DOJ Drops Ridiculous Trump-Era Lawsuit Against California For Passing Net Neutrality Rules

from the round-and-round-we-go dept

After the Trump FCC effectively neutered itself at telecom lobbyist behest, numerous states jumped in to fill the consumer protection void. California, for example, passed some net neutrality rules in 2018 that largely mirrored the FCC's discarded consumer protections. There's a strange contingent of folks who try to claim that because the internet didn't immediately explode in a rainbow of fireworks, the net neutrality repeal must not have been a big deal. But a major reason why ISPs didn't behave worse (than they already are) is because they didn't want to violate new state laws.

That said, they did yeoman's work to try and thwart these state efforts too. Including convincing Billy Barr's DOJ to file suit against California to prevent the popular bill from ever becoming law. You know, "states rights!" and all that.

The DOJ's central argument was that California's attempt to protect consumers was somehow "anti-consumer" and "extreme" (it was neither). The suit leaned on language the FCC included in its repeal (at industry behest) claiming that states couldn't step in and protect consumers in the wake of federal apathy. The courts so far haven't looked too kindly upon that logic, arguing that the FCC can't abdicate its authority over telecom consumer protection, then try to lean on that non-existent authority to try to tell states what to do.

This week the DOJ's ham-fisted effort to curry favor with US telecom monopolies fell apart completely when the Biden DOJ quietly pulled out of the lawsuit. It was a move quickly applauded by new FCC Commissioner Jessica Rosenworcel:

Keep in mind California's law went a little beyond the FCC's original rules, tackling stuff like zero rating that the Wheeler FCC didn't realize was anti-competitive until it was too late. Still, by international standards (India, Japan, Canada, elsewhere) both sets of rules were pretty modest, compared to the telecom industry's talking point that some basic guidelines for broadband monopolies (in the absence of meaningful competition) was "government run amok."

The DOJ retreat leaves a separate broadband industry lawsuit as the last remaining obstacle to the California law's passage, the next hearing for which occurs on February 23. But by the time this case makes its way through a full hearing, federal regulators will likely have restored the original federal rules. That, however, requires a 3-2 majority at the FCC, which can't happen until Biden appoints -- and Congress formally seats -- a third Democratic Commissioner and possible third boss.

That's weeks to months away, still. It's worth reiterating that the Ajit Pai net neutrality repeal didn't just kill net neutrality. It dismantled the agency's authority to hold ISPs accountable for things like billing fraud, leaving the FCC partially paralyzed during a pandemic that's showcasing how broadband is essential to education, health care, opportunity, and survival.

ISPs have worked pretty tirelessly just to get to this point. AT&T and Comcast engaged in all matter of dodgy gamesmanship and outright disinformation to first get the federal rules repealed despite massive public, bipartisan approval of the rules. They then convinced the FCC to include provisions in the repeal that tried to ban states from protecting consumers, while in California they engaged in some dodgy gamesmanship to prevent the law from even being voted on. At the same time, they were so politically powerful they got the US Department of Justice to file a bullshit lawsuit trying to pretend California's law was "anti-consumer."

All to derail something the public broadly supported across party lines. Really pause for a second to stop and think about the level of regulatory capture and corruption required to accomplish all of that.

Filed Under: ajit pai, california, doj, fcc, net neutrality, states rights

DOJ Continues Its Quest To Kill Net Neutrality (And Consumer Protection In General) In California

from the who-needs-monopoly-oversight? dept

After the FCC effectively neutered itself at telecom lobbyist behest, numerous states jumped in to fill the consumer protection void. As a result, California, in 2018, passed some net neutrality rules that largely mirrored the FCC's discarded consumer protections. Laughing at the concept of state rights, Bill Barr's DOJ immediately got to work protecting U.S. telecom monopolies and filed suit in a bid to vacate the rules.

The DOJ's central argument was that California's attempt to protect consumers was somehow "anti-consumer." And the lawsuit largely centered on language the FCC had included in its net neutrality repeal (again, at telecom lobbyist behest) attempting to ban states from filling the void created by the federal government no longer giving a damn. The courts so far haven't looked too kindly upon that logic, arguing that the FCC can't abdicate its authority over telecom, then try to lean on that non-existent authority to try to tell states what to do.

Last week California filed its first brief (pdf) in its legal battle with the DOJ. ISPs are seeking a preliminary injunction to prevent California from enforcing the rules during the lawsuit. Again though, their primary argument continues to be that states can't enforce net neutrality because the FCC said so. Which, as Stanford Professor Barbara van Schewick continues to point out, is still nonsense no matter how many times industry and the captured U.S. government repeat the claim:

"According to case law, an agency’s decision to deregulate can only block the states from stepping in when the agency has the power to regulate and decides not to use it.

But when the FCC eliminated net neutrality in 2018, it also removed its own authority over broadband providers. In essence, the agency decided that broadband providers are not telecommunications companies that simply shuttle data back and forth (like a telephone company), but information service providers which interact with and alter data, like a website.

This removed any authority that would have allowed the FCC to adopt net neutrality protections. Thus, the elimination of net neutrality did not establish a calibrated federal deregulatory regime, as the U.S. and the ISPs argue; it simply reflected the FCC’s lack of authority. Simply put, the FCC’s 2018 Order created a regulatory vacuum, and you can’t conflict with a vacuum."

Of course one of the reasons you stack the courts with unqualified sycophants and partisan yes men is so basic, fundamental logic doesn't apply. So as usual, while it's likely the courts will laugh at the telecom sector's efforts here, it's certainly not guaranteed. And while the press will cover this story as a "government lawsuit," make no mistake: this is AT&T, Verizon, and Comcast using the federal government as a hand puppet as they attempt to have their cake and eat it too. Namely, no real oversight on the state or federal level, and no pesky market competition to keep their worst impulses in check.

Filed Under: california, doj, fcc, net neutrality, states rights

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:

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.

Filed Under: ajit pai, fcc, net neutrality, states, states rights, tom wheeler

The Entire Broadband Industry Just Sued California For Daring To Protect Net Neutrality

from the flimsy-legal-theories dept

As expected, the broadband industry filed suit against the state of California today over the state's shiny new net neutrality law. The lawsuit (pdf), filed in US District Court for the Eastern District of California, echoes many of the same arguments made in the DOJ's own recent lawsuit against the state. For a moment, let's just stop and pause to appreciate the fact that the federal government is now, with zero pretense, officially working hand in hand with some of the least-liked monopolies in America to ensure their right to be able to screw you over.

It if it wasn't so obnoxious with so many far-reaching impacts on consumer welfare, internet health, and competition--it could be deemed high art.

ISP lawyers argue California's state law violates the dormant commerce clause of the Constitution (they've previously, unsuccessfully, tried to argue that net neutrality also violates their First Amendment rights). Both lawsuits rely heavily on language embedded in the FCC's net neutrality repeal (at direct Comcast and Verizon lobbyist behest) attempting to prohibit states from stepping in and filling the consumer protection void. This "preemption" language, the broadband industry insists, directly prohibits states from protecting consumers from bumbling telecom monopolies:

"This case presents a classic example of unconstitutional state regulation. The State of California has enacted SB-822, entitled the "California Internet Consumer Protection and Net Neutrality Act of 2018,” directly regulating the provision of broadband Internet access services (“BIAS”).

This statute was purposefully intended to countermand and undermine federal law by imposing on BIAS the very same regulations that the Federal Communications Commission (“FCC”) expressly repealed in its 2018 Restoring Internet Freedom Order (and by adopting even more restrictive regulations), despite the fact that both the FCC decision and the federal Communications Act of 1934, as amended (“Communications Act”), prohibit states from taking such action with respect to jurisdictionally interstate services like BIAS."

Shockingly, there are a few things here the industry is being misleading about. One, the industry likes to conflate "internet access services" with the internet itself. The former has always been regulated via joint cooperation between the federal and state government, which is why you have things like local public service commissions that regulate things like pole attachment, local franchising, and some privacy issues. There is no part of the Telecom Act that prohibits states from protecting consumers, and that was even something courts made clear in the net neutrality court cases the industry recently lost on this very subject.

The problem for ISPs, as numerous net neutrality legal experts have pointed out repeatedly, is that (ironically) when the FCC gave up its authority to regulate broadband providers by rolling back their classification of ISPs as common carriers, they also eliminated their right to tell states what to do. ISPs like Charter Communications have already tried to lean on this language to dodge state lawsuits over terrible service, and it hasn't gone well for them.

The cooperative lawsuits between the Trump DOJ and numerous ISP lobbying organizations gives you a pretty solid understanding of how worried the industry is about California's new law, which largely just reflects the 2015 FCC rules industry spent millions of dollars to repeal. Obviously ISPs can't just admit they don't want government preventing them from abusing a lack of broadband competition to overcharge consumers and (further) hamstring competitors, so groups like the CTIA issued statements trying to hold the industry up as a pillar of integrity on the assumption you're all aggressively dimwitted:

"The nation’s broadband providers are the innovation engine of America’s digital economy and remain committed to an open internet for consumers. We oppose California’s action to regulate internet access because it threatens to negatively affect services for millions of consumers and harm new investment and economic growth."

There is, if you're playing along at home, literally nothing in that statement is true. Claims that net neutrality hurts investment have been soundly and repeatedly debunked by the industry's own financial data and statements, and anybody believing Comcast and AT&T truly care about an "open internet for consumers" after the years of nonsense they've pulled on this subject should most assuredly avoid operating heavy machinery.

At best, the industry hopes to buy itself some time ahead of the looming lawsuit by 23 State Attorneys General, which will hope to show how the FCC engaged in all manner of unethical nonsense as it rushed to give the broadband industry a sloppy kiss last fall. Even if they win that lawsuit, numerous legal experts I've talked to consistently doubt the state preemption language holds up in court, since a regulatory agency that has abdicated its authority to regulate, can't then step in and prevent the states from doing so themselves.

And even if the broadband industry wins both the FCC legal fight and the state level battle (finding an idiotic or compromised judge is never out of the question), they still have to find a way to stop some future FCC or Congress from passing new net neutrality rules, an obvious threat given the likely, looming political sea change. That's why the industry is simultaneously pushing for a new federal net neutrality law; but only one that it has written in a bid to get something on the books that preempts tougher state or federal guidelines. Congress isn't buying, and isn't likely to after the midterms, either.

Sure, the federal government under both parties has long coddled the telecom sector by turning the other cheek as ISPs aggressively erode competition and consumer choice at every opportunity, saddle you with bogus fees, and generally misbehave. But this synchronous government/industry assault on consumers, consumer protections, state rights and democratic process is officially taking things to an entirely new level of corrupt dysfunction, all under the banner of purportedly "restoring internet freedom." If you believe what they're selling, I've got a cornucopia of used bridges and swampland I think you'll find irresistible.

Filed Under: broadband, california, competition, fcc, net neutrality, states rights
Companies: ctia, ncta, ustelecom

The DOJ's New Net Neutrality Lawsuit Is A Giant Middle Finger To State Rights, Consumers, Competition & The Democratic Process

from the straight-up-bullshit dept

So let's be clear about something: the Ajit Pai FCC's repeal of net neutrality was already a mammoth fuck you to the American public, open competition, and a healthy internet. The effort to neuter the rules was based on bogus telecom lobbyist data, lots and lots of shady behavior, and oceans of complete nonsense. And while folks like Ajit Pai like to speak loftily about his noble effort to "strip away burdensome regulations," the reality is that killing net neutrality served one real purpose: giving natural telecom monopolies the green light to (ab)use a broken, uncompetitive broadband market to screw consumers and competitors alike.

When the FCC killed these overwhelmingly popular consumer protections it wasn't just killing net neutrality, it was killing the federal government's ability to adequately hold lumbering telecom monopolies accountable on the federal level. In addition to neutering the FCC and shoveling any remaining, fleeting oversight to an FTC ill-equipped for the job, ISPs convinced the Trump administration to also try to prevent states from filling the void. As such, both Comcast and Verizon successfully lobbied the FCC to include language in the net neutrality repeal "preempting" (read: banning) states from holding giant ISPs accountable as well.

Again the goal here is obvious: to eliminate any meaningful state or federal oversight of natural telecom monopolies, which will now be left unchecked by neither regulatory oversight nor meaningful competition.

This little gambit came to a head over the weekend, when California Governor Jerry Brown signed the state's shiny new net neutrality law. That law took an incredible collaborative effort to pass, after ISPs tried to neuter most of the bill's key components via procedural gamesmanship, and even took to lying to senior citizens about the proposal in misleading robocalls. The public backlash to these efforts forced the California Assembly and Senate to pass the law in late August, before Brown (amid some uncertainty) signed the bill yesterday afternoon.

Within hours of Brown's signing the bill, the Department of Justice announced it would be suing California, insiting that California's consumer protections were, mystically, somehow "unlawful and anti-consumer":

"Under the Constitution, states do not regulate interstate commerce—the federal government does. Once again the California legislature has enacted an extreme and illegal state law attempting to frustrate federal policy. The Justice Department should not have to spend valuable time and resources to file this suit today, but we have a duty to defend the prerogatives of the federal government and protect our Constitutional order. We will do so with vigor. We are confident that we will prevail in this case—because the facts are on our side."

You might be shocked to learn that no, the facts are most assuredly not on the Trump administration's side, here.

The DOJ's twelve page complaint (pdf) leans heavily on the state-preemption language, insisting that FCC authority preempts any state authority over broadband. As a result, the DOJ argues, states can do nothing but stare dumbly at the problem as the FCC abdicates its authority over broadband consumer protection at the direct behest of lumbering telecom monopolies:

"...the 2018 Order expressly “preempt[s] any state or local measure that would effectively impose rules or requirements that [it] ha[s] repealed or decided to refrain from imposing in this order or that would impose more stringent requirements for any aspect of broadband service that [it] address[es] in this order." This includes “any so-called ‘economic’ or ‘public utility-type’ regulations, including common-carriage requirements akin to those found in Title II of the Act and its implementing rules, as well as any other rules or requirements that [the FCC] repeal[ed] or refrain[ed] from imposing” in the 2018 Order."

Here's the ironic bit. Legal experts like Ernesto Falcon at the EFF and Stanford Law Professor Barbara Van Schewick have long noted that when the FCC obliterated its authority over ISPs and net neutrality (by rolling back their classification of ISPs as Title II common carriers under the Telecom Act), it also ironically obliterated its authority to tell states what to do. Shorter version: an agency that has abdicated its regulatory authority can't then go and try to utilize this now nonexistent authority to dictate state consumer protection efforts.

Short version: the FCC was a little too clever by half, and managed to shoot itself in the foot. ISPs like Charter Spectrum have already tried to use the FCC's preemption language to tap dance out of a New York State lawsuit over terrible service and slow speeds, but the courts so far have shot these efforts down.

The central argument the DOJ is attempting to make in its complaint is that the looming DC Circuit case should should be settled and the FCC's preemption language deemed lawful before California's law can take effect. You'll recall that 23 State Attorneys General sued the FCC claiming it ignored the facts and the public interest in the rushed repeal. Given all of the bizarre nonsense Ajit Pai's FCC was up to during the repeal (making up DDOS attacks, ignoring identity theft and fraud during the comment period), the FCC has a not-insubstantial risk of losing that case and having the original 2015 rules restored.

Knowing that pesky state laws could disrupt the telecom industry's master plan as we all wait for that trial's outcome, the DOJ is trying to buy some time. And while it's certainly possible that the DOJ could nab a sympathetic Judge that's willing to ignore logic, the facts really aren't on the ISPs' side, here.

There's multiple levels of grotesque going on. One, you might recall that Ajit Pai has routinely proclaimed his adoration of "state rights" when states are busy passing terrible protectionist legislation hamstringing broadband competition. You'll notice that this breathless concern over state rights has suddenly gone completely missing when states actually (gasp) try to protect consumers from predatory natural monopolies like Comcast.

Two, the DOJ is literally using taxpayer funds to give California voters the middle finger, trample state rights, and ensure that telecom monopolies with two-decades of anti-competitive behavior under their belts can rip off captive, disgruntled customers. Whatever you feel about net neutrality rules, the reality is that it's what the bipartisan majority of Americans wants. Yet here we are, making repeatedly sure that not only are their voices stifled and distorted, but that their votes don't matter. If you ever doubted the telecom lobby's influence on policy, this little stage play should put that to rest very quickly.

The irony here remains that the FCC's net neutrality rules weren't even very onerous in the first place. The FCC used forbearance to avoid any real rate regulation, while also providing giant loopholes on stuff like zero rating. All told, they were pretty modest protections by international standards. But because some monopoly companies nobody likes couldn't deal with even modest oversight, they've set off a chain reaction that has now created years of litigation and numerous fractured state-level efforts to protect consumers.

As you watch giant ISPs and the politicians who love them lament the rise of "multiple, onerous and discordant" state level protections, it's important to remember that this is entirely their creation. Verizon sued to overturn the FCC's 2010 rules, despite the fact that AT&T and Comcast thought those rules were acceptable. That prompted the FCC to craft tougher rules that could be supported in court, which ISPs then sued over yet again. The reality is they're not interested in any meaningful rules that hamper their ability to abuse the broken broadband market, and all else is pretense.

Again, people tend to get fixated on net neutrality "dying" or being "restored" via the passage of net neutrality protections. But the reality is the quest for net neutrality persists so long as the lack of underlying broadband competition continues to exist. And since the same folks trying to kill net neutrality have also made it clear they have zero interest in policy that addresses this lack of competition, this is an idiotic cycle of dysfunction we'll likely be stuck in for some time. At least until America realizes that letting potent and growing monopolies like Comcast dictate federal tech policy is utterly idiotic and patently self-destructive.

Filed Under: ajit pai, california, doj, fcc, net neutrality, states rights

California Shakes Off ISP Lobbyists, Embraces Real Net Neutrality

from the fat-lady-singing dept

Despite a rocky start, California has shaken off the lobbying influence of Comcast, AT&T and Verizon and passed meaningful net neutrality protections for the state's broadband residents. California's SB822, which pretty closely mirrors the FCC's discarded 2015 rules, almost had its most important parts stripped away courtesy of some early committee gamesmanship by AT&T. When that failed, ISP-connected lobbying and influence orgs tried to scare voters away from the effort by making misleading robocalls to state senior citizens insisting the bill would dramatically raise their phone bills.

Given the continued, overwhelming and bipartisan support for net neutrality, those efforts didn't work. SB822, which the EFF has called the "gold standard" for state-level rules, passed the California Assembly last Thursday, then managed to nab the necessary votes in the State Senate last Friday. It's now headed to the desk of California Governor Jerry Brown for signing:

Like most protections, the rules simply prevent ISPs from using their broadband monopolies to unfairly throttle, block, or censor competing content and services. Unlike weaker bills (like those being proposed by ISPs), the bill also takes aim at all of the creative anti-competitive efforts ISPs have been engaged in in recent years, from anti-competitive abuse of usage caps and overage fees (zero rating), to the anti-competitive abuse of interconnection points with transit operators and content companies.

With SB822's passage, the entire west coast is now covered with net neutrality rules thanks to laws passed in Oregon and Washington State; certainly not the end game most ISPs envisioned after spending millions to lobby the federal government.

You'll likely now hear ISPs, ISP lobbyists, and their literal armies of think tankers, payrolled academics, consultants and others whine incessantly for weeks about the unfairness of having to deal with numerous, discordant state-level protections. Of course none of these folks will acknowledge that's the telecom industry's fault, since this wouldn't be happening if they hadn't waged endless war on modest (by international standards), popular, and cohesive federal rules. Whatever your thoughts on net neutrality, this move was a reflection of what the public wanted (aka, Democracy).

ISPs will now shift their attention to slowing the spread of state laws, likely by suing individual states. They'll likely lean heavily on the "pre-emption" language Ajit Pai's FCC included in its net neutrality repeal at the behest of Comcast and Verizon, though early efforts by ISPs to use this language to dodge state oversight for terrible service haven't gone particularly well. Other lawyers have noted that when the FCC neutered its Title II authority under the Telecom Act at the behest of telecom monopolies, it also ironically eroded any authority to tell states what to do. Whoops.

The goal still needs to be to improve competition in the broadband space, since net neutrality violations are just a symptom of limited competition and a broken market. But until somebody in government grows a spine and is willing to stand up to deep-pocketed campaign contributors like Charter, AT&T, Verizon, CenturyLink and Comcast, net neutrality rules are the next best thing. Meanwhile, there's still a chance to restore the FCC's 2015 rules courtesy of the looming lawsuits headed the FCC direction; suits that will highlight the laundry list of bizarre and shady FCC behavior that accompanied the repeal.

Filed Under: broadband, california, competition, net neutrality, states rights
Companies: at&t, comcast, verizon