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ZippyDSMlee
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Really....this is the OT thread?..oy...change it already >>

[QUOTE]What's next if DC Court says FCC has no power over ISPs
By Matthew Lasar | Last updated about 13 hours ago

"Consensus is pretty strong that last week's oral argument on the Comcast/BitTorrent argument in front of the DC Circuit was an unmitigated disaster for the FCC," wrote pro-net neutrality advocate Harold Feld in his blog for Public Knowledge on Wednesday. "So much so that it appears that the D.C. Circuit may actually strip the FCC of any authority to 'regulate the internet'."

The remark came as the Federal Communications Commission hears final comments on its proposals to strengthen the FCC's Internet nondiscrimination rules. Hanging over that proceeding is Comcast's suit against the agency for its 2008 Order sanctioning the ISP for throttling BitTorrent P2P streamers. The aforementioned consensus is based on observer and newspaper reports about oral arguments in the case, which took place at the DC Circuit Court of Appeals last Friday.

But now we've got the actual word-for-word transcript of the event. No need to take opinion polls any more. As is abundantly clear, the Commission truly got its rump kicked.
Not a single provision
Hon. David B. Sentelle

Presiding over the trial were Circuit Judges A. Raymond Randolph, David S. Tatel, and Chief Judge David B. Sentelle. Comcast attorney Helgi G. Walker presented first, and she came out swinging.

"At the time the complaint in this enforcement proceeding was filed there was not a single provision of federal law, no federal statute, no federal agency rule, no federal agency adjudicatory precedent, whether valid or not that governed Comcast Network management practices," Walker began. "All that existed was a policy statement, and that is all the complaint alleged a violation of."

This is core of Comcast's case against the FCC's Order sanctioning the ISP—that the legally threadbare decision was based on the agency's 2005 Internet Policy Statement, which declared that it has the jurisdiction "necessary to ensure that providers of telecommunications for Internet access or Internet Protocol-enabled (IP-enabled) services are operated in a neutral manner."

The document, Walker argued, "quite simply lacked any legal force or effect." It was just a policy statement, no more. Not only that, she added, but since then the FCC has launched a proceeding to place the statement among the agency's rules, "recognizing, at least implicitly, the unenforceability of the policy statement standing alone."

This got the attention of Justice Randolph. "Can they issue rules if it's just a—if all they have is a policy statement?" he asked.

No. Of course not, Walker replied. "I don't think that is a proposition that is remotely credible under this Court's clear precedent regarding the legal status of policy statements."

But, interjected Judge Tatel, "isn't the Commission arguing—excuse me—isn't the Commission relying on its ancillary jurisdiction here?"
Let me back up

And with that, Comcast had won. Even before the FCC's attorney got to the bench, the judges were doing Walker's job, swatting aside arguments on behalf of the agency's Order sanctioning the ISP.

This was probably a rhetorical question. Yes, as everybody in that room knew, in issuing the Policy Statement, the FCC argued that it relied on the "ancillary" (implied) powers given to it in Title I, Section 230(b) of the Communications Act, which states that it is the policy of the United States "to preserve the vibrant and competitive free market that presently exists for the Internet" and "to promote the continued development of the Internet."

Tatel asked Walker about a trio of earlier cases in which the FCC had regulated various telecommunications companies by invoking policy statements, decisions that survived court scrutiny. Walker shot back that in those instances, there were clear, Congressionally created common carrier rules accompanying these statements. They weren't invoked entirely on their own.

For the next ten minutes the judges and Comcast talked cases and precedents. Then Randolph cut to the chase. "In looking this over I found a good many situations in which Congress has instructed the FCC to study the Internet," he opined, "and taxation of transit sales transactions on the Internet, and this, and that, and the other thing. But what I don't find is any congressional directive to the FCC to regulate the Internet."

It wasn't hard for Walker to summon a response to this observation. "That's right," she declared.

And with that, Comcast had won. Even before the FCC's attorney got to the bench, the judges were doing Walker's job, swatting aside arguments on behalf of the agency's Order sanctioning the ISP. Pro-FCC briefs to the court had noted that the Supreme Court recognized the Commission's ancillary authority in its Brand X decision, a crucial ISP access case. Randolph threw this bullet point into the trash icon, referring to the "offhand statement" in Brand X. "And the Supreme Court has moved so far away from that kind of an analysis in today's modern jurisprudence," he added, "it seems antiquated."

Finally, Commission lawyer Austin C. Schlick stepped up to the plate to argue his case, or, perhaps more accurately, assume the position.

Page:[URL=http://arstechnica.com/tech-policy/news/2010/01/could-dc-court-strip-fcc-power-over-isps.ars]1[/URL],[URL=http://arstechnica.com/tech-policy/news/2010/01/could-dc-court-strip-fcc-power-over-isps.ars/2]2[/URL] ,[URL=http://arstechnica.com/tech-policy/news/2010/01/could-dc-court-strip-fcc-power-over-isps.ars/2]Next[/URL] >
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[url]http://arstechnica.com/tech-policy/news/2010/01/could-dc-court-strip-fcc-power-over-isps.ars[/url]
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Ok...wow........ how come ISPs can get away from the FCC completely? They were not specifically listed with radio and TV?
From what I gather radio and TV are still covered. Tho it would be nice if the FCC just went up in smoke the ensuing chaos would be better than TV(even if net prices doubled twice....)!

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Ah modern gaming its like modern film only the watering down of fiction and characters is replaced with shallow and watered down mechanics, gimmicks and shiny-er "people".
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Incoherence is my friend and grammar my bane, which is the fulcrum of suffering I place upon others!:ZippyDSMlee
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