Unfortunately, this is kind of a red herring. There are a few places in the telecommunications act that require the FCC to fine for indecency/obscene material. Cable operators themselves, for example, are not responsible for channels that display obscene material - the original transmitter is. That's under Title VI (cable communications) and Title III (radio and television).
Title II is all about common carrier status. Cable television, broadcast radio, and broadcast television are not common carriers, and Title II does not give the FCC either the requirement or permission to fine or censor obscene content. Neither does it give ISPs the requirement or permission to censor obscene content.
As Title II has been interpreted by courts, you are actually _more_ protected from internet censorship if they are considered Title II common carriers.
They can't terminate based on suspicion of unlawful use; there must be evidence:
* Shillitani v. Valentine, 53 NYS 2d 127 (1945); "a telephone company may not refuse to furnish service and facilities because of a mere suspicion or mere belief that they may be or are being used for an illegitimate end; more is required."
* Nadel v NY Tel., 170 NYS2d 95 (1957); carrier suspected caller of using the telephone for illegal gambling transactions and terminated their service. Court ruled that service should be reinstated: the telephone company "is not at all qualified, in the absence of evidence of illegal use, to withhold from the petitioner, at will an essential and public utility."
They are not authorized to collect said evidence themselves (this could be interpreted to mean that, as a common carrier, ISPs are not allowed to read the contents of the packets that they transmit, only the headers -- like telephone numbers -- as needed to get the packet to its destination):
* People v. Brophy, 49 Cal.App.2d 15, at 33, 120 P2d 946, at 965; "public utilities and common carriers are not the censors of public or private morals, nor are they authorized or required to investigate or regulate the public or private conduct of those who seek service at their hands."
You, as an internet user, are not protected from those actions unless your ISP is classified as a Title II common carrier.
Other than censorship, do you foresee any major gotchas in the upcoming regulations?
And even if they weren't, there is a clear process for companies to petition for forbearance on regulations which they find too burdensome.
That is the true red herring we hear over and over again. Don't worry about censorship, you can still say indecent/obscene things... if you happen to have been awarded the broadcasting license.
Sir, or Ma'am, please understand. The censorship problem we anti-FCC complain about is the problem of not being able to get a license in the first place. You and others like you are always addressing this red herring non-issue of indecency and obscenity. That can only happen if you get a broadcast license. The problem with the FCC is that they are a gatekeeper for getting a broadcast license and it is at that point, when they are deciding whether to give the license that they exert the most dangerous kind of censorship. Not after you have the license.
Sure! You should totally be allowed to throw up a transmitter and blast white noise through fifty percent of the radio frequencies at 50 kilowatts of power! And so what if the car next to you on the highway has a transmitter that interferes with your radio tuned to the classical station by blasting dubstep. FREEDOM
The problem is, that's all covered under Title III. Title III is very specifically about radio broadcasting.
And has nothing. At all. To do. With Title II.
Well, I'm already driving out of the state tomorrow, now I know what I'll be doing with my unlicensed FM transmitter.
Is this to start an ISP? a website? or what?
What warfangle etc don't understand is that was exactly the excuse for the FCC to get into the Radio business. Oh no, it wasn't to require licenses! It was to protect people from warfangle's "chaos" that he paints so vividly but that never happened in actual reality, you know, the one we live in. Maybe it happens inside the theoretical realities that warfangle makes up. Regardless.
So the FCC at first was all like "yeah we need to step in to protect the radio waves from jumbling". Even the president at the time said he saw no problem with just leaving it be. But the FCC got its way. But oh! We forgot. In order to protect the waves from jumbling we'll need to require that people get licenses, but you know, it's just to assign a name to a frequency. That's all! But you need a license.
The same will happen online. Not at first, but eventually. And the excuse will be the same. Netflix uses too much bandwidth? Well, they'll need a license. Suddenly all busy websites need a license, but they'll only get it if the FCC approves it. Netflix? Granted. Popcorn Time? Disallowed. Mainstream X? Granted. Controversial Y? Disallowed.
Licenses that could be denied for radio was a policy adopted by Congress in the same law that created the Federal Radio Commission, before the FCC existed. The FCC inherited its radio role from the Federal Radio Commission. Neither the FCC, nor its predecessor, could have lobbied for the power to grant and deny licenses, because they didn't exist when Congress was considering creating that power.
Please step outside your bubble and understand what the FCC does.
And a citation for you, cheers mate: http://www.fcc.gov/maps/fcc-enforcement-actions-against-pira...
If you wish to test them, please setup a pirate radio station and you will be arrested. The sentencing is not pretty, so tread lightly.
Oh yea, be sure to pick up your public web service license so are not causing harmful interference with those that DO.
Radio represents a hard-limited amount of spectrum. There is literally a maximum amount of broadcasts that are possible before you have to start overlapping on the same frequencies. Those pieces of spectrum can be owned or rented just like public address space on the internet.
The internet has no such limit, adding to the internet just makes the internet bigger, it doesn't push someone else off the internet.
The real corollary to pirate radio would be someone hijacking google.coms DNS records to point to their own website instead. And tthat is and should remain illegal.
Like, the biggest problem is that people are unhappy with comcast and there's no alternative. Then they get the bright idea that making entry into the market harder will fix this problem?
If what you say is true then we should be able to buy and sell radio wave frequencies from each other. But radio waves are treated specially by the government because they're a long range means of communication. Same with the internet. That's why the FCC wants in. Not because "it's limited". Land is limited, where is the FCC for land? Gold is limited, yet we can freely buy and sell. Everything is limited but the FCC only has eyes for LONG RANGE MEANS OF COMMUNICATION. Why?
EDIT for temporal:
Please explain this:
"One of our troubles in getting legislation [to nationalize the airwaves] was the very success of the voluntary system we had created. Members of the Congressional committees kept saying, 'it is working well, so why bother?'" -- Herbert C. Hoover, The Memoirs of Herbert Hoover: The Cabinet and the Presidency 1920-1933, at 142 (1952). Cited in Hazlett, 1990.
Well, there's the matter of their statutory brief. There is a reason they are called the Federal Communication Commission, and not the Federal Every Limited Resource Potentially Subject to a Tragedy of the Commons Commission.
Lol, that's the government. You cannot "freely buy and sell" land, you have to follow certain processes to register your dealings and you are responsible for how you use that land (zoning, environmental laws etc). That's basically what the FCC does for airwaves, except they want to make sure you'll be "responsible" before they actually allow you to register your dealings.
We grant land ownership and leases. Why not radio spectrum too? Not all that different really IMO.
If the major problem as you see it is the cost of licensing, then I don't really have a response to that.
I think you mistake "is mandated by Congress" for "loves".
Congress has mandated the censorship of TV and radio broadcasts, it was not purely invented by the FCC - sorry for any miscommunications.
The FCC is un-elected, that's always scary. Not that our elected officials know better. Haha.
I'd certainly be interested in general proposals for improving regulatory transparency, but I don't see what basis there is for painting this particular decision as something special in that regard, and find it interesting that the people prominent in the media that have been concerned about "transparency" in this process (a) are consistently people that were opposed to net neutrality, (b) became concerned with "transparency" only after it was clear that anti-neutrality policy arguments were failing to gain traction, either at the FCC or with the public, and (c) have not generally voiced similar transparency concerns over any of the other processes (e.g., every other regulatory action of the US government) that uses the same basic process, including not publishing intermediate drafts between an NPRM and a final action on the matter covered by the NPRM that incorporates changes based on subsequent analysis and the public comment on the NPRM.
Politicians spend much of their time getting re-elected, and they have to focus a great deal on whatever the electorate's current opinion is. That is excellent for things that should respond relatively quickly, and terrible for things that should move deliberately or be countercyclical.
It would be way more scary to me to have the FCC commissioners out fundraising from industry all the time like our elected officials do. Right now they're appointed on staggered 5-year terms, which is intentionally longer than the election cycle of the President who appoints them. No more than 3 can be members of the same political party, and none can have a financial interest in any regulated business. It's not perfect, but I think it's a great example of how to minimize the ills of direct election while still having it be (indirectly) accountable to the people.
While in theory it seems like a good idea, in practice it's not and all of a sudden you have judge's (or in the case at hand, FCC officials) with "interests" other than the law (communications).
On the other hand, this also means they don't need to seek funding for running a campaign which theoretically could insulate them from what we see with our elected officials currently pandering to business interests.
Time will tell with this decision i suppose, whats important from my perspective is that change happens quickly if there are any major objectionable pieces of these new regulations
Check the employment history of FCC folks after their term. It is very much like other staff members in various regulatory bodies in DC, they get high paying jobs in the industry for their work.
The advantage (and again i'm not claiming this to be the reality) would be that that the new FCC employee doesnt need to rely on the corporation to continue working at the FCC, Once they have left the corporation, why would they seek to push pro-corporate regulations?
Of course this is all muddled when you see that these people then go BACK to the corporation after their time in the FCC, which leads to well grounded suspicions.
Its really a complicated mess; I only meant that there is a logical reason why having non-elected persons creating regulations can be advantageous
We elect people to do that. Perhaps if they were forced to do the actual rule making we would not get 1,000 page bills with all of the rule making to be done later[1]. Perhaps they would pass less bills that need regulation if they had to put them in the bill.
The staffers at various agencies are doing their apprenticeship for their big payday when they join lobbying organizations or the companies that they were supposed to be watching. It happens enough that it has been suggested multiple times that employment restrictions (basic conflict of interest) should be put in place. The DoD is famous for a lot of this (check Boeing's hiring).
"I only meant that there is a logical reason why having non-elected persons creating regulations can be advantageous"
Because those folks are their friends and future employers (again).
1) yes, I read the ACA because I needed to know the ruling on a specific situation and it was one of those rule making later. It was very frustrating but not very surprising.
But i disagree that pushing regulation onto elected officials would be better.
My point is that non-elected officials are shielded from many aspects that lead to corruption in elected officials. Namely having to re-up on funding every couple years. Non-elected officials do not have to raise money to keep their position.
Is there still corruption with non elected officials? yes I am not saying otherwise nor am i satisfied with the current state of things. But to say that the solution to that corruption is to place the power into the hands of an already corrupt congress seems backwards to me.
Also, I totally agree with you on the language and length of bills. I would go further to say that the congress people should be the ones AUTHORING the bills, let alone reading them. Nothing smells like corruption more than a corporation drafting a bill to regulate themselves and stamping a congress person's name on it.
My point is that the non-elected officials are not shielded and have a different corruption path going. In a lot of ways, a rich elected official is probably better insulated than a high level bureaucrat.
We elect people to make the laws. Regulations are the laws and they should be the responsibility of the people we elect. I cannot vote out of office a bureaucrat. If you believe your congress person is corrupt then vote them out. This whole rule-making process is a corruption of the system.
Seriously though, I think there was a lot of hype built up around net neutrality(for good reason) and it ended up clouding the discussion.
Quickly it became a dichotomy, you must be either for Title II and whatever the FCC decides that entails, or you must be against any change to the status quo.
Now that we are passed that dichotomy, we are faced with the reality that we have little control over the FCC and how it chooses to enforce regulations. That is understandably making many people nervous.
I look forward to the regulations being published and sincerely hope that it works out as many people hoped it would a few months ago, but someone rather late in the process pointed out to me that the FCC loves to censor things like television, and it wouldn't be insane to think they would consider doing the same with the internet (one only has to look to England to see how real that possibility is)
I don't really know anymore, I'm more unsure about all of this than ever - i really hope nothing nasty surfaces because of this decision, but what can we do at this point but sit and wait and then try to change it all again if we object.