Trump Admin Hopes Kavanaugh Supreme Court Delivers The Killing Blow To Net Neutrality
from the pulling-it-up-from-the-roots dept
So you'll recall that before Comcast, AT&T, Verizon and friends convinced the Trump FCC to ignore the public and kill net neutrality, they had attempted to dismantle the rules legally. That effort didn't go very well, with the U.S. Court of Appeals for the D.C. Circuit upholding the FCC's Open Internet Order in June of 2016, and ISPs losing a subsequent en banc appeal. More specifically, the courts found that the former Wheeler-run FCC was well within its legal right to reclassify ISPs as common carriers under the Telecom Act.
The 2016 FCC victory made sense, especially if you recall that the agency lost its 2014 legal fight with Verizon in part because it tried to implement net neutrality without first putting itself on legal footing by classifying ISPs as common carriers under Title II. You might also recall that Wheeler at the time initially wasn't sure about the Title II route, but changed his mind based on available facts and evidence, back when people, you know, actually still did that.
But that was then and this is now. Lawyers for the FCC and Department of Justice filed a brief (pdf) with the Supreme Court last Friday, urging it to vacate the 2016 court ruling that upheld the Wheeler-era net neutrality rules. The move is necessary, FCC lawyers inform the court, because of the FCC's new, comically-named "Restoring Internet Freedom" proposal has purportedly changed the facts on the ground:
"The court of appeals upheld the 2015 Order primarily because it concluded that it was required to defer to the FCC’s legal and factual judgments as reflected in that order. But the Commission itself has now repudiated those factual and legal judgments in a new order issued after full notice-and-comment proceedings."
Of course we've noted time and time again how the repeal of net neutrality was a facts-optional shitshow of comical proportions. Given the FCC's entire justification for repeal was based on bogus ISP lobbyist math and bullshit, the FCC leaning on the facts here is pretty funny. Even if the courts don't agree with that, FCC lawyers state, the Supreme Court should just go ahead and agree with ISPs anyway:
"Alternatively, if this Court concludes that the 2018 Order did not render this case moot, or if it prefers not to resolve that issue, it should grant the petitions for writs of certiorari, vacate the judgment below, and remand for further proceedings to allow the court of appeals to consider in the first instance the effect of the 2018 Order on this litigation.
Wouldn't that be Comcastic!
So what is the Trump FCC and DOJ (read: AT&T, Verizon, Comcast and Charter) up to here? Because the FCC engaged in so much bizarre and shady behavior during the net neutrality repeal last fall (from making up a DDOS attack to turning a blind eye to identity theft and fraud in the public comment period), ISPs are well aware the FCC repeal could fall apart in court.
That could happen for a number of reasons, including the court finding the FCC violated the Administrative Procedure Act by dismantling a major regulatory effort based on little more than hot air and string cheese. The FCC can't just reverse such a massive regulatory move without first showing that broadband market realities changed dramatically enough to warrant it, something SEC filings, CEO statements and earnings report show didn't happen. That's why you'll often see Ajit Pai routinely lying about how net neutrality demolished sector investment, something that isn't supported by the facts.
In short, giant ISPs like Comcast and AT&T know they'll soon have to relitigate this in court. That's why they're pushing for a new fake net neutrality laws they've written with an eye on passing something that pre-empts both the restoration of the federal rules, or the myriad of state solutions that are now popping up. And they know that should they lose, this could very likely head to the Supreme Court. A Supreme Court that could soon be staffed by Brett Kavanaugh, who bizarrely bought the completely bogus ISP claim (during the first round of the FCC's fight with Verizon) that net neutrality rules violate an ISPs First Amendment rights.
The short version? ISPs are worried that Ajit Pai's ham-fisted and facts-optional attack on net neutrality won't survive the looming court challenge by consumer groups and Mozilla. As such, they're gearing up for what they hope will be a Kavanaugh-staffed Supreme Court to help deliver the killing blow, something that would be greatly aided by neutering existing precedent. ISPs are well aware that public sentiment, factual data and lower course rulings could restore the FCC's extremely popular net neutrality rules, and we wouldn't want that, right?
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: ajit pai, brett kavanaugh, broadband, doj, fcc, net neutrality, supreme court, tom wheeler, trump administration
Reader Comments
Subscribe: RSS
View by: Time | Thread
I…I want that.
[ link to this | view in chronology ]
Just logical follow-up by lawyers to a mooted point.
Lawyers do lawyering. Undoubtedly been in the works for months, and is actually LATE after bureaucracy. Only you imagine this is directly connected to Kavanaugh.
Correlation is not causation. Post hoc fallacy. Your premise is invalid.
Clever trick, but Mozilla is NOT a "consumer group", but financed by GOOGLE with over ONE BILLION DOLLARS now:
http://allthingsd.com/20111222/google-will-pay-mozilla-almost-300m-per-year-in-search-deal-best ing-microsoft-and-yahoo/
https://techcrunch.com/2017/11/14/mozilla-terminates-its-deal-with-yahoo-an d-makes-google-the-default-in-firefox-again/
Therefore, Mozilla speaks for Google's interest, no surprise that Techdirt has same notion since also indirectly funded by GOOGLE:
https://copia.is/wp-content/uploads/2015/06/sponsors.png
[ link to this | view in chronology ]
Your face is invalid.
[ link to this | view in chronology ]
Re: Just logical follow-up by lawyers to a mooted point.
1: need citation
Only you imagine this is directly connected to Kavanaugh[2]
2: unlikely as anyone with pattern recognition could come to this conclusion
Clever trick, but Mozilla is NOT a "consumer group"[3]
3: the quote states "by consumer groups and Mozilla." which anyone with a grade school education would see that the implication is that Mozilla is not implied to be a consumer group.
Then the rest of your post devolves into some top shelf foaming at the mouth insanity.
[ link to this | view in chronology ]
Re: Just logical follow-up by lawyers to a mooted point.
[ link to this | view in chronology ]
Re: Just logical follow-up by lawyers to a mooted point.
[ link to this | view in chronology ]
Re: Just logical follow-up by lawyers to a mooted point.
[ link to this | view in chronology ]
Re: Just logical follow-up by lawyers to a mooted point.
I imagine you to be much like the Grinch in the live action version where he yells into his cave "I'm an idiot!", expecting to hear his echo yell back the same, but instead his echo replies back "You're an idiot!".
This is not unlike your posts where you present supposed "gotcha's!" and smugly expect us to get owned by your superior intellect, only to have the entire TD community point out that you owned yourself instead of putting forth anything even remotely intelligent.
Sadly I think it's too much to hope for that your heart would grow at all at the end of all this.
To summarize: You're an idiot!
[ link to this | view in chronology ]
a) how good net neutrality was for everyone and that includes, in a large part, AT&T, Verizon, Comcast and friends, despite their continuous moaning about how bad it was
b) how desperate this administration is to ensure there is almost nil as far as broadband competition is concerned, how desperate it is to ensure that monies keep flowing to various Senators and, to me, most importantly, how desperate it is to ensure that whenever necessary, the public can be stopped from having something that is beneficial to them, ie, a means to find out what these lying, cheating fuckers in Congress and in multi-billion $ companies are up to!!
[ link to this | view in chronology ]
VOTE VOTE VOTE!
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
The same article can be written about any supreme court nomination made by the President.
[ link to this | view in chronology ]
Re:
Gee, can’t imagine why that would be the case, other than most (if not all) of the people on the president’s Supreme Court shortlist being vetted by a conservative think tank with a set of principles and beliefs that they expect their chosen judges to follow.
…oh wait
[ link to this | view in chronology ]
Re:
Have his other nominations also argued that network neutrality is a violation of the 'free speech' of ISP's in that it doesn't allow them to decide who gets a connection and who doesn't?
If 'no', then no, it's not, because this one has made that argument.
If 'yes', then that says more about his abysmal choice of nominations than it does this article.
[ link to this | view in chronology ]
You are doing Wheeler an injustice
Wheeler was exceptional even then. He worked for the telcom industry when the telcom industry paid his wages. That's not unusual. But he worked for the public when the public paid his wages. And that's unusual because the public does not have the means to fire a public servant and so public servants tend to take their salary for granted and instead work for the largest palm grease (or the largest sycophancy, an alternative that has gained a lot more traction lately) because in the U.S., corruption and bribes are institutionalized and legal.
You'd have to be a fool not do. Or an honest person. But I repeat myself.
[ link to this | view in chronology ]
Way too optimistic
Courts don't decide based on facts but based on expert witnesses. Experts work in the telcom sector.
And want to keep working there. Would you want to risk your livelihood?
[ link to this | view in chronology ]
Something something .. chickens before they hatch.
[ link to this | view in chronology ]
When is an isp a 'common carrier' and not an 'information service'
[ link to this | view in chronology ]
Re: Never, at least not in regards to providing internet access.
Especially the assertion from anyone that internet access providers should be classified as anything other than common carriers and internet access as a telecommunications service. The mental gymnastics you have to do to reach this conclusion are mind boggling.
Yet this is apparently the new reality we live in, where reality is determined by one's own view of it and mindset. Sadly, for all my attempts, I've yet to be able to conjure a sandwich out of mid-air by thinking it to be true. I guess I just must not believe enough.
[ link to this | view in chronology ]
Re: Re: Never, at least not in regards to providing internet access.
You need a lobbyist. With the right financial backing from your wallet, he/she could make it happen.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
As Many Lies As It Takes!
https://www.congress.gov/bill/115th-congress/senate-joint-resolution/34/text
'Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Federal Communications Commission relating to “Protecting the Privacy of Customers of Broadband and Other Telecommunications Services”'
03/28/2017, Marsha Blackburn (R, Tennessee) was liar-in-chief on the floor of the House of Representatives. The lies told were that the FCC had no ability to regulate ISPs (internet service providers) and that the FTC (Federal Trade Commission) did. Both lies were caught out during debate. Liar Marsh Blackburn admitted to both. That didn't stop the House from approving the resolution. It was signed by The Trump 04/03/2017, effectively providing for NO oversight of ISP collection of customer data, NO oversight of citizen privacy required by the Fourth Amendment to the US Constitution. ISPs can, as a result, collect surveillance data of all customer behavior on the Internet. They can then sell that data to any interested parties or provide it upon request to law enforcement without warrant.
IOW: Unconstitutional.
Author of the resolution:
Sen. Flake, Jeff (R, Arizona).
Sponsors of the resolution:
Sen. Johnson, Ron [R-WI], Sen. Barrasso, John [R-WY], Sen. Blunt, Roy [R-MO]*, Sen. Boozman, John [R-AR], Sen. Capito, Shelley Moore [R-WV], Sen. Cochran, Thad [R-MS], Sen. Cornyn, John [R-TX], Sen. Cotton, Tom [R-AR], Sen. Cruz, Ted [R-TX], Sen. Fischer, Deb [R-NE], Sen. Hatch, Orrin G. [R-UT], Sen. Heller, Dean [R-NV], Sen. Lee, Mike [R-UT], Sen. Paul, Rand [R-KY], Sen. Roberts, Pat [R-KS], Sen. Rubio, Marco [R-FL], Sen. Shelby, Richard C. [R-AL], Sen. Sullivan, Dan [R-AK], Sen. Thune, John [R-SD], Sen. Wicker, Roger F. [R-MS], Sen. Moran, Jerry [R-KS], Sen. McConnell, Mitch [R-KY], Sen. Rounds, Mike [R-SD].
Would that all for voted for it (including many Democrats) were jailed for subverting the US Constitution. That would effectively 'drain the swamp.'
[ link to this | view in chronology ]