to think him knowledgeable, and respected him, even when they disagreed with him, is a good thing.

[Cali_Democrat]

4. Warren, Sanders and Franken....sellouts ALL!!!

They are not pure!!!!

[msanthrope]

5. UNDER THE BUS!!! And godamn the FCC for obeying the courts!!! nt

[rhett o rick]

29. And once again The Group sides with Corp-America. The FCC just another tool for Corp-America.

Looks like they will allow Comcast to buy out TWC. But I'm guessing you will approve. What the hell, Corporations uber alles.

[joshcryer]

31. I've told you I am sort of an administrative law hobbyist.

You know, if the FCC decided to go ahead with rules that ruled against the case, it'd be reheard, right?

That's the beauty of administrative law. You can go against the courts, fuzz the rules, every time, and it goes back to the courts.

As much as I'd hate to say it, you have to admit that the FCC could at least have tried to finagle a solution, in a round about rule making sort of way. I admit at the moment I don't know the FCC's rulemaking ability, but I am very familiar with the EPA and SEC, so I suspect, though I can't say for certain, they can throw a wrench into things and find a way around the case.

And that could ultimately lead to a SCOTUS case (though under the current SCOTUS you don't want net neutrality to be heard at all, it would be a disaster).

In a way, a few years of non-net neutrality until we can get a better SCOTUS would possibly be worth it.

[msanthrope]

35. The problem is, Josh, andyou have captured it, is that there's the 2002 directive. Plus the

recent court case. So....since January, you have Verizon charging Netflix more, and Netflix utterly incapable of fighting back. And if Netflix isn't fighting back, then that gives you a pretty good judge of jus how well the FCC would fare, legally.

The "finagle" is the new rules.

The monkey "wrench?" The push for municipal broadband.

SCOTUS hearing net neutrality? A disaster.

We were screwed by the courts in January, and Congress could remedy, but they won't.

[joshcryer]

36. On the same page.

Just throwin' it out there. Frankly, I can somewhat see how things are going, but I'm not panicking. We really can't root for the current SCOTUS to act. Calm, cool, collected, wait it out.

If we make a comeback, we can fix this shit.

Fuck.

[villager]

26. Obama? Favoring corporate interests over those of his electorate, in one of his picks!?

Oh wait -- that hasn't surprised since about a week after his first election.

[joshcryer]

30. Obama pledged to have the most bi-partisan cabinet ever.

He lived up to it and that's what we got.

[grasswire]

33. that's not all we got, pal. nt

[joshcryer]

34. It sure is.

Everything else follows from Obama's initial cabinet, filled, literally, with Republicans. No other President had such a cabinet in history. It's why I was against Obama from the start. You don't run a country keeping half of the previous President's cabinet. It's asinine.