California Poised To Defeat Broadband Industry In Scrum Over Net Neutrality
from the round-and-round-we-go dept
You’ll recall that after the Trump FCC effectively neutered itself at telecom lobbyist behest in 2017, numerous states jumped in to fill the consumer protection void. Most notable among them being California, which in 2018 passed some net neutrality rules that largely mirrored the FCC’s discarded consumer protections. Laughing at the concept of state rights, Bill Barr’s DOJ immediately got to work protecting U.S. telecom monopolies and filed suit in a bid to vacate the rules, claiming they were “radical” and “illegal” (they were neither).
And while the broadband industry had a great run during the Trump era nabbing billions in tax breaks and regulatory handouts, that era appears to be at an end.
Earlier this month the Biden DOJ dropped its lawsuit against California, leaving the industry to stand alone. Now a Judge has refused the broadband industry’s request for an injunction, allowing California to finally enforce its shiny new law. Worse (for the broadband sector), Mendez also made it very clear that while the case isn’t over yet, the broadband industry isn’t likely to win. He was also less than impressed by the broadband industry’s claim that because the broadband industry has tried to behave as it awaits a legal outcome, that this somehow meant net neutrality rules weren’t necessary:
“I have heard that argument and I don?t find it persuasive,? said Mendez. ?It?s going to fall on deaf ears. Everyone has been on their best behavior since 2018, waiting for whatever happened in the DC Circuit [weighing the FCC?s repeal of net neutrality]. I don?t place weight on the argument that everything is fine and we don?t need to worry.”
As we’ve noted a few times, there’s a misinformed refrain in some tech policy circles that goes something like this: “the internet didn’t immediately implode in a rainbow, therefore net neutrality’s repeal must not have mattered.” That’s wrong for several reasons.
One, ISPs are still violating net neutrality, they’re just being more clever about it (see: AT&T only charging you broadband overage fees if you use a competitor’s service). Two, the only reason ISPs behaved half as well as they did is because they were awaiting a federal legal ruling, and worried about running afoul of state net neutrality rules. Three, killing net neutrality didn’t just kill “net neutrality,” it dismantled the FCC’s consumer protection authority over everything from anticompetitive behavior to billing fraud. If you’re applauding the government ignoring the public and neutering itself because some Comcast lobbyists told it to, you might not be half as clever as you think you are.
As you might expect, a coalition of broadband industry policy and lobbying organizations like US Telecom were quick to complain about the ruling, whining that it creates a haphazard patchwork of state protections:
“A state-by-state approach to Internet regulation will confuse consumers and deter innovation, just as the importance of broadband for all has never been more apparent,? a coalition of broadband industry organizations said in a joint statement. ?We agree with the Court that a piecemeal approach is untenable and that Congress should codify rules for an open Internet.”
Of course the only reason we’re now looking at a fractured, state-by-state approach to consumer protection is because the broadband industry keeps suing to dismantle popular and modest federal rules. The industry sued (successfully) to kill the FCC’s flimsy 2010 rules, despite the fact that had giant loopholes and didn’t even cover wireless. Then, when the Wheeler FCC passed tougher rules (but still arguably thin by international standards), the industry sued again. When they lost that case, they got the Trump FCC to ignore the public and kill the rules, using an ocean of sleazy tactics–including paying firms to use fake and dead people–to pretend it was a good idea (something the press and some telecom policy wonks seems oddly intent on forgetting).
The industry has long proclaimed that it wants Congress to pass consistent rules to end this ongoing game of regulatory ping-pong at the FCC. Yet the industry knows full well that our gridlocked Congress is so slathered with telecom campaign contributions that’s never going to happen. If a federal net neutrality law does get passed, it’s extremely likely it will be ghost written by AT&T and Comcast. As a result it’s inevitably going to include numerous loopholes and caveats, while pre-empting any tougher, more consensus-driven state or federal solutions. This exact same gamesmanship, it should be noted, is playing out simultaneously surrounding efforts to pass meaningful broadband privacy rules.
While the industry is likely to appeal any looming loss dragging this case out for much longer than needed, it likely isn’t going to matter. There’s every indication that the Biden FCC is going to restore net neutrality. But that can’t happen until the Biden administration and Congress finally get around to appointing and seating a third Democratic FCC Commissioner, breaking the current 2-2 partisan Commissioner gridlock.
While policy wonks, the press, and the public are clearly fatigued by the endless legal skirmishes surrounding net neutrality, there’s only one reason they continue: a broadband industry that has fought tooth and nail, using every gross tactic in their playbook, against even the most modest consumer protection guidelines. If the heavily monopolized US telecom industry truly wants to put this issue to bed, it could perhaps stop spending millions of dollars every year to dismantle even the most modest attempts at state or federal oversight.