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Oh Look, The FCC Is Lying Again In Its Latest Court Filings On Net Neutrality

from the ill-communication dept

As the FCC gears up for legal battle against the numerous net neutrality lawsuits headed its way, its latest filing with the courts acts as a sort of a greatest hits of the agency’s biggest fallacies to date. 23 State AGs have sued the FCC, stating last fall’s repeal of net neutrality ignored the law, ignored standard FCC procedure, and ignored the public interest. The FCC?s new filing with the U.S. Court of Appeals (pdf) for the District of Columbia Circuit declares these concerns “meritless,” despite indisputible evidence that the FCC effectively based its repeal largely on lobbyist nonsense.

At the heart of the matter sits the Administrative Procedures Act, which mandates that a regulator can’t just make a severe, abrupt reversal in policy without documenting solid reasons why. The FCC has some legal leeway to change its mind on policy, but as we’ve long noted, the FCC’s justification for its repeal (that net neutrality was somehow stifling broadband investment) has been proven false. Not just by SEC filings and earnings reports, but by the CEOs themselves, publicly, to investors (who by law, unlike you, they can’t lie to).

Unsurprisingly then, the FCC’s brief leans heavily on the Supreme Court’s 2005 Brand X ruling, which states the FCC has some leeway to shift policy course at its discretion if it has the data to back it up. Also unsurprisingly, the brief goes well out of its way to pretend that ignoring the experts, ignoring the public, and demolishing consumer protections purely at Comcast, Verizon and AT&T’s behest is reasonable, adult policy making. And again, the false claim that net neutrality harmed “innovation, investment and broadband deployment” takes center stage:

“While the Commission?s legal analysis alone suffices to support its return to an information service classification and repeal of the 2015 rules, the Commission also offered robust public policy support for its actions. It explained in detail how Title II classification and regulation hampered broadband innovation, investment, and deployment. The Commission accordingly adopted a light-touch approach that relies on transparency, market forces, and enforcement of existing antitrust and consumer protection laws to protect against harmful conduct. This approach, the Commission reasoned, would foster innovation and investment in keeping with the dynamic and evolving nature of the Internet.”

Of course the press has noted time and time and time again how these claims of a net neutrality-induced investment apocalypse are absolutely false. Ajit Pai has similarly gone before Congress repeatedly and falsely made the claim anyway, with absolutely zero repercussions thus far. The FCC’s claims that its rules embrace transparency are equally hollow, given the agency’s replacement transparency provisions are entirely voluntary. And the idea that “market forces” can fix the broken and uncompetitive broadband industry should be laughable to anybody that’s experienced Comcast customer service.

Whether the FCC and broadband industry can convince a judge that bogus claims of hampered investment was the honest catalyst of their handout to telecom monopolies sits at the heart of this entire looming legal battle. The FCC and broadband industry will come prepared for battle with an ocean of ISP-funded economist data breathlessly insisting that the broadband industry was devastated by some arguably modest (by international standards) consumer protections. Net neutrality activists, in contrast, will try to argue the FCC was being “arbitrary and capricious” in its aggressive repeal of the rules at industry behest.

One of the major reasons the telecom industry wanted Brett Kavanaugh on the Supreme Court is because this entire battle could rest on his shoulders. Kavanaugh supported the idiotic ISP argument that net neutrality rules somehow violate ISP First Amendment rights (we’ve dismantled this previously, noting your ISP is not making “editorial” decisions as a network operator). Given ISPs are trying to argue that state and federal oversight is a free speech issue, Kavanaugh’s appointment could prove fatal in that regard if this fight makes it to the highest court in the land.

Meanwhile, there should also be some interesting sideshows during this looming legal battle, including discussions of why the FCC made up a DDOS attack, and ignored comment fraud and identity theft during the public comment process, both part of a pretty obvious effort on the FCC’s part to downplay the massive, bipartisan public opposition to what the FCC was doing. This is a story about corruption, misinformation, and ignoring the public welfare to the benefit of widely despised telecom monopolies. The FCC, in contrast, desperately wants the courts to believe this was all just adult policy making as usual.

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Comments on “Oh Look, The FCC Is Lying Again In Its Latest Court Filings On Net Neutrality”

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63 Comments
Anonymous Coward says:

Re: Re: Re: Re:

Funny, I never has a transistor or chip fry when repairing equipment at high power transmitting stations, whether that was UHF, VHF, HF or MF. and by High power I mean 10Kw and above transmitters. Also it didn’t seem to worry solid state electronics to be within a foot of devices putting out those power levels.

Anonymous Coward says:

Re: Re: Re:3 Re:

Using standard UHF equipment in accordance with SOP and applicable laws, one is not capable of generating an EMP of sufficient amplitude to do permanent damage to electronics or electrical systems. This is by design and has received much testing by many labs/institutes. If your commercial electronics is having a bad day then maybe your equipment is substandard. If your neighbor is in violation of the law, call the cops. The fcc is not a policing function.

Anonymous Coward says:

Re: Re:

Putting the question on the ballot could be a bad thing, depending on what the proposal/law etc. actually winds up being.

What if the question on the ballot is the bill written by ISP lobbyists that enshrines protections that are anything but?

We only want the right question on the ballot, something that the ISP lobbyists had no hand in. That’s the challenge.

Baron von Robber says:

So in short

FCC: We don’t have the authority to do that.

States: Ok, we will.

FCC: We have the authority to tell you “NO!”.

Odd that the Federal Communications Commission no longer deals with communications, the Environmental Protection Agency no longer protects the environment, the Food & Drug Administration no longer deals with drugs and food, etc….

James Burkhardt (profile) says:

So, the basis under which the FCC claims it has regulatory authority but can’t regulate broadband as a Telecommunications service is….that broadband includes a DNS service and integrates routing your connection.

However, under that rule a telephone, the namesake of a telecommunications service, is not a telecommunications service, because it provides access to 411 services, and when you dial it has to determine routing of your phone call to the correct device.

Anonymous Coward says:

Re: Re:

not a telecommunications service, because it provides access to 411 services

Not just access—the whole 411 service was traditionally provided by the phone company. As for routing, that’s always been part of telecommunications, particularly in the early days (they didn’t have roads everywhere—they really had to plan ahead).

The FCC explanation makes no sense. The main difference between the Internet and the PSTN (and telco standards like x.25) is that the Internet is dumber; the intelligence is mostly at the endpoints, in contrast to the telephone which was little more than a speaker and microphone connected to some wires.

Anonymous Coward says:

Re: FCC claims authority

“”” So, the basis under which the FCC claims it has regulatory authority… “”” (@Burkhardt)

picky. picky, picky

Why worry about the the obscure bureaucratic wording of ‘DNS service’ interpretation … when you totally ignore wording of U.S. Constitution regarding FCC ?

There is no textual basis for the FCC to even exist, under the U.S. Constitution. But of course you quite easily “discover” such a basis via absurd interpretations of generalities like the ‘Promote the General Welfare’ goal.

If you and Potomac politicians can interpret the Constitution any way you like — why can’t FCC bureaucrats interpret the fine points of their charter annd authority ?

Words don’t mean much in WashingtonDC — power is all.

Anonymous Coward says:

Re: Re: Re: FCC claims authority

no — starting back in 1912 — there was a huge assets/power grab of the radio electronic spectrum by Federal officials and allied, business special interests. Same thing continues today.

Electronic-Interference was never a big problem when the airwaves were open to all — that excuse was invented later to justify the government power grab. Nobel-winner British economist Ronald Coase demonstrated that private markets could readily handle the use/allocation of the frequency spectrum, rather than government bullying.

Anonymous Coward says:

Re: Re: Re:2 FCC claims authority

Electronic-Interference was never a big problem when the airwaves were open to all

Mainly because there were an insignificant number of users.

Once you get lots of users, use of spectrum needs planning. Also, not that just because a frequency seems clear where you are, it does not mean that you using it won’t cause interference at the edge of of the coverage that you achieve, or cause problems by being on a reserved frequency like an aircraft, marine, military or emergency service frequency.

A core principle of cellular radio planning, which applies to all uses at vhf and above, that is frequencies that do not usually bounce off of the ionosphere, is to leave at least one empty cell between two uses of the any frequency, where a cell is the coverage area of the signal, with aerial height and transmitted power limited to suite the coverage area.

Unrestricted use only works, mainly, for very low power devices at very high frequencies, i.e WiFi, but that can be problematic in places like apartment buildings. If you can see half a dozen or more WiFi networks, you will probably suffer from performance degradation due to interference, especially as streaming from the Internet becomes more common.

Anonymous Coward says:

Re: Re: Re:2 FCC claims authority

“starting back in 1912”
– fcc was created in 1934

“huge assets/power grab of the radio electronic spectrum “
– Like what? How was this done?

“Electronic-Interference was never a big problem “
– back in 1912 ….

“demonstrated that private markets could readily handle the use/allocation of the frequency spectrum”
– Liars have been making such claims for some time now but have never been able to show any data in support of same. Markets are not self regulating, this should be rather obvious even to the most casual observer.

“Electronic-Interference was never a big problem when the airwaves were open to all — that excuse was invented later”
– It wasn’t a problem until it became a problem and then they made up an excuse to solve the problem that was not a problem … got it.

nasch (profile) says:

Re: Re: FCC claims authority

There is no textual basis for the FCC to even exist, under the U.S. Constitution.

"The Communications Act of 1934 followed the precedents of trial cases set under the Commerce Clause of the U.S. Constitution (Article I, Section 8, Clause 3), regulating commerce "among the several states"… Communications technology was determined to be an interstate good. President Franklin Roosevelt, along with lobbyists and state regulators, wanted communications technology, both wired and wireless, to be monitored in a similar way and influenced Congress to pass the Communications Act of 1934."

This seems to me a pretty reasonable use of the commerce clause, unlike some other bizarre contortions of it.

https://en.wikipedia.org/wiki/Communications_Act_of_1934

ECA (profile) says:

FTC..and contracts..

But I still wonder if Pai has dropped the Corps into a BIG HOLE..
The gov. and states have contracts, that they can NOW enforce. With teh FCC incharge, it was only responsible tot he gov. WHICH WAS DOING NOTHING…and the FCC was doing NOTHING to monitor and CHECK what had been done..Like a random Server in areas ro verify the QOS/SPEED/DEPENDABILITY of services supplied..
Even running a truck around to check Cell phone availability. Would have been a wonderful thing..

For anyone that hasnt watched this happen over many years..
IT USED to be that the gov was the major employer in the WHOLE NATION..until they started cutting, like every corp, from the bottom.. The FCc has 1688 employees.. the FTC has 1131..
As soon as he Transferred it to the FTC he has NO CONTROL over it..
Lets tell the FTC what we want..

Danielle Kunze says:

2+2 = ALWAYS MAKES 4

It you think about it, the alleged Russian thing hack came first, THEN, they found an alleged Chinese hack chip (which btw cannot find 1 confirmed picture from a creditable source online OR what we can do to REMOVE it OR financial remedies for all effected consumers) AND LASTLY, now they’re coming out with 5g LTE and buying EVERY SINGLE COMMUNICATION COMPANY OUT for they’re net crackdown. Seems to me that that PRESIDENTIAL ALERT, wasn’t really what it said it was. Seems to me that it was a ROBOCALL HACK just in a different form. Just saying. President racist HAS TO BE STOPPED BEFORE WE’RE ALL FORCED TO BE RFID CHIPPED LIKE DOGS AND THE COUNTRY TURNS INTO A HITLER’S DREAM?

Anonymous Anonymous Coward (profile) says:

Re: 2+2 = ALWAYS MAKES 4

While hacking and bogus chips may be a thing now, or in the future, and our president is a specious ass, I am not sure he is intelligent enough to set up the schemes you mention. Nor anyone working FOR him, which is not to say that someone in his employ could not be.

For me, the bigger issue with 5G is that the marketplace will not accept it. We never got the promise of 4G, so why would we believe in the premise/promise of 5G? Of course there are a lot of ‘oh look…shiny’ consumers out there and they will get some response, but will it be enough for them to shut 4G down?

On the other hand, it sure appears the government is on a roll toward the concept of total surveillance and putting citizens down in any way they can. Ranting is not enough. What are you doing about it?

The Wanderer (profile) says:

Re: 2+2 = ALWAYS MAKES 4

Careful with those absolute statements, now.

Although 2+2 does usually make 4, there are two exceptions:

In base 3 (the lowest in which ‘2’ is even a thing), 2+2 makes 11.

And in base 4, 2+2 makes 10.

(…no, I have no idea what this would mean by analogy in the things your comment actually talks about; why would you think that? I’m just being pedantic, because absolute statements tend to bother me.)

Uriel-238 (profile) says:

Maybe we need a fact-checking department of government.

It has been for decades, now, the norm for government departments to bullshit each other, for officials and representatives to bullshit the congressional floors, and for all of them to bullshit the public.

Maybe it’s time to have a tax-paid service that takes EVERY intradepartment memo and every public statement by any government agent and combs them all for questionable facts, noting both what is true, what is near truth but misleading or what is entirely inaccurate and bullshit.

Because at this point, no-one in government can be trusted to speak truth. No one!

That One Guy (profile) says:

Re: Maybe we need a fact-checking department of government.

I propose calling it the Accuracy in Context and Explanations agency, and for every hearing where facts are discussed like the one the FCC is lying in they shall have at least one representative to shout ‘Objection!‘ any time a lie and/or misrepresentation is made.

Should make politics much more interesting and honest if politicians know they’ll be called out for lying in such a blatant fashion.

Uriel-238 (profile) says:

Re: Re: Re: Congressional Research Service

CRS reports are widely regarded as in depth, accurate, objective, and timely, but as a matter of policy they are not made available to members of the public by CRS, except in certain circumstances.

Yeah, that doesn’t help at all. We need something that can address the public and does, anytime a state agent misstates facts or acts on false data.

And yes, they should have a place in the House and Senate where they can interrupt proceedings with corrections to the embarrassment of whoever was mistaken.

And of course this will be unpopular with our officials, at least the ones who want to use alternative facts to back their policies.

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