Re Berninger v. FCC: Cert petition filed with Supreme Court today

["Dave Farber" <farber () gmail com>]

Begin forwarded message:

> From: Brett Glass <brett () lariat net>
> Date: September 28, 2017 at 12:49:54 AM EDT
> To: dave () farber net
> Subject: Re: [IP] Re Berninger v. FCC: Cert petition filed with Supreme Court today
>
> At 06:30 PM 9/27/2017, Dave Burstein wrote:
>
> > I disagree with Dan here, even though I know how wrong regulation can go. In particular, I believe
> >
> > "the vibrant and competitive free market that presently exists for the Internet and other interactive computer 
> > services [defined as services that provide access to the Internet]"
> >
> > is not an accurate description of a market in which half of the U.S. has only one choice of reasonably robust high 
> > speed Internet and very few have more than two.
>
> As an ISP who must actually know and contend with competitors, I can say with confidence that this is false. The vast 
> majority of American households have multiple choices of high speed providers; in fact, in a small rural college town 
> in Wyoming I have 12 competitors. The competition is vibrant and fierce, as it is throughout the areas where more 
> than 80% of the US population live. The National Broadband Map confirms this.
>
> > Like many others, I've been looking hard at whether wireless is more than a very partial substitute. Average 
> > landline usage today is probably over 150 gigabytes/month, continuing to rise.
>
> Wireless is a complete substitute for wired broadband. My WISP can provide gigabits of bandwidth, via millimeter wave 
> technology, to any customer who is willing to pay for it. And many cellular users find simple tethering of a cell 
> phone to be adequate for all of their Internet needs.
>
> In any event, the partial quote above omits the most important part of 47 USC 230(b): the statement that it is the 
> policy of the United States that the Internet be "unfettered by Federal or State regulation." This express statement 
> of Congress' desired policy precludes Chevron deference by ensuring that the statute cannot be construed by the FCC 
> to allow regulation of the Internet. 47 USC 230(f), likewise, specifically classifies Internet access as a "data 
> service" rather than a "telecommunications service" and fixes that classification in statute; the FCC cannot override 
> the statute and classify it differently.
>
> Also, the dictum that network owners are "common carriers" and therefore must connect their networks to all others 
> violates the First Amendment right of freedom of association. As a network owner, I am not required to connect my 
> network to, or exchange traffic with, any network or network endpoint with which I do not wish to associate.
>
> I wish Mr. Berninger good luck with his appeal to the Supreme Court. Now that the FCC is on course to repeal the 
> regulations, it is a bit of a long shot (which is why I opposed the issue of the NPRM prior to a grant of 
> certiorari). The Court may well kick the can down the road until the next Democratic president attempts to reimpose 
> Internet regulation. But I hope that the Court does take it up, for the simple reason that the doctrine of Chevron 
> Deference has gone too far -- to the point where unelected, politically motivated bureaucrats do more lawmaking than 
> Congress.
>
> --Brett Glass 



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