So FCC boss Ajit Pai will need to don some tap-dancing shoes this Thursday, when he'll be forced to explain to a Senate oversight committee why his agency not only made up a DDOS attack, but lied repeatedly to the press and Congress about it.

As we recently noted, e-mails obtained by FOIA request have proven that the FCC completely made up a DDOS attack in a bizarre bid to downplay the fact that John Oliver's bit on net neutrality crashed the agency website last year. A subsequent investigation by the FCC Inspector General confirmed those findings, showing not only that no attack took place, but that numerous FCC staffers misled both Congress and the media when asked about it.

Pai initially tried to get out ahead of the scandal and IG report by issuing a statement that threw his employees under the bus while playing dumb. According to Pai's pre-emptive statement, the entire scandal was the fault of the FCC's since-departed CIO and other employees who mysteriously failed to alert him that this entire shitshow was occurring (you can just smell the ethical leadership here):

"I am deeply disappointed that the FCC’s former Chief Information Officer (CIO), who was hired by the prior Administration and is no longer with the Commission, provided inaccurate information about this incident to me, my office, Congress, and the American people. This is completely unacceptable. I’m also disappointed that some working under the former CIO apparently either disagreed with the information that he was presenting or had questions about it, yet didn’t feel comfortable communicating their concerns to me or my office."

There's several problems with Pai's statement. One, while FCC CIO David Bray was hired by the Obama-era FCC, he remained employed (and spreading the false DDOS attack) well through last year under Pai's "leadership." Two, the FCC IG found that Bray and several other employees had not only been circulating the false DDOS report to reporters, but had repeatedly misled Congress (again under Pai's watch). The lies of three FCC employees to Congress were deemed severe enough that they were reported to the DOJ, which refused to prosecute anybody (I'm sure you and I would have been granted the same benefit of the doubt).

That Pai had no idea that any of this was happening is a pretty big stretch, especially considering that the FCC continues to block FOIA requests for certain e-mail exchanges related to the stupid affair. As such, when Pai appears before a Senate oversight committee on Thursday, the big question is going to be: just how long did Pai know that his staff was actively misleading Congress in numerous back and forth letter exchanges on the subject?

The other major problem, and it's one you'd hope lawmakers at the hearing address, is that Pai's claim that this was all the fault of rogue employees doesn't gel with the fact that Pai's press shop was actively misleading and denigrating reporters throughout this whole affair. For example, when the press began digging into the agency's shaky claims, Pai's FCC thought it would be a good idea to send a prickly statement to numerous media outlets. That statement not only tried to claim reporters were "irresponsible" simply for trying to clear up the matter, but that the FCC had "voluminous documentation" proving the DDOS attack occurred:

"The FCC has never stated that it lacks any documentation of this DDoS attack itself," the agency states. "And news reports claiming that the Commission has said this are without any basis and completely irresponsible. In fact, we have voluminous documentation of this attack in the form of logs collected by our commercial cloud partners."

Outside of the first sentence, nothing in that official FCC statement is true. So again, the idea that Pai knew nothing at all about this mess is hard to believe. Especially given that his own press shop and numerous employees were busy lying to Congress and denigrating reporters simply for getting to the truth. Pai's explanation for this should make for good television, whether or not Congress grows a spine and actually holds Pai's feet to the fire.

If you've watched Pai's FCC work, it seems pretty clear at this point that the nonexistent DDOS attack, much like the FCC's refusal to address bogus comments during the net neutrality public comment period, are all part of the same effort: doing everything possible try and downplay the scope and importance of the massive, unprecedented public opposition to Pai's historically unpopular policies.

You'd like to think there's something vaguely resembling accountability at the end of this story. At the very least, it's likely that the bogus DDOS attack and fake comments will be playing starring roles during the upcoming net neutrality hearings, where all of this can be used to add context to the FCC's rushed, facts-optional efforts to repeal net neutrality exclusively at broadband monopolies' behest.

The Australian government is looking to revamp its compelled access laws to fight encryption and other assorted technological advances apparently only capable of being used for evil. It's getting pretty damn dark Down Under, according to the Department of Home Affairs' announcement of the pending legislation.

Encryption conceals the content of communications and data held on devices, as well as the identity of users. Secure, encrypted communications are increasingly being used by terrorist groups and organised criminals to avoid detection and disruption. The problem is widespread, for example:

• Encryption impacts at least nine out of every ten of ASIO’s priority cases.

• Over 90 per cent of data being lawfully intercepted by the AFP now use some form of encryption.

• Effectively all communications among terrorists and organised crime groups are expected to be encrypted by 2020.

An example of harmful encryption is provided for readers at home, so they can weigh their own security and privacy against an anecdote about a registered sex offender who may or may not have escaped prosecution (the outcome of the case isn't provided) by using encrypted messaging apps. And it includes an inadvertently helpful lesson about the stupidity of targeting encryption with legislation, even if the DHA likely doesn't realize it.

The suspect was arrested and his mobile phone was seized but despite legislative requirements he refused to provide his passcode.

There's the limitation of lawmaking. Lawbreakers break laws and they're not going to stop just because you've told them not to with a government mandate. Legislation [PDF] like this does little more than make life more difficult for service providers and device makers while undermining the privacy and security of millions of law-abiding citizens.

The explanation sheet [PDF] notes the government is not seeking to mandate encryption backdoors. That being said, it would like providers of encrypted services/devices to leave the door cracked open so the government can step inside whenever it feels the need to look around.

The type of assistance that may be requested or required under the above powers include (amongst other things):

• Removing a form of electronic protection applied by the provider, if the provider has an existing capability to remove this protection.

• Providing technical information like the design specifications of a device or the characteristics of a service.

• Installing, maintaining, testing or using software or equipment given to a provider by an agency.

• Formatting information obtained under a warrant.

• Facilitating access to devices or services.

• Helping agencies test or develop their own systems and capabilities.

• Notifying agencies of major changes to their systems, productions or services that are relevant to the effective execution of a warrant or authorisation.

• Modifying or substituting a target service.

• Concealing the fact that agencies have undertaken a covert operation.

The law can't retroactively force companies to produce crackable devices and messaging systems. But the first bullet point could see the Australian government demanding they do so in the future if they want to provide goods and services to the Australian public. Fortunately, the bill includes a clause making future demands along these lines impossible for the time being.

The Bill expressly prohibits technical assistance notices or technical capability notices from requiring a provider to build or implement a systemic weakness or systemic vulnerability into a form of electronic protection. This includes systemic weaknesses that would render methods of authentication or encryption less effective. The Australian Government has no interest in undermining systems that protect the fundamental security of communications. The new powers will have no effect to the extent that requirements would reasonably make electronic services, devices or software vulnerable to interference by malicious actors. Importantly, a technical capability notice cannot require a provider to build a capability to remove electronic protection and puts beyond doubt that these notices cannot require the construction of decryption capabilities.

Without further discussion by the legislature, it's tough to tell whether creating an escrow system would be considered a "system weakness" or make "encryption less effective." I mean, it obviously is and does, but does the DHA see it that way? And will this clause survive the final markup? Compelling decryption using "existing" methods seems especially useless if most services and devices cannot currently be decrypted by providers. The government is better off seeking outside help from contractors who do nothing else but find ways to crack or bypass encryption, rather than dropping language into the law that suggests backdoors the government won't call "backdoors" will be mandated in the future.

It also gives the government a considerable expansion of power, allowing it to peruse private companies' design specs and a heads up if any redesigns are in the works. It also forces companies to be compliant partners in government surveillance by mandating their assistance in man-in-the-middle attacks ("modifying or substituting a target service") and ordering them to withhold information from affected customers.

There is a public comment period, which is a nice touch. There also appears to be some respect for the good encryption does, rather than simply viewing it as an escape route for criminals and terrorists. But there's also a good deal of power expansion tied to rickety wording that suggests backdoors might be mandated if the government can talk itself into viewing proposals as something other than backdoors. And there's no guarantee this vague promise will make the final cut.

Those steeped in ownership culture often have the wrong idea when it comes to trademark laws. In the minds of some, trademark laws can be used like publicity rights laws, wherein a famous somebody -- or that somebody's heirs -- can use that fame to control all uses of references to that somebody for ever and ever. That, of course, is not how trademark laws work. Instead, trademark law is designed to protect the public from confusion by allowing some monopolistic use of names and terms in some markets and only if actual commerce is taking place.

This is a lesson the management company of the late renowned martial arts star Bruce Lee has now learned the hard way. Bruce Lee Enterprises attempted to both block the trademark registration for production company Barisons in the UK, which applied for a mark covering its forthcoming Jun Fan: the Bruce Lee Musical, and also to apply for a "Jun Fan" mark in the theatrical designation itself. Jun Fan, if you're not aware, was the birth name of Bruce Lee.

The problem for BLE is that Barisons had already communicated its intention to put on the show with BLE and defended itself by accusing BLE of registering for its own trademark purely to block the production company's show, without any intention of putting on its own theatrical production.

Barisons claimed that BLE filed its trademark application as a blocking tactic and without any genuine intention to use the mark. As a result, the theatre company opposed the application and argued that it was made in bad faith and should be refused.

BLE filed a counter-statement denying the allegation and said that it filed the application to protect Lee’s IP rights and to expand the Bruce Lee brand in the UK.

In February 2017, Barisons itself filed an application to register ‘Jun Fan the Musical’, also in class 41 in relation to theatre production and musical theatre.

BLE opposed the registration, saying it had already applied for its own mark in that trademark designation, that granting the mark would imply a relationship between Barisons and BLE, and arguing that Barisons made the application in bad faith because BLE had communicated previously that it would oppose the use of Bruce Lee's birth name.

Upon review by the Intellectual Property Office, things did not go well for BLE.

Allan James of the IPO said that BLE had failed to show that the name Jun Fan has a reputation in the UK at the relevant date of the applied-for trademark. James also said that BLE knew that the musical was to be called “Jun Fan: the Bruce Lee Musical”. He added that personality rights do not exist under UK law and that BLE’s trademark application covered the same services that Barisons intended on offering. James said that there was no evidence that BLE’s previous trademark applications covered theatrical shows in any other territories in class 41, and that the estate had no intention of offering such services.

“I therefore find that insofar as it covered theatrical shows in class 41, BLE’s trademark was purely a blocking mechanism to obstruct Barisons’ proposed musical,” said James.

And, thus, ownership culture was, for once, defeated. And it should go without saying that this is a good thing. After all, there is no reason to think that a theater production including the use of Lee's stage or birth names would necessarily cause the public to think that BLE was behind the production at all. Instead, it appears for all the world that Barisons informed BLE of its intent, and then BLE reacted by trying to use trademark law to block them, ostensibly to then extract a licensing fee for the production.

And, again, that isn't what trademark law is for.

The Iowa Supreme Court has decided to lower standards for law enforcement officers in its state. The ruling [PDF] issued earlier this summer gives state officers the opportunity to dismiss lawsuits against them by asserting qualified immunity. Prior to this decision, there was no qualified immunity defense state actors could raise in court. They were actually forced to actually defend themselves in court, making it easier for plaintiffs' claims to survive an early motion to dismiss and bringing them closer to justice. (via Bleeding Heartland)

The case -- Baldwin v. City of Estherville -- involves an arrest for a crime that didn't exist. It involves driving an ATV through a city-owned ditch, something that's illegal under state law but not under the City of Estherville's laws. An arrest for something that wasn't actually illegal was followed by this lawsuit. It's a weird origin for a Fourth Amendment lawsuit, but the outcome makes holding officers accountable for their misdeeds much more difficult with the court's addition of qualified immunity to local government's litigation toolbox.

A lot of discussion of other states and their local immunity defenses -- as well as whether or not Constitutional cases are torts rather than strict liability issues -- leads the court to the following conclusion:

Accordingly, with respect to a damage claim under article I, sections 1 and 8, a government official whose conduct is being challenged will not be subject to damages liability if she or he pleads and proves as an affirmative defense that she or he exercised all due care to conform to the requirements of the law.

This brings the state in line with the federal standard. In other words, it lowers the state standards. Officers now only need to assert they were engaged in official police business (I'm very heavily paraphrasing here) when violating rights to sidestep being held personally liable for the rights violation.

This is unfortunate. Qualified immunity has created a system where officers routinely engage in rights violations secure in the knowledge that only the most egregious violations will be punished by courts. This standard varies from district to district and even obvious Constitutional violations can be overlooked if there's not a precedential case almost exactly on point for the court to look to when making its decision. Every so often a bright line will be drawn by courts, but that only applies to future cases where officers violated rights while engaged in [police activity X] during [exact time of day] involving exactly the same sort of police activity/rights violation as the "bright line" case. It's almost an insurmountable bar for plaintiffs to hurdle, which has resulted in a steady stream of unpunished rights violations.

The dissenting opinion [starting on p. 40] runs almost as long as the prevailing opinion. From the outset, Justice Brent R. Appel makes it clear qualified immunity is nothing more than a reward system for bad cops. The "standard" courts claim to hold government officials too is so low as to be tragically hilarious.

I begin by emphasizing that the policy-oriented federal doctrine of statutory qualified immunity does not provide a model for determining whether individuals are entitled to qualified immunity for Iowa constitutional torts. The federal doctrine of statutory qualified immunity progressively dilutes legal norms, embraces numerous false assumptions, fails to recognize the important role of juries in restraining government, and is inconsistent with important tenets of Iowa law.

Appel goes on to state that adopting this federal standard will make Iowa -- and its court system -- much worse, and much less likely to provide an avenue of recourse when rights have been violated.

We should not voluntarily drape our constitutional law with the heavy chains of indefensible doctrine. We should aim to eliminate fictions in our law and be honest and forthright on the important question of what happens when officers of the law commit constitutional wrongs that inflict serious reputational, emotional, and financial harms on our citizens.

And of all the places to give the government more ways to dodge accountability, Appel argues the Fourth Amendment (and its Iowa Constitution equivalent) is the worst place to do it. He goes Godwin to make his point.

The importance of effective enforcement of search and seizure restrictions on government was not lost on the generation of lawyers and judges who witnessed the collapse of the rule of law in central Europe in the 1930s. As Chief Nuremburg Prosecutor Justice Robert Jackson so eloquently opined after his return from his assignment in immediate postwar Germany,

"search and seizure rights are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government."

Qualified immunity is nothing more than an escape hatch for bad government behavior.

In short, when citizens suffer potentially grievous harms from unconstitutional conduct in violation of article I, section 1 or article I, section 8, we should require the officials who engaged in the unconstitutional conduct to bear the burden of the loss. We should not allow the officials who engage in unconstitutional conduct to respond to the prayer of the harmed citizen with, “Aw, tough luck. Tut tut. Bye bye.”

Here are the facts about qualified immunity. It's not needed and its absence won't result in thousands of law enforcement officers suddenly having to pay out of their own pockets for Constitutional violations.

A recent study by Professor Joanna Schwartz confirms what one might suspect, namely, that at least with respect to police officers, local governments almost always indemnify for settlements and judgments arising out of misconduct lawsuits. See Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 912 (2014). Specifically, the Schwartz study found that in the forty-four largest jurisdictions studied, police officers paid .02% of the over $730 million paid for misconduct suits between 2006 and 2011. In the thirty-seven smaller police departments included in the study, Schwartz found there were no officer contributions towards settlements and judgments during that time. In short, according to Schwartz, in many jurisdictions “officers are more likely to be struck by lightning than they are to contribute to a settlement or judgment in a police misconduct suit.” Id. at 914. The fact that officers are almost always indemnified undercuts one of the primary arguments in favor of the immunity doctrine—that without it, officers will be deterred from engaging in appropriate activities for fear of the financial consequences of a wrong decision.

Here's how Appel sums up his dissent:

Rather than follow the state’s motto, “Our Liberties We Prize and Our Rights We Will Maintain,” the majority follows an approach that suggests “Our Liberties Are Transient and Our Rights Are Expendable.”

[...]

The majority’s finding that the speculative overdeterrence of actions of officials is weighty while the risk of underdeterrence of unconstitutional conduct infringing on individual rights is not mentioned at all, suggests a results-oriented jurisprudence that favors government officials who inflict unconstitutional harms over citizens who endure them.

That's exactly how it works at the federal level and in states that have adopted this defense against liability. QI is a "Get Out of Litigation FREE!" card for government employees, and it has encouraged Constitutional violations far more than it has deterred routine police work.

There has long been anxiety around the "permanent record" of the internet, and recent public shamings based on old tweets have brought that fear to the forefront for many people. But the mass deletion of old tweets also means throwing out huge amounts of potentially valuable information. Is there a technological solution? A cultural one? This week, we're joined by returning guests Cathy Gellis and Parker Higgins to discuss a proposal for fixing the problem without sacrificing the permanent record.

Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

For a while now we've been noting that while Ajit Pai professes to be a huge proponent of "closing the digital divide," most of his policies are doing the exact opposite. Pai's attacks on net neutrality, for example, will likely only act to drive up broadband prices for everyone as ISPs enjoy their newfound ability to creatively abusive captive customers in uncompetitive markets. And Pai has repeatedly attempted to fiddle with FCC data collection methodology with an eye toward obfuscating the industry's competitive failures (be that skyrocketing prices or poor coverage).

That's of course when he hasn't been busy slowly-but-surely gutting programs designed to help bring broadband to the nation's less affluent areas.

One of Pai's core policies has been a relentless attack on the FCC's Lifeline program. Lifeline was created under the Reagan administration and expanded under the George W. Bush administration, and provides low-income households with a measly $9.25 per month subsidy that low-income homes can use to help pay a tiny fraction of their wireless, phone, or broadband bills (enrolled participants have to chose one). The FCC under former FCC boss Tom Wheeler had voted to expand the service to cover broadband connections, something Pai (ever a champion to the poor) voted down.

Traditionally this program had broad, bipartisan support and was never deemed even remotely controversial. But ever since Trump and Pai stumbled into town, the current FCC has slowly waged war on the program. For example Pai's FCC voted 3-2 last November to eliminate a $25 additional Lifeline subsidy for low-income native populations on tribal land. Pai's FCC also banned smaller mobile carriers from participating in the Lifeline program, a move opposed by even the larger companies (Verizon, AT&T) Pai's FCC normally nuzzles up to.

But Pai's quest backfired late last week when a U.S. Appeals court issued a stay order (pdf) freezing Pai's efforts to kill Tribal broadband subsidies, the court arguing that Tribal organizations and smaller wireless carriers are likely to win their court challenge against the recent FCC changes.

Small wireless carriers and several tribal organizations had sued the FCC (pdf) in the United States Court of Appeals for the DC Circuit, noting the FCC "failed to engage affected tribal governments" ahead of the rule changes. Tribal leaders also filed a petition (pdf) claiming Pai's multi-pronged attack on Lifeline would only make it harder to connect tribal lands to the internet.

So far the courts seem to be agreeing with them, and tribal groups have been quick to applaud the ruling:

"Residents of Tribal lands, like many low-income consumers, rely on Lifeline service from wireless resellers, who are the primary, and sometimes only, providers of Lifeline service,” Gene DeJordy, an attorney for the Crow Creek Sioux Tribe in South Dakota, said in a statement. “The victory today is for the people -- Tribal members who cannot afford many of the basic necessities of life and rely on Lifeline service for their telephone and broadband needs."

Pai had taken aim at the program's use in tribal areas under purely ideological grounds (ie: government can never do good and should be gutted from all oversight of natural monopolies), insisting his agency was purely concerned about potential fraud in the program. But the court stated that it had "identified no evidence of fraud or misuse of funds in the aspects of the program at issue here." As we saw with net neutrality, Pai likes to bend reality to fit his ideological agenda (aka sophistry), instead of letting facts inform policy.

Also like net neutrality, it's yet another example of how Ajit Pai's self-professed dedication to "closing the digital divide" looks suspiciously like a giant middle finger aimed at the communities he professes to be "helping."

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Many years back, I remember seeing Michael Arrington, the founder of TechCrunch, being interviewed about that site (which at the time was on its way to becoming the first "mainstream" tech news blog). I'm paraphrasing, and possibly misremembering, but what stuck with me was that he suggested that, as a blog, you basically had to focus on one of three things to succeed: being first, being funny, or being insightful. And he had chosen "being first" as the strategy for TechCrunch -- trying to break news as quickly as possible. And while that makes sense as a business strategy if you can do it, it had absolutely no appeal to me for how we ran Techdirt. We always hoped to focus on adding more insight into various issues, than breaking news. That's not to say we don't break news every so often, but it's certainly not the focus.

Last Thursday, I published a long post about the whole question of internet platforms cutting off certain users. While the actual title of the story was Platforms, Speech And Truth: Policy, Policing And Impossible Choices, it had a different title on our social media feeds:

If you can't read that, it says, "You Kept Asking For A Post About Alex Jones And Internet Platforms, So Here It Is." That was, in part, because while the various bans for Alex Jones all happened on Monday, our post didn't go up until Thursday. And, as I noted in the post, I had actually begun writing the larger post before the Jones' bans were put in place, but rather in response to a different brouhaha over a Mark Zuckerberg interview in July, where he said he didn't want to ban Holocaust deniers from his platform.

And yet, we had a number of people in our comments and on social media asking why we weren't writing about it. Sometimes those demands were done snarkily, suggesting we somehow were hiding from the subject. Sometimes they were asked legitimately. Some people seemed to take offense to the fact that we were working on other stories, as if we should drop everything to write about content moderation choices.

But, for years here on Techdirt, I've had a pretty strong belief in the value of "slow news." That is, I think I take the opposite approach to the one that Arrington talked about all those years ago. Being first may have benefits in the race for traffic and clicks. But I'm not so sure it really adds value to society. As we've seen over and over again, the quick take -- or the "hot take" -- often gets key things wrong. If you have real news to break, that's great, but it would seem to usually fall into one of two camps: a story that everyone is going to know about soon enough... or a story that you have exclusively. And, in both cases, there's little reason for us to rush out a story in those cases. If everyone's going to have it, then we might as well wait a bit to actually make sure all the details are really known and understood. And if there's an exclusive, then why not take your time to make sure you fully understand it as well.

I know that in the traditional news business, there's a premium put on "breaking news" and "exclusive!" type stories, but I'd rather put a premium on more thorough analysis that actually understands these issues. It's what we've always tried to do, even if we don't always succeed. Indeed, even when we write on key breaking stories, we'll quite often sit on a completed post for at least 24 hours before putting it on the site, just to see how things shake out and if the initial "breaking" details are really accurate. I've found that that allows us to post more thoughtful and careful posts in the long run.

Again, this has long been our internal policy, but I thought it might be useful to publish it publicly, so that people understand why we might not immediately write about the hot topic of the day, and may wait until we've had more time to understand it, and think through an analysis that maybe others covering the story didn't provide.

A major component of the Telecommunications Act of 1996 was the idea of line sharing, or local loop unbundling. Simply put, the rules set forth required that incumbent telcos needed to share their networks with smaller competitors, providing wholesale access to bandwidth. It was an effort to foster something vaguely resembling competition in the broadband space by letting smaller companies piggyback on existing network infrastructure. The thought was that because the barriers to market entry were so high (both politically and financially), this could help smaller competitors gain footholds that would otherwise be impossible.

The effort didn't work out for several reasons.

One, incumbent ISPs quickly got to work trying to make the process as difficult as possible, often causing intentional delays as smaller ISPs (CLECs) attempted to connect to incumbent networks (ILECs). Big ISPs also got quickly to work lobbying to kill the effort, and by the early aughts had largely succeeded. Big ISP executives then proudly proclaimed the effort was a failure from conception, ignoring that other countries, like France, took the idea and utilized it to great success (users in Paris can now get TV, broadband and phone service for a small fraction of what users in the States pay).

That said, there were plenty of terribly-run ISPs from that era that died thanks to their own incompetence and terrible business plans. But by and large line sharing was a concept we never truly tried to make work. Still, some smaller ISPs not only survived, but thrived thanks to the rules.

Like independent California ISP Sonic, which utilized those early line-sharing relationships as intended, and slowly-but-surely built out their own network on the back of the initial sharing relationship. Big ISPs like AT&T and Verizon, however, are now attempting to kill the last vestiges of those rules. In a recent blog post by telco lobbying organization US Telecom, telcos argue that the rules are no longer necessary, and (much like their attacks on net neutrality) eliminating them will drive all kinds of amazing "innovation and investment":

"This month, USTelecom is petitioning the FCC for nationwide forbearance from rules created in 1996 that no longer make sense in today’s marketplace. Specifically, the petition focuses on unbundling obligations, which require some ILECs (incumbent local exchange carriers, a.k.a. local telephone companies) to sell access to parts of their networks to certain competitors at extremely low rates set by regulators.

These outdated rules distort competition and investment decisions. When outdated and overly restrictive regulations are rolled back, innovation and investment thrives. And for over two decades, the broadband industry has transformed how the world communicates under a light-touch regulatory structure that spurred over one and a half trillion dollars in private investment."

The EFF's Katharine Trendacosta has drafted a good explainer outlining how these claims are complete nonsense. In it, Trendacosta is quick to point to recent studies showing that small ISPs have accounted for nearly half of all fiber deployment in recent years as companies like AT&T and Verizon instead focus on flinging video advertisements to Millennials (poorly, it should be noted). She also notes how if you cut off these smaller ISPs' fledgling access to incumbent networks, you're likely going to stifle a huge number of efforts aimed at shoring up connectivity shortcomings:

"With their forbearance petition, big ISPs are seeking to end a requirement that creates competition and spurs better and faster Internet coverage. New ISPs use the guaranteed access to copper lines to get a foothold in a market and to build capital. And then it’s these local ISPs that build high-speed infrastructure and cover rural areas. These are two things not being done by big ISPs, who would have even less incentive to do anything if these local ISPs vanish."

This is part of the reason that the folks who simply cry out for "total deregulation" of broadband are missing a huge chunk of the picture. When you eliminate regulation in telecom, all you're left with is giant, natural last mile monopolies by Comcast and AT&T. With neither competition nor functional adult regulatory oversight in place, the terrible broadband you currently "enjoy" tends to only get worse. Natural competition can't emerge in that paradigm because the cost of entry is too high, and companies like AT&T all but own countless state legislatures and regulators (aka regulatory capture).

These line sharing rules telcos are petitioning the FCC to eliminate were an attempt to let smaller competitors piggyback on the shoulders of (heavily taxpayer subsidized) giants until they can begin building their own networks. That's something that worked very well for Sonic, which is now slowly expanding fiber in key parts of California. Sonic and numerous other ISPs recently met with FCC boss Ajit Pai, whose words say he's all about solving the digital divide, but whose actions generally reflect other motivations.

With so much going on, this battle over wonky 90s telecom policy will be something that could easily fall through the cracks, though the EFF's comments to the FCC explain why that would be a terrible idea if you're interested in fixing our comically-broken broadband markets.