Friday, February 27, 2015

The FCC Broke The Law with "Net Neutrality" Ruling

I've been a ham since 1976, and I've been working with the FCC as an agency for the last 19 years.  IANAL, but I know a bit about the regulatory process, and the FCC did not follow the law.

The FCC process (and even with this process, it's often considered to be a railroad job and they'll pass what they damn well feel like) is outlined in the Administrative Procedure Act of 1946 and proceeds like this:
  • The FCC issues a Notice of Proposed Rulemaking, NPRM, when they publish the proposed regulations and invite comments. For example, back under the W, they went through this process for months, if not a full year, before ruling on Broadband Over Power Lines, (BPL), a contentiously fought issue opposed by every current user of the HF spectrum. 
  • In some situations, they even have a step before this, in which they issue a Notice of Inquiry (NOI) where they say they're considering regulating something and are asking for opinions and expert input. 
  • They collect input from interested parties, typically for 60 to 90 days.  
  • All comments are publicly available, and they usually allow another 30 days for commenters to comment about points others made. 
  • Once they reach a conclusion (even if it's a foregone conclusion), they issue a Report and Order (R&O) which incorporates the new sections of the FCC rules.  
As of close of business today, they still have not released the 330 pages of rules they approved.

While I get a bit of a shudder when I read Commissioner Ajit Pai quoting Star Wars' Emperor Palpatine, saying “Young fool … Only now, at the end, do you understand.” and Commissioner Mike O'Reilly saying, “When you see this document, it’s worse than you imagine,” nobody knows what's in those 330 page.  For all we know it could be as benign as fluffy kitty, or it could impose the harshest restrictions you can imagine.  The reality is that nobody knows the details of what's in those 330 pages, although there are persistent rumors that major Internet companies who will profit from it were in on writing it all. 

On the other hand, the fact that the concept has been a communist wet dream since the 1990s doesn't bode well for it in my mind.
"McChesney wrote in the Marxist journal Monthly Review that "any serious effort to reform the media system would have to necessarily be part of a revolutionary program to overthrow the capitalist system itself." Mr. McChesney told me in an interview that some of his comments have been "taken out of context." He acknowledged that he is a socialist and said he was "hesitant to say I'm not a Marxist.""
The resources I can access say that the FCC is required to follow this flow, including presenting the proposed rules early in the process.  The fact they didn't shows they broke the law.  Process is very important to these folks.  The fact they didn't follow it is very sloppy.  It shows no regard for the law.  Not that total disregard for the law is a surprise with Obama appointees (cough...Eric Holder) or Obama himself.

When I wrote my first piece on the coming Net Neutrality laws in 2010, I said it was a solution in search of a problem, and I still maintain that.  There is one case on record, ONE, of one service (Netflix) being throttled back by one ISP.  I've heard that one service was using almost 33% of the ISP's bandwidth, so it made sense to charge them more.  That was renegotiated and settled acceptably to all parties.
If Net Neutrality does even some of what I think it will do, people are going to be screaming they want their old Internet back as soon as they start feeling the pinch of the new rules.
I'm sure you've heard it said that the constitution was written to protect us from a president like Obama.  The Administrative Procedure Act was written to protect us from agencies like FCC and specifically commissioners like the three who voted this in: Chairman Wheeler, Mignon Clyburn and Jessica Rosenworcel.  Three commissioners voted themselves control of the Internet. 


  1. Yep, MAJOR suckage there.

    If the FCC was still run by Engineers (as it should be), this never would have gotten this far....

  2. The fact that this apparent power grab occurred nearly simultaneously with the BATF's ban on green tip 5.56 ammo is a troubling coincidence.

    The chilling comments from Pai and O'Reilly beg the question - if it is as bad as they imply, why did the two not release the document to the pubic before the vote? They could be confident they were going to lose - the other three officials are Dems. This was a fait d'accompli; of that they were sure. If the rules are that draconian, the public outrage would have made the FCC scurry into a hole.....perhaps the fix was in.

    Let's hope that the rules are merely annoying. That said, anyone who's paying attention knows that control of speech is the goal. It's merely a matter of time.

    I'm done with the Republican Party. There is only one party now, and has been for longer than most of us are willing to admit. 1988 sounds about right to me.

  3. Since when has 'the law' mattered to people seeking power. The law is merely a tool to be used against their enemies when convenient, otherwise it's not even a minor annoyance anymore.
    Virtually EVERYTHING the current regime has done is in direct proveable violation of numerous laws, regulations and court rulings to say nothing about the Constitution itself. Doesn't matter. They do what they want BECAUSE THEY CAN. And they will continue to do as they wish till they are stopped by force of arms.

  4. Pete - The chilling comments from Pai and O'Reilly beg the question - if it is as bad as they imply, why did the two not release the document to the pubic before the vote?

    My guess is that it's illegal for them to release the document. There has to be a process for that, too. If they violated the process, they'd get prosecuted (since they're conservatives) and spend time in jail. If it was Filly Mignon Cliburn revealing something, nothing would happen. She's a liberal.

  5. I'm thinking I spend too much time on the internet. Typically in the spring/summer/fall we travel in our RV and I spend very little time on the internet. I'm happier, feel more productive and don't miss it when I have other things to do. If some of the things I have heard about net neutrality turn out to be true I think I will back away from it. I do like to read and maybe it's time to stop wasting my time.

  6. Voluntarily cutting back on time spent on the internet is a perfectly acceptable personal choice. Having it throttled down and censored by communists masquerading as democrats is not.
    And THAT is what we are facing.
    Once they have the internet fully under their thumb the same as they do all other media the brakes will be well and truly off. They can then do ANYTHING without fear of the public even being aware. EVERYTHING will be a secret.

  7. The Administrative Procedure Act is what the judge used to put a hold on Obama's immigration changes - and experts say it is a point that will be hard to turn back in the courts; as others have said, procedure is very important.
    Pai said he would like to release the rules, but that he can't.

  8. I would merely note that NOT EVEN ONE "Law Enforcement" officer in this entire nation can be bothered to honor their very oath of office. For that oath is to the Constitution, which is the overarching authority for EVERY "law" in this country.

    Or just how long do you think Obama and the REST of the swill would last if "Law Enforcement" merely stood aside instead of playing Praetorian Guard in the very worst sense of the term? Much less if they actually HONORED that oath...

  9. Jonathon H - you bring up an important point I forgot to mention about the APA. I wrote both Senator Rubio and my representative to point out they broke the APA. This is the kind of thing that lawyers salivate over. I think everyone who writes their congress critters should bring it up.

    Not that I think it's any more likely than Eric Holder being put on trial for his part in F&F, but I can see an argument that those commissioners should be fired. At least hearings in the committee that oversees the FCC.