Courts (Again) Shoot Down Telecom Lobby's Attempt To Kill State-Level Net Neutrality Rules

from the this-whole-thing-isn't-going-well dept

The 9th Circuit Court of Appeals has put a final bullet in the telecom industry's attempt to kill state-level net neutrality laws. The ruling (pdf) again makes it clear that the Trump FCC's 2017 repeal of net neutrality didn't follow the law when they also attempted to ban states from protecting broadband consumers in the wake of federal apathy. Basically, the courts keep making it clear the FCC can't abdicate its net neutrality and consumer protection authority under the Communications Act, then turn around and tell states what they can or can't do on consumer protection:

"The court explained that the discretion to classify a communications service under federal law does not permit the FCC to impose upon the states the policy preferences underlying that definitional choice."

This was never really understood by much of the press and punditry, but the Trump FCC net neutrality repeal didn't just kill net neutrality rules. It eroded much of the FCC's overall consumer protection authority (right before a pandemic, it turns out). It then punted a lot of broadband consumer protection over to the FTC--which lacks the resources or authority to do the job (the whole point of the industry lobbying gambit). Not only that, it attempted to ban states from being able to protect broadband consumers as well, something the courts have consistently frowned upon.

In the wake of federal apathy, several states, including Washington and California, passed their own state-level net neutrality protections designed to prevent telecom monopolies from abusing their market power. That was immediately met with not only industry lawsuits, but a lawsuit by the Trump DOJ that was unsurprisingly dropped last February by the Biden administration. Undaunted, telecom giants like AT&T continued to try and claim that the FCC's net neutrality repeal (which reclassified broadband under the Communications Act in a bid to erode oversight) pre-empted any state efforts to protect broadband consumers.

But the courts continue to annoyingly inform them the law doesn't work that way.

A lot of uninformed pundits will often pop up to proclaim that because the internet didn't implode in the wake of the FCC's net neutrality repeal, the rules must not have mattered all that much. But most of these pundits (usually intentionally) ignore the fact that a major reason ISPs have tried to behave in the years since is because they didn't want to be in violation of the remaining state laws. With California's legal victory, it's fairly guaranteed that even if the Biden FCC wimps out on revisiting net neutrality on the federal level, there will at least be a patchwork of state protections to derail AT&T and Comcast's uglier impulses.

It really gets lost in the droll legalese and policy rhetoric surrounding net neutrality, but this really was a grotesque example of blatant corruption. Not only did regional telecom monopolies effectively convince federal consumer protection regulators to lobotomize themselves at industry behest, they tried to ignore the law and ban states from being able to protect consumers as well. And knowing this was hugely unpopular with Americans across the aisle, the industry also used (with the Trump FCC's tacit approval) fake and dead people to pretend they had broad support for the gambit.

Net neutrality rules were always an imperfect attempt to erect some roadblocks to prevent regional telecom monopolies from abusing their market power. Net neutrality violations, like privacy violations, high prices, and poor customer service, were just a symptom of limited competition. You wouldn't need such rules if U.S. regulators and lawmakers were willing to take on the regional monopolization that creates a lack of meaningful competition in U.S. telecom, but they simply aren't. Nor is a corrupt Congress willing to pass a meaningful net neutrality law that would create consistent federal guidelines.

So instead we get patchwork state laws and a ping pong effect at the FCC until somebody in leadership has the courage to tackle the real issue (regional telecom monopolization and the corruption that protects it) head on. And based on the zeitgeist's oddly myopic obsession with antitrust reform and the perils of monopolization only if it pertains to "big tech," that's not happening any time soon.

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Filed Under: 9th circuit, broadband, california, fcc, net neutrality, preemption, states