Federal judge accuses Silicon Valley of being common

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One octopus looks pretty much like any other.

In trying to figure out what the next network neutral battle is going to look like, I read through the 81 page federal appeals court ruling that tossed out the Federal Communications Commission’s first stab at writing those rules. The majority decision reads like a prescription for what the FCC needs to do in order to impose net neutrality regulations, something chairman Tom Wheeler has taken to heart.

But one judge, Laurence Silberman, didn’t think there was anything the FCC could or should do to regulate the relationship between Internet service providers, such as Verizon or Comcast, and content and service providers like Google and Apple. Appointed to the appeals bench in 1985 by Ronald Reagan, Silberman has written a breathtaking range of decisions, on the one hand ruling that the second amendment to the U.S. constitution prohibits handgun bans and on the other validating congress’ power to enact Obamacare under its constitutional authority to regulate interstate commerce.

He wrapped up his dissent by poking a big hole in the notion that there’s anything fundamentally different about the Silicon Valley companies that fight for and benefit from net neutrality…

This regulation essentially provides an economic preference to a politically powerful constituency, a constituency that, as is true of typical rent seekers, wishes protection against market forces. The Commission does not have authority to grant such a favor.

With Wheeler taking the majority opinion at face value and moving ahead to craft rules that follow its reasoning, the argument will no doubt eventually be settled by the supreme court, likely years from now. In the meantime, Silicon Valley will have to settle for the tools of the market. Hello Google Fiber.

About Steve Blum

Steve Blum is president of Tellus Venture Associates, a management, planning and business development consultancy for municipal and community broadband initiatives. He is a 30-year industry veteran and an expert in developing new broadband infrastructure and services, including wireless, fiber optic and satellite systems. His career includes playing key roles in the launch and growth of DirecTv in the U.S., as well as other satellite broadcasting platforms around the world. For the past ten years, he has helped build municipal wireless and fiber optic broadband systems. His client list includes many California cities, such as San Leandro, Palo Alto, Oakland, Los Angeles, Lompoc and Folsom. He’s a member of the executive team for the Central Coast Broadband Consortium and has worked with other regional consortia in California. Steve is the author of seven books on the Internet and satellite broadcasting and is a frequent contributor to professional journals and industry events. He holds an A.B. in History from the University of California, Berkeley, an M.A. in East Asia Studies from the University of Washington, and an M.B.A. from the University of St. Thomas. He is a triathlete and multiple Ironman finisher, and is currently ranked in the top 100 of the Challenge Triathlon world rankings, out of more than 30,000 athletes.