Ajit Pai Again (Falsely) Claims States Are Powerless To Protect Broadband Consumers

from the good-luck-with-that dept

For much of the last year ISPs like Comcast have been successfully lobbying to eliminate most meaningful oversight of their broadband monopolies. On the federal level, that has involved convincing Ajit Pai to neuter the FCC's authority over ISPs, then shoveling any remaining authority to an FTC that's ill-equipped to actually do the job. On the state level, that has involved lobbying Pai (who again was happy to oblige) to include language in the FCC net neutrality repeal attempting to "pre-empt" (read: ban) states from also protecting consumers.

These efforts haven't gone well so far. Charter (Spectrum) tried to lean on this language to recently wiggle out of a New York State lawsuit over terrible speeds and poor service, only to have the courts reject its argument. And lawyers have argued that when the FCC abdicated its authority over ISPs, it ironically also eroded its rights to tell states what they can do, spelling trouble for any ISP plans to kill state level net neutrality rules.

Undaunted, Pai's FCC continues to insist it has this authority anyway. Last week, the US Court of Appeals for the 8th Circuit ruled (pdf) that Minnesota's state government cannot regulate VoIP phone services offered by Charter and other cable companies because VoIP is an "information service" under federal law. Charter had sued the state PUC after it filed a complaint noting that Charter had split off its voice service from its regulated wholesale telecommunications business, dubbing it an "information service" in a bid to avoid state oversight.

Ajit Pai was quick to take a victory lap in a statement praising the ruling (pdf), insisting that the court victory portends success in the FCC's goal of stopping states from protecting net neutrality:

"A patchwork quilt of 50 state laws harms investment and innovation in advanced communications services. That’s why federal law for decades has recognized that states may not regulate information services. The Eighth Circuit’s decision is important for reaffirming that well-established principle: ‘[A]ny state regulation of an information service conflicts with the federal policy of nonregulation’ and is therefore preempted. That is wholly consistent with the approach the FCC has taken under Democratic and Republican Administrations over the last two decades, including in last year’s Restoring Internet Freedom Order."

So for one, there wouldn't be a "patchwork quilt of 50 states" trying to protect net neutrality if Pai hadn't almost-gleefully assaulted popular (and modest by international standards) federal rules. Two, Pai's endless claim that net neutrality stifles investment has never been supported by the facts. Three, you'll probably be surprised to learn that the ruling doesn't do anything close to what Pai says it does:

"The net neutrality case is being handled by the US Court of Appeals for the District of Columbia Circuit, so it will be decided by different judges. The details are also different in the net neutrality case, said attorney Andrew Schwartzman, who represents the Benton Foundation in the case against the FCC.

In the net neutrality case, "the Pai FCC definitively said that it has no jurisdiction under either Title I or Title II [of the Communications Act] to regulate broadband Internet access service," Schwartzman told Ars. "As the governmental parties explained at pp. 39-56 their brief, when an agency lacks authority to regulate, it also lacks authority to preempt.

The VoIP case also differs from the net neutrality case in that there was "no FCC decision at issue" because "the FCC has repeatedly refused to decide what regulatory classification... should be applied to VoIP," Schwartzman said. "Thus, it was left to the court to consider the question in a case between the state and Charter."

In other words, these are completely different rulings in a different court saying completely different things, something you imagine Pai (as a lawyer) would understand. And again, when the FCC killed its own ability to regulate ISPs as common carriers under Title II of the Communications Act, it simultaneously eliminated its authority to thwart states from filling the void. That's a bit weedy, but it's going to be very important should ISPs follow through on their promise to sue any states that pass their own state-level net neutrality protections.

Again, the pretense is that by killing state and federal oversight of natural monopolies, magical things will happen, ranging from more investment to lower prices and more competition. But that's not how the telecom sector works. Freeing Comcast from meaningful oversight in the absence of healthy competition only gives Comcast carte blanche to do whatever it damn well pleases. And as we've made pretty clear, what Comcast wants is to be able to find new and creative ways to rip people off with neither regulatory oversight nor competition having much of a say about it.


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  1. identicon
    Anonymous Coward, 12 Sep 2018 @ 6:34am

    A patchwork quilt of 50 state laws harms investment and innovation in advanced communications services.

    But you also claimed 1 nationwide Federal law also harmed investment and innovation. So the answer here is clear: a requirement that ISPs must invest a certain portion of revenues back into infrastructure or pay heavy fines.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, 12 Sep 2018 @ 6:46am

    Re:

    That is not a good idea. Even the old telephone companies did not have that sort of enforcement levied upon them, poor babies.

    Wouldn't the ISP have to be declared title II first?
    Too bad they can no longer do that, or will they admit they were wrong? - lol, not.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 12 Sep 2018 @ 7:09am

    Re: Re:

    "Too bad they can no longer do that"

    There is no such thing as this with government. Government can make up any law it wants.

    reply to this | link to this | view in thread ]

  4. icon
    Uriel-238 (profile), 12 Sep 2018 @ 7:30am

    There's a musical quality to that statement

    When an agency lacks authority to regulate, it also lacks authority to preempt

    It's music to my ears. Now if only Governor Brown would get on with signing our net neutrality protections into law.

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, 12 Sep 2018 @ 7:41am

    Re: Re: Re:

    Government can make up any law it wants.

    That is what the US government wants, but it is limited by the Constitution as to what laws it can make; at least so long as the Supreme court will strike down unconstitutional laws.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, 12 Sep 2018 @ 7:51am

    Re: Re: Re:

    Also, Congress granted the FCC the power to classify broadband however they want. The FCC originally classified it as Title II, reclassified it to Title I in the 2000s, back to Title II in 2015, and is now back to Title I again. There is nothing in Pai's iFreedom Order that says they can't reclassify it back to Title II in the future. It's an inherent power of the FCC to decide how they want to classify it.

    reply to this | link to this | view in thread ]

  7. identicon
    Pixelation, 12 Sep 2018 @ 7:56am

    Re: Re: Re: Re:

    "Congress granted the FCC the power to classify broadband however they want."

    Seems like it's time for Congress to rescind that power.

    reply to this | link to this | view in thread ]

  8. icon
    Capt ICE Enforcer (profile), 12 Sep 2018 @ 8:00am

    Oh crap

    Oh crap, I don't have anything lol worthy. So please vote this comment as insightful.

    reply to this | link to this | view in thread ]

  9. icon
    Ehud Gavron (profile), 12 Sep 2018 @ 8:09am

    English is not my first language

    > That is not a good idea.
    What is not a good idea?

    > Even the old telephone companies...
    What old telephone companies?

    >... did not have that sort of enforcement...
    What sort of enforcement?

    > Wouldn't the ISP have to be declared title II first?
    What is it you're trying to say?

    > Too bad they can no longer do that,...
    Who can't do what any longer and why is it too bad?

    > ...or will they admit they were wrong?
    Who admit what was wrong?

    Please do try and say what you mean. This pronoun soup could be posted here, reddit, facebook, foxnews.com and would be equally useless anywhere (except foxnews where Trump would quote it in his next tweet).

    E

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, 12 Sep 2018 @ 8:22am

    Re: Re: Re: Re:

    "at least so long as the Supreme court will strike down unconstitutional laws."

    and this has become questionable lately

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, 12 Sep 2018 @ 8:23am

    Re: Re: Re: Re:

    Seems they can flip flop on just about anything in order to make it appear as if they are correct in decision making and that they are doing what is good for the country .. when in fact they are not.

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, 12 Sep 2018 @ 8:26am

    Re: English is not my first language

    "What is not a good idea?"

    from the post to which I replied:
    "So the answer here is clear: a requirement that ISPs must invest a certain portion of revenues back into infrastructure or pay heavy fines."

    Ok,I so here I will say what I mean ...
    What is your problem?

    reply to this | link to this | view in thread ]

  13. icon
    Ehud Gavron (profile), 12 Sep 2018 @ 8:31am

    Rescind

    a. Congress didn't grant the FCC that power.

    B. Rescind doesn't mean what you think it means.

    Doesn't matter in this screwed up Republican mess and Verizon Lawyer Ajitator Pai. Nothing good will come of this and it will take two future administrations to undo the harm and fix it.

    E

    reply to this | link to this | view in thread ]

  14. identicon
    Anonymous Coward, 12 Sep 2018 @ 8:31am

    Re: Re: Re: Re: Re:

    I would agree under the condition that broadband be permanently classified as a Title II telecommunications service.

    reply to this | link to this | view in thread ]

  15. identicon
    Anonymous Coward, 12 Sep 2018 @ 8:38am

    Re: Re: Re: Re:

    bullshit bullshit bullshit

    The case has to make it to SCOTUS first and even then the government still does what the fuck it wants.

    reply to this | link to this | view in thread ]

  16. identicon
    Anonymous Coward, 12 Sep 2018 @ 8:38am

    https://www.forbes.com/sites/fredcampbell/2018/08/13/state-net-neutrality-regulations-are-an-exercis e-in-futility/#60a4d24b4742

    The above is one of many rejoinders to the views expressed in this article re state legislation on the matter of net neutrality.

    The points made deserve thoughtful consideration because they discuss matters of federal law that are not discussed in any of the several articles posted on this site that speak approvingly of state legislation/regulation.

    reply to this | link to this | view in thread ]

  17. identicon
    Anonymous Coward, 12 Sep 2018 @ 9:01am

    Re: Re: Re: Re: Re:

    not just lately, SCOTUS has never been a particularly good protector of the Constitution. Why do you think we have such in your face abuse of constitutional rights these days?

    First you have to work through the legal system of judges telling you that the government can do what it wants, THEN you have to get SCOTUS to "agree" to see your case, THEN they have to rule in your favor. THEN you have get the police to obey, which no one actually does. People still get arrested for recording the police, and despite Heller, it is still dangerous to have a firearm in DC and the police can arrest you anyways.

    Your rights are for sale to the lowest bidder and many of your fellow citizens of varying flavors are entirely FOR removing more than enough of your rights to make the police state stronger until you wake up and realize that you are owned entirely by your government and you just have the "illusion" of freedom.

    You don't we produce hierarchies just exactly for this purpose... "Control"

    reply to this | link to this | view in thread ]

  18. identicon
    Anonymous Coward, 12 Sep 2018 @ 9:12am

    Re: Rescind

    a. Congress didn't grant the FCC that power.

    Yeah, they kind of did when they created the FCC in the first place. Court cases have upheld the fact that the FCC is perfectly within their rights to define broadband however they want.

    I, and many others, disagree that it should be defined as anything other than a Title II telelcommunications service but that relates very little to the fact that Congress gave the FCC that power in order to regulate the industry.

    reply to this | link to this | view in thread ]

  19. identicon
    Anonymous Coward, 12 Sep 2018 @ 9:13am

    Re: Rescind

    "a. Congress didn't grant the FCC that power."

    Congress can not constitutionally grant law making power anyways, Congress only has the power to create agencies to uphold and enforce the laws congress creates.

    "Doesn't matter in this screwed up Republican mess" if the mess is republican then why didn't the "democracts" solve it a long time ago.

    You are just playing identity politics now. That is ONLY okay to do when only one side is guilty. Both are equally guilty.

    reply to this | link to this | view in thread ]

  20. icon
    Gary (profile), 12 Sep 2018 @ 9:16am

    Re: Re: Re: Re: Re: Re: Bull

    Hey - Why do you think this is an ideal opportunity to call up your constitutional fantasies instead of discussing the article?

    Constantly shouting "Wake up" does not contribute to *any* conversation, and is as annoying as fuck. Nutter.

    reply to this | link to this | view in thread ]

  21. identicon
    Anonymous Coward, 12 Sep 2018 @ 9:24am

    Re: Re:

    Even the old telephone companies did not have that sort of enforcement levied upon them, poor babies.

    They were required to invest in infrastructure:

    The universal service objective was placed into law in the Communications Act of 1934. Section 1 of that statute created the FCC to make “available…to all the people of the United States…a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges.” Under that generic mandate, the FCC adopted regulatory policies under which urban consumers helped pay for wiring rural areas and (of immediate relevance here) higher long-distance rates were used to subsidize local telephone service.

    (While I don't know how much enforcement it took, rural infrastructure did get built.)

    reply to this | link to this | view in thread ]

  22. identicon
    Anonymous Coward, 12 Sep 2018 @ 9:25am

    Re: Re: Re: Re: Re: Re: Re: Bull

    Can't fix the problem until enough of you wake up.

    The fact that you think it is a good idea to try to fix the symptom rather than solve the underlying problem is what makes you the nutter.

    This is why America is failing.... no why all western governments are failing. The people have become so pampered that they feel no fear of their own gross ignorance and incompetence.

    The abuses of government are on open display and no one is doing anything to stop it other than run a little campaign mouth and create us vs them strategies.

    reply to this | link to this | view in thread ]

  23. icon
    That Anonymous Coward (profile), 12 Sep 2018 @ 9:28am

    don't believe his lies.gif

    reply to this | link to this | view in thread ]

  24. identicon
    Anonymous Coward, 12 Sep 2018 @ 10:03am

    Re:

    Then you obviously haven't read any of the articles that discuss these specific issues on this site, or many other sites for that matter.

    There are many factual errors in that forbes article about how the law actually works and how it applies in this situation. Not the least of which is the wording in Pai's order stating that the FCC doesn't have ANY authority to regulate information services; if that is your argument, then you are precluded from pre-empting state regulation because that would require you to have authority over it in the first place. You can't have it both ways.

    reply to this | link to this | view in thread ]

  25. identicon
    Anonymous Coward, 12 Sep 2018 @ 10:05am

    Re: Re: Rescind

    Congress can not constitutionally grant law making power anyways

    Laws? No. Regulations? Yes. Which is what the FCC does. They make regulations, not laws. Big difference.

    reply to this | link to this | view in thread ]

  26. identicon
    Anonymous Coward, 12 Sep 2018 @ 10:09am

    Re: Re: Re: Re: Re: Re:

    Well, yes. There have been several SCOTUS rulings that are highly questionable, however - with recent events that could become much worse.

    First ... you need lots of money.
    Second you need a good lawyer
    Third you argue your case in court(s)

    Then - get the police to obey ... what?
    Did you miss a few steps?

    Laws are meaningless when the DA refuses to do their job and laws are useless when the police refuse to do their duties.

    reply to this | link to this | view in thread ]

  27. identicon
    Anonymous Coward, 12 Sep 2018 @ 10:10am

    Re: Re: Re: Re: Re: Re: Re: Re: Bull

    Yeah, obviously you are the only one in the entire known universe that understands what is happening and what needs to be done about it. Sucks to be so damned smart doesn't it?

    reply to this | link to this | view in thread ]

  28. identicon
    Chip, 12 Sep 2018 @ 10:15am

    Re: Re: Re: Re: Re: Re: Re: Bull

    It is becasue I am "Smart" and you should ALL listen to "me"! Because you are very "very" Stupid, and also Asleep, and NEED to "wake" Up!

    Like that "dream" I Had the other "Night", where I was being CHASED by an "angry" can of Lead-Free "paint" that was ANGRY with me because I had "eaten" So Many of its Leaded "cildren". I tried "Explaining" how SMART I am efor SEVERAL "hours" but for "some" reason it was Not "impressed", probably because it as a very very "Stupid" sycphantic Can of Paint! Probably not enough "lead"! Very Sad that goverment "Regulatons" can "ban" Lead in Paint, and make Paint cans fo very very Stupid. Not "Smart" like Me.

    Long story "shot" the Paint can began to "nibble" at my Toes, like how I like to "nibble" at Delicious, Delicous paint Chips. But then I woke "up" and found Out that it was actually my pet "rat", Plaguey.

    The Governmnt does not "want" me to have Plaguey because he "has Diseases". Well fuck "You", government! I'll let the Free "market" decide What kinds of "pets" I can have!

    In "conclusion", you shoudl Wake Up!

    Especially you should "wake up" to a Pet "rat" nibbling on YOUR toes. The wsame way you should "nibble" on Paint Chips!

    Every Nation eats the Paint chips it Deserves!

    reply to this | link to this | view in thread ]

  29. identicon
    goonierag, 12 Sep 2018 @ 10:17am

    hopefully

    is a independent but if dems take the house in november I hope that they bring pai under oath back to the table on the stuff he done for the telco's,cables and broadcasters and get him to admit there was collusion with them or get him to lie about stuff in front of themn under oath and then have him prosecuted and maybe some of the others involved. Then maybe he and they will get some jail time where they can become each others b***buddies or others in the jails b***buddies.
    So if the dems take the house in november,hopefully if people press them and right now some of them are already pissed pai won't answer questions it might just happen.

    reply to this | link to this | view in thread ]

  30. identicon
    Anonymous Coward, 12 Sep 2018 @ 10:20am

    Re: Re: Re:

    "They were required to invest in infrastructure"

    I do not recall any heavy fines being levied, were there any?


    "The universal service objective was placed into law "

    Consumers paid the universal service charge for many years and received very little if anything as a result.


    "rural infrastructure did get built."
    You know anyone in rural america?

    reply to this | link to this | view in thread ]

  31. identicon
    Anonymous Coward, 12 Sep 2018 @ 10:20am

    Re: There's a musical quality to that statement

    Did you pay a license fee for that music in your ears?
    Filthy pirate!!!!!

    reply to this | link to this | view in thread ]

  32. identicon
    Anonymous Coward, 12 Sep 2018 @ 10:21am

    Re: Re:

    Well - it is Forbes

    reply to this | link to this | view in thread ]

  33. icon
    James Burkhardt (profile), 12 Sep 2018 @ 10:27am

    Re:

    I think, largely, the article tries to have it both ways from the beginning, just as Ajit Pai does. There is nothing new in the article. It claims that the FCC only has common carrier regulatory authority under Title II, but FCC said broadband is Title I. So far, so factual. However, it then asserts that states can not assert common carrier restrictions on Title I because that authority is exclusively in Title II. This however, puts the cart before the horse, because the argument relies on the assumption that the FCC has that regulatory authority.

    It is settled law that if Congress does not grant a regulator authority over something, it can not preempt state regulation.

    The FCC has explicitly stated congress did not give it regulatory authority over broadband. Therefore, it can not preempt state regulations over broadband. No matter what common carrier exemptions Congress gave 'information services', the FCC has no rule making authority over them, and therefore can not preempt state authority.

    And the wording of the law is misrepresented - It relies on the assertion that crongress has 'expempted' Information services from common carrier restrictions, which it didn't do. It did not grant the FCC the authority to impose Common carrier restrictions on Title I, while granting it that authority to Title II. This difference is important. Because it doesn't actually say they are exempt. Therefore there is not a federal law exempting a Title 1 service. That allows the states to regulate common carrier restrictions when the FCC has no regulatory authority over a Title I service.

    The issue of purchasing power is a funny one. The ruling effectively states that the state can not choose to make purchasing decisions based on the law abiding nature of the contractor, which seems...odd. Esp since it seems the issue is one of it being a law rather than an informal policy. If a state announces it will end its contract to purchase goods with a contractor due to recently exposed unethical behavior (say knowingly exposing employees to poisonous environs without proper protection in violation of OSHA), can they not do that? If they choose to not say anything, but don't renew and an FOIA request reveals the decision is based on the federal law violation, could they be penalized? Are they required to continue to purchase as soon as massive regulatory violations occur to prevent lawsuits? The core of the decision, that the state choosing to not do business based on regulatory violations is not normal market function, seems to incentivize some weird behavior.

    reply to this | link to this | view in thread ]

  34. icon
    Thad (profile), 12 Sep 2018 @ 10:39am

    Re: Re: Re:

    More specifically, it's a Forbes contributor. In other words, a blogger.

    reply to this | link to this | view in thread ]

  35. icon
    got_runs? (profile), 12 Sep 2018 @ 12:04pm

    Liar, liar Ajit Pai set the FCC on fire.

    reply to this | link to this | view in thread ]

  36. This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 12 Sep 2018 @ 12:12pm

    Re:

    Fuck you pussypai...... you lying piece of shit!!!!!

    reply to this | link to this | view in thread ]

  37. identicon
    Anonymous Coward, 12 Sep 2018 @ 12:49pm

    Re: Re:

    What happens when Congress decides not to enact legislation such as NN? Does this mean states are free to step in and do what Congress has not done?

    To answer the questions it is useful to consider the nature and scope of Congress’ Article 1 power under the Commerce Clause, as well as a legal concept that goes by the name Dormant Commerce Clause. I believe those who do this will come to the realization that the author of the Forbes article made some very cogent arguments.

    reply to this | link to this | view in thread ]

  38. identicon
    Anonymous Coward, 12 Sep 2018 @ 1:22pm

    Re: Re: Re:

    it is useful to consider the nature and scope of Congress’ Article 1 power under the Commerce Clause, as well as a legal concept that goes by the name Dormant Commerce Clause

    Read, researched, considered. Forbes is still wrong and their arguments are not "cogent" in any way, shape or form.

    reply to this | link to this | view in thread ]

  39. identicon
    Anymouse, 12 Sep 2018 @ 2:14pm

    Re: Re: Re:

    Yes, there were laws passed SAYING that they had to invest in infrastructure, but in reality all they did was take lots and lots of government money and pay lots and lots of executive bonuses (and maybe added a single connection to a 50 square mile area and called it 'covered')...

    Telecom business model:
    1. Complain that we can't afford to provide the service our customers are paying for, and we can't cover everyone.
    2. Ask the government for Billions of dollars to help out with number 1.
    3. Pay executives just slightly less than Billions in bonuses, and take a #2 on the government (as in take a crap on) when they complain that we didn't do enough of #1
    4. Bribe (aka Lobby) politicians to pass favorable regulations, or to remove regulations that hinder profit.
    5. Profit all the way to the bank (and then repeat the cycle with the new 'tech')...

    Speaking of which, have you seen how expensive it will be for us to implement 5G, I'm sure we will need BILLIONS and BILLIONS of dollars this time, and we promise we will at least turn it on in one location...

    We are telecom and you will be assimilated

    reply to this | link to this | view in thread ]

  40. icon
    Thad (profile), 12 Sep 2018 @ 2:20pm

    Re: Re: Re: Re:

    Forbes is still wrong

    It bears repeating that an article by a Forbes contributor is, essentially, a blog post on the Forbes website; describing it as a "Forbes article" gives it an air of reputability that its author simply hasn't earned.

    reply to this | link to this | view in thread ]

  41. icon
    That One Guy (profile), 12 Sep 2018 @ 2:38pm

    Re:

    You missed the third option. If he objected to a single, federal law, and now objects to the idea of 50 state laws, then it's pretty clear that the objection is not to the number of laws but the existence of them.

    He doesn't want any regulations unless they benefit his buddies/past and future (official) employers.

    reply to this | link to this | view in thread ]

  42. icon
    harbingerofdoom (profile), 12 Sep 2018 @ 3:06pm

    Re: Re: Re: Re: Re: Re: Re: Re: Bull

    define "all western governments" please.
    i know what the normal persons definition of this is, but id like to know what your insane version is going to be here.

    reply to this | link to this | view in thread ]

  43. identicon
    Anonymous Coward, 12 Sep 2018 @ 7:10pm

    Re: Re: Re: Re:

    We know internet service is shit in large parts of rural America, but is it really still difficult to get landline telephone service? I thought the USF had at least gotten them to build that out.

    reply to this | link to this | view in thread ]

  44. icon
    Toom1275 (profile), 12 Sep 2018 @ 7:24pm

    Note: The circuit judges arrived at this incorrect ruling by swallowing this bit of incompetent BS:

    >Eighth Circuit judges concluded that Charter's VoIP technology is an information service because it "transforms" information by converting voice calls from one format to another. Specifically, Charter "transforms voice calls from analog electrical signals into IP 'packets,' which are then carried on Charter's network.

    Under such a moronic definition, *nothing* is a telecommunications system. Not even POTS anymore.

    reply to this | link to this | view in thread ]

  45. identicon
    ryuugami, 12 Sep 2018 @ 10:27pm

    Re:

    Good catch. I guess I can now declare my eyeballs as an information service :D

    reply to this | link to this | view in thread ]


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