The Court's Own Words: Life Without Title II Has Online Discrimination, Paid Prioritization, Exclusi

[unhappycamper]

https://www.techdirt.com/articles/20140912/06281128502/courts-own-words-life-without-title-ii-has-online-discrimination-paid-prioritization-exclusive-deals-maybe-blocking.shtml

The Court's Own Words: Life Without Title II Has Online Discrimination, Paid Prioritization, Exclusive Deals, And Maybe Blocking
from the it's-not-like-it's-secret dept
Broadband
by Marvin Ammori
Fri, Sep 12th 2014 11:30am

To hear Tom Wheeler and most of the big broadband players explain the net neutrality situation, the appeals court decision back in February laid out a "roadmap" for the FCC to continue to use Section 706 for its open internet rules. But that's not actually true. It's a clear misrepresentation of what the court actually said.

The language of the Verizon decision by the DC Circuit court is pretty clear: unless the FCC rests its rules in Title II of the Communications Act, the FCC must permit the carriers to engage in discrimination, charge access fees, cut exclusive deals, and perhaps block websites. Despite this, the FCC is proposing to use Section 706 (again), rather than Title II, and the court already ruled that Section 706 does not authorize network neutrality in January.

To begin, without Title II, the FCC cannot treat broadband providers as "common carriers."

We think it obvious that the Commission would violate the Communications Act were it to regulate broadband providers as common carriers. Given the Commission's still-binding decision to classify broadband providers not as providers of “telecommunications services” (under Title II) but instead as providers of “information services,” … such treatment would run afoul of section 153(51): “A telecommunications carrier shall be treated as a common carrier under this (Act) only to the extent that it is engaged in providing telecommunications services.”

So, what does it mean to regulate broadband providers as common carriers? It means to impose any rule against discrimination or requiring providers to charge similar prices to similarly situated parties.

“(I)f a carrier is forced to offer service indiscriminately and on general terms, then that carrier is being relegated to common carrier status.” … Given these principles, we concluded that (a specific earlier rule concerning data roaming) imposed no per se common carriage requirements because it left “substantial room for individualized bargaining and discrimination in terms.”

[Downwinder]

1. If they are not Common Carriers, kick them out of the Commons.

No use of Rights of Way or air space. Like pedestrians on the Interstate.

[appal_jack]

2. Yes. k&r, nt