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How the FCC May Have Shot Itself in the Foot on Net Neutrality

When AT&T, Verizon and Comcast lobbied the Trump FCC to ignore the public and kill net neutrality last fall, they also convinced the FCC to include language banning states from protecting consumers in the wake of FCC apathy on privacy and net neutrality. And, as these ISPs expected, more than half the states in the country have now introduced some form of net neutrality rules in a direct challenge to the FCC and its newfound BFFs at major broadband duopolies, either in the form of legislation or executive orders preventing states from doing business with anti-competitive ISPs.

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But as it turns out, neither FCC boss Ajit Pai or the ISPs he's pandering to were as clever as they thought they were.

Legal experts and many state lawyers have been pointing out that when the FCC ruled to roll back its classification of ISPs as common carriers under Title II of the Telecom Act (which gave the FCC the authority it needed to enforce the rules), it also obliterated its authority to dictate or hamstring state-level protections.

More simply, when the FCC neutered its authority over ISPs, it also neutered its authority to prevent states from filling the consumer protection vacuum. Authority it's still somehow trying to claim it has.

"The FCC doesn't have preemption authority just because it says so," Washington State Rep. Drew Hansen told Ars Technica this week while discussing that state's efforts to impose new net neutrality rules.

"Here is the oddity of the position that they're taking in the net neutrality repeal," Hansen said. "They're saying the Communications Act lacks any authority that would give them the ability to impose broad standards of conduct on the Internet, but grants them broad sweeping authority to preempt state consumer protection laws related to the same area. It's not clear to me how this can be the case."

Hansen wasn't the only one making that point this week. Net neutrality, telecom expert and Stanford Law professor Barbara van Schewick (whose treatise on how net neutrality is the default and prefferred state of the internet since construction is essential reading) made a similar comment in a statement provided to DSLReports.com. Schewick stated that if done correctly (like this week's new California proposal), state efforts to protect net neutrality should survive legal challenge by ISPs and the FCC thanks to the FCC's rushed repeal and self-neutering.

"While the FCC’s 2017 Order explicitly bans states from adopting their own net neutrality laws, that preemption is invalid," van Schewick noted. "According to case law, an agency that does not have the power to regulate does not have the power to preempt. That means the FCC can only prevent the states from adopting net neutrality protections if the FCC has authority to adopt net neutrality protections itself."

But, she notes, the FCC obliterated that authority with its misleadingly-named "Restoring Internet Freedom" repeal.

"By re-classifying ISPs as information services under Title I of the Communications Act and re-interpreting Section 706 of the Telecommunications Act as a mission statement rather than an independent grant of authority, the FCC has deliberately removed all of its sources of authority that would allow it to adopt net neutrality protections," she notes. "The FCC’s Order is explicit on this point."

That's a fairly impressive self-own by Ajit Pai and friends, who were so blinded by their desire to violate state consumer protection rights for natural monopolies like Comcast, they didn't bother to understand the law they were relying on.
That's a fairly impressive self-own by Ajit Pai and friends, who were so blinded by their desire to violate state consumer protection rights for natural monopolies like Comcast, they didn't bother to understand the law they were relying on.

Of course the FCC's battle with the states is just one small part of the looming legal challenges the agency faces.

The FCC is also being sued by 23 State Attorneys General, numerous smaller companies like Vimeo and Mozilla, and most major consumer groups. Those lawsuits will argue the FCC violated the Administrative Procedures Act by rushing to repeal a popular regulatory action without justifying it with real data. Under the law the FCC has to show that the broadband industry changed dramatically since 2015 to warrant such a stark and unpopular reversal in policy (tip: it didn't). If not, the repeal can be declared "arbitrary and capricious" by the courts.

These lawsuits will also highlight how the FCC turned a blind eye to identity theft and fraud during the repeal, a ham-fisted effort by "somebody" to downplay massive public opposition to the plan. And they'll also highlight how the FCC blocked an ongoing law enforcement investigation into those bogus comments, some of which were mysteriously filed by dead people.

In short: the entire state fight could be moot if the FCC can't survive these lawsuits, which is no sure thing given the wide variety of bizarre and unethical behaviors during the repeal. Even if the FCC survives those challenges, its attempts to prevent states from rushing in and filling the consumer protection gaps could fall flat on its face.

Large ISP executives, lobbyists and lawyers are increasingly nervous about losing in court. But they're also worried about this growing push by states to actually stand up for consumers. That's why you're seeing them push harder for a bogus net neutrality law. A law with so many loopholes as to be arguably useless except for one purpose: it would pre-empt state efforts on net neutrality, stop tougher rules from being passed later, and even pre-empt the FCC's 2015 rules should the agency lose in court.

As ISPs get increasingly nervous about a potential court loss and these rising state-level net neutrality bills, you're going to see more and more calls (often phony or paid for by Comcast or AT&T) for a new net neutrality law that claims to "put the debate to bed." Don't buy it. The best chance net neutrality currently has rests with the courts. Barring that, it rests with voting out politicians that ignore the public welfare and the health of the internet just to protect campaign contributions by AT&T, Verizon and Comcast. Whether you like it or not, the battle for genuine net neutrality and a healthy, competitive internet is far from over.

Most recommended from 70 comments



WiseOldBear
Laissez les bons temps rouler!
Premium Member
join:2001-11-25
Litchfield Park, AZ

51 recommendations

WiseOldBear

Premium Member

Hoisted on their own Petard!

A States Rights movement that is actually concerned with citizens and not just a tool of greedy assholes pushing their own politcal or money agenda. There may be life left in the Union after-all.

Trimline
Premium Member
join:2004-10-24
Windermere, FL

34 recommendations

Trimline

Premium Member

California Unveils a Tough Net Neutrality Bill

Hopefully, California's new NN bill will become the boiler plate for all states. It is much more to the disliking of the major ISPs; it translates in to a very good attempt at consumer protection.

This is what is needed.

»California Unveils a Tough Net Neutrality Bill Comcast Will Hate [93] comments

TIGERON
join:2008-03-11
Boston, MA

28 recommendations

TIGERON

Member

FUCK. YOU. Pai & friends

This is going to be very enjoyable to watch his bullshit fall flat on his face.
j17robot
join:2018-03-16
Sidney, OH

14 recommendations

j17robot

Member

come here regularly from arstechnica

decided to create a account just to say that I don't feel sorry for the telcos or the FCC because they created this whole mess themselves. #karma holds no punches.

tshirt
Premium Member
join:2004-07-11
Snohomish, WA

13 recommendations

tshirt

Premium Member

Shouldn't Pai understand the concept of.....

karma?
kinda pissed
join:2012-06-06
Newsoms, VA

13 recommendations

kinda pissed

Member

Obvious astroturfer is obvious

Folks like anon49420 are obvious astroturfers and shills sent here by big ISPs
Roadkill
Premium Member
join:2008-06-17
united state

9 recommendations

Roadkill

Premium Member

FCC shot in foot

I know we can be sure the Legislative and Executive branches of the American government are completely owned by American business titans. I am really uncertain about the Judicial branch. I think we will all find out soon just how deep the cash is stacked when the court cases are decided. It's rather annoying to have to hope some part of our federal government will do something positive for the citizens.

woody7
Premium Member
join:2000-10-13
Torrance, CA

9 recommendations

woody7

Premium Member

hmm...........

Bwa ha ha................................................/morons
tishtash
join:2001-01-06
Merrick, NY

5 recommendations

tishtash

Member

hoped for fate:

Can Ajit Pai and his lackey please just eat shit and die already?
kinda pissed
join:2012-06-06
Newsoms, VA

4 recommendations

kinda pissed

Member

A easy solution to all these anon shills

Don't allow anon accounts.