back to article Why I had to sue the FCC – VoIP granddaddy Dan Berninger

One of the grandaddies of VoIP is taking America's comms watchdog, the FCC, to the US Supreme Court over net neutrality – and he's told us why. It’s life or death, says Dan Berninger, whose startup works on high quality voice services, and could be killed by the regulator at a stroke. Berninger led the Bell Labs team that …

  1. bombastic bob Silver badge
    Devil

    less gummint regulation is nearly always a good thing

    just sayin'

    FCC shouldn't classify the intarwebs as 'Title II' just so they can later TAX it or regulate content (it's just a power grab). Instead, just let ISPs charge extra for prioritization (which VoIP and streaming video services kinda need). then they can use the extra $ to improve the infrastructure and grow their businesses. The FCC might regulate the percentage of total packets that CAN be 'priority', but even THAT much is likely to be TOO much. Instead, let ISPs themselves make that determination, and let the free market decide.

    That way, EVERYBODY wins! (not just the regulators and controllers)

    1. Anonymous Coward
      Anonymous Coward

      Re: less gummint regulation is nearly always a good thing

      " Instead, just let ISPs charge extra for prioritization"

      Which IMMEDIATELY becomes "picking winners". Startups that lack the capital to pony up to the providers get left out and wither on the vine. I don't call that a fair competition, do you?

      1. Updraft102

        Re: less gummint regulation is nearly always a good thing

        You've misunderstood where the competition is. It's between ISPs, not between the packets handled by any one given ISP. If people want an ISP that doesn't prioritize certain types of data, ISPs will offer that type of service as a means of getting customers. Similarly, "picking winners" didn't mean the ISP deciding which packets "win" the race... it is the government who picks which companies will win and which will lose that is the problem here.

        Look at the total up upvotes to downvote's in Bob's post. That's the problem we're up against here. Even though we have an entire article describing how the US government screwed everything up with idiotic, ham-fisted regulation, the people responding still clamor for more of the same. Even the subject of the original article thinks there's such a thing as intelligent, enlightened regulation. There's not. There never has been, and there never will be. Government critters are neither intelligent nor enlightened! Not enough, anyway, to overcome human nature, which works directly against intelligence and enlightenment. It's a pipe dream the progressives have been trying to implement for at least a hundred years... the idea that intelligent, benevolent bureaucrats can micromanage our lives better than we can and achieve a utopian society. The reality is that government is like Typhoid Mary, infecting anything it touches.

        The free market isn't perfect by any means, but it's a lot better than the regulatory state presided over by flawed human beings. The regulations are always going to be stupid and counterproductive, because that's a government's stock in trade. Once you recognize this, the inescapable conclusion is that however bad the free market can be in some cases, it's a hell of a lot better than anything else.

        Also, what we have isn't the free market. We haven't had one of those in decades, maybe centuries. We've got one riddled with idiotic government regulations, and it's anything but free. We'd all be better off if it was. Unfortunately, most people have been so indoctrinated by the regulatory state proponents that they can't even conceive of a system that isn't heavily regulated, let alone think that it might work. Tragic, really.

        1. Charles 9 Silver badge

          Re: less gummint regulation is nearly always a good thing

          "The free market isn't perfect by any means, but it's a lot better than the regulatory state presided over by flawed human beings."

          I disagree. An unfettered free market is like a poker tournament. It's why I call it "winner economics". Eventually someone gets all the clout and can bully everyone out of the way: even pushing or buying out upstarts before they become disruptors.

        2. SImon Hobson Silver badge

          Re: less gummint regulation is nearly always a good thing

          Downvoted for this :

          You've misunderstood where the competition is. It's between ISPs, not between the packets handled by any one given ISP.

          The problem is that for many people, there is (in practical terms) no competition between ISPs. AIUI, in the USA there are large areas where your choice is between a slow and expensive single DSL provider, and a single expensive cable provider. So if you want a decent speed, you have a choice of one supplier - the cable company.

          So, if that cable company (for example) decides that a video streaming service (for example, Netflix) is too much of a competitor to the cable companies video services, and decides the artificially throttle IP packets from that streaming service - then the customer doesn't have the choice of changing ISP to get a better service. They are hostage to the ISP and whatever services it decides to permit or not throttle - decisions made primarily on "how much can we screw people for ?". So (for example) Netflix doesn't want to pay extra to have it's traffic not throttled, then anyone in that cable company's area gets a poorer service.

          This is the big problem - where there's a lack of real competition, and the incumbent is in a position to artificially bu**er about with any traffic is sees as detrimental to it's own revenue streams. And that exactly describes mcuh of the US internet market as far as I can see.

        3. strum

          Re: less gummint regulation is nearly always a good thing

          > there's such a thing as intelligent, enlightened regulation. There's not. There never has been, and there never will be.

          That's just plain dumb. Thousands of years of history contradict it.

          1. Charles 9 Silver badge

            Re: less gummint regulation is nearly always a good thing

            I disagree. I say it SUPPORTS the supposition because ANY regulation, just like ANYTHING made by man, can be twisted and corrupted. Every form of government has fatal flaws. Even democracy can be corrupted by conning an unknowledgeable electorate.

            1. Fatman
              Joke

              Re: less gummint regulation is nearly always a good thing

              <quote>Even democracy can be corrupted by conning an unknowledgeable electorate.</quote>

              So that's YOUR explanation of last November's election results?

              1. Charles 9 Silver badge
                Mushroom

                Re: less gummint regulation is nearly always a good thing

                I'm saying it's a possibility and not the only one. But I'm also saying that trying to get corruption out of any work of man is basically an intractable problem, and that has grave consequences for greater civilization (ANOTHER work of man).

                And PS. No Joke Alert because I'm dead serious.

    2. Brian Miller

      Re: less gummint regulation is nearly always a good thing

      Charge extra for something that's already in the RFCs? "Oh please, won't you please honor 802.1p and DSCP?"

      The "neutrality" portion is so that all packets that are equal, are actually equal, I.e., one video service won't be favored over another, one VoIP provider won't be favored over another, etc., or even that one website won't be blocked out because it is "offensive."

      1. P. Lee

        Re: less gummint regulation is nearly always a good thing

        The problem with tagging packets is that you get companies like MS who tag all their packets to get the best speeds.

        And yet again the Net Neutrality is misconstrued. It isn't about all packets being equal, its about all packets of a particular function being equal, regardless of source and destination. So netflix gets, "streaming media" priority equal to any other "streaming media." They are welcome to buy their own links into an organisation (priced equally for all purchasers), and they are welcome to buy their own colo cache servers (priced equally for all purchasers), but they must not be able to do a deal which gives them priority over other providers.

        Where it gets hazy is when someone starts a new service with a new (say) port number which makes it onerous for ISP's to work out how to treat data. That SSL VPN means voice is no longer treated as high-priority. Streaming over https (hello youtube!) rather than RTSP hides the data content, which is bad. Tunnelling everything over https is bad, but we do need to be able to do encryption, so transport-mode IPSEC rather than tunnel-mode needs to be a thing.

        Government regulation is required because these organisations tend towards monopolies and as companies grow they also influence the legal situation to their favour. This must be stopped and the power of its stopping must not be dependent on funding.

    3. LDS Silver badge

      Re: less gummint regulation is nearly always a good thing

      1) When US decide not to regulate mobile network standards, and let the telcos self-regulate themselves, US got different incompatible standards. Europe adopted GSM as a "regulated" standard, and it led mobile networks development...

      2) When telcos can easily charge more, there's no assurance they will invest more. Actually, it can become an incentive to invest less. It happened when there were strong state monopolies. Too many users, and the network becomes inadequate? Charge them more so they will use it less. Or charge them by the minute. Revenues will stay the same, or increase.

      I understand the need to prioritize voice packets (although I don't really need Dolby Surround quality for a call...) - just *any* voice packet from *any* authorized company should get the same treatment - I wouldn't like if packets from company A becomes "mysteriously" slower if I'm using company B.

      Streaming? But for a few live events, download and buffer. Can't see why your X Factor streaming should be more important than my patches download... but I suggest anyway a specific bit to prioritize any packet containing data about our cats overlords...

    4. strum

      Re: less gummint regulation is nearly always a good thing

      We don't want public policy ruled by ideology (like "less gummint regulation is nearly always a good thing").

      Less 'gummint' regulation often equates to greater corporate regulation (the fat cats make the rules, instead). Power (like wealth) never trickles down; it is soaked up, by the powerful and rich.

  2. Oh Homer
    Flame

    "We should be turning off the POTS telephone network"

    Amen.

    Maybe then we could also abolish that scam called "line rental".

    Do you pay "rental" for the electrical supply cable coming into your home, or for the pipes connecting you to the water supply, or for the cable connecting you to the cable TV service?

    While we're at it, let's also abolish those bogus "administration charges" for the privilege of paying by any method other than Direct Debit, and the equally bogus charges for caller identification (or what BT calls "caller display"), as if BT magically incurs costs just for telling you what it must already know in order to establish the call in the first place.

    Goodbye POTS, and good riddance.

    1. Charles 9 Silver badge

      Re: "We should be turning off the POTS telephone network"

      "Do you pay "rental" for the electrical supply cable coming into your home, or for the pipes connecting you to the water supply, or for the cable connecting you to the cable TV service?"

      Yes, though it's called maintenance fees. SOMEONE's got to pay for the upkeep.

    2. John Smith 19 Gold badge
      Unhappy

      "Do you pay "rental" for the electrical supply cable coming into your home,"

      Actually you do.

      It's built into any kind of "standing charge" or it's delivered by raising the rates per unit of whatever charged.

      OTOH the concept of "line rental" on a mobile phone is complete BS, since part of a line rental is to guarantee access to the network, which is an obvious lie on a mobile.

      1. Charles 9 Silver badge

        Re: "Do you pay "rental" for the electrical supply cable coming into your home,"

        "OTOH the concept of "line rental" on a mobile phone is complete BS,"

        Oh? How do mobile phones reach landlines, then?

        1. paulf
          Headmaster

          Re: "Do you pay "rental" for the electrical supply cable coming into your home,"

          "OTOH the concept of "line rental" on a mobile phone is complete BS,"

          Line rental is the name for a fixed charge to maintain your connection to the infrastructure, regardless of usage. For landlines it's the copper pair back to the LE/CO. For mobile, putting aside that the monthly charge normally includes various usage allowances, it would be maintenance of the RAN (Base stations and the like). So although the name is a bit silly for a wireless device it's still serving the same purpose.

          "road tax"

          Ahem, "Motor Vehicle Excise Duty". There is no such thing as road tax.

      2. Paul

        Re: "Do you pay "rental" for the electrical supply cable coming into your home,"

        OTOH the concept of "line rental" on a mobile phone is complete BS

        I'm surprised they don't have a special charge called "base station maintenance" or "tower antenna maintenance" instead of line rental.

    3. Jason Bloomberg

      Re: "We should be turning off the POTS telephone network"

      Do you pay "rental" for the electrical supply cable coming into your home, or for the pipes connecting you to the water supply, or for the cable connecting you to the cable TV service?

      There used to be such things as "standing charges" which are equivalent to line rental charges. It used to be a way to separate the cost of maintaining the delivery infrastructure from the cost of the product being delivered.

      We also have "road tax", "council tax" and "TV licensing" which are also comparable.

      1. Oh Homer

        Re: "also comparable"

        Yes, road tax, council tax and TV licensing are three more scams that need to be abolished.

  3. Anonymous Coward
    Anonymous Coward

    Pushing at an open door

    Net neutrality is dead now that Ajit Pai is at the helm of the FCC. I like the idea, but the argument that John Oliver and others made for it was always a little shaky. There was some notion that Alice's garage startup would be strangled by not being able to get online and throttled by Evil Monopolist Bob. Given that Alice is almost certainly using connectivity from Slightly Less Evil Monopolist (C)Amazon, Bob would be shooting himself in the foot if everyone other than Bob's customers could get to Alice.

    I for one am much more worried about the epic of cartel-ish, rent-seeking, collusional and downright evil behavior we are going to see from telcos for the next four years under the benign leadership of the Dear Leader.

    1. KjetilS

      Re: Pushing at an open door

      The problem usually isn't with ISP's blocking traffic from competitors, but rather that they say "pay us extra for your traffic or we will throttle your traffic to 20KB/s". When you're a small startup, that becomes a major problem.

      Telling everyone to "just use Amazon and you will be fine" is not a solution.

  4. Mephistro
    Unhappy

    Well...

    Let us see how Mr. Berninger reacts when telcos start charging his company for access to the telco's network, or his customers for accessing his company's services, while at the same time offering a similar VOIP service much cheaper.

    There's something fishy here. Perhaps he received an "offer he couldn't reject"? Or he hopes to sell his VOIP IP to the telcos? Or perhaps he's simply wrong.

    Or it could be that he just wanted a different law that incorporates most of the protections of Title II but better adapted to IP networks. which would make sense. But if that's the case, then the control that Trump and his chums have gained over the FCC would make his case counter-productive, both for Mr. Berninger's company and for Internet users.

  5. Anonymous Coward
    Anonymous Coward

    Does anyone realize that one reason the POTS system is still the way it is is because it's independently powered, which is one reason it's still usable (and sometimes essential) in the event of a power failure (because the telcos keep backup power running just for that reason--911 still needs to be available, for example).

    1. P. Lee

      >it's independently powered, which is one reason it's still usable (and sometimes essential) in the event of a power failure (because the telcos keep backup power running just for that reason--911

      Until you have a phone with an answering machine on the end of the line, in which case, once the power goes out, you'll lose the whole lot, self-powered line or not.

      There is a case for battery-backup in this case, much as there is for fibre-connected phones.

      1. Charles 9 Silver badge

        In which case you keep one phone in the house which doesn't rely on external power: one basic, no-frills, just-plug-it-in phone that keeps you up even when the power's out.

    2. Tom 38 Silver badge
      Stop

      Does anyone realize that one reason the POTS system is still the way it is is because it's independently powered, which is one reason it's still usable (and sometimes essential) in the event of a power failure

      So what? My "POTS" is a VOIP phone connected to FTTH with a BBU - it also works in the event of a power failure. Mobile phones work during a power failure as long as the base station has power. These are simply technical requirements for our phone service, they are not reliant on maintaining a separate 48V DC power network to each home!

      Also, having lived in rural England in the 80s, I can tell you whether or not the phone line still works after a power failure depends greatly on whether the tree that fell down knocked over just the power line, or also the phone line.

      1. Charles 9 Silver badge

        Except that most telephone lines I've noticed are buried, a lot easier thing to pull off with something low-voltage like telephone lines. The term "telephone pole" these days are generally misnomers because the poles are actually owned by the power company.

        And PS. I've had the cell towers break down before the landline phones, and without Internet access (which is more likely to be OVER than UNDER), the IP phone is dead, too.

    3. paulf
      WTF?

      On the whole independently powered thing. The article claims: "Even in the US, just the electric power required to keep of the old network [going] is $25bn a year."

      I'm going to declare BS on that claim on the basis it's put forward for powering the POTS network only and nothing relevant to any data carrying over landlines like ADSL. So $25bn (per year?) divided by 300m (estimate) gives $84 for every single person in the US (not taking account of one line in a household of many people or people that don't have a landline). Really? I'm not convinced.

      1. Charles 9 Silver badge

        So $7 a month, then. Given the average phone bill these days, that's a pretty small chunk.

  6. earl grey
    Facepalm

    intel blah blah blah

    The only reason Intel continued to invest and try to make better/faster chips was because they had competition from AMD for at least 5 minutes or so... the telcos still don't have competition on their home turf.

    1. Updraft102

      Re: intel blah blah blah

      There's still competition for Intel even without AMD having any high-end CPUs (which hopefully will be changing very soon). Right now I am using a computer with an i5-2500k CPU. I haven't upgraded it because I don't see any compelling reason to do so. The newer generations of Intel CPUs do not offer performance increases compelling enough to make it worth the expense.

      In essence, Kaby Lake and Skylake have competition from Sandy Bridge, Haswell, and all of the older generations of their own CPUs. People won't upgrade if there is no compelling reason to do so, and the small IPC gains post-Sandy aren't enough for a great many of us. I don't think for a moment that the current slowdown in CPU performance increases between generations is because Intel is being lazy and resting on their laurels because they know they're on top. There are millions upon millions of older-generation CPUs like mine out there, chugging along nicely as they have always done, and Intel would love to get our money. They're just not able to produce something so compelling that I simply have to have it!

      Similarly, Windows has long had competition from older generations of Windows. When Vista appeared, massive numbers of people rejected it; most stuck with the previous product, Windows XP. Vista's bugs, the performance issues, the continued delays, the "Vista capable" debacle, and the long list of Longhorn features that were promised but that never made it to the final product served to make Windows Vista seem like a worse choice than keeping Windows XP. Vista was utterly destroyed in competition with Windows XP, and even though it evolved into a pretty good OS within a few years, it had no chance of overcoming its stigma. Today, Vista has less than a tenth of the market share that XP has, even though XP has been out of security support for years, while Vista is still supported (for another two months as I write this).

      Microsoft had to "up" their game and deliver a real winner to turn this around, and they did so with Windows 7. That's the kind of thing you would expect in a competitive market, not one dominated by a monopolist. Microsoft has no serious competition in the PC OS market, but any given version of Windows does-- and that's the older versions of Windows.

      The same thing is playing out now with Win 10. A large percentage of the market has rejected 10, and even after an unprecedented push to give 10 away free to all home/SOHO users who would take it (and to a certain number who said NO but got it anyway), Windows 7 has held on to the top spot. Previously, MS would have worked to make sure the next version of Windows would address what was lacking in the previous version, but they've decided go go another way with this.

      Microsoft's refusal to fix any of the things wrong with 10 and to instead continue to push an inferior product, knowing that eventually other versions of Windows will become unviable because of security issues, is the behavior of a monopolist. They've told us that in Windows, we have no future but 10, the "last version of Windows ever", and now they just need to run out the clock and wait for the other versions of Windows to die of old age. So much for the "new" Microsoft... I've truly never despised them as much as I do now.

      Intel, though, has no such luxury. Windows requires constant security updates to remain useful, and those updates have to come from Microsoft. They can't cut 7 and 8 off now, as the EULA obligates them to support both for ten years from the date of release, but that deadline is coming. CPUs, on the other hand, will continue to work as they were designed for years, even decades to come. Intel could refuse further microcode updates for older chips, but most users don't even know what that means-- it can't be used as a selling feature of newer chips if people don't even know what microcode is, and the majority never will.

  7. Brian Miller

    "Say I have $1m ..."

    “Also, no funder wants anything to do with a regulated industry. There’s no investment in infrastructure innovation. In the areas I work in, there’s no investment at all. Title II reclassification dried up investment funding. Say I have $1m and I want to invest it somewhere. I need to asses my prospects for success. These will be a function of the rules I’m facing. If the FCC is in there, then it’s game over. I don’t know what the rules are.”

    I wish Mr. Berninger had given a better example. OK, so you have money to invest. Is it being invested in equipment infrastructure, or is it in a service? Is it the hardware that's being regulated, or the service that runs through the hardware? Is this a service that requires another service provider, or is it a service provider itself?

    Personally, I always thought that "infrastructure" meant real hardware, not software. And we are seeing real innovation in hardware and software, despite the FCC.

    Title II needs to be there, but it needs a very serious overhaul.

    1. bombastic bob Silver badge
      Devil

      Re: "Say I have $1m ..."

      "Title II needs to be there, but it needs a very serious overhaul."

      that much is apparent. let's see the "1 new means 2 thrown out" policy for regulations applied to it, and maybe it can be modernized enough to make sense... but NOT applied to the intarwebs. It's just NOT the same thing.

      it's been my experience that TOS/QoS isn't being applied in any form within the internet backbone. if that has changed, it's news to me. and ~7 years ago, I was in a job where that *kind* of thing mattered [did some work related to a contract for a TV provider]. So I was close to the inside of what was happening back then. I suspect, due to the nature of things, that it's still pretty much the same, now.

      in any case, I had assumed that the TOS (or something like it) would just be used to prioritize the traffic as you would expect it to be done via the routers. THEN, the assignment of TOS would be controlled by the ISPs [hence the 'pay for the fast lane' part]. So let's say sending 'normal' packets is the base price, and then other pricing plans for higher priority packets. The TOS bit would then be modified by the ISP for every upstream packet so that they comply to the service level the customer has purchased. And so on.

      anything more complicated than that would probably not work as well...

  8. Anonymous Coward
    Anonymous Coward

    Delusional or False Flag?

    The guy could be either but he's definitely wrong on a lots of points:

    1) “Also, no funder wants anything to do with a regulated industry.... ”

    Following his logic there would be zero investment in Healthcare and Finance markets as they're both highly regulated.

    2) He seems to be trying to argue that market forces will compel a de facto monopoly to behave in a way that benefits the greater good, there are numerous examples on where this is proven to be false, Intel innovated because of AMD and continues to innovate to stave off potential competitors.

    3) Telco's act in only their own self interest, net neutrality is to prevent Comcast from extorting money from content providers like Netflix in order to deliver their service at the same level as others, just like they did before it was implemented.

    1. Charles 9 Silver badge

      Re: Delusional or False Flag?

      "3) Telco's act in only their own self interest, net neutrality is to prevent Comcast from extorting money from content providers like Netflix in order to deliver their service at the same level as others, just like they did before it was implemented."

      Here's a relevant concrete example. What's to stop Comcast from prioritizing NBC on demand stuff and giving say CBS on demand short shrift (since NBC is owned by Comcast and is free to pipe down their own private network versus CBS which is owned by rival Viacom).

  9. Daelv

    Global crossing

    Do you believe the demise of Global Crossing was facilitated by outside influence? The were laying fiber optic all over. How about the Iridium satellite network that also "failed".

  10. User McUser
    FAIL

    [Plain Old Telephone Service] literally didn’t do anything different or new from 1934 to 1996, when the internet came along - there was no important new service. It didn’t add new value.

    Of course it didn't[1], but that didn't stop people from launching OTT services.

    Remember fax machines? They ran on top of the POTS lines and provided new value to an existing infrastructure. Ditto for modems that connected computers to BBSes and The Internet.

    [1] Just kidding - it did plenty of innovation and investment. The two that spring immediately to mind are DTMF (aka "Touch-Tone Dialing") and Caller ID. Both are improvements to the POTS that occurred during the stated time frame that added new value. DTMF added value by allowing the Customer Service Phone Tree to exist, streamlining call routing, and Caller ID allows me to ignore people *much* more efficiently.

    1. Anonymous Coward
      Anonymous Coward

      Ironically, FoIP is still a pain in the ass to implement properly. t.38 does a half decent job of working around the issues, but it's no fix and never as reliable as a POTS line.

      Now if we could get Lawyers and Government bodies to stop using faxes, I would be very happy!

    2. Frumious Bandersnatch

      and Minitel

  11. Kevin McMurtrie Silver badge

    In the perfect world

    Turning off POTS should be the right thing to do. Unfortunately, telcos would love to replace it with something much worse. Verizon will tell you to get a cellphone. AT&T will offer their technological nightmare of VoIP over PPP over ATM over IDSL over copper to a giant beige box on the sidewalk. In both cases you're losing: guaranteed pricing, guaranteed phone uptime, continuous Internet access, the ability to run personal servers, freedom from product bundling, and the ability to chose another network provider.

    Don't touch POTS until IP services have a regulated minimum performance.

  12. Anonymous Coward
    Anonymous Coward

    We all lose

    When industry monopolies exist be it the "Bells", Cable companies, Banks, Insurance companies, Utilities, etc. we all get fleeced and have little to no choice. If the FTC and FCC did their jobs properly - which IME they have not done in decades, then consumers would have reasonable choices and competitive rates on everything. That simply does not happen because those with the gold make the rules in the U.S. Government may enact laws but the chairpersons are appointed politicians who make decisions based primarily on the input of those with the greatest influence. History has shown that this allows many unscrupulous companies to not only exploit consumers but also to violate U.S. law for huge financial profit.

    As an example the FTC and FCC has known for over three years that Comcast Cable has initiated a computerized global ban on legitimate international e-mail sent to U.S. Comcast subscribers under the ruse of reducing "SPAM". This illegal process is so secret that only the very highest levels of Comcast management and tech support are aware that it exists. When state and Federal authorities contact Comcast regarding consumer reports on this illegal e-mail blockage, Comcast denies it's existence which has been documented and supplied to journalists (who have documented it's existence) and the FTC / FCC. Comcast has enough legal clout to prevent the media, FCC and FTC from dismantling this secret illegal global e-mail blockage of legitimate international e-mail sent to U.S. Comcast customers.

    1. Charles 9 Silver badge

      Re: We all lose

      If that's so, why hasn't anyone gone the extra step of directly suing Comcast for deceptive trade practices? And for that matter, why hasn't anyone then attacked the FCC and FTC for failure to perform their duty? There ARE circumstances where US government bureaus can be sued for significant grievances.

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