Texas, Arkansas, & Nebraska AGs Are Now Aiding The Broadband Industry's Assault On Net Neutrality

from the investment-apocalypse dept

Thu, Oct 25th 2018 6:35am — Karl Bode

Back in January, 23 state attorneys general sued the FCC over its net neutrality repeal, claiming it ignored the public, ignored the experts, and was little more than a glorified handout to uncompetitive, predatory telecom monopolies. That trial will also determined whether the FCC ignored rules like the Administrative Procedure Act, which requires you, oh, actually have data to support a major, wholesale reversal of such a major policy (if you're just tuning in, they didn't). The suit, which is also backed by a few companies (including Mozilla), could result in the FCC's repeal being overturned and the FCC's 2015 net neutrality rules being restored.

This week three additional state AGs (Texas, Arkansas, and Nebraska) decided to take the opposite tack, and filed a brief (pdf) last Friday in the US Court of Appeals for the District of Columbia Circuit, insisting that judges reject the lawsuit against the FCC. Not too surprisingly, the brief is filled with the kind of arguments net neutrality opponents have been trying to make for years, including the repeatedly, and clearly debunked claim that net neutrality simply had to be repealed because it was killing broadband industry network investment:

"The policy being repealed, in place since 2015, offered threats to investment and creative problem solving within the ISP community; those rules had also sought to regulate private business activity as a public utility."

Except again, neither of those claims are true. While industry lobbyists like to cherry pick data to suggest net neutrality caused an investment apocalypse, SEC filings, earnings reports, and even the public statements of countless broadband CEOs clearly show that's not the case. As for the effort to "regulate ISPs as utilities" we've also repeatedly noted how that's not true, as the former FCC went well out of its way to ensure some of the heavier, utility-style aspects of the Telecom Act (like rate regulation) wouldn't apply to broadband ISPs.

A cornerstone of the argument by the Texas, Arkansas, and Nebraska AGs is the FCC didn't violate the Administrative Procedure Act because precedent dictates that two agencies are allowed to look at the same exact data and have differing opinions, provided they justify their arguments:

"Accordingly, undoing or reversing agency action is permissible so long as the agency demonstrates awareness of the change and offers a satisfactory reason for it."

The problem for Ajit Pai and ISPs is they didn't offer anything close to a "satisfactory reason." ISPs make up justifications out of whole cloth, and the Ajit Pai just mindlessly repeats them. It got so bad, that at one point the FCC was literally just directing reporters who had questions to AT&T-funded lobbying organizations. Yes, lobbyists dictating government behavior using bogus data is nothing new, but usually there's at least a pretense that's not actually happening. The Pai attack on net neutrality is about as blatant an example of cronyism and corruption (given overwhelming public and expert opposition) as you're going to find.

In this age of hyper-partisanship and court stacking it's perfectly possible the industry gets a friendly judge willing to ignore reality and rule in their favor, but the facts continue to not be on their side. Especially in the full context of the FCC getting busted making up a DDOS attack, and ignoring identity theft and comment fraud in a bizarre effort to try and downplay massive public backlash to their decision to kill the rules.

When the court case kicks off next February, the outcome remains anything but clear. And even if the broadband industry wins, it still has to fend off state efforts to protect consumers (which the FCC repeal attempts to block, but the three AGs had no comment on). They also have to prevent any future FCC or Congress from passing tough net neutrality rules, which is why the broadband industry has attempted to convinced its most loyal supporters to pass flimsy net neutrality legislation in name only attempting to pre-empt any meaningful efforts to actually protect end users from largely-unaccountable telecom monopolies.

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Filed Under: arkansas, fcc, nebraska, net neutrality, state attorneys general, texas

39 Comments

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hij (profile), 25 Oct 2018 @ 4:47am

The gubernatorial route through the AG's office
Looks like there are three states with Attorney Generals with plans to become Governor. Reliable corporate money is always welcome in a politician's pocket.
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Anonymous Coward, 25 Oct 2018 @ 6:54am

Re: The gubernatorial route through the AG's office
Voters in those states .... you know what to do.
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Toom1275 (profile), 25 Oct 2018 @ 7:12am

It's amusing how many headlines in which the meaning doesn't change a bit when you swap the words "Net Neutrality" for "American citizens."
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I.T. Guy, 25 Oct 2018 @ 7:52am

Re:
You kind of stumpped me on this for a bit until I read the headline again:
Texas, Arkansas, & Nebraska AGs Are Now Aiding The Broadband Industry's Assault On American citizens.

Like a glove.

"and the Ajit Pai"
Every time I see his name I think "Arm Pit."
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nasch (profile), 25 Oct 2018 @ 7:52am

Re: The gubernatorial route through the AG's office

Looks like there are three states with Attorney Generals with plans...

Attorneys General. Your brothers-in-law and random passersby will thank you.
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me, 25 Oct 2018 @ 8:23am

Texas
Is a fascist shithole.
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Iggy, 25 Oct 2018 @ 8:25am

Let Net Neutrality have its day in court. Let the industry present its junk data and let it be debunked. The sooner the lawsuits happen, the sooner a precedent can be set and more states can follow California. If Texans want an "Information Service" instead of the Internet, the ISPs can spin off subsidiaries to squeeze customers there.
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Michael, 25 Oct 2018 @ 8:39am

Re: Re: The gubernatorial route through the AG's office
I'm not sure voters know what to do anymore.
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Anonymous Coward, 25 Oct 2018 @ 8:45am

Re: Re: Re: The gubernatorial route through the AG's office
More and more of them are finally waking up, even in red states.
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JoeCool (profile), 25 Oct 2018 @ 9:15am

Re: Re: Re: Re: The gubernatorial route through the AG's office
I'll believe that when third parties start winning. As long as things flip-flop back and forth between D and R, nothing will change.
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Anonymous Coward, 25 Oct 2018 @ 9:58am

i wonder what this has cost the industries? there can be no sensible or common sense reason for these AGs to side with the broadband industries unless there is personal reward involved or the AGs are complete friggin idiots concerning broadband!!
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JoeDetroit (profile), 25 Oct 2018 @ 10:09am

Re: Re: Re: Re: Re: The gubernatorial route through the AG's office
Third party will never happen but in the meantime it will be just enough to keep the "R"s in power. "D"s may not be perfect but that is all we got right now. Push the Dems to be more representative of the people rather than push for some third party. At least the Dems are on board with Net Neutrality.
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Uriel-238 (profile), 25 Oct 2018 @ 10:13am

Its day in court.
Courts brought to you by the (Anti-NN) Federalist Society.
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Thad (profile), 25 Oct 2018 @ 10:19am

Re: tl;dr

I'll believe that when third parties start winning.

https://en.wikipedia.org/wiki/Duverger's_law

First-past-the-post elections tend, mathematically, to devolve into races between two candidates. In the rare instance that an independent or third-party candidate wins, it's typically by displacing one of the two major parties. (When Joe Lieberman lost the Democratic primary in 2006 and won the general as an independent, it was by getting support from Republicans, even though he went on to caucus with the Democrats; the actual Republican candidate in the race got less than 10% of the vote.) In the instances where a third party has become a major party, it's been by displacing another party (the Republicans displaced the Whigs, who had displaced the Federalists).

Making third-party candidates viable on a larger scale generally requires a switch away from first-past-the-post to some other system, such as ranked-preference voting. Maine has just introduced ranked-preference voting (only for federal offices at this time), so independents and third parties will have a stronger chance there than in most states. We'll see how that works out; I think Collins's bid for reelection in 2020 may be the race to watch.

Switching the presidency to a ranked-preference system is effectively impossible without a constitutional amendment.
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Thad (profile), 25 Oct 2018 @ 10:22am

Re:

If Texans want an "Information Service" instead of the Internet

You say that like Texas is a monolith and everybody wants the same thing.
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Iggy, 25 Oct 2018 @ 10:33am

Re: Re:
My mistake. Texas isn't a monolith just like the USA isn't. But there's definitely lots of cleaning up to do politically.
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Anonmylous, 25 Oct 2018 @ 10:34am

Uh oh?
Seems to me that if the Broadband companies are saying this was hurting investment, while at the same time telling their investors it was not... perhaps the SEC should be looking into the issue of these companies potentially having lied to their investors to manipulate stock prices while desperately working on deregulation efforts to hide it! Probes, subpoenas for tons of emails and financial records, all related to infrastructure build out, CAPEX, lobbying the FCC, coordinating efforts to undermine the FCC's comment period, authority, and ability to regulate the industry, etc all becoming matters of public record sounds like a fantastic idea!
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OhGoody, 25 Oct 2018 @ 10:53am

Sounds like those AG's just perjured themselves...
Let's get some rope and tie-em-up and deliver them to the bailiffs of the court(s) they lied to.
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Anonymous Coward, 25 Oct 2018 @ 11:02am

Re: Re: tl;dr
Eventually we might get to a system in which everyone votes on the issues rather than the candidates thus avoiding the cult of personality, in theory that is.
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thebosz (profile), 25 Oct 2018 @ 11:13am

Public Utility? Please!
Oh no! The rules might regulate these private companies like a public utility!

If only!

I would celebrate if that were the case.
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Anonymous Coward, 25 Oct 2018 @ 11:42am

Re: Re: Re: tl;dr
>Eventually we might get to a system in which everyone votes on the issues rather than the candidates thus avoiding the cult of personality, in theory that is.

Nah, Americans are way too enamored with team sports for anything like that to happen. "My team, right or wrong!"
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ECA (profile), 25 Oct 2018 @ 11:47am

HOW MUCH?
To much can be said about this...lets just add 1 point.

HOW MUCH is this going to cost the consumer?
Every Cent paid to those responsible for changing opinions, along with the Sponsors and Lobbyists..
Along with a RAISE in the cost of the internet , cable, Sat, Phone and cell service...ALL going up.. So that WE PAY FOR IT.

In all of this, its easy to say, PAI did not follow procedure..so nothing should happen. Erase IT ALL and we go back to Square 1.
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Thad (profile), 25 Oct 2018 @ 12:42pm

Re: Re: Re: tl;dr
You really haven't engaged the point of my post at all.

The point of my post is that, by its nature, a first-past-the-post electoral system leads to races between two candidates. I'm not talking about psychology, I'm talking about math.

I agree that the two-party system is a problem, and that the trend of people rooting for a "team" rather than an ideology (and even changing their ideology to match their team) is disturbing.

But "just vote third-party" isn't a solution. Not as long as we elect politicians based on FPTP.

Even in the rare race where a third-party or independent candidate has a viable shot at winning under a FPTP system, it's almost certainly going to be at the expense of a major-party candidate. It's still a two-person race. It's still choosing the lesser of two evils, or casting a protest vote on a third candidate who doesn't have a legitimate shot at winning. That's what happens under FPTP, whether the candidates call themselves Democrats, Republicans, Conservatives, Labour, Greens, Libertarians, Independents, or anything else.

"Just vote third party" isn't a solution. If a third party did become powerful enough to challenge the two major parties, history shows us that it would just replace one of them, and we'd be back to a two-party system. Again, this has already happened twice in American history. Electing third-party presidents (first Taylor, then Lincoln) didn't fix the two-party system, it just replaced the old two-party system with a new one.

We need more than to merely vote for third-party and independent candidates. We need to fix the electoral underpinnings that favor a two-party system, so that a multi-party system can actually thrive.
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Thad (profile), 25 Oct 2018 @ 12:43pm

Re: Re: Re:
Oh, absolutely.

I just tend to bristle at "the people of [place] voted for [person or thing], so they deserve what they got" reductivism. Not everybody votes the same way.
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Uriel-238 (profile), 25 Oct 2018 @ 12:52pm

Everyone votes on the issues.
That's called a participatory democracy and works in very small groups like committees.

In a nation the size of (say) Colorado, there are more issues manage than there are days in a year, and most people are not up on the nuances of even the ones that personally affect them.

The notion of a representative Democracy is to vote for people who are savvy enough regarding the issues (or wise enough to discern honest expertise from corporate salesmanship). But we're not very good at determining those from Ted Cruz.
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Thad (profile), 25 Oct 2018 @ 1:25pm

Re: Everyone votes on the issues.
There actually is an argument to be made that people vote for one party over the other because they associate their party with their identity, not because they favor a particular candidate's stance on particular issues.

Indeed, there's evidence that people are changing their stances on issues to match their party's stance rather than picking their party affiliation based on their stance on the issues. (Just look at how quickly the Republican and Democratic party lines on Russia have flipped in the past two years.)

I agree that this is a serious problem. But simply voting third-party doesn't solve it. As long as our elections are first past the post -- that is, one round of voting, with the candidate with the most votes winning even if they don't have a majority -- we're going to have a two-party system.
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Toom1275 (profile), 25 Oct 2018 @ 1:30pm

Re: Re: Re: Re:

people of [place] voted for [person or thing], so they deserve what they got" reductivism. Not everybody votes the same way.

Especially not in heavily gerrymandered places. (Can't remember offhand if TX was one of those, though)
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Thad (profile), 25 Oct 2018 @ 2:24pm

Re: Re: Re: Re: Re:
Yup.
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Anonymous Coward, 25 Oct 2018 @ 2:50pm

Re: Re: Everyone votes on the issues.
Tribalism is a human trait that the species needs to address if they want to survive.
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Grammar Nazi, 25 Oct 2018 @ 2:51pm

Re: Re:
Yeah, if he was going to generalize, he should have said "If Texans generally want...".
Shame on him.
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Techdirt Welcoming Committee, 25 Oct 2018 @ 3:10pm

Welcome again after 3 years "thebosz"! Don't wait so long again!
We're trying to get people to comment at least once a year. Please do your part. Thanks.
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CourtsGettingStackedwithBaboonsandBuffoons, 25 Oct 2018 @ 5:41pm

Another easy fix.... Ex-Lax in the Judge's coffee
Let's them have smooth movements, too bad they can't sit for trial under that effect.

After the first 30 or 40 times, you'd think the Judge would figure out that they'd better start sticking to the law and not their whims.
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Anonymous Coward, 25 Oct 2018 @ 5:55pm

Re: Welcome again after 3 years "thebosz"! Don't wait so long again!
How's that Paul Hansmeier fund coming along, bro?
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Anonymous Coward, 25 Oct 2018 @ 6:46pm

Re: Welcome again after 3 years "thebosz"! Don't wait so long again!
Your imaginary conspiracy is just so boring.
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Anonymous Coward, 25 Oct 2018 @ 7:27pm

Re: Re: The gubernatorial route through the AG's office
Sadly, some things voters can't fix without help. Nebraska is so red that the AG is running unopposed and will be reelected in 2 weeks.
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Wendy Cockcroft, 26 Oct 2018 @ 5:50am

Re: Re: Re: Everyone votes on the issues.
Okay guys, given that all of the above statements are true, how about working with a campaign to promote proportional representation, gaining allies even from groups you don't normally get along with, until you've got enough momentum to effect change. It's not unthinkable, look at the Progressive gains we've seen in the last few years alone.

They would probably be your best bet for getting the ball rolling, whether you agree on other issues or not.
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That One Guy (profile), 26 Oct 2018 @ 6:10am

Depends on how you look at it
On the contrary, I at least find it downright hilarious that they obsess over the site so much that they regularly check posting history of other people(clearly indicating a stable and rational mind), and see any indications that people aren't as obsessed as they are with TD as signs of some conspiracy.
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Simba7 (profile), 26 Oct 2018 @ 7:24am

Re:

If Texans want an "Information Service"

I thought that was Faux News.
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Anonymous Coward, 26 Oct 2018 @ 8:02am

Re: Re: Re: The gubernatorial route through the AG's office
Big Red - makes sense
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