Federal judge accuses Silicon Valley of being common

22 February 2014 by Steve Blum
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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.