Broadband Industry Sues Vermont For Daring To Protect Consumers, Net Neutrality

from the ill-communication dept

As we've made pretty clear, the broadband industry is successfully obliterating most meaningful federal and state oversight of their broken, largely uncompetitive broadband monopolies. They've had great success in convincing the Trump administration to effectively neuter the FCC, driving any piddly, remaining enforcement authority to an FTC that's ill-equipped for the job. At the same time, the federal government and ISPs like Comcast are also waging a not-so-subtle and completely coordinated war on state authority to step in and fill the consumer protection void.

Earlier this month, the entire broadband industry, hand in hand with the Trump DOJ, filed lawsuits against the state of California for passing a net neutrality law the majority of the public supports. This week broadband industry lobbying organizations like US Telecom (primarily funded and directed by AT&T) filed suit against the state of Vermont (pdf), again claiming that the state's new net neutrality law is prohibited by the legally dubious "pre-emption" language embedded in the FCC's net neutrality repeal at direct telecom lobbyist request.

I've discussed at length here and elsewhere why these efforts aren't likely to work: the simple version being that when an agency (in this case the FCC) abdicates its authority to regulate an industry (which the FCC did with its rollback of Title II classification of ISPs under the Telecom Act), it also eliminates its right to tell states what to do. This isn't a nuanced debate; I've been hard pressed to find a single telecom lawyer that thinks the FCC's state pre-emption efforts are on sound legal footing. It's generally seen as a delay tactic to prevent states from protecting users until the looming suit against the FCC is settled.

The lawsuit against Vermont parrots the oft-repeated falsehood that the FCC justly dismantled net neutrality because it was stifling sector investment, a claim that has indisputably and repeatedly been proven false. From the complaint:

"Capital investment in broadband actually declined when the Title II Order went into effect, but increased dramatically after the FCC announced its intent to repeal that order. By lifting the burdens imposed by Title II regulation, the Restoring Internet Freedom Order opens the way for providers to freely invest in crucial broadband infrastructure and experiment with new business models."

The reason Pai's FCC and broadband ISPs keep lying about this purported dip in investment (which SEC filings, CEO statements, and earning reports disprove) is because it's a violation of the Administrative Procedure Act to massively overhaul regulatory policy without basing it on hard facts and data. And since the FCC's repeal was based largely on bogus lobbyist-provided nonsense, they've been forced to make up a legitimate-sounding justification for the FCC's mindless ass kissing delivered unto some of the most disliked and anti-competitive companies in America. This will be a cornerstone of the looming lawsuits against the FCC.

In a statement, US Telecom clings to the usual claim that it's only suing to kill net neutrality because it truly adores an open internet:

"Broadband providers are united in support of an open internet and committed to delivering the content and services consumers demand. We oppose the actions in Vermont because states cannot use their spending and procurement authority to bypass federal laws they do not like. A 50-state patchwork approach threatens service for customers, hampers innovation and dampens investment in local communities, which is why Congress should adopt a permanent, enforceable, national framework to safeguard an open internet for all Americans."

Again, the telecom lobby forgets to mention that we wouldn't be looking at a "50 state patchwork approach" if they hadn't sued to kill arguably modest federal protections, making this a problem of the industry's own making. Also: remember when respecting state rights was a thing?

Telecom lobbyists want to stall these state-level rules from taking effect until the looming lawsuits against the FCC (by 23 state AGs and companies like Mozilla) is settled. After that, they're hoping to pass some flavor of flimsy law they write that will enshrine weak protections into law, preventing tougher state or federal protections. But given the overwhelming anger at the telecom sector right now, combined with a likely looming political sea change, a lot of the industry's biggest allies may soon find their political careers in jeopardy, leaving the industry with fewer allies than ever.

And while the inevitable policy and regulatory backlash that will hit the industry could be a few years in coming, when it does arrive it will be hard to argue that it wasn't incredibly well earned by Comcast, AT&T and friends.

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Filed Under: broadband, net neutrality, vermont
Companies: ctia, ncta, ustelecom