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“The internet is the ultimate form of interstate commerce, which is clearly only within the authority of the F.C.C.,” said Bret Swanson, a fellow at the America

by gnud 9y ago

“The internet is the ultimate form of interstate commerce, which is clearly only within the authority of the F.C.C.,” said Bret Swanson, a fellow at the American Enterprise Institute (...) Hilarious, but not really surprising to read, as a non US-ian.

coldcode 9y ago
Technically it should be only under the authority of Congress.
- 24gttghh 9y ago
  Technically Congress can empower Executive agencies to perform responsibilities granted to it under the Constitution. e.g. Congress empowers the FDA to enforce the Food, Drug, and Cosmetic Act. Congress created the FCC to enforce the Communications Act of 1934. Congress created the CIA in 1947 in the National Security Act, etc, etc. AFAIK none of those 3-letter agencies, nor the countless others would exist without the Congress approving it first (and then of course being approved by the Executive, to quiet the pedantic's...)
  - apendleton 9y ago
    Right, the only question here is whether or not the FCC can preempt state regulation under existing statutory authority, and existing precedent suggests that maybe it can't. Pretty much everyone agrees that, given additional statutory authority, this kind of regulation would be constitutionally kosher.
    - 24gttghh 9y ago
      Indeed. However, I am wary to rely on SCOTUS to do the right thing, if/when it gets to that point. I'd much prefer Congress specifically mandate a free and open internet, with no regard given to the type or originator of data being moved about. I feel as though such an idea really deserves it's own Constitutional amendment as well, it it is truly so critical to the free flow of information in today's society. Amendment XXVIII: Congress shall make no law with respect to preventing the free flow of data on the public internet; Congress shall take necessary steps to prevent data from being throttled based on: identity of the publisher, content, size, or frequency of transfer; except in cases where such volumes of data can be shown to be a deliberate, malicious attempt to prevent access to a given publisher(s) content.
      - briandear 9y ago
        To play Devil's advocate here -- what's stopping you from starting an ISP and treating traffic however you want? I personally don't want the government "taking necessary steps to prevent data from being throttled.." because that means we've just given the government permission to be actively monitoring and controlling the internet -- including direct monitoring of the ISPs, and by extension full access to the content of your traffic -- ostensibly to "protect" you from throttling. The government would have to be able to inspect your traffic in order to ensure it isn't being discriminated against. You want to know how you stop throttling? If your ISP throttles you, you call them up, cancel your service and go to a new company and you tell both old and new company why you're doing that. If something "important" gets throttled, you throw a post on Reddit, Twitter, wherever and suddenly you get thousands of people canceling their service -- and quickly the ISP will change course in response to the public demand. In Cupertino right now, there are 9 residential ISPs from which to choose and 23 business ISPs. https://broadbandnow.com/California/Cupertino# https://broadbandnow.com/California/Cupertino# What the government SHOULD be doing is promoting ISP competition. Why not provide tax incentives for new ISP startups or innovative programs? Why not reduce regulation, make it easier for ISPs to start? Why not incentivize competition? Why not provide tax credits for entering underserved markets? There is a free market way to ensure a fast and free internet -- using the government for such things has a tendency to lead us down roads we might not want to go down.
        24gttghh 9y ago
        >There is a free market way to ensure a fast and free internet -- using the government for such things has a tendency to lead us down roads we might not want to go down. Because one crappy DSL provider and one Cable provider per town is a free market... Natural monopolies have a need to be regulated to prevent consumer abuse.
  - dragonwriter 9y ago
    > Technically Congress can empower Executive agencies to perform responsibilities granted to it under the Constitution. Yes, but NN opponents on the right continuously argue against FCC pro-NN regulations based on the premise that Congress has not done so with regard to the FCC and the regulation of internet service, so it's odd to see right-wing NN proponents arguing that the states cannot regulate net neutrality because not only is the FCC empowered to do so, but its power is exclusive.
    - 24gttghh 9y ago
      Ah, I do not mean to imply that the FCC alone can regulate NN, just that constitutionally, federal agencies are allowed to do so, as you say. GP was implying that Congress alone has this power, when history and precedent shows Congress can delegate, and often it must delegate in order to get anything done.
awinder 9y ago
What you have to understand as a baseline is that AEI is a partisan think-tank, so they're not telling truths or exploring the spectrum of interpretations, they're coming at any given issue with an ideologically driven mantra. And in this case, that mantra is that the commerce clause of the constitution, which states: The Congress shall have power ... To regulate commerce with foreign nations, and among the several states, and with the Indian tribes; means that congress has exclusive power to regulate interstate commerce. This actually has a ton of case precedent around it, and speaking as neutrally as possible, the courts have never simply ruled that only the federal government has the power to regulate commerce amongst the states.
- chimeracoder 9y ago
  > What you have to understand as a baseline is that AEI is a partisan think-tank, so they're not telling truths or exploring the spectrum of interpretations, they're coming at any given issue with an ideologically driven mantra. And in this case, that mantra is that the commerce clause of the constitution, which states: First, AEI is not a partisan think-tank. They're ideologically conservative, but they are non-partisan. Secondly, it's hard to argue that advocating the Commerce Clause is an "ideological" or partisan viewpoint. A hundred years ago, it definitely would have been, but not in 2018. If anything, the current interpretation of the Commerce Clause is the antithesis of conservative ideology: it expands federal powers, limits the rights reserved by states, and (if you want to make things partisan) predominantly happened because a Democratic president nearly caused a Constitutional crisis when he tried to stack the courts in order to get court rulings in favor of his agenda. I'm an advocate of net neutrality, but I'm not going to say that the position being advocated here by AEI is a particularly partisan one. If anything, they're smart, by framing a Republican-sponsored policy within the context of case law that Democrats have consistently supported for a century.
  - deleted 9y ago
    [deleted]
  - dablya 9y ago
    To sum up... AEI, an ideologically conservative, non-partisan think-tank is defending a Republican-sponsored policy by interpreting the Commerce Clause in a manner that is antithetical to conservative ideology. Am I missing something?
chimeracoder 9y ago
> Hilarious, but not really surprising to read, as a non US-ian. Why is it hilarious? It's hard to argue that net neutrality isn't about commerce, because most of the common talking points in favor of it explicitly refer to commercial activity ("paid lanes", etc.). While I dislike the implications of this argument for net neutrality, legally, it's actually a pretty solid argument. The Supreme Court has already ruled - many, many, many times - that states have very little power to restrict interstate commerce. These cases all happened around the turn of the last century, so the precedents are pretty well-established. And the ability of the federal government to regulate interstate commerce is an enumerated power, so there's pretty much no way to deny it. Conversely, the Supreme Court has also expanded the scope of the Commerce Clause so far over the course of the 20th century that it's basically given the federal government the authority to regulate absolutely anything that happens in the states, because anything has the potential to impact interstate commerce. To give you an idea of how new this idea is: at the time Prohibition [of alcohol] was enacted in 1919, it was a Constitutional amendment enforced via the prohibition of "manufacture, sale, or transportation" rather than posession, because it was believed that the federal government did not have the power to outlaw possession of a substance. Similarly, the original ban on marijuana wasn't even a ban at all - it was a cleverly-worded tax act which made it illegal to possess marijuana that hadn't been taxed, but also made it impossible to prove that you'd paid the tax.
- dragonwriter 9y ago
  > Why is it hilarious? Because the AEI is a right-libertarian propaganda mill (or, if you prefer, “think tank”) that generally (though there are some prior exceptions, too) is in lockstep with the general right-libertarian minimalist interpretation of Commerce Clause authority. > To give you an idea of how new this idea is: at the time Prohibition [of alcohol] was enacted in 1919, it was a Constitutional amendment Prohibition was first passed in 1918 as a statute law (the Wartime Prohibition Act.) > enforced via the prohibition of "manufacture, sale, or transportation" rather than posession, because it was believed that the federal government did not have the power to outlaw possession of a substance. Thst makes no sense; since the Constitution defines the power and obligations of the federal government, in adopting an Amendment they could have just added possession. Prohibition—both in it's statutory and Constitutional forms—addressed only manufacturer and trade and not possession or consumption not because of any concern about fundamental limits of federal power, but as a simple policy priorities decision.
deleted 9y ago
[deleted]

by gnud 9y ago

coldcode 9y ago

Technically it should be only under the authority of Congress.

24gttghh 9y ago
Technically Congress can empower Executive agencies to perform responsibilities granted to it under the Constitution. e.g. Congress empowers the FDA to enforce the Food, Drug, and Cosmetic Act. Congress created the FCC to enforce the Communications Act of 1934. Congress created the CIA in 1947 in the National Security Act, etc, etc. AFAIK none of those 3-letter agencies, nor the countless others would exist without the Congress approving it first (and then of course being approved by the Executive, to quiet the pedantic's...)
- apendleton 9y ago
  Right, the only question here is whether or not the FCC can preempt state regulation under existing statutory authority, and existing precedent suggests that maybe it can't. Pretty much everyone agrees that, given additional statutory authority, this kind of regulation would be constitutionally kosher.
  - 24gttghh 9y ago
    Indeed. However, I am wary to rely on SCOTUS to do the right thing, if/when it gets to that point. I'd much prefer Congress specifically mandate a free and open internet, with no regard given to the type or originator of data being moved about. I feel as though such an idea really deserves it's own Constitutional amendment as well, it it is truly so critical to the free flow of information in today's society. Amendment XXVIII: Congress shall make no law with respect to preventing the free flow of data on the public internet; Congress shall take necessary steps to prevent data from being throttled based on: identity of the publisher, content, size, or frequency of transfer; except in cases where such volumes of data can be shown to be a deliberate, malicious attempt to prevent access to a given publisher(s) content.
    - briandear 9y ago
      To play Devil's advocate here -- what's stopping you from starting an ISP and treating traffic however you want? I personally don't want the government "taking necessary steps to prevent data from being throttled.." because that means we've just given the government permission to be actively monitoring and controlling the internet -- including direct monitoring of the ISPs, and by extension full access to the content of your traffic -- ostensibly to "protect" you from throttling. The government would have to be able to inspect your traffic in order to ensure it isn't being discriminated against. You want to know how you stop throttling? If your ISP throttles you, you call them up, cancel your service and go to a new company and you tell both old and new company why you're doing that. If something "important" gets throttled, you throw a post on Reddit, Twitter, wherever and suddenly you get thousands of people canceling their service -- and quickly the ISP will change course in response to the public demand. In Cupertino right now, there are 9 residential ISPs from which to choose and 23 business ISPs. https://broadbandnow.com/California/Cupertino# https://broadbandnow.com/California/Cupertino# What the government SHOULD be doing is promoting ISP competition. Why not provide tax incentives for new ISP startups or innovative programs? Why not reduce regulation, make it easier for ISPs to start? Why not incentivize competition? Why not provide tax credits for entering underserved markets? There is a free market way to ensure a fast and free internet -- using the government for such things has a tendency to lead us down roads we might not want to go down.
      - 24gttghh 9y ago
        >There is a free market way to ensure a fast and free internet -- using the government for such things has a tendency to lead us down roads we might not want to go down. Because one crappy DSL provider and one Cable provider per town is a free market... Natural monopolies have a need to be regulated to prevent consumer abuse.
- dragonwriter 9y ago
  > Technically Congress can empower Executive agencies to perform responsibilities granted to it under the Constitution. Yes, but NN opponents on the right continuously argue against FCC pro-NN regulations based on the premise that Congress has not done so with regard to the FCC and the regulation of internet service, so it's odd to see right-wing NN proponents arguing that the states cannot regulate net neutrality because not only is the FCC empowered to do so, but its power is exclusive.
  - 24gttghh 9y ago
    Ah, I do not mean to imply that the FCC alone can regulate NN, just that constitutionally, federal agencies are allowed to do so, as you say. GP was implying that Congress alone has this power, when history and precedent shows Congress can delegate, and often it must delegate in order to get anything done.

awinder 9y ago

What you have to understand as a baseline is that AEI is a partisan think-tank, so they're not telling truths or exploring the spectrum of interpretations, they're coming at any given issue with an ideologically driven mantra. And in this case, that mantra is that the commerce clause of the constitution, which states: The Congress shall have power ... To regulate commerce with foreign nations, and among the several states, and with the Indian tribes; means that congress has exclusive power to regulate interstate commerce. This actually has a ton of case precedent around it, and speaking as neutrally as possible, the courts have never simply ruled that only the federal government has the power to regulate commerce amongst the states.

chimeracoder 9y ago
> What you have to understand as a baseline is that AEI is a partisan think-tank, so they're not telling truths or exploring the spectrum of interpretations, they're coming at any given issue with an ideologically driven mantra. And in this case, that mantra is that the commerce clause of the constitution, which states: First, AEI is not a partisan think-tank. They're ideologically conservative, but they are non-partisan. Secondly, it's hard to argue that advocating the Commerce Clause is an "ideological" or partisan viewpoint. A hundred years ago, it definitely would have been, but not in 2018. If anything, the current interpretation of the Commerce Clause is the antithesis of conservative ideology: it expands federal powers, limits the rights reserved by states, and (if you want to make things partisan) predominantly happened because a Democratic president nearly caused a Constitutional crisis when he tried to stack the courts in order to get court rulings in favor of his agenda. I'm an advocate of net neutrality, but I'm not going to say that the position being advocated here by AEI is a particularly partisan one. If anything, they're smart, by framing a Republican-sponsored policy within the context of case law that Democrats have consistently supported for a century.
- deleted 9y ago
  [deleted]
- dablya 9y ago
  To sum up... AEI, an ideologically conservative, non-partisan think-tank is defending a Republican-sponsored policy by interpreting the Commerce Clause in a manner that is antithetical to conservative ideology. Am I missing something?

chimeracoder 9y ago

> Hilarious, but not really surprising to read, as a non US-ian. Why is it hilarious? It's hard to argue that net neutrality isn't about commerce, because most of the common talking points in favor of it explicitly refer to commercial activity ("paid lanes", etc.). While I dislike the implications of this argument for net neutrality, legally, it's actually a pretty solid argument. The Supreme Court has already ruled - many, many, many times - that states have very little power to restrict interstate commerce. These cases all happened around the turn of the last century, so the precedents are pretty well-established. And the ability of the federal government to regulate interstate commerce is an enumerated power, so there's pretty much no way to deny it. Conversely, the Supreme Court has also expanded the scope of the Commerce Clause so far over the course of the 20th century that it's basically given the federal government the authority to regulate absolutely anything that happens in the states, because anything has the potential to impact interstate commerce. To give you an idea of how new this idea is: at the time Prohibition [of alcohol] was enacted in 1919, it was a Constitutional amendment enforced via the prohibition of "manufacture, sale, or transportation" rather than posession, because it was believed that the federal government did not have the power to outlaw possession of a substance. Similarly, the original ban on marijuana wasn't even a ban at all - it was a cleverly-worded tax act which made it illegal to possess marijuana that hadn't been taxed, but also made it impossible to prove that you'd paid the tax.

dragonwriter 9y ago
> Why is it hilarious? Because the AEI is a right-libertarian propaganda mill (or, if you prefer, “think tank”) that generally (though there are some prior exceptions, too) is in lockstep with the general right-libertarian minimalist interpretation of Commerce Clause authority. > To give you an idea of how new this idea is: at the time Prohibition [of alcohol] was enacted in 1919, it was a Constitutional amendment Prohibition was first passed in 1918 as a statute law (the Wartime Prohibition Act.) > enforced via the prohibition of "manufacture, sale, or transportation" rather than posession, because it was believed that the federal government did not have the power to outlaw possession of a substance. Thst makes no sense; since the Constitution defines the power and obligations of the federal government, in adopting an Amendment they could have just added possession. Prohibition—both in it's statutory and Constitutional forms—addressed only manufacturer and trade and not possession or consumption not because of any concern about fundamental limits of federal power, but as a simple policy priorities decision.

deleted 9y ago

[deleted]