Oh Look, The FCC Is Lying Again In Its Latest Court Filings On Net Neutrality

from the ill-communication dept

Fri, Oct 12th 2018 12:10pm — Karl Bode

As the FCC gears up for legal battle against the numerous net neutrality lawsuits headed its way, its latest filing with the courts acts as a sort of a greatest hits of the agency's biggest fallacies to date. 23 State AGs have sued the FCC, stating last fall's repeal of net neutrality ignored the law, ignored standard FCC procedure, and ignored the public interest. The FCC’s new filing with the U.S. Court of Appeals (pdf) for the District of Columbia Circuit declares these concerns "meritless," despite indisputible evidence that the FCC effectively based its repeal largely on lobbyist nonsense.

At the heart of the matter sits the Administrative Procedures Act, which mandates that a regulator can't just make a severe, abrupt reversal in policy without documenting solid reasons why. The FCC has some legal leeway to change its mind on policy, but as we've long noted, the FCC's justification for its repeal (that net neutrality was somehow stifling broadband investment) has been proven false. Not just by SEC filings and earnings reports, but by the CEOs themselves, publicly, to investors (who by law, unlike you, they can't lie to).

Unsurprisingly then, the FCC's brief leans heavily on the Supreme Court's 2005 Brand X ruling, which states the FCC has some leeway to shift policy course at its discretion if it has the data to back it up. Also unsurprisingly, the brief goes well out of its way to pretend that ignoring the experts, ignoring the public, and demolishing consumer protections purely at Comcast, Verizon and AT&T's behest is reasonable, adult policy making. And again, the false claim that net neutrality harmed "innovation, investment and broadband deployment" takes center stage:

"While the Commission’s legal analysis alone suffices to support its return to an information service classification and repeal of the 2015 rules, the Commission also offered robust public policy support for its actions. It explained in detail how Title II classification and regulation hampered broadband innovation, investment, and deployment. The Commission accordingly adopted a light-touch approach that relies on transparency, market forces, and enforcement of existing antitrust and consumer protection laws to protect against harmful conduct. This approach, the Commission reasoned, would foster innovation and investment in keeping with the dynamic and evolving nature of the Internet."

Of course the press has noted time and time and time again how these claims of a net neutrality-induced investment apocalypse are absolutely false. Ajit Pai has similarly gone before Congress repeatedly and falsely made the claim anyway, with absolutely zero repercussions thus far. The FCC's claims that its rules embrace transparency are equally hollow, given the agency's replacement transparency provisions are entirely voluntary. And the idea that "market forces" can fix the broken and uncompetitive broadband industry should be laughable to anybody that's experienced Comcast customer service.

Whether the FCC and broadband industry can convince a judge that bogus claims of hampered investment was the honest catalyst of their handout to telecom monopolies sits at the heart of this entire looming legal battle. The FCC and broadband industry will come prepared for battle with an ocean of ISP-funded economist data breathlessly insisting that the broadband industry was devastated by some arguably modest (by international standards) consumer protections. Net neutrality activists, in contrast, will try to argue the FCC was being "arbitrary and capricious" in its aggressive repeal of the rules at industry behest.

One of the major reasons the telecom industry wanted Brett Kavanaugh on the Supreme Court is because this entire battle could rest on his shoulders. Kavanaugh supported the idiotic ISP argument that net neutrality rules somehow violate ISP First Amendment rights (we've dismantled this previously, noting your ISP is not making "editorial" decisions as a network operator). Given ISPs are trying to argue that state and federal oversight is a free speech issue, Kavanaugh's appointment could prove fatal in that regard if this fight makes it to the highest court in the land.

Meanwhile, there should also be some interesting sideshows during this looming legal battle, including discussions of why the FCC made up a DDOS attack, and ignored comment fraud and identity theft during the public comment process, both part of a pretty obvious effort on the FCC's part to downplay the massive, bipartisan public opposition to what the FCC was doing. This is a story about corruption, misinformation, and ignoring the public welfare to the benefit of widely despised telecom monopolies. The FCC, in contrast, desperately wants the courts to believe this was all just adult policy making as usual.

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Filed Under: administrative procedures act, arbitrary and capricious, dc court of appeals, fcc, investment, net neutrality

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Anonymous Coward, 12 Oct 2018 @ 12:22pm

I really hope this end up with Pai in prison
Pai deserves to die in prison for the harm that he had caused the American public already. The harm that will continue into the future can't ever be atoned for.
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Anonymous Coward, 12 Oct 2018 @ 12:25pm

What a bullshit agency. I wanted to report an unlicensed uhf radio operator living next door to me wiped out a dvr/vcr/dub recorder frying some transistors with illegal use of uhf radio, but fear such a bullshit response from this agency, I just wrote off $360.
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Anonymous Coward, 12 Oct 2018 @ 12:42pm

What does it take to get a question on the ballot at election time and let the people decide an issue?
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U Haas-Fear, 12 Oct 2018 @ 12:42pm

Re: " but fear such a bullshit response from this agency,"
Self-fulfilling prophecy.

So, your imagination condemns the agency? My bet is FCC would follow that up vigorously.
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Baron von Robber, 12 Oct 2018 @ 1:06pm

So in short

FCC: We don't have the authority to do that.

States: Ok, we will.

FCC: We have the authority to tell you "NO!".

Odd that the Federal Communications Commission no longer deals with communications, the Environmental Protection Agency no longer protects the environment, the Food & Drug Administration no longer deals with drugs and food, etc....
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Anonymous Coward, 12 Oct 2018 @ 1:06pm

Re:
Putting the question on the ballot could be a bad thing, depending on what the proposal/law etc. actually winds up being.

What if the question on the ballot is the bill written by ISP lobbyists that enshrines protections that are anything but?

We only want the right question on the ballot, something that the ISP lobbyists had no hand in. That's the challenge.
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James Burkhardt (profile), 12 Oct 2018 @ 1:19pm

So, the basis under which the FCC claims it has regulatory authority but can't regulate broadband as a Telecommunications service is....that broadband includes a DNS service and integrates routing your connection.

However, under that rule a telephone, the namesake of a telecommunications service, is not a telecommunications service, because it provides access to 411 services, and when you dial it has to determine routing of your phone call to the correct device.
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ECA (profile), 12 Oct 2018 @ 1:33pm

FTC..and contracts..
But I still wonder if Pai has dropped the Corps into a BIG HOLE..
The gov. and states have contracts, that they can NOW enforce. With teh FCC incharge, it was only responsible tot he gov. WHICH WAS DOING NOTHING...and the FCC was doing NOTHING to monitor and CHECK what had been done..Like a random Server in areas ro verify the QOS/SPEED/DEPENDABILITY of services supplied..
Even running a truck around to check Cell phone availability. Would have been a wonderful thing..

For anyone that hasnt watched this happen over many years..
IT USED to be that the gov was the major employer in the WHOLE NATION..until they started cutting, like every corp, from the bottom.. The FCc has 1688 employees.. the FTC has 1131..
As soon as he Transferred it to the FTC he has NO CONTROL over it..
Lets tell the FTC what we want..
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Anonymous Coward, 12 Oct 2018 @ 2:10pm

Re:

not a telecommunications service, because it provides access to 411 services

Not just access—the whole 411 service was traditionally provided by the phone company. As for routing, that's always been part of telecommunications, particularly in the early days (they didn't have roads everywhere—they really had to plan ahead).

The FCC explanation makes no sense. The main difference between the Internet and the PSTN (and telco standards like x.25) is that the Internet is dumber; the intelligence is mostly at the endpoints, in contrast to the telephone which was little more than a speaker and microphone connected to some wires.
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Anonymous Coward, 12 Oct 2018 @ 2:29pm

Telecom SEC Filings
Can we please get these brought up during the court proceeding as a counter argument to the FCC economists? That would be great. Watch the economists say whether or not the CEOs were lying to investors.
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James Burkhardt (profile), 12 Oct 2018 @ 2:46pm

Re: Re:
I fully agree, thank you for your additions :)
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Anonymous Coward, 12 Oct 2018 @ 3:10pm

Re: Re: " but fear such a bullshit response from this agency,"
They might fine this person, but I will never see my dvr working again.
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Anonymous Coward, 12 Oct 2018 @ 3:14pm

Re:
Food and Drug Administration allows pharmaceuticals to make statin drugs that Destroy human cells.
[ link to this | view in thread ]
Anonymous Coward, 12 Oct 2018 @ 3:25pm

Re: Re: " but fear such a bullshit response from this agency,"
Not imagination.. call it seeing their batting average way under 300 the last few years.
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Danielle Kunze, 12 Oct 2018 @ 4:01pm

2+2 = ALWAYS MAKES 4
It you think about it, the alleged Russian thing hack came first, THEN, they found an alleged Chinese hack chip (which btw cannot find 1 confirmed picture from a creditable source online OR what we can do to REMOVE it OR financial remedies for all effected consumers) AND LASTLY, now they're coming out with 5g LTE and buying EVERY SINGLE COMMUNICATION COMPANY OUT for they're net crackdown. Seems to me that that PRESIDENTIAL ALERT, wasn't really what it said it was. Seems to me that it was a ROBOCALL HACK just in a different form. Just saying. President racist HAS TO BE STOPPED BEFORE WE'RE ALL FORCED TO BE RFID CHIPPED LIKE DOGS AND THE COUNTRY TURNS INTO A HITLER'S DREAM?
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Anonymous Anonymous Coward (profile), 12 Oct 2018 @ 4:30pm

Re: 2+2 = ALWAYS MAKES 4
While hacking and bogus chips may be a thing now, or in the future, and our president is a specious ass, I am not sure he is intelligent enough to set up the schemes you mention. Nor anyone working FOR him, which is not to say that someone in his employ could not be.

For me, the bigger issue with 5G is that the marketplace will not accept it. We never got the promise of 4G, so why would we believe in the premise/promise of 5G? Of course there are a lot of 'oh look...shiny' consumers out there and they will get some response, but will it be enough for them to shut 4G down?

On the other hand, it sure appears the government is on a roll toward the concept of total surveillance and putting citizens down in any way they can. Ranting is not enough. What are you doing about it?
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ch48, 12 Oct 2018 @ 4:43pm

Re: what a mess
yeah -- your vast Federal regulatory bureaucracy sure is a troublesome & bewildering mess !

It's a mess because its political/ideological foundations are a mess ... and severely harmful to the citizenry.
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Toom1275 (profile), 12 Oct 2018 @ 5:27pm

Well, so long as lying your ass off remains a fundamental, inescapable prerequisite to attacking NN...
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Toom1275 (profile), 12 Oct 2018 @ 5:28pm

a parallel universe:

FDA: We no longer have any authority to regulate food safety.
CA: It shall be illegal for CA grocery stores to lace products it sells to Californians with arsenic.
Idiots: "WE'LL SUE BLAH BLAH BLA! ILLEGAL! BURDENSOME! INTERSTATE COMMERCE! WHAARGLBLARGL!"
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Toom1275 (profile), 12 Oct 2018 @ 6:01pm

Re:
Whoops. Just pretend I put that in the nearest *state* NN thread.
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Anonymous Coward, 12 Oct 2018 @ 6:09pm

Re: Re: Re: " but fear such a bullshit response from this agency,"
What do you want the FCC to do? They're not an insurance agency. If they issue a fine, there will be a record of that, and you can use the record in small claims court.
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Uriel-238 (profile), 12 Oct 2018 @ 7:48pm

Maybe we need a fact-checking department of government.
It has been for decades, now, the norm for government departments to bullshit each other, for officials and representatives to bullshit the congressional floors, and for all of them to bullshit the public.

Maybe it's time to have a tax-paid service that takes EVERY intradepartment memo and every public statement by any government agent and combs them all for questionable facts, noting both what is true, what is near truth but misleading or what is entirely inaccurate and bullshit.

Because at this point, no-one in government can be trusted to speak truth. No one!
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That One Guy (profile), 12 Oct 2018 @ 10:12pm

Re: Maybe we need a fact-checking department of government.
I propose calling it the Accuracy in Context and Explanations agency, and for every hearing where facts are discussed like the one the FCC is lying in they shall have at least one representative to shout 'Objection!' any time a lie and/or misrepresentation is made.

Should make politics much more interesting and honest if politicians know they'll be called out for lying in such a blatant fashion.
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Anonymous Coward, 12 Oct 2018 @ 11:43pm

At this point it is rather redundant to use the words FCC and lying in the same sentence as long as Pai is in charge. Breaking news would be if he actually said something that was true, but that'd kinda be like the Fonz saying he was wrong.
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Christenson, 12 Oct 2018 @ 11:49pm

Re: Maybe we need a fact-checking department of government.
Office of Technology Assesment ring any bells?
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Anonymous Coward, 13 Oct 2018 @ 6:27am

Re:
I find your claim a bit difficult to believe. The output power required to sustain damage as described is quite large and is not possible using commercially available uhf radio equipment.
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Anonymous Coward, 13 Oct 2018 @ 8:10am

Re: FCC claims authority
""" So, the basis under which the FCC claims it has regulatory authority... """ (@Burkhardt)

picky. picky, picky

Why worry about the the obscure bureaucratic wording of 'DNS service' interpretation ... when you totally ignore wording of U.S. Constitution regarding FCC ?

There is no textual basis for the FCC to even exist, under the U.S. Constitution. But of course you quite easily "discover" such a basis via absurd interpretations of generalities like the 'Promote the General Welfare' goal.

If you and Potomac politicians can interpret the Constitution any way you like -- why can't FCC bureaucrats interpret the fine points of their charter annd authority ?

Words don't mean much in WashingtonDC -- power is all.
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Anonymous Coward, 13 Oct 2018 @ 9:38am

I got the knife, you got the gun
Com'on boys we' gonna have a little fun.

Capital is violence without restraint, the state exists to enable that violence they will win or lose in court but they will do as they please.
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Anonymous Coward, 13 Oct 2018 @ 9:38am

Re: Re:
Thats not true at all. A send/mute on a hand held can track through electrical lines and outlets if held at a 90° posiition. Also any transmission under twenty feet from equipment can fry transistors if equipment is in use etc..
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Anonymous Coward, 13 Oct 2018 @ 9:42am

Re: Re: Maybe we need a fact-checking department of government.
It exists Congressional Research Service it as pretty much defunded under bush
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Anonymous Coward, 13 Oct 2018 @ 9:43am

Re: Re: " but fear such a bullshit response from this agency,"
This agency's own actions over other issues is just cause to feel grave doubt they would handle any situation correctly. Not imagination.
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Anonymous Coward, 13 Oct 2018 @ 9:46am

Re: Re: Re: Re: " but fear such a bullshit response from this agency,"
Have you ever collected payment from anyone you took to small claims court? I would love to hear that story!
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Anonymous Coward, 13 Oct 2018 @ 9:57am

Re: 2+2 = ALWAYS MAKES 4
Don't let them chip ya. You'll condemn your soul to death. But, they'll probably slice your head off. Coming to your neighborhood soon..
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Anonymous Coward, 13 Oct 2018 @ 10:04am

Re:
I don't make mistakes. I once thought I made a mistake. But I was mistaken!
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Anonymous Coward, 13 Oct 2018 @ 10:10am

Re: Re: FCC claims authority
Power without Honor is just liike driving past a farmer's freshly fertilized field. It just stinks up the air.
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Uriel-238 (profile), 13 Oct 2018 @ 10:14am

Congressional Research Service
CRS reports are widely regarded as in depth, accurate, objective, and timely, but as a matter of policy they are not made available to members of the public by CRS, except in certain circumstances.

Yeah, that doesn't help at all. We need something that can address the public and does, anytime a state agent misstates facts or acts on false data.

And yes, they should have a place in the House and Senate where they can interrupt proceedings with corrections to the embarrassment of whoever was mistaken.

And of course this will be unpopular with our officials, at least the ones who want to use alternative facts to back their policies.
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Anonymous Coward, 13 Oct 2018 @ 11:31am

Re: Re: Re:
Funny, I never has a transistor or chip fry when repairing equipment at high power transmitting stations, whether that was UHF, VHF, HF or MF. and by High power I mean 10Kw and above transmitters. Also it didn't seem to worry solid state electronics to be within a foot of devices putting out those power levels.
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Anonymous Coward, 13 Oct 2018 @ 12:03pm

Re: Re: Re:
Are you high?

I assume you are just trolling. You could up your game by doing a little research first, that way you can make it sound a bit plausible rather than outright bunk.
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Anonymous Coward, 13 Oct 2018 @ 12:05pm

Re:
signatures
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Anonymous Coward, 13 Oct 2018 @ 12:08pm

Re: Re: FCC claims authority
I thought the original purpose of the fcc was to allocate frequency spectrum (licensing) in a manner that precludes signals from walking all over each other.
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Anonymous Coward, 14 Oct 2018 @ 6:18am

Re: Re: Re: FCC claims authority
no -- starting back in 1912 -- there was a huge assets/power grab of the radio electronic spectrum by Federal officials and allied, business special interests. Same thing continues today.

Electronic-Interference was never a big problem when the airwaves were open to all -- that excuse was invented later to justify the government power grab. Nobel-winner British economist Ronald Coase demonstrated that private markets could readily handle the use/allocation of the frequency spectrum, rather than government bullying.
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Anonymous Coward, 14 Oct 2018 @ 8:32am

Re: Re: Re: Re: FCC claims authority

Electronic-Interference was never a big problem when the airwaves were open to all

Mainly because there were an insignificant number of users.

Once you get lots of users, use of spectrum needs planning. Also, not that just because a frequency seems clear where you are, it does not mean that you using it won't cause interference at the edge of of the coverage that you achieve, or cause problems by being on a reserved frequency like an aircraft, marine, military or emergency service frequency.

A core principle of cellular radio planning, which applies to all uses at vhf and above, that is frequencies that do not usually bounce off of the ionosphere, is to leave at least one empty cell between two uses of the any frequency, where a cell is the coverage area of the signal, with aerial height and transmitted power limited to suite the coverage area.

Unrestricted use only works, mainly, for very low power devices at very high frequencies, i.e WiFi, but that can be problematic in places like apartment buildings. If you can see half a dozen or more WiFi networks, you will probably suffer from performance degradation due to interference, especially as streaming from the Internet becomes more common.
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Anonymous Coward, 14 Oct 2018 @ 8:48am

Re: Re: Re: Re:
No I am Not James Woods either.
Remember you started this..

https://78.media.tumblr.com/74062908dfeb66d346e02bada0f21b1b/tumblr_o0frnmhhp91udh5n8o1_r1_400 .gif
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Anonymous Coward, 14 Oct 2018 @ 9:00am

Re: Re: Re: Re:
https://hackaday.com/2016/02/05/a-geeks-revenge-for-loud-neighbors/

I do plenty of homework.
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Anonymous Coward, 14 Oct 2018 @ 9:04am

Re: Re: Re: Re:
https://hackaday.com/2016/02/05/a-geeks-revenge-for-loud-neighbors/

Read all the comments here cowboy.
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stderric (profile), 14 Oct 2018 @ 9:57am

Re: Re:
I don't make mistakes. I once thought I made a mistake. But I was mistaken!

Isn't that the epigraph to the 2nd ed. of Principia Mathematica?
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The Wanderer (profile), 14 Oct 2018 @ 10:01am

Re: 2+2 = ALWAYS MAKES 4
Careful with those absolute statements, now.

Although 2+2 does usually make 4, there are two exceptions:

In base 3 (the lowest in which '2' is even a thing), 2+2 makes 11.

And in base 4, 2+2 makes 10.

(...no, I have no idea what this would mean by analogy in the things your comment actually talks about; why would you think that? I'm just being pedantic, because absolute statements tend to bother me.)
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stderric (profile), 14 Oct 2018 @ 10:04am

Re: I got the knife, you got the gun
I've got $20 that says this is the first Marxist Hoyt Axton comment ever made on TD.
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Anonymous Coward, 14 Oct 2018 @ 10:54am

Re: I got the knife, you got the gun
Yes look what Texas did in 1963 to further GW's carreer.
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The Wanderer (profile), 14 Oct 2018 @ 5:43pm

Re: Re:
"I made a mistake once. I thought I was wrong, but I wasn't."

I heard that version from my father (repeatedly, over the course of my life), but ISTR also having heard the sentiment applied to Einstein's concession WRT the cosmological constant.
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Baron von Robber, 15 Oct 2018 @ 6:13am

Re: Re: what a mess
And yet, deaths and harm is caused 95%+ by private enterprise.
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Anonymous Coward, 15 Oct 2018 @ 8:03am

Re: Re: Re: Re: Re:
Using standard UHF equipment in accordance with SOP and applicable laws, one is not capable of generating an EMP of sufficient amplitude to do permanent damage to electronics or electrical systems. This is by design and has received much testing by many labs/institutes. If your commercial electronics is having a bad day then maybe your equipment is substandard. If your neighbor is in violation of the law, call the cops. The fcc is not a policing function.
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Anonymous Coward, 15 Oct 2018 @ 8:05am

Re: Re: what a mess
You have pointed out a common problem with all forms of government, bravo - here's a gold star.
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Anonymous Coward, 15 Oct 2018 @ 8:17am

Re: Re: Re: Re: FCC claims authority
"starting back in 1912"
- fcc was created in 1934

"huge assets/power grab of the radio electronic spectrum "
- Like what? How was this done?

"Electronic-Interference was never a big problem "
- back in 1912 ....

"demonstrated that private markets could readily handle the use/allocation of the frequency spectrum"
- Liars have been making such claims for some time now but have never been able to show any data in support of same. Markets are not self regulating, this should be rather obvious even to the most casual observer.

"Electronic-Interference was never a big problem when the airwaves were open to all -- that excuse was invented later"
- It wasn't a problem until it became a problem and then they made up an excuse to solve the problem that was not a problem ... got it.
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Anonymous Coward, 15 Oct 2018 @ 8:20am

Re: Re: 2+2 = ALWAYS MAKES 4
Several studies have indicated a possible link between the implanted chip and cancer.
[ link to this | view in thread ]
nasch (profile), 15 Oct 2018 @ 9:04am

Re:

What does it take to get a question on the ballot at election time and let the people decide an issue?

A constitutional amendment, since there is no national ballot initiative system.

https://en.wikipedia.org/wiki/National_initiative
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Anonymous Coward, 15 Oct 2018 @ 11:14am

Re: Re: Re: Re: Re: Re:
You did not see the frozen grid pattern across my tv screen with my dipshit neighbor on this radio next door. Your false assessment of this situation. is is just that. Don't suppose you know something when you don't.
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nasch (profile), 15 Oct 2018 @ 11:23am

Re: Re: FCC claims authority

There is no textual basis for the FCC to even exist, under the U.S. Constitution.

"The Communications Act of 1934 followed the precedents of trial cases set under the Commerce Clause of the U.S. Constitution (Article I, Section 8, Clause 3), regulating commerce "among the several states"... Communications technology was determined to be an interstate good. President Franklin Roosevelt, along with lobbyists and state regulators, wanted communications technology, both wired and wireless, to be monitored in a similar way and influenced Congress to pass the Communications Act of 1934."

This seems to me a pretty reasonable use of the commerce clause, unlike some other bizarre contortions of it.

https://en.wikipedia.org/wiki/Communications_Act_of_1934
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nasch (profile), 15 Oct 2018 @ 11:26am

Re: 2+2 = ALWAYS MAKES 4
Hang on, who bought out all the telecom companies, and when? And how and what did the presidential alert hack into?
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Anonymous Coward, 15 Oct 2018 @ 1:02pm

Re:
Maybe so, but he is gonna be one helluva rich minion when the smoke clears. would love to see an accounting of his offshores. :)
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Anonymous Coward, 15 Oct 2018 @ 1:05pm

Re: Re: Maybe we need a fact-checking department of government.
If you make politics honest, it will fade away.
Its already obsolete and only its veneer of bullshit is keeping it from dissipating already.
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Hit Ler, 15 Oct 2018 @ 1:13pm

Re: 2+2 = ALWAYS MAKES 4
hehehehhehhehhehe

too late! :)

New RFID chips developed by the Chinese, are less than 1/1000 of an inch in diameter and self implanting.
They're delivered - free of charge - in your favorite breakfast cereal. Have a nice day.
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Toom1275 (profile), 15 Oct 2018 @ 4:35pm

Re: Re: Re: Re: Re: Re: Re:
Yeah... just as much as it was those vaccines that gave your kid autism.
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