Clarence Thomas Regrets Brand X Decision That Paved Way For The Net Neutrality Wars

from the a-little-late dept

In its 2005 Brand X decision, the courts changed US telecom oversight forever. You might recall that in the early aughts, former FCC boss Michael Powell (now the top lobbyist for the cable industry) engaged in wholesale deregulation of the broadband sector, insisting it would usher forth all manner of intense competition. Powell had claimed at the time that a new technology known as broadband over powerline (BPL) would come in as a layer of added competition, justifying his decision to free the sector from regulatory oversight. Due to interference issues, BPL never worked out, and you may have noticed that Powell's promised deregulation-triggered wave of competition never happened.

Powell's decision effectively involved classifying cable providers as an "information service" instead of a "telecommunications service," thereby freeing it from significant oversight under Title II of the Communications Act. In telecom, this mindless deregulation is always delivered alongside promises of intense new competition (see net neutrality). But with the broadband industry, a sector dominated by a handful of powerful "too big to fail" monopolies all but fused to the NSA, it never quite works that way. With neither competition nor oversight to keep them in line, regional monopolies like Comcast and AT&T usually just double down on anti-competitive behavior. It's a lesson we refuse to learn.

Regardless, Powell's decision triggered a massive legal fight that began when a company named Brand X Internet sued, because the regulatory shift blocked it from accessing the networks of incumbent cable providers. The battle reached all the way to the Supreme Court, who in a 6-3 decision supported Powell's deregulation of the cable sector.

But the ruling had a catch: it didn't lock cable into being classified as an "information service" permanently. It allowed the FCC to shift the definition back and forth, just as long as it provided some fairly basic justification for the move. It's a major reason FCC policy has shifted so sharply back and forth as partisans have jerked the reins from "yes, we'd like some modest oversight of telecom" to "letting the industry do whatever it wants results in Utopia" policy patty cake.

This week Supreme Court Justice Clarence Thomas issued a dissent in an unrelated case (pdf, hat tip Ars Technica) in which he suggested some regret for his original "Brand X" ruling:

""Regrettably, Brand X has taken this Court to the precipice of administrative absolutism," Thomas wrote. "Under its rule of deference, agencies are free to invent new (purported) interpretations of statutes and then require courts to reject their own prior interpretations."

That's of course what happened with net neutrality, with the 2015 FCC passing some modest net neutrality rules, and the 2017 Ajit Pai FCC then scuttling them on behalf of industry. So instead of a set of consistent rules, we get whiplash. Thomas continued:

"Although I authored Brand X, "it is never too late to 'surrende[r] former views to a better considered position.'" Brand X appears to be inconsistent with the Constitution, the Administrative Procedure Act (APA), and traditional tools of statutory interpretation. Because I would revisit Brand X, I respectfully dissent from the denial of certiorari."

Ideally, you'd want federal lawmakers to pass legislation that enshrines some basic net neutrality consumer protections into law. But because Congress has been wholly corrupted by telecom industry campaign cash, that's simply not happening without a major shakeup in the Senate. So while it's nice Thomas may have seen the error of his ways fifteen years on, the epiphany comes far too late to be of actual help to US consumers or the uncompetitive broadband markets Powell's original ruling helped cement.

Meanwhile Michael Powell, who started this entire mess on behalf of the cable sector, is now the top lobbyist for the NCTA, the cable industry's biggest lobbying and policy organization. The last two years he's been advocating for massive new regulation of Silicon Valley and virtually no oversight whatsoever for telecom. It's gambit that's paying off handsomely so far, thanks to myopic lawmakers who haven't yet figured out that the problems with "big tech" and "big telecom" are in many ways one and the same. And in some ways (thanks in large part to natural monopolies fused to the NSA) the problems with telecom are worse.

Filed Under: brandx, clarence thomas, classification, fcc, internet services, supreme court

The FCC To Field More Comments On Net Neutrality. Maybe They'll Stop Identity Theft And Fraud This Time?

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

Last October the DC US Court of Appeals upheld a large chunk of the FCC's controversial net neutrality repeal with a 2-1 vote. But the ruling wasn't a total win for Ajit Pai's FCC. The ruling blocked the FCC and broadband industry's attempt to include a provision in the repeal that would have banned US states from being able to protect consumers, noting that when the Trump FCC abdicated its consumer protection authority, it also gave up its right to say what state regulators and lawmakers could or couldn't do.

The courts also forced the FCC to take several parts of the Orwellian-named "restoring internet freedom order" (which did nothing of the sort) back to the drawing board. Specifically, the Ajit Pai FCC was told it spent little to no time considering how its handout to industry impacted minorities, low income communities, and public safety--suggesting it should, you know... do that.

But, as per the request, the FCC will need to open up its process to public comment one more time:

Granted the last time we went through this, Trump and broadband industry linked PR shops flooded the FCC website with comments from fake people, dead people, and the stolen identities of real folks (including myself)--all to try to create the illusion that pandering to telecom monopolies was ultra popular (note: it's fucking not). And since absolutely nobody has been held accountable for any of this, there's nothing to suggest the same stage play won't repeat itself as the Ajit Pai FCC whistles and looks in the opposite direction.

Filed Under: comments, fcc, net neutrality

AT&T, Comcast Dramatically Cut Network Spending Despite Net Neutrality Repeal

from the credibility-problem dept

Comcast cut back on network investment in 2019 despite repeated claims that killing net neutrality (and neutering the FCC in general) would have the exact opposite impact. With the company's fourth quarter earnings now in the books, it's clear that the company's cable and broadband division overall CAPEX dropped in 2019 by roughly 10.5%. Comcast reports cable division CAPEX in four categories, and investment dropped in three out of four of them:

"Comcast reports cable-division capital expenditures in four categories, and its full-year spending dropped in three of them. Comcast spending on line extensions—defined as "costs associated with entering new service areas... includ[ing] fiber and coaxial extensions"—dropped from $1.5 billion in 2018 to $1.4 billion in 2019. Comcast spending on "scalable infrastructure," which provides additional bandwidth and other service improvements, dropped from $2.6 billion to $2 billion. Spending on customer-premises equipment dropped from $2.9 billion to $2.7 billion."

Granted that's the exact opposite of what Comcast lobbyists and Ajit Pai's FCC said would happen when it neutered the FCC at telecom lobbyist behest. The public was told more times that we could count that the FCC's fairly modest (by international standards) net neutrality rules had all but demolished network investment, despite absolutely no evidence that was actually true. The industry and its allies at the Trump FCC then insisted network investment would soar post net neutrality repeal, something that pretty clearly isn't happening:

"Comcast isn't the only major ISP cutting investment, as AT&T projects that it will reduce capital spending from $23 billion in 2019 to $20 billion in 2020. Charter Communications said in October that its capital expenditures excluding mobile services would total $7 billion in 2019, down from $8.9 billion in 2018. Verizon also reported a capital-expenditure decline in the first nine months of 2019."

AT&T also released its earnings this week (pdf), which showed that AT&T's CAPEX has been steadily dropping since 2006, and its fourth quarter CAPEX specifically dropped to $3.9 billion--the lowest total in nearly a decade:

Propped up by a chorus of telecom-linked think tankers and other "very serious policy voices," the Trump administration doled out billions in massive tax cuts and regulatory favors to the nation's biggest telecom companies, and all taxpayers got in return were some empty promises and a significant pile of bullshit. And so far, there's been absolutely no effort, on any front, to hold anybody accountable for any of it.

Filed Under: capital expenditure, competition, fcc, net neutrality, network spending
Companies: at&t, comcast

Ajit Pai Hits CES... To Make Up Some Shit About Net Neutrality

from the regulatory-capture-is-just-so-hot-right-now dept

In 2018, you might recall that Ajit Pai had to cancel his CES appearance due to clearly idiotic death threats. In 2019, Pai had to cancel a scheduled appearance due to the government shutdown. Fast forward to 2020 and Ajit Pai finally made it back to CES, and he used the opportunity to... make up some nonsense about net neutrality.

In a cozy, unchallenging chat with the CTA's Gary Shapiro, Pai once again trotted out the canard that modest net neutrality rules crushed US broadband sector investment, insisting that his hugely unpopular decision to kill net neutrality has resulted in, by golly, some amazing things for American consumers:

"Since we made the decision in December 2017, broadband speeds are up 60 percent according to Ookla, infrastructure investment is up, more Americans are getting connected to the internet than ever before. More fiber was laid in 2019 to homes and businesses in the United States than in any year since they’ve been keeping records, breaking the record we set in 2018.”

But as we've been over repeatedly, there's absolutely no evidence that Pai's net neutrality repeal actually contributed to those improvements, and the claim that net neutrality hurt broadband investment is indisputably false. It's simply not debatable. SEC filings, earnings reports, numerous investigations -- even the public statements of countless CEOs have shown Pai's not telling the truth:

"Last September, a massive study reviewed telecom earnings reports and SEC filings between 2009 to 2018 and found absolutely no evidence that the repeal helped spur US broadband network investment. The findings mirrored another major study by consumer group Free Press, which found some ISPs actually invested more while the rules were active. Numerous journalists have come to the same conclusion after digging through industry earnings reports. Even telecom industry CEOs have admitted repeatedly to investors—who by law they can’t lie to—that the rules had no impact on their broadband investment strategies."

While broadband speeds have increased, there too is zero evidence that killing net neutrality was to thank for it. Some of the bump is thanks to cable operators upgrading to DOCSIS 3.1, something the FCC had nothing to do with. Some of it is thanks to community broadband fiber builds, something the current FCC actively opposes. And some of it is thanks to merger conditions affixed to AT&T's 2015 merger with DirecTV by the previous FCC, bringing fiber to 12.5 million homes by an act of regulatory action (ironic given Pai is trying to frame those gains as the product of regulatory restraint).

Pai's clearly been informed that he's wrong on most of these points, but like so many in the post-truth era apparently doesn't care, hopeful that repetition somehow forges reality. Much like he did in 2017 when he celebrated the giant middle finger he'd just given consumers by dancing with a pizzagate conspiracy theorist, Pai took the opportunity at CES to make light of a justifiably pissed public:

“I would like to say that thanks to our efforts, more Americans than ever before, faster than ever before, are able to hate-tweet their favorite FCC chairman."

Guffaw. It's worth repeating that the net neutrality repeal didn't just kill net neutrality, it obliterated the FCC's ability to hold ISPs accountable for all manner of shady bullshit, be it false advertising, location data privacy scandals, or charging consumers rental fees for modems they already own. That's before you get to the litany of identity theft and fraud that accompanied the repeal itself, something that doesn't get any more hilarious in hindsight.

Filed Under: ajit pai, ces, fcc, net neutrality

Mozilla, Consumer Groups Petition For Rehearing of Net Neutrality Case

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

Last October, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the FCC was within its authority when it buckled to telecom providers and eliminated not only the agency's net neutrality rules, but its authority over telecom providers. The ruling was a mixed blessing for big ISPs like Comcast and AT&T however, given that while it eliminated the federal guidance, it blocked the FCC from banning states from passing their own consumer protections. As a result, the telecom sector now faces a sometimes discordant patchwork of state protections, a problem of the industry's own making.

Fast forward to late last week, when Mozilla and a coalition of consumer groups petitioned the court to rehear the case. A press release from Mozilla proclaims the appeal is driven by the belief that the court ruling conflicts with D.C. Circuit or Supreme Court precedent, and the court failed to seriously contemplate the fact that the repeal itself was built on a foundation of false allegations and bogus data (namely the provably false claim that the repeal was necessary because sector investment was harmed):

"We explain why we believe the Court can in fact overturn the FCC’s new treatment of broadband service despite some of the deciding judges’ belief that Supreme Court precedent prevents rejection of what they consider a nonsensical outcome. In addition, we point out that the Court should have done more than simply criticize the FCC’s assertion that existing antitrust and consumer protection laws are sufficient to address concerns about market harm without engaging in further analysis. We also note inconsistencies in how the FCC handled evidence of market harm, and the Court’s upholding of the FCC’s approach nonetheless."

As we've noted a few times now, the repeal of net neutrality did far more than just repeal controversial net neutrality rules. It gutted FCC authority over anti-competitive ISPs, shoveling any remaining authority to an FTC that lacks the resources or authority to seriously hold telecom accountable (the entire reason the industry lobbied so intensely for the repeal in the first place). That means the FCC is not just AWOL when it comes to things like net neutrality, but from protecting consumers from a rotating crop of anti-consumer behaviors.

I recently wrote a lengthy piece explaining why those who proclaim that the "net neutrality repeal didn't matter because the internet still works" are only advertising their own ignorance as to the broader impact of the move.

And while states are (for now) free to step in to try and fill the consumer protection void, fewer than half of US States have actually done so, meaning there's currently little to nothing seriously protecting consumers from predatory telecom monopolies across a notable segment of America, precisely as telecom lobbyists and executives intended.

Filed Under: dc circuit, en banc, net neutrality, rehearing
Companies: mozilla

AT&T Exec Insists That No Broadband Company Is Violating Net Neutrality Even Though AT&T Is Absolutely Violating Net Neutrality

from the nothing-to-see-here dept

For a couple of years now, AT&T has been trampling net neutrality without much of anybody giving a damn. Like many ISPs eager to take full advantage of limited US broadband competition, AT&T imposes arbitrary and unnecessary usage caps and overage fees on its broadband lines. If you're an AT&T broadband customer who uses more than 150 GB (DSL) to 1 terabyte (fiber) monthly, you'll suddenly face having to pay $10 per each additional 50 gigabytes consumed. Again to be clear: there's no technical reason for these limits to exist outside of nickel-and-diming captive customers.

While these caps have been in place for a while, a few years ago AT&T began eliminating these restrictions for its broadband customers if you use AT&T's own streaming platforms. Use Netflix instead, and you'll face a significantly higher broadband bill. This is by any measure a net neutrality violation because it allows AT&T to use its power as network operator to try and stake out a distinct advantage.

Speaking at Recode's Code Media conference this week, AT&T President John Stankey was asked a bit about the potential for AT&T to abuse its power as newfound owner of both the content and the conduit. His response was fairly stunning:

"You'd be hard-pressed to point to an instance of anybody's behavior that would suggest that there is any kind of discrimination, favoritism, or anything else going on in how people get to content on the Internet over a broadband connection," Stankey said. "It's a problem that's non-existent. There's absolutely nothing that's occurring."

Again, either Stankey doesn't understand how his own products work, or he's flat out lying. Hard to tell, since, as is usually the case at such conferences, nobody followed up with any pointed questions. Hell, AT&T pioneered the idea of "sponsored data," which involves letting companies literally buy their way to network favoritism if they had enough cash. Under AT&T's ideal model, if you pay AT&T enough cash, arbitrary restrictions (like usage caps) won't apply to you.

Unsurprisingly, AT&T saw resistance to these kinds of playing-field tilting business models. In fact, the previous FCC was just gearing up to crack down on this kind of behavior when Trump was elected, Pai was appointed head of the FCC, and all meaningful rules on this front were quickly obliterated at AT&T's request. Good times.

As the telecom sector has been known to do in recent months, Stankey then tried to brush aside any telecom monopoly concerns, and suggested those worried about predatory behavior look toward Google and Apple:

"Stankey would prefer that consumers direct their ire elsewhere. "I'd be far more concerned over the scale of what's occurring in terms of distribution platforms on mobile OSes, in terms and conditions associated with new product development on that and what that does to squash innovation, than anything to do with how traffic over the Internet is being treated today," he said"

The idea that telecom is an innocent angel and the only real threat to the internet comes from Silicon Valley has been a line the telecom sector has been pushing for a while, in large part because giants like AT&T want to elbow in on Facebook and Google's online ad domination. Given the fact government is exploring saddling Silicon Valley with new regulations, penalties, and oversight (many justified) while dismantling all meaningful oversight of telecom should give you some insight into how well that gambit has been going.

Filed Under: broadband, competition, data caps, fcc, john stankey, net neutrality, zero rating
Companies: at&t

Shocker: ISPs Cut Back 2020 Investment Despite Tax Breaks, Death Of Net Neutrality

from the ill-communication dept

Why it's almost as if you can't take telecom giants (and their lawyers, consultants, and political allies) seriously.

If you recall, the broadband industry and the Trump FCC repeatedly proclaimed that modest consumer protections like net neutrality had dramatically stifled telecom sector investment, and were we to ease regulatory oversight of giants like AT&T and Verizon, it would result in a wave of new sector investment the likes of which we'd never seen before. Ignore the fact that data routinely disproved this claim; this "net neutrality stifled investment" claim was made almost daily by the telecom sector and the wide variety of mouthpieces paid (one way or another) to support them.

Funny thing about that. Despite just having received billions in tax breaks and regulatory favors, AT&T, Comcast, and Charter are all slated to lower their CAPEX and network investment significantly in 2020. Others 2020 CAPEX projections, like Verizon, were entirely flat. This static or reduced investment arrives despite the slow but steady deployment of 5G, the accelerated deployment of which was also a big cornerstone of the net neutrality repeal's justification:

"Comcast and Charter missed 3Q expectations for capex and guided 2019 lower than previously planned," wrote the analysts at Nomura's Instinet in a recent note to investors. "We have lowered our combined 2019 capex forecast for Comcast and Charter from $14.6 billion to $14.2 billion."

And AT&T...surprised Wall Street analysts with a significantly lower-than-expected capex for 2020. The operator said it expects to spend around $20 billion on capex next year, which is way down from the $23 billion it expects to spend this year and the $22 billion that most Wall Street analysts had expected AT&T to spend in 2020."

Fewer jobs, higher prices, and lower investment was not what we were promised. It's the precise opposite of what the endless parade of telecom-linked think tankers, academics, consultants, and other hired mouthpieces claimed would happen. And it's certainly not what Ajit Pai said would happen when he recently told Congress net neutrality had a disastrous impact on sector investment, despite the fact that biggest study of its kind on the subject ever undertaken just last month showed that net neutrality had no meaningful impact on broadband investment levels whatsoever.

It's simply no longer debatable, and it's fairly telling to see which groups and individuals are still trying to push this line of debunked detritus.

Granted this is a con AT&T has been running on the American public for decades now. The company will proclaim that immense broadband deployment and employment gains can be made if the government just lobotomizes itself and does whatever AT&T is demanding at the moment (lower tax rate, fewer regulations, new regulations AT&T supports, merger approval, etc.). When the government inevitably follows through, AT&T's promises then mysteriously disappear. And like Lucy and Charlie Brown football, nobody in the US seems particularly interested in learning from the experience.

Filed Under: broadband, capex, investment
Companies: at&t, comcast, verizon

Ajit Pai Whines About The Numerous State-Level Net Neutrality Laws He Just Helped Create

from the you-built-this dept

A common misconception is that the FCC's net neutrality rule just killed net neutrality. In reality, the "Restoring Internet Freedom" order eliminated most of the FCC's authority over broadband providers, shoveling remaining oversight to an FTC that lacks either the attention span or authority to police giants like AT&T and Comcast. The order also attempted to ban states from protecting consumers in the wake of the FCC's apathy to industry issues. This accountability vacuum was, if you're a slow learner, the entire point of the plan.

But a recent court ruling was a mixed outcome for the FCC. While the court supported much of the FCC's repeal (despite the obvious fraud that occurred), it ruled the FCC lacked the authority to block states from protecting consumers. As a result, while federal net neutrality protections are gone, a flood of states are now passing their own laws. And despite creating this problem, Ajit Pai and the broadband industry aren't happy about it, angry that their dream of zero meaningful oversight for one of the most broken industries in America wasn't fully realized.

In a softball interview this week at the WSJ Tech Live conference, Pai took some time to whine about the fact that the broadband industry now has to deal with a multitude of often discordant state laws instead of a singular cohesive rule set. At no point, please notice, does Pai even remotely acknowledge that he himself caused the problem by rushing to dismantle federal rules using bunk data:

"When you're talking about the choice for a venture capitalist or an entrepreneur to set up shop in the United States where they have to get permission from the federal government or from the state of California, San Francisco, or some other jurisdiction, or whether they should set up shop in country B where there's a uniform, well-established set of regulations that are consistent, I worry that the proposition value for country B will become stronger over time."

Again, Pai created this problem. Telecom industry lobbyists, using bogus data and fake people, pushed to repeal hugely popular federal net neutrality rules. Those rules, while portrayed as "draconian" by Pai and industry, were among the most modest in the world (failing to even address things like usage caps and "zero rating"). Pai and the industry he's pandering to created this problem by killing off modest federal rules. Now they're complaining about the fact that there's no cohesive federal framework in place. The same thing occurred with FCC privacy rules. It's dumbfounding.

And again, the FCC's (read: industry's) goal has been to kill most state and federal oversight of telecom under the false pretense that this will somehow, magically, spur Comcast Corporation to begin caring about customer service and deploying broadband to lower ROI regions of the country. Pai, a former Verizon lawyer who has yet to stand up to industry on a single issue of substance, tries so very hard to dress this up as some kind of sophisticated ethos:

"He argued that "while that federalist system has served us very well" up to this point in our nation's history, it's time for Congress to consider "whether or not we can still maintain a multilayer regulatory system." He said allowing states and local governments to pass their own laws regulating internet services, which inherently cross state lines, creates market uncertainty."

The market uncertainty was created by regulatory capture and pandering to industry. Hugely popular, modest and cohesive federal guidelines were in place. Corruption and blind fealty to industry eliminated them, creating a chaotic state by state approach to market oversight. There's only really one place the blame for the resulting chaos belongs.

Filed Under: ajit pai, fcc, net neutrality, oversight, state laws, state's rights

States Rush To Protect Net Neutrality On Heels Of Court Ruling

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

Despite the obvious fraud and false data used to prop up the move, a court recently backed much of the Ajit Pai's repeal of net neutrality. But it wasn't all champagne and roses for Ajit Pai and his friends in the telecom sector. The court also shot down the FCC's attempt to ban states from protecting net neutrality themselves, pointing out that when the FCC obliterated its Title II authority over broadband providers (at lobbyist behest) it also eliminated any potential right to tell states what they can or can't do.

As such, states are rolling forward with exploring new rules and finally enforcing existing ones. More than two dozen states have examined some form of net neutrality protections in the wake of the repeal. Most notable are California and Washington State. California has been sued by the DOJ (not coincidentally run by former Verizon lawyer Bill Barr) for trying to protect consumers, an effort complicated by this court ruling. Washington wasn't sued, and is moving full speed ahead when it comes to implementing the rules:

"Broadband users in Washington State can file net neutrality complaints against ISPs using this general consumer complaint form, a spokesperson for Washington Attorney General Bob Ferguson told Ars. The AG's office said it wouldn't comment on whether there are any pending net neutrality investigations. The text of the Washington law is available on the state's website here. Violations of the law are punishable under Washington's Consumer Protection Act."

We've noted a few times how folks crowing about how net neutrality must not have mattered because the internet didn't explode are only advertising their own ignorance. For one, the repeal did much more than just kill net neutrality. It effectively gutted the FCC's authority over telecom giants, shoveling any remaining responsibility to an FTC that lacks the authority or resources to stand up to giants like AT&T and Comcast (that was the entire point of the gambit).

As such, crowing that the internet didn't implode ignores how a void in federal oversight will make a wide variety of non-net-neutrality related issues (high prices, sneaky fees, misleading coverage maps, anti-competitive behavior) worse. Some otherwise bright folks remain under the false impression that eliminating telecom oversight magically results in connectivity Utopia. But when the FCC abdicates its authority over natural monopolies like Comcast and AT&T, existing problems simply get worse. There are decades of data (and endless customer satisfaction surveys) making this point.

Most ISPs (with some notable exceptions) have been hesitant to start screwing users and competitors for fear of running afoul of state laws. And as more states (like Minnesota) contemplate tougher rules to fill the void, that's going to continue. Industry lobbyists love to complain about the "fractured regulatory obligations" they now face, but that was a product of their own creation when they decided to spend millions to kill fairly modest (by international standards) consumer protections. The telecom industry made this mess, and now it gets to stew in it until either Congress or the FCC restores federal guidelines.

That's why, just as we're seeing on the privacy front, the big industry push moving forward will be to express phony support for a federal net neutrality law their lawyers will write. A law they pretend is a "solution" to the problem but contains so many loopholes as to be effectively worthless. Its only real purpose? To pre-empt tougher federal or state guidelines.

Filed Under: california, fcc, net neutrality, oversight, states, washington

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