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Submitted by Scott Cleland on Mon, 2015-06-15 23:13
The FCC’s just operative Open Internet Order, with its classification of broadband as Title II common carriage and vague Internet conduct standard, sets ISPs up for FCC “gotcha” or contrived regulation and enforcement.
FCC Commissioner O’Reilly exposed the FCC’s “gotcha!” game: “I will be vigilant in resisting any attempts by the agency to act as a referee enforcing rules known to none of the players and made up along the way.”
And the FCC’s Enforcement Chief, Travis LeBlanc, tacitly admitted to playing the contrived “gotcha!” game in an article with the National Journal entitled: “The FCC’s $365 Million Man.”
Submitted by Scott Cleland on Fri, 2015-06-12 14:33
The appellate process will only get tougher for the FCC’s Title II Open Internet Order from here, which means both legal and electoral uncertainty over the permanence of the FCC’s net neutrality authority will only grow as the appellate process plays out and the 2016 Presidential election approaches.
Simply, do the FCC and its congressional supporters essentially cash in and keep their net neutrality gains long term for consumers in bipartisan net neutrality legislation now, or do they double down by waiting and maybe losing it all in either the Supreme Court or the 2016 Presidential election?
From their current position of relative strategic negotiating strength, an operative Open Internet Order empowering the FCC to enforce protection of net neutrality, the FCC and its congressional supporters, need to take stock of their situation and ask themselves if they want to lock-in their bright-line net neutrality protections now and permanently protect consumers against blocking, throttling, and paid prioritization, in bipartisan legislation?
Or do they want to roll both the court and electoral dice that their relative strategic negotiating position will improve from here and risk losing most all their net neutrality gains and authority, in the next 18-24 months to an ultimate court loss in the Supreme Court or to a Republican elected President in 2016, who would likely overturn the Order in 2017?
Submitted by Scott Cleland on Tue, 2015-06-09 12:00
Below is my op-ed “Privacy’s Big Three” on the FCC’s pending interpretation of its newly asserted Title II section 222 privacy authority. It is a side-bar in this week’s Multichannel News cover story “Who’s Watching Whom?” Click here for the full Multichannel article.
This succinct op-ed spotlights the three biggest privacy questions the FCC must grapple with here:
Privacy’s Big Three
Submitted by Scott Cleland on Wed, 2015-05-27 10:05
The FCC brief unwittingly: exposed a glaring internal inconsistency with the FCC’s Open Internet Order; spotlighted its arbitrary and capricious decision-making; and exposed a big mistake in its legal strategy.
If the D.C. Circuit Court of Appeals panel rules on the legal merits of the industry’s petition, it remains very likely they will grant a partial stay of the Title II reclassification part of the FCC’s Open Internet Order.
Submitted by Scott Cleland on Thu, 2015-05-14 15:38
Based on the latest best arguments this week from both the FCC and broadband petitioners, the D.C. Circuit Court of Appeals is very likely to partially stay the FCC Open Internet Order’s reclassification of broadband as a Title II service and imposition of a new Internet conduct standard -- in the coming weeks.
Submitted by Scott Cleland on Mon, 2015-05-04 19:15
In the coming weeks, expect the D.C. Court of Appeals or the Supreme Court to grant a partial stay, of only the FCC’s Title II reclassification of broadband and its new “Internet conduct standard” (not the FCC’s net neutrality prohibitions of blocking, throttling or paid prioritization), even though stay requests normally have a low probability of success, because petitioners must convince the court that they are likely to win on the merits and that the opposed action will cause irreparable harm.
Submitted by Scott Cleland on Mon, 2015-04-27 10:01
Will the FCC create an Internet “Do Not Track” list like the FTC created the “Do Not Call” list enjoyed by three quarters of Americans?
In ruling the Internet to be subject to common carrier consumer protection law, the Obama FCC’s recently passed Open Internet Order applied common carrier privacy law (Section 222) to Internet telecommunications as part of the FCC’s unilateral efforts to modernize communications law for the 21st century.
The Obama FCC’s Open Internet Order also ruled that the Internet now encompasses the Public Switched Telephone Network (PSTN) and that an IP address is the functional equivalent of a telephone number.
Thus, logically it could follow that information that’s considered legally private in the telephone world now could be considered legally private in the Internet world.
This central consumer protection question should come up this week as the FCC hosts a Section 222 public workshop to explore the FCC’s “role in protecting the privacy of consumers who use” the Internet.
What is Section 222?
It is a common carrier provision of the Communications Act entitled “Privacy of Customer Information.”
Submitted by Scott Cleland on Fri, 2015-04-24 11:10
The US-EU “competition” of protectionist digital industrial policies -- U.S. Title II net neutrality vs. the EU’s emerging “platform neutrality” plans -- creates an ironic backdrop to negotiations for the US-EU Transatlantic Trade and Investment Partnership (TTIP) “free” trade agreement. Heightening the irony, the Obama Administration, not the European Commission, has been the protectionist digital industrial policy leader, trailblazing the political path for the EU’s Single Digital Market to follow.
At least on the digital markets front, TTIP will be much less a commercial “free” trade negotiation and much more a political “fair” trade negotiation.
The U.S. has long set the tone and trajectory for this digital “fair” trade dynamic in championing net neutrality to protect its Silicon Valley national champions, Google, Facebook, Amazon, Apple, Netflix, etc., and by skewing antitrust enforcement to benefit Google and Silicon Valley.
Submitted by Scott Cleland on Wed, 2015-04-22 21:44
Please don't miss my latest Daily Caller Op-ed: "FCC-villle's Kangaroo Court."
It puts into perspective the extent of the FCC's arbritrariness and capriciousness in its reclassification of the Internet as a Title II telephone monopoly.
FCC Open Internet Order Series
Part 1: The Many Vulnerabilities of an Open Internet [9-24-09]
Part 2: Why FCC proposed net neutrality regs unconstitutional, NPR Online Op-ed [9-24-09]
Part 3: Takeaways from FCC's Proposed Open Internet Regs [10-22-09]
Submitted by Scott Cleland on Tue, 2015-04-14 11:11
Just when Google needs it most, its political bag of tricks to dodge antitrust enforcement may be running out.
Reports that the EC is likely to issue a Statement of Objections ruling soon -- that Google is >90% dominant in search and search advertising and has illegally abused that dominance by promoting Google’s content and demoting competitors’ content -- indicates Google finally may be facing a global antitrust inflection point.
A tough EC SO would be a game-changer for Google, like the 2000 U.S. District Court case that ruled Microsoft an anti-competitive monopoly, proved to be a game-changing, global antitrust inflection point for Microsoft.
Substantively on the merits of the EC antitrust case, Google appears to have little room to maneuver. The EC effectively agrees with the FTC’s staff antitrust conclusions per the leaked FTC staff report. That finding is highly problematic for Google because: EU competition law is much tougher than America’s; Google’s relative >90% market dominance in Europe is much greater than in the U.S.; and Google doesn’t have the dominant political influence over Europe that it does with the U.S. Executive Branch.