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

Legal Issues

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.

Filed Under: administrative procedures act, arbitrary and capricious, dc court of appeals, fcc, investment, net neutrality