Former FCC Boss Wheeler Says New Court Ruling Won't Stop Net Neutrality
from the it-ain't-over-'til-it's-over dept
Obama's first FCC boss Julius Genachowski was a bit of a wishy washy mess, supporting any number of conflicting ideas at any given time depending on the audience he was talking to. And while his second term pick, Tom Wheeler, initially raised eyebrows given his history of lobbying for early-era telecom companies, he wound up being one of the better FCC bosses in agency history. Granted telecom giants like AT&T and Comcast might disagree, since he was one of the only FCC bosses in recent history actually willing to stand up to them in any meaningful way.
Last week, a court (mostly) sided with the FCC in its repeal of Wheeler-era net neutrality rules. That said, the court also blocked FCC attempts to ban states from passing their own net neutrality rules, meaning the fight has simply shifted to the state level. In an overlooked piece over at the NY Times, Wheeler (who has been relatively quiet post tenure as his efforts are slowly demolished one by one in the Trump era) notes how ISPs will likely try to behave so long as the threat of state action remains:
"But the ruling did keep net neutrality alive — by overruling the agency’s claim that it could pre-empt state governments from setting out their own net neutrality requirements. The decision opens the doors for states to fill the regulatory void. Internet service providers should be quaking in their boots: As of today, they run the serious risk that they’ll have to follow a patchwork of different state requirements. The companies may not have liked the previous administration’s decision to classify them as common carriers, but that at least provided them with a uniform national policy. That is now gone."
ISPs really enjoy complaining (and will certainly be doing a lot more of it in the future) that they now have to adhere to a universe of state-level protections. But the reality is they created the problem by lobbying to kill pretty modest federal guidelines (using fraudulent data and bogus people, it should be noted). Now instead of a unified set of FCC rules (which didn't even ban problematic behavior like the abuse of usage caps as a competitive weapon), they'll have to adhere to tougher guidelines in states like California.
The FCC ban on state efforts was an integral part of Comcast/AT&T/Verizon's dream of zero meaningful oversight and, without it, it's not much of an actual victory, notes Wheeler's former advisor Gigi Sohn:
Here's the problem for those saying that @FCC could pre-empt state #netneutrality laws - the FCC cannot at the same time abandon its authority to regulate & also tell the states it cannot do so. Exactly what federal law or rule would pre-empt the state law? There isn't one.
— Gigi Sohn (@gigibsohn) October 1, 2019
As such, the court ruling leaves the door open to net neutrality in several ways. One, states can now jump in and protect consumers. Two, the court ruling made it clear the FCC was within its authority to both pass the 2015 rules and repeal them, meaning a future FCC can simply pass the same (or better) rules all over again. And while it's unlikely under this current telecom-cash-slathered Congress, a future Congress could pass legislation (like the 3 page Save the Internet Act, which simply restores the FCC's 2015 rules) that puts meaningful rules in place permanently.
In other words, it ain't over until it's over. And every survey in existence shows that US consumers want some kind of protections in place. Disdain for anti-competitive giants is bipartisan and fairly universal. Eventually big ISPs like Comcast and AT&T won't be able to help themselves (AT&T's already quietly pushing its luck on this front), and their behaviors will only lead to even more public support for meaningful open internet rules.
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, fcc, net neutrality, states, states rights, tom wheeler
Reader Comments
Subscribe: RSS
View by: Time | Thread
Richard Bennett isn't going to like this, is he?
[ link to this | view in thread ]
The problem isn't different state requirements. The ISPs already have to follow different municipal requirements. The problem is its more expensive to lobby 50 congresses than just one
[ link to this | view in thread ]
Re:
They don't really care about that either. They'll just add a $7.50 "lobbying support fee" to everyone's bills.
[ link to this | view in thread ]
This sounds familiar
Didn't the whole thing start because AT&T tried to sue and the courts said that doesn't work because the FCC doesn't technically have the right authority, come back if you're classified as Title II?
So basically this whole thing is a series of telecoms trying to pull fast ones and shooting themselves in the foot instead?
[ link to this | view in thread ]
Re: This sounds familiar
Yeah except it's our feet being shot up.
[ link to this | view in thread ]
Re: This sounds familiar
'Twas Verizon, not AT&T, but yeah -- they've been scattergunning their own feet and hitting ours with the overspray....
[ link to this | view in thread ]
ISPs' solution
They will now lobby for some completely meaningless "regulation" which will exist purely for the purpose of pre-empting States' regulation of them.
[ link to this | view in thread ]
Re: ISPs' solution
If they go to far the states will just become the ISP by building it out as a state owned business. They would have to live by the federal rules lobbied into place by their predecessors but states are allowed to enter the economy as a market actor funded by taxes.
[ link to this | view in thread ]
Dingos
"I am not a dingo."
Too bad we are stuck with Pai now, who is a dingo.
[ link to this | view in thread ]
Re: Dingos
I love dogs and believe that is an insult to dingos.
[ link to this | view in thread ]
Re: Re: Dingos
FTR, the dingo thing was a reference to John Oliver, who compared putting someone who used to work for the telecom industry in charge of regulating it to having a dingo—an animal known for taking and killing human infants—babysit for you.
[ link to this | view in thread ]
Re: Re: Re: Dingos
That has happened before because dingos are wild/feral dogs but they are all believed to be descended from domestic dogs brought when native Australian settled the continent. Pet dogs occasionally maul a child too. That's sad.
[ link to this | view in thread ]
Re:
Clearly not, he got all his Paisuckers to report your comment!
[ link to this | view in thread ]
Re: Re: ISPs' solution
Telecom is already working -- fairly successfully -- to prevent that as well. Some states already have laws on the books prohibiting public broadband. Just search "municipal broadband" right here on Techdirt and you'll find plenty of stories about it.
[ link to this | view in thread ]