Tag: Courts

Surprise, Surprise

 

After the Federal Communications Commission (FCC) five member board voted along party lines to roll back Net Neutrality regulations last month, it wasn’t surprising to see some major Internet Service Providers (ISPs) trot out rate increases soon afterward. The new regulatory structure doesn’t take effect until 60 days after it is published in the Federal Register, which may take a few more weeks while the FCC completes final edits to the paperwork, but companies like Comcast just couldn’t wait. Meanwhile, in another predictable outcome of the end of Net Neutrality, over 20 states have started instituting their own rules in an effort to adhere to the old guidelines, while also suing the FCC to prevent it from trying to impose its new rules within each state.

 

This comes down to regulating interstate commerce in the form of communications companies, which is the only reason for federal agencies such as the FCC to exist. It will all have to be sorted out in the courts, and that could take years and many millions of taxpayer dollars, all because FCC Chairman Ajit Pai turned a deaf ear to the majority of Americans while he listened very closely to his corporate masters, such as at Verizon, where he worked as a corporate lawyer before being appointed to the FCC by President Barack Obama, at the behest of Senator Mitch McConnell (R-KY).

Reinstate Net Neutrality sign, Women's March, DTLA, Los Angeles, California, USA (39824631401)
“Reinstate Net Neutrality” sign at the January 20, 2018, Women’s March in downtown Los Angeles, California. Photo by Cory Doctorow.

There have been noises from Congress about legislating Net Neutrality, or a semblance of it, once and for all, thereby stripping the FCC of its bouncing ball regulations. Even if one of these measures manages to squeak by with enough votes in Congress, it will then cross the whistle-clean desk of Supreme Leader, who after all is the one who elevated Ajit Pai from FCC board member to chairman, most likely with the express purpose of encouraging him to gut Net Neutrality for the benefit of corporate giants. Supreme Leader will veto any legislation that undercuts his man at the FCC, and there will not be enough votes in Congress to override his veto, since that would require the votes of two thirds of the members.

Day of Action to Save Net Neutrality 04
One of the ironic slogans used by the non-profit organization Fight for the Future to promote the July 12, 2017, Day of Action to Save Net Neutrality.

In that case, it appears everyone will have to get used to paying through the nose for broadband internet service in areas of the country where there are only one or two providers, which is to say most areas. Consumers could pay less in a tiered system for service at the speed of dial-up, which is what the FCC has opened the door to now. Instead of being regulated like utilities, which must provide similar service to all consumers universally, the ISPs will be regulated like cable television companies, a business some of them have also been in for years.


The problem vexing consumers is that they usually have few choices for providers of these services, although they have slightly more choices than they do when it comes to their electric service. Still, in a market with limited competition, the advantage lies entirely with the unregulated company that is unfettered to charge whatever it can squeeze from captive consumers. Take it or leave it.


“Wildflowers”, the title song of Tom Petty’s (1950-2017) solo album from 1994.

The last area where ISP giants are working to complete their cornering of the market is in the contest over municipal broadband services, which are usually public/private partnerships between municipalities and smaller ISPs, where the municipality provides some infrastructure and subsidies, and the private company provides the hardware, operations, and maintenance. Municipal broadband often provides better service and better rates to consumers than they can get from the big companies, and is likely to provide service to poor and rural consumers who otherwise would have no service options. No wonder the big companies are intensively lobbying state and local officials to choke off municipal broadband. It appears their greed compels them to throttle competition and now, at their discretion, some services to their customers.
— Techly

 

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A Long Leash

 

“What gives the cops the right to open fire? Why didn’t they give him the same warning they gave us? That cop murdered my son over a false report.”
― Lisa Finch, mother of Andrew Finch, 28, who was killed by Wichita, Kansas, police on 12/28/2017.

The killing last week of Wichita resident Andrew Finch by police called out to his house on a bogus hostage emergency allegedly phoned in by Los Angeles, California, resident Tyler Barriss, who did not even know Finch, could lead to a court case in which this country finally confronts how it lets police get away with murder. Historically the courts have bent over backwards to whitewash the excessive, reckless use of force by police. Conviction rates for the few police officers actually brought up on charges have been laughably low. Now with this case in Wichita, the question may finally have to be addressed in the courts of whether police are responsible for their actions or not.

“Swatting”, the practice of phoning in a bogus emergency in order to harass someone else with the bludgeon of a police raid, has been around for many years, but until last week no one has been killed in an unnecessary swatting raid. Nevertheless, the consequences of swatting are usually more serious than those of a “prank”, as many reporters have irresponsibly and inaccurately dubbed the criminal practice this past week. Why would anyone call in a false report for purposes of harassment if they weren’t fairly certain that the cop mentality of overreaction and testosterone poisoning would lead them to escalating most situations to dangerous levels? What would be the fun of it for the hoaxer if instead cops could be relied upon to behave rationally and resolve situations peacefully when at all possible? That wouldn’t serve the purpose of the swatting hoaxer one bit and wouldn’t be the least fun in their eyes. No, the reason swatting exists is because people in this country know very well the police are all too eager to smash down doors, bust heads, and shoot first with their itchy trigger fingers. And the courts stand behind the cops to absolve them of all those actions.

Now there’s a case that will bring up those thorny questions. No doubt the cops will push blame off onto the innocent victim of their reckless stupidity, Andrew Finch. They will claim if he had followed their orders instantly and to the letter he would be alive today. The cops will try to push as much blame as possible onto the alleged swatter, Tyler Barriss. He undoubtedly deserves a long prison sentence if he is proven guilty, but there is scant precedence for prosecuting a criminal defendant like him. He will have to be dealt with in the gray area of analogy – what he did was like dropping a brick off a tall building onto a crowded sidewalk, or like pulling the fire alarm in a crowded theater when there was no fire – but that will not satisfactorily resolve ultimate guilt in this case, because it comes down to who pulled the trigger on the gun that put the fatal bullet into Andrew Finch, and that wasn’t anyone but a cop on the Wichita police force.


Military dog barking
Norman, a 55th Security Forces Squadron military working dog at Offutt Air Force Base in Nebraska, waits to be unleashed and go after his target during training in April 2007. The Offutt K-9 unit performs regular training to maximize the dogs’ effectiveness on the field of duty. U.S. Air Force photo by Josh Plueger.

People can be egged on to do any number of stupid things by other people, whether friends, employers, or strangers. It doesn’t matter. Ultimately you are responsible for your own actions. The cops will fight that assessment in court. They will say they are a tool in the hands of others, and unfortunately they will be correct in that. For too long they have been a tool in the hands of the ruling class to keep down everyone else, and the ruling class has taken advantage of police training to quickly resort to force and adopt the cultural mindset of an occupying army, looking on and treating everyone as an enemy. Us against Them. Shoot first and don’t worry about it later, because the police union and the courts and the district attorneys will sweep it under the rug. A few months administrative leave with pay, maybe a temporary desk job, and then it will all blow over.

In this case, however, it is abundantly clear the police were a tool used by some knuckleheaded video gamer. If a tool, then not responsible. But if not responsible, then who pulled the trigger? In all the arguing, there will still be a dead man to be accounted for, after all. The police have actually become more like their trained dogs. A dog can be trained in just about any way. A dog can be trained to be very aggressive when given the signal by its handler. A dog can be trained to become aggressive when receiving certain signals from a suspect, such as dropping his or her hands to waist level rather than holding them always high in the air as ordered. A dog will bark and snarl when it sees that, baring its teeth and straining at the leash held by its handler. A dog cannot understand that the suspect may only be confused.

The suspect may not necessarily see himself the same way as the police officers crouching by their vehicles with guns drawn, who see him as a suspect, and a dangerous one at that. He is, after all, innocent until proven guilty in a court of law. Until a few minutes ago, he was relaxing at home with his family, minding his own business. Seeing flashing red and blue lights outside, he opened the front door to check what all the commotion was about. From the police perspective, orders and training and cop culture kicked in after that. But what does that have to do with him, Andrew Finch? Didn’t he have the right to a reasonable expectation for human beings in positions of authority and trust in the community to behave with more discretion, more empathy, and with more judicious discernment of the real situation than a dog would? In the end, the dog goes free, and that’s as it should be because the dog only reacts according to its training and its handler’s signals. But we hold human beings to a different, and higher, standard than dogs, don’t we? Possibly the courts will address this case similarly, and in so doing force a change for the better in police culture and training.
― Ed.

 

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In Comcast We Trust

 

Recently one of the minority Democratic members of the five person board of the FCC took the unusual step of writing an article for distribution in the popular press urging the public to sit up and pay attention to what the majority Republican members of the board are attempting to do with a vote on December 14 to repeal net neutrality rules. Jessica Rosenworcel asked the public to make a fuss with the FCC and with Congress to try postponing the vote until after public hearings. The vote will likely still take place on the 14th, and the outcome is certain considering the three to two Republican majority on the Commission board. The next step will probably see the rule changes challenged in court, with litigation taking years.

Congress could change how a regulatory agency like the FCC goes about its business so that it is less swayed by the variable political winds, but it appears there is little will in the Republican Congress to overrule the agency and tie it down to enforcing a net neutrality law enacted by legislators. There is some discussion in technology circles that introduction of 5G wireless service in the next few years will change the competitive landscape since 5G speeds and bandwidth will challenge the monopoly of wired service providers for the crucial last mile of service to customers’ homes. Until now, wireless internet service providers like Verizon and AT&T could not compete with wired providers like Comcast and Charter because their service was slower and not capable of handling the bandwidth demands of home users piling up GigaBytes of usage every month, usually by streaming video.


5G may indeed change the competitive landscape between a few large internet service provider companies as it rolls out, but customers will still have to deal with fast lanes and slow lanes imposed by whichever gatekeeper they sign up with for service. The proposed FCC rule changes will allow ISPs to charge different content providers varying amounts based on tiers of service, rather than providing equal access to all as they are required to do now since they are regulated as public utilities.

Jessica Rosenworcel official photo
FCC Commissioner Jessica Rosenworcel, who began service on the Commission in 2012 and was confirmed by the Senate for an additional term in 2017.

When FCC Chairman Ajit Pai first proposed rolling back net neutrality rules early this year, Comcast said essentially “Trust us, we would never take full advantage of the regulatory opening to charge a premium for faster internet service.” As if anyone would believe them, particularly anyone who had any experience at all as a Comcast customer! Lately Comcast has walked back their earlier statement with some linguistic mumbo-jumbo that’s supposed to make people think they won’t be doing what they intend on doing when the time comes and they can get away with it, which will be to charge a premium for faster internet service and, as a bonus, no data caps! Comcast’s duplicity surprises no one, and their pleas for trust are laughable.

The best thing that can be hoped for by people who wish to keep a relatively open and inexpensive internet beyond December 14 is that the rule changes will be tied up in the courts for several years, and to some extent that will tie the grasping hands of some internet service providers who are eager to take advantage of the new rules to gouge content providers and customers. Beyond that, the best hope for a decisive, long term answer to the problem will have to come from Congress, which in the current environment does not appear possible, but may be so after a change in party dominance in Congress as a result of the 2018 election. The FCC needs to be more an enforcer of rules Congress makes, and less its own rule maker.
― Techly

 

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Something for Nothing

 

“. . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries . . .”
― an excerpt from Article I, Section 8 of the United States Constitution.

Recently the pharmaceutical company Allergan cut a deal with the St. Regis Mohawk Tribe of upstate New York to hold the patent for one of its drugs in order to protect the company from patent challenges. The reasoning behind the deal is that since Native American tribes have sovereign immunity from some types of lawsuits under the 11th Amendment to the Constitution, Allergan is protecting itself from expensive and sometimes unwarranted litigation relating to its patent. In return, the St. Regis Mohawk Tribe will receive millions of dollars up front, and millions more in royalties. Since this is a new type of arrangement, it’s unclear how well it will hold up in court.


Collection of United States patents granted to Thomas A. Edison, 1869-1884 (1869) (14570066720)
Illustration for an 1881 patent granted to Thomas Edison for an improvement to the incandescent light bulb he had first patented in 1880, itself an improvement built on the work of Canadian inventor Henry Woodward. Edison collected 2,332 patents worldwide, many of them for incremental improvements such as the one pictured here.

 

Patent infringements and patent challenges are nothing new, but with the explosion in technical innovations, new drugs, and medical devices in the past thirty years or so, the amount of infringement and challenge cases in the courts have exploded as well. Widespread patent trolling is a new phenomenon, tying up court dockets with often tenuous claims by some patent holders that their patent rights have been violated by another party.

The troll in this circumstance is usually an affiliation of lawyers sometimes known as a Non-Practicing Entity (NPE), which does not make or sell anything, but collects patents for the leverage that gives them in either extracting (extorting) licensing fees or lawsuit settlements from other parties. The patents used suit the purpose because they are overly broad and general, leaving plenty of room for interpretation by the courts, and the victims are often small to medium sized businesses which can’t afford the millions in lawyers’ fees and court costs it would take to defend themselves, instead choosing the easier and cheaper route of ponying up the licensing fee to the troll.

It’s hard to find fault with the St. Regis Mohawk Tribe for agreeing to the deal with Allergan. Native American tribes are often poor, their reservations pushed onto marginally productive land, and if they can take advantage of their status as sovereign nations within the United States to make some money, then more power to them. That same sovereign nation status, after all, has usually proved a mockery as European immigrants violated treaty after treaty with the Native Americans in pursuit of land and natural resources, taking what they liked with military force if words would not suffice.


Allergan, on the other hand, is doing what American companies seemingly do best, which is to cleverly exploit a loophole in the system. Whether Allergan is protecting itself from trolls or planning on doing the trolling itself from its newly purchased protected perch, that is yet to be seen. Large companies, such as Apple, can be both targets and perpetrators, though as perpetrators it’s often in the sense of patent infringement rather than trolling.

 

Self-operating napkin (Rube Goldberg cartoon with caption)
This cartoon of a “self-operating napkin” machine by Rube Goldberg originally appeared in the September 26, 1931 issue of Collier’s Magazine.

There’s plenty of gray area involved, and that’s where legislators need to step in to more clearly define the lines and reduce the amount of trolling lawsuits. Congress has acted in the past several years by changing the laws in favor of genuine innovators and against NPEs. More needs to be done, such as making the loser in a lawsuit pay the legal fees of both sides if the judge determines that one side has acted with intent to harass and extort the other.

This film of less than two minutes demonstrates Wallace’s endless enthusiasm for Goldbergian contraptions, much to the dismay of his dog, Gromit.

Some states have enacted such legislation, but where the case gets decided in a federal court, such as would be the situation should Allergan get challenged or challenge another party, the proceedings are not as clear due to fluid interpretations of the 11th Amendment. It appears that besides tightening up the rules governing patents, the next step is for Congress and the States to clarify the 11th Amendment to take away the sovereign immunity loophole. It’s unfortunate that Native American tribes would be denied a source of revenue, but patent parking really is a shady deal that needs to be stopped before it goes too far, similar to what has happened with the entrenchment of offshore tax havens for corporations.
― Techly

 

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