US Court of Appeals rules that the FCC can consider areas with only a single ISP 'competitive'

[Polycount]

WTF?! The United States' Eighth Circuit Court of Appeals has ruled that the FCC can "choose which evidence to believe" regarding its recent decision to allow areas with only a single ISP to be considered "competitive" -- and thus immune to business broadband price caps -- so long as a competing company's service region is less than half a mile away.

The FCC hasn't exactly been popular among consumers lately. The regulatory agency's controversial decision to roll back Title II net neutrality protections back in December was met with no small amount of criticism.

The Commission's image didn't get any better when its claims that its comment system was hit with a Distributed Denial of Service (DDoS) attack were proven false. The comment system ordinarily allows the public to leave feedback on upcoming proposals, but users were prevented from doing so for several days due to website issues.

Now, the FCC could be damaging its public perception even further, this time in the eyes of small businesses, schools, and government agencies.

According to Ars Technica, a US appeals court has upheld a recent FCC ruling that stated markets can be "competitive" even if there's only a single business broadband provider in the area.

If you're not quite sure what the implications of this ruling are, ISPs that aren't challenged by any competitors often have price caps imposed upon them to prevent them from unfairly raising prices for their customers.

By allowing the FCC to deem areas with only a single ISP as "competitive," these price caps could effectively be removed even when a company has a monopoly in an area.

The FCC argues that its "competitive market test" -- which considers any area within half a mile of a competing ISP's service region "competitive" -- supports its decision.

The theory here seems to be that other, smaller ISPs can merely expand their service regions to challenge the big guys, and as such, said big guys shouldn't be subject to price controls.

Competitive Local Exchange Carriers (the smaller ISPs in question) and business broadband customers disagree, however. They reportedly provided evidence to the court that suggested it wouldn't be economically viable to expand their service areas. The court seemed to reject this evidence, however.

Judges presiding over the case wrote that while both sides present conflicting, but equally-viable evidence, the FCC can "choose which evidence to believe" in its proceedings.

The relevant excerpt from the full court ruling is as follows (via Ars Technica):

We recognize that the relevant data presents radically different pictures of the competitiveness of the market depending on the economic theory applied and the weight given to conflicting pieces of evidence. But the FCC may rationally choose which evidence to believe among conflicting evidence in its proceedings, especially when predicting what will happen in the markets under its jurisdiction. Thus, we deny the petitions for review as to the Competitive Market Test because the FCC's resolution of competing evidence was not arbitrary and capricious.

This seems like a pretty strange decision. Based on this statement, it sounds like the FCC has been given free reign to pick and choose which evidence it wants to believe as long as its decisions aren't "arbitrary."

Do you think the court's decision was warranted? Let us know in the comments.

Permalink to story.

https://www.techspot.com/news/76207-us-court-appeals-rules-fcc-can-consider-areas.html

 

[psycros]

"The United States' Eighth Circuit Court of Appeals has ruled that the FCC can "choose which evidence to believe" regarding its recent decision to allow areas with only a single ISP to be considered "competitive" -- and thus immune to business broadband price caps -- so long as a competing company's service region is less than half a mile away. "

Circuit Courts of Appeals have been selectively believing complete fabrications for over a decade. Many of them are highly activist and routinely push agendas with no real oversight. The more left-leaning courts routinely overrule the will of the voters.

 

[Lew Zealand]

I'm not sure I understand. Is this a left-leaning decision?

 

[Cycloid Torus]

Competition by inference is still not competition. Going "head to head" is. Wonder what cloud Appeals is sitting on (or in).

 

[cliffordcooley]

Wonder what cloud Appeals is sitting on (or in).

They're so far out, they're no longer in the clouds. You might find them using deep space telemetry. The question then changes to which nebula they are sitting on (or in).

 

[Evernessince]

I'm not sure I understand. Is this a left-leaning decision?

It's not leaning towards any side unless you consider anti-consumer practices in your political spectrum.

Saying "You are competitive because those guys are close enough and might eventually compete with you" has to be the most unsound reasoning I've seen yet. It's like the judge doesn't realize that even Google had issues getting access to local poles, let alone small ISPs trying to expand onto one of the big guy's turf.

 

[treetops]

So in theory, a 2nd isp will be like look at those high prices! Lets jump in there and undercut them! What would stop the original ISP company from breaking itself down to previous capped prices after the 2nd company wastes time and money to compete? Nothing so it's pointless, this just lets ISP price gouge you if another ISP is with 1/2 a mile of you. And the rich get richer. It's funny seeing people who don't know how to form an opinion without their "side" telling them what to think.

This is pathetic....
"The Commission's image didn't get any better when its claims that its comment system was hit with a Direct Denial of Service (DDoS) attack were proven false. The comment system ordinarily allows the public to leave feedback on upcoming proposals, but users were prevented from doing so for several days due to website issues."

 

[Jyrkz]

Fcc is screwing you over there.
dont be sheep

 

[Xclusiveitalian]

Competitive with your own company? We will show them, Comcast $400 a month for 100 MB, don't like it? Go to our competitor... Comcast $399 a month for 99 MB.

 

[Sausagemeat]

There isn’t enough information here. I would say that if there is an infrastructure that exists for another provider to be able to provide an internet service then the area is competitive. I’m not sure how it works in the USA but in the U.K. if there is a line to a property then any provider can take it so long as it connects to hardware that they own or rent at the local exchange. Also you have companies who own the only network to one area and will often sell both directly to customers and wholesale to third party retailers. In those situations it might appear like you have a choice but you don’t really, it’s all the same network with prices fixed by the network owner and your retailer adding their cut.

The companies people can buy internet off who simply buy connections from a wholesale provider can appear and disappear very easily and quickly without any hardware or infrastructure changes so I actually kind of agree with the initial ruling. In most cases you can set up a new service provider without leaving your desk. But that’s only fine as long as the owners of a local network will wholesale their service at reasonable rates to competitors. Which is where the FCC need to ensure competition is possible. And I believe that currently that is the case.

 

[Bubbajim]

I'm not sure I understand. Is this a left-leaning decision?

It's not leaning towards any side unless you consider anti-consumer practices in your political spectrum.

Saying "You are competitive because those guys are close enough and might eventually compete with you" has to be the most unsound reasoning I've seen yet. It's like the judge doesn't realize that even Google had issues getting access to local poles, let alone small ISPs trying to expand onto one of the big guy's turf.

If this were to be anything it'd be more right-wing. One for the free market die hards.

 

[Reehahs]

The judges of the appeals court need to revisit the dictionary definition of the word 'competition' until they come to their senses.

 

[seeprime]

The court of appeals has shown that ignorant judges support corrupt decisions.

 

[YCykes]

"The United States' Eighth Circuit Court of Appeals has ruled that the FCC can "choose which evidence to believe" regarding its recent decision to allow areas with only a single ISP to be considered "competitive" -- and thus immune to business broadband price caps -- so long as a competing company's service region is less than half a mile away. "

Circuit Courts of Appeals have been selectively believing complete fabrications for over a decade. Many of them are highly activist and routinely push agendas with no real oversight. The more left-leaning courts routinely overrule the will of the voters.

Opportunist comment much?

This ruling is very much not a left-leaning ruling, rather a very pro-corporate one which at this moment in time belong to the current GOP.

Stating that the current FCC can shape reality as they wish and that a market is competitive because someone *might* decide to expand without any proof of those plans is ridiculous.

 

[YCykes]

I'm not sure I understand. Is this a left-leaning decision?

It's not leaning towards any side unless you consider anti-consumer practices in your political spectrum.

Saying "You are competitive because those guys are close enough and might eventually compete with you" has to be the most unsound reasoning I've seen yet. It's like the judge doesn't realize that even Google had issues getting access to local poles, let alone small ISPs trying to expand onto one of the big guy's turf.

If this were to be anything it'd be more right-wing. One for the free market die hards.

No even that. There is no free market where broadband in concerned. Just a series of captive markets.

 

[YCykes]

There isn’t enough information here. I would say that if there is an infrastructure that exists for another provider to be able to provide an internet service then the area is competitive. I’m not sure how it works in the USA but in the U.K. if there is a line to a property then any provider can take it so long as it connects to hardware that they own or rent at the local exchange. Also you have companies who own the only network to one area and will often sell both directly to customers and wholesale to third party retailers. In those situations it might appear like you have a choice but you don’t really, it’s all the same network with prices fixed by the network owner and your retailer adding their cut.

The companies people can buy internet off who simply buy connections from a wholesale provider can appear and disappear very easily and quickly without any hardware or infrastructure changes so I actually kind of agree with the initial ruling. In most cases you can set up a new service provider without leaving your desk. But that’s only fine as long as the owners of a local network will wholesale their service at reasonable rates to competitors. Which is where the FCC need to ensure competition is possible. And I believe that currently that is the case.

That's the main problem in the USA at the moment. Back when phone lines ruled the day, the government "unbundled" the last mile, allowing third parties to buy access to the existing phone line infrastructure. That opened the door for ISP competition and the Internet took off like wild fire.

The same action needs to happen with the incumbent broadband ISPs. As it sits not, the incumbents sit on their fiefdoms alone, maybe with one comparable competitor. Only in very few, denser, areas can a person find thriving competition. Otherwise you are expected to take it and be happy about it or move out if you want something else.

In the meantime, incumbent ISPs fight tooth and nail over their regions by suing potential competitors over every little detail, obstructing public broadband efforts, and delaying ISP applications as much as possible.

 

[jameson71]

I'm not sure I understand. Is this a left-leaning decision?

Why does it matter if the decision is "left-leaning" or "right-leaning"? Why not judge the decision on its own merits?

 

[fg8578]

"US Court of Appeals rules that the FCC can consider areas with only a single ISP 'competitive'"

That's not at all what the decision says, but that headline is sure to generate clicks. Read the decision and draw your own conclusions:

https://cdn.arstechnica.net/wp-content/uploads/2018/08/bds-decision.pdf

 

[Silvernine]

I'm not sure I understand. Is this a left-leaning decision?

Why does it matter if the decision is "left-leaning" or "right-leaning"? Why not judge the decision on its own merits?

Well, the question came up because psycros was nonchalantly spreading misinformation saying that it's a "left-leaning" decision even though the majority of the justices (10 out of 11), are appointed by the GOP. 3 out of those 10 are appointed by President Trump while while only 1 was from Former President Obama. The rest were by George W. Bush and previous Republican presidents.

Now if judging the decision only on its own merits, it's bullshit.

 

[psycros]

Well, the question came up because psycros was nonchalantly spreading misinformation saying that it's a "left-leaning" decision even though the majority of the justices (10 out of 11), are appointed by the GOP. 3 out of those 10 are appointed by President Trump while while only 1 was from Former President Obama. The rest were by George W. Bush and previous Republican presidents.

Now if judging the decision only on its own merits, it's bullshit.

Try reading it again slowly. Maybe you'll figure out that there are two separate points being made.

 

[Lew Zealand]

It's not leaning towards any side unless you consider anti-consumer practices in your political spectrum.

Saying "You are competitive because those guys are close enough and might eventually compete with you" has to be the most unsound reasoning I've seen yet. It's like the judge doesn't realize that even Google had issues getting access to local poles, let alone small ISPs trying to expand onto one of the big guy's turf.

This was my understanding of this decision, that it was almost completely devoid of logic and an excuse to rubber stamp "competition" so that the existing monopolies can maintain their uncontested broadband influence and profit margins.

 

[wiyosaya]

"US Court of Appeals rules that the FCC can consider areas with only a single ISP 'competitive'"

That's not at all what the decision says, but that headline is sure to generate clicks. Read the decision and draw your own conclusions:

https://cdn.arstechnica.net/wp-content/uploads/2018/08/bds-decision.pdf

While it does not specifically state that, it does state "Thus, in view of the FCC’s entire analysis rather than the portions selectively quoted by the CLEC Petitioners, the FCC was not arbitrary and capricious in adoption of its second criterion." The net effect, at least as I see it, is the same as the headline.

There are, however, other aspects to the case. In particular, the FCC's rule is with respect to "Business Data Services."

 

[wiyosaya]

I'm not sure I understand. Is this a left-leaning decision?

It's not leaning towards any side unless you consider anti-consumer practices in your political spectrum.

Saying "You are competitive because those guys are close enough and might eventually compete with you" has to be the most unsound reasoning I've seen yet. It's like the judge doesn't realize that even Google had issues getting access to local poles, let alone small ISPs trying to expand onto one of the big guy's turf.

Unfortunately, it sounds like gagme gave up. Rather than pursue this in court where it had a chance to become legal precedent, they simply threw their hands up in the air and said, Oh Well! Had they taken it to court, in some fashion, they might have won. Taking an issue like this to court is typically how legal precedent is set.

My bet is that gagme had other reasons that they decided to give up without a fight.

 

[Frank White]

I'm not sure I understand. Is this a left-leaning decision?

Definitely not. This is part of a larger trend under the Trump administration, allowing big business to do pretty much whatever they want. Anything that can be blown up, fracked, mined, drilled, polluted, cut down, shot down, or just generally screwed over - which includes people - then our current government says you have our blessing as long as it's making us all more money.

 

[mark kram]

Most people have more than one isp and don't know it. Cellphone companies are isps. Satellite companies have isps. Cable, of course, has isps. The small microwave companies are isps. This law is the death knell for pcs, because nearly all of them must be hooked up to cable, satellite, or microwave tech. Very few PCs use Cellphone companies and this law is forcing consumers into the arms of those companies.