Washington State Laughs In The Face Of FCC Attempts To Ban States From Protecting Net Neutrality
from the unicorns-at-the-fcc dept
In the wake of the FCC's net neutrality repeal, nearly half the states in the union are now in the process of passing new net neutrality rules. Some states are pushing for legislation that mirrors the discarded FCC rules, while others (including Montana) have signed executive orders banning states from doing business with ISPs that engage in anti-competitive net neutrality violations.
Of course incumbent ISPs saw this coming, which is why both Verizon and Comcast successfully lobbied the FCC to include language in its repeal that tries to "preempt" state authority over ISPs entirely. But this effort to ban states from protecting consumers (not just from net neutrality violations) rests on untested legal ground, which is why some ISPs are also pushing for fake net neutrality laws they hope will preempt these state efforts.
So far, states aren't taking the FCC's threats very seriously.
Washington State for example became the first state in the union this week to pass net neutrality legislation (though Oregon is neck and neck). Washington's new law largely mirrors the discarded FCC rules by prohibiting the anti-competitive throttling and blocking of competitors, as well as "paid prioritization" deals that prevent ISPs from letting deep-pocketed content companies buy an unfair advantage over smaller companies and startups. Also like the FCC's rules, it carves out notable exemptions for "reasonable network management" -- as well as for the prioritization of legitimate services that may need it (medical, VoIP services).
Amusingly, the bill's sponsor doesn't appear particularly flummoxed by FCC restrictions on what states can and can't do:
"Just because the FCC claims it has the power to preempt state laws doesn’t mean that it actually does,” says (Drew) Hansen. “I can claim that I have the power to manifest unicorns on the Washington State Capitol lawn. But if you look outside right now, there are no unicorns."
ISPs have already started complaining that complying with an ocean of discordant state-level rules is hard on them, though that's something they might have wanted to give a little more thought to before lobbying to dismantle what were arguably (by international standards) pretty modest federal-level rules.
Note that's not to say state-level protections will be perfect. Many politicians are just trying to score political brownie points, and in many instances the rules will only be as good as those willing to actually enforce them. Several of them also are a little shaky on how they define "reasonable" network management, a term ISP lobbyists have a long, proud history of trying to redefine to include pretty much anything. Still, these are all problems that could easily been avoided by actually listening to the public, the experts, and the data and leaving the federal rules alone.
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Filed Under: fcc, net neutrality, states rights, unicorns, washington
Reader Comments
The First Word
“Complying with NN is far less technologically challenging than violating it.
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Fear of losing a challenge
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Re:
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Reasonable
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Use more money
The FCC and Comcast want us all to know, he's not doing it right.
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Complying with NN is far less technologically challenging than violating it.
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Re: Fear of losing a challenge
IANAL, but based on a number of legal analysis I have read on both sides, I find it unlikely. The specific reasoning would be very important. A court would be unlikely to upturn the entire history 10th amendment jurisprudence over this single issue, and if the 10th amendment argument prevailed, it would likely hinge on specifics in this case which may not be widely applicable. As broadband has long been considered an interstate issue concerning interstate communication, it is clearly within federal purview. Removing federal jurisdiction would be tough. Thankfully, the FCC has already done that.
Assuming the FCC repeal holds, the repeal states that congress did not intend to provide the FCC authority over broadband at all, so it can not regulate it under Title II. It is how Ajit Pai attempts to get around the inevitable court challenges. That presents a clear hole that states can use to assert the 10th in this situation. As the government, by way of the recent FCC order, has abdicated authority over broadband, and the FCC has repeatedly stated that numerous concerns over broadband including the restriction of municipal broadband are states rights issues, the government, by way of the FCC, is clearly ceeding regulatory authority to the states. If they have no regulatory authority, they can not preempt the state's regulatory authority. The FTC does not have regulatory authority, and does not factor into this question.
Basically, in an attempt to remove FCC regulatory authority now and forever, he has opened up the door for state regulators to take up the regulatory burden. By trying to prevent regulatory ping pong, he has neutered his authority to preempt the states. It is unlikely another agency will try that tack, and therefore unlikely another interstate issue would be able to cite this case successfully.
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Funny and Insightful comment of the week
"Just because the FCC claims it has the power to preempt state laws doesn’t mean that it actually does,” says (Drew) Hansen. “I can claim that I have the power to manifest unicorns on the Washington State Capitol lawn. But if you look outside right now, there are no unicorns."
Well played sir. Well played.
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Re: Re: Fear of losing a challenge
That depends on a lot of semantics. On a technical level if an ISP only operates within a state then Federal laws do not apply. ISP's are NOT the internet and it is very possible to operate an ISP at a non-federal level.
But you do point out how quickly people will just allow the letter of the law be ignored for political expedience.
Now tell me, if you can go it, why can't everyone else do it? Hence our current "fuck the constitution" attitude at the Federal, State, and Citizen levels.
Welcome to being a part of the problem while thinking you are not part of it.
"The FTC does not have regulatory authority, and does not factor into this question."
They do have "some" regulatory authority. Like when an ISP falsely advertises their product for example. They can also hit ISP's on anti-competitive laws, but the problem here is the the FCC approves of and encourages monopolies as part of its operation manifesto, so how can the FTC do it's job?
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Pai: But, but, but ... they can't do that!
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Government in a nutshell
This is why giving government too much power is bad, and also why government intentionally does a bad job at enforcing them. Like a self fulfilling prophecy, poor enforcement leads to an outcry asking for more protections. All while peasant nobodies are being crushed under its regulatory girth while the rich remain buoyed by their connections and punishment repelling money.
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Re: Re: Re: Fear of losing a challenge
Allow me to address your questions out of order.
I was unclear. The FTC only has enforcement authority, not rule making authority. Therefore it can not craft regulations that preempt the state. Such was the Thrust of my statement. Your question, how can the FTC fuction as an anti-competition enforcement given the FCC's actions is non-sensical given my post. I argue that they can not, and therefore can not preempt state authority on the issue. I am not sure what point you are trying to make by asking that question, nor what information you are seeking, as the question seems to assume a position I do not have.
The issue is not about the company's presence entirely within a state or not - Net Neutrality addresses not the company, but the communications it facilitates. Because of the nature of the internet, an ISP no matter how narrow its footprint, will facilitate communications that are interstate communications. It does not matter that the company only operates within a single state, and only sells to in-state consumers, what it is selling is interstate communications, which provides federal jurisdiction. Very few communications could be from a technical standpoint considered purely intrastate, by nature of the internet. Even an AIM conversation with the guy down the street is likely to be mediated by AIM servers out of state, leading to the communication being an interstate communication, from a technical standpoint. As a matter of settled law, a business whose faces regulation on interstate operations can face regulation even on those transactions that are intrastate, if those intrastate operations are closely related to interstate operations. Seriously, this was covered in my my first law course "Legal Environment of Business", which doesn't come close to a comprehensive Intro to Law course. But even if federal regulation could not address the incidental intrastate communications, it would not harm my analysis of the likely legal approach. Rather than undermine the entire consumer regulatory scheme, and lead to the very issue ISPs are complaining about throughout our consumer sphere, the challenge would likely hinge on the FCC's explict vacating of regulatory authory as granting that authority to the states, because it can not preempt state's power if it has no power, and never did.
Welcome to being a part of the problem while thinking you are not part of it. What problem? The "fuck the constitution" problem? I mean if supporting the idea that states can regulate interstate communications via the FCC position and the 10th amendment means fuck the constitution, i guess you are right.
Nothing in my words supported political expedience. I failed to write out my rationale for interstate communications but I had assumed that people understood that the internet inherently dealt with interstate communications.
I was merely noting that this case was unlikely to upend federal regulation in general, as the specifics are what make this a case likely to be ruled on 10th amendment grounds.
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Re:
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but is it good?
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Re: Use more money
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Re: Re: Re: Re: Fear of losing a challenge
Only congress can make laws per the constitution. Not regulatory agency, even if congress said they could. Yes I know a lot of bankrupt people disagree with plain English but it is also not hard to get people to believe in lies or non-facts either. The system cannot be deconstructed now because there is over a century of abuse supported by many people, you being one of them, hence the "being part of the problem comment"
In short, this issue is not getting fixed. Not only is it not going to get fixed, whatever repairs that are going to be implemented are likely going to be more of the same loophole riddled, nausea inducing pro business anti-consumer regulations that have been done for nearly the past Century since the FCC was formed.
"I was merely noting that this case was unlikely to upend federal regulation in general, as the specifics are what make this a case likely to be ruled on 10th amendment grounds."
On this point I can agree with you. I was not trying to imply that it would, just saying that on a case by case basis that it is possible for the state to indeed trump the FCC rules.
And remember, just because a data packet I send to netflix goes from me, to my ISP, which my ISP sends onto a major backbone like hurricane or level3 does not constitute that the ISP I sent the packet to as being an international operation. You are either not well informed of how networks function or you are being intentionally obtuse.
ISP's are NOT guaranteed to be part of the internet, some are simply just small operations that pay for a connection to one of the backbone providers that are federally regulated. There really are a lot of differences depending on each operation.
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All an ISP has to do to work around NN rules is to buy the content then they can throttle away through the Zero Rating loophole. They only wanted NN dead so they do not have to jump through the hoops of buying the content. Much easier to just charge extra because you people can be easily duped. So they charge you and give that money to Pai and you fall for the same gimmick again asking for more regulation when it was regulation that allowed them to do this to you in the first place.
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Re: Re: Re: Re:
Please explain how any one ISP has enough money to buy all of Amazon, Netflix, Hulu, Youtube, Spotify, Facebook, etc...
Also please explain how other ISPs, the public, and the government would let them get away with essentially buying up all of the Internet and Hollywood.
What was that you were saying about "twisting the story or leaving out relevant facts"?
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All an ISP has to do to work around NN rules is to buy the content then they can throttle away through the Zero Rating loophole.
Which does not mean the rules were/are bad, it means they didn't go far enough.
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Don't mistake bad regulation to mean that regulation is bad.
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Rules
Well boo g-d-damn-hoo.
Shouldn't have taken away very modest rules that were working.
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