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

Legal Issues

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

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

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

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

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

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

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

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

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

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

Filed Under: ajit pai, california, doj, fcc, net neutrality, state's rights