22 State Attorneys General File Suit Against The FCC For Its Net Neutrality Repeal

from the legal-fisticuffs dept

The legal fight over the FCC's historically unpopular decision to kill net neutrality has begun. An announcement by New York Attorney General Eric Schneiderman's office indicates that 22 State Attorneys General have filed suit against the FCC. The AGs says the multi-state coalition has filed a petition for review in the U.S. Court of Appeals for the D.C. Circuit, the first of what's expected to be numerous lawsuits in the weeks and months to come.

The announcement makes it clear the suit intends to focus on the FCC's potential violation of the Administrative Procedure Act. Under the Act the FCC will need to prove that the broadband market changed so substantially since the passage of the original rules in 2015 to warrant such a stark reversal (tip: it didn't). Under the Act, a decision can be declared "arbitrary and capricious" (Ajit Pai's agenda is undeniably both) if the regulator in question can't prove such a dramatic change, which is why you've watched industry lobbyists and their BFF Pai routinely and falsely claim that the modest rules somehow devastated sector investment.

Schneiderman quite correctly documents the potential pitfalls of gutting meaningful oversight of some of the least-competitive companies in America:

"An open internet – and the free exchange of ideas it allows – is critical to our democratic process,” said Attorney General Schneiderman. “The repeal of net neutrality would turn internet service providers into gatekeepers – allowing them to put profits over consumers while controlling what we see, what we do, and what we say online. This would be a disaster for New York consumers and businesses, and for everyone who cares about a free and open internet. That’s why I’m proud to lead this broad coalition of 22 Attorneys General in filing suit to stop the FCC’s illegal rollback of net neutrality."

You'll recall that Schneiderman's office is also conducting an investigation into who's behind the flood of bogus comments filed during the public comment period of the FCC's repeal order. Millions of the bogus comments were clearly filed by some group or individual hoping to erode trust in integrity of the comments in the hopes of downplaying massive public opposition to the FCC's plan. When Schneiderman's office contacted the FCC to get some help identifying the culprits the FCC refused nine different times over a period of five months, according to an open letter to the FCC by Schneiderman late last year.

Numerous lawsuits are expected to follow once the FCC's repeal hits the Federal Register (expected in the next month or so).

All of these suits will highlight the numerous instances of FCC incompetence or fraud, ranging from the fake DDoS attack the FCC apparently manufactured to downplay the John Oliver effect, to why the FCC turned a blind eye while somebody stole the identity of dead people to forge bogus support for the FCC's agenda. Also likely to be highlighted is how the FCC ignored the public, ignored the experts, ignored the industry's startups, and used bogus lobbyist data to prop up what may just be the least popular tech policy decision in the history of the modern internet.


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  • icon
    Ninja (profile), 17 Jan 2018 @ 6:35am

    They didn't expect so much backlash and resistance and when it was clear this was going to happen they chose the head-in-sand approach hoping it would go away. The shitstorm is coming, Pai.

    reply to this | link to this | view in chronology ]

    • icon
      Lord_Unseen (profile), 17 Jan 2018 @ 7:03am

      Re:

      Pai really does fit in with the rest of the Administration. If things aren't going their way, just say they are and reality magically changes to make that true!

      reply to this | link to this | view in chronology ]

    • identicon
      Iggy, 17 Jan 2018 @ 8:31am

      Re:

      It's hard to see what these pro ISP congressmen could do now? Explain the excellent reasons why all Republican congressmen are magically for repeal while their constituency mostly isn't? Admit to being paid corporate sock puppets and ask their voters for forgiveness? A few might break ranks but probably most will just double down and hope other issues pop up before next election.

      reply to this | link to this | view in chronology ]

      • identicon
        Thad, 17 Jan 2018 @ 8:42am

        Re: Re:

        A few might break ranks but probably most will just double down and hope other issues pop up before next election.

        Ding ding ding.

        They're going to dig in and assume that Republicans will still vote for them anyway. Net neutrality is an important issue, but good luck getting people to consider it before abortion, immigration, guns, etc. when they decide who they're going to vote for.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Jan 2018 @ 6:35am

    Hint

    Money

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Jan 2018 @ 6:50am

    This, and similar measures that are taking place in Congress are great and all, but don't lose sight of the forest for the trees here: this is simply people in elected positions forcing real or potential opponents into taking a side on a issue that has largely crossed bipartisan lines to use as campaign capital.

    Federal, state, and local officials have all had plenty of time to do something, anything, to more permanently make net neutrality either law, or improve competition so as to make it unnecessary. And at best, most politicians have stood idly by and at worst, have cozied up to Telco lobbyists.

    While I appreciate these efforts, don't let these politicians off so easily. This is more for their gain than ours. We deserve better than posturing and grandstanding.

    reply to this | link to this | view in chronology ]

    • icon
      Lord_Unseen (profile), 17 Jan 2018 @ 7:07am

      Re:

      To be fair, state Attorneys don't have anything to do with the laws written. If legislature decides to cozy up to ISPs, there's not much the attorneys can do about it, except maybe sue.

      reply to this | link to this | view in chronology ]

      • identicon
        Thad, 17 Jan 2018 @ 8:46am

        Re: Re:

        there's not much the attorneys can do about it, except maybe sue.

        That's...sort of a baffling statement. "There's not much they can do about it, except maybe the thing that's their primary job description."

        If I have a clogged drain, there's not much a plumber can do about it, except maybe unclog it.

        If I'm trying to sell my house, there's not much a realtor can do about it, except maybe list it, find a buyer, and arrange the sale for me.

        If somebody's casting an action movie about a gruff old guy who's trying to save his wife or child, there's not much Bruce Willis or Liam Neeson can do about it, except maybe star in it.

        reply to this | link to this | view in chronology ]

        • icon
          Lord_Unseen (profile), 17 Jan 2018 @ 12:41pm

          Re: Re: Re:

          Since this story is about state AGs suing for net neutrality, it doesn't make sense to complain about them not doing anything, does it?

          reply to this | link to this | view in chronology ]

          • identicon
            Thad, 17 Jan 2018 @ 3:51pm

            Re: Re: Re: Re:

            I...don't know, dude, I was responding to you.

            It's possible I missed the context of your post; I can't see the post you were responding to. (I've got a blocker script that hides post from anons and various trolls.)

            reply to this | link to this | view in chronology ]

            • icon
              Lord_Unseen (profile), 18 Jan 2018 @ 7:51am

              Re: Re: Re: Re: Re:

              I see. I apologize. Well, the troll I was feeding basically said we shouldn't be applauding this too much as it's just grandstading by politicians that got us into this mess anyway.

              reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 17 Jan 2018 @ 11:34am

        Re: Re:

        > To be fair, state Attorneys don't have anything to do with the laws written. <

        No, but at least in my state they ARE elected, which goes to the point of more interested in forcing policy stances.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Jan 2018 @ 7:52am

      Re:

      ....what ?? ...government politicians are responsible for the basic lack of ISP competition? Heresy

      reply to this | link to this | view in chronology ]

  • icon
    Toom1275 (profile), 17 Jan 2018 @ 7:07am

    Ars Technica notes that each of the states suing the FCC has a Democrat Attorney General. As of yet, no Republican AGs have filed suit.

    New York, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Mississippi, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Jan 2018 @ 8:42am

    If the states are so concerned about net neutrality why don't they just pass their own net neutrality laws instead of trying to rely on the federal government to do everything.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Jan 2018 @ 8:45am

      Re:

      If anything you have state and local governments passing anti-competitive rights of way laws that prevents competitors from entering the market which creates the whole need for net neutrality in the first place.

      No one wants to actually fix the problem, everyone wants to point fingers and blame each other. The federal government blames the states for passing anti-competitive laws while the states blame the federal government for not passing net neutrality laws. The public gets the worst of both worlds.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 17 Jan 2018 @ 9:20am

        Re: Re:

        Infrastructure is not a good area for competition in its provision,and what most countries have done is to use regulation to force monopoly supplies of the infrastructure to allow competing provision of services over that infrastructure.

        So the choices are to either use regulation to force net neutrality, or to force sharing of the infrastructure.

        reply to this | link to this | view in chronology ]

        • icon
          Anonymous Anonymous Coward (profile), 17 Jan 2018 @ 9:32am

          Re: Re: Re:

          Personally, I see nothing wrong with forcing the sharing of the infrastructure. We have paid into Universal Funds and subsidized various plans for improvement that have not been spent in the way they were intended.

          A big hit will take place on the balance sheets of various corporations where they list certain infrastructure as assets, and the big ones would take hits in income as they lose customers and invariably find the need to reduce prices in order to compete. Some shareholders, who bought stock at the wrong time will also be affected.

          But I see nothing wrong with any of that, as the vast majority of US citizens will benefit. And if you are worrying about government intrusion into businesses, think about how the government failed to enforce anti monopoly laws that allowed us to get to this situation.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Jan 2018 @ 8:56am

      Re:

      The Constitution of the United States of America grants the federal government the exclusive right to regulate interstate commerce.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 17 Jan 2018 @ 9:28am

        Re: Re:

        it does not work like that, like most others here you are plum fucking ignorant.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 17 Jan 2018 @ 9:34am

          Re: Re: Re:

          Ummm, US Constitution, Article 1, Section 8, Clause 3? Commonly referred to as the 'Commerce Clause'?

          [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

          reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 17 Jan 2018 @ 10:26am

          Re: Re: Re:

          But of course you won't bother explaining why or enter into honest debate to discover why people think differently...

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 17 Jan 2018 @ 11:20am

          Re: Re: Re:

          I do love me some dumbshits like you calling other people stupid because they themselves don’t understand basic civics. Now the real question here is, do you have a mental disability? Because I’d hate to call someone a retard, who has a legit learning disorder.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 17 Jan 2018 @ 11:22am

          Re: Re: Re:

          Is that you again, Johnny? Must be a snow day in your district.

          reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 17 Jan 2018 @ 8:59am

      Re:

      Because the nature of the internet means that they will always be affected by traffic crossing state lines? Because they see how it ended up for other industries that tried doing such things (companies just congregate headquarters in the least restrictive states)? Because necessary utilities are an area where it makes sense to have some national standards rather than a potentially huge discrepancy depending on where in the country you happen to live?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 17 Jan 2018 @ 9:32am

        Re: Re:

        "information" crossing state lines does not constitute a commercial activity and therefore does not constitute a federal government right to "regulate" it.

        If an ISP only operates locally they cannot be forced to be regulated by the fed. They can connect to a backbone provider operating across states where the backbone provider can be regulated by the feds.

        Its the same reason that a gun mfg can avoid federal regs if they only make and sell their guns inside the state. Then it is the rules of the state that prevail.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 17 Jan 2018 @ 9:38am

          Re: Re: Re:

          Except that ISPs and gun manufacturers are apples to oranges.

          By necessity, an ISP has to provide interconnection across state lines, otherwise it's worthless.

          And all of the big ISPs (Charter, ATT, Verizon, Comcast, CenturyLink, etc...) do operate across state lines and many are in fact their own backbone providers. So why shouldn't they be subject to federal regulation?

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 17 Jan 2018 @ 9:41am

            Re: Re: Re: Re:

            Also, information crossing state lines can be considered a commercial activity in certain circumstances, especially if it is being bought and sold.

            reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 17 Jan 2018 @ 10:32am

          Re: Re: Re:

          Information perhaps not, but a major use of the internet is for commerce, and it's more likely in most cases that a person will be trying to access sites not in their home state. Comparison to physical goods is a red herring since its the transport being regulated not the end product. Unless you're saying that every site needs to have a presence in every state, it's totally different.

          reply to this | link to this | view in chronology ]

    • icon
      Ryunosuke (profile), 17 Jan 2018 @ 9:20am

      Re:

      because some states, republican states, have sold their souls to AT&T, Comcast, or Verizon. The people concerned, or complaining about this issue, usually are NOT legislators or governors, they are ordinary citizens.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 17 Jan 2018 @ 9:24am

        Re: Re:

        Get back to us after you have read the Constitution.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 17 Jan 2018 @ 9:30am

          Re: Re: Re:

          How is Ryunosuke's statement at all related to the Constitution?

          He is correct, Republican politicians have generally sold out to big ISPs on net neutrality and the majority of people complaining about it are ordinary citizens.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 17 Jan 2018 @ 11:07am

            Re: Re: Re: Re:

            Read the post that he was responding to. Feel free to get to us.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 17 Jan 2018 @ 11:26am

              Re: Re: Re: Re: Re:

              I read it, your post still doesn't make sense.

              OP asked why don't states pass their own net neutrality laws (some of them are attempting to), Ryunosuke responded that it is because Republicans in general are in the pocket of big ISP's so the Republican controlled states generally resist any such laws.

              I still see nothing to do with the Constitution here. As long as state laws don't conflict with federal laws, they can pass anything they want to. And there are no federal laws stating they can't pass net neutrality laws (unless Pai's order and pre-emption is upheld but that's a HUGE if).

              I read the post, got to you, now what?

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 17 Jan 2018 @ 12:14pm

                Re: Re: Re: Re: Re: Re:

                States may not -- per the Constitution -- pass any law or regulation that in effect, regulates interstate commerce.

                reply to this | link to this | view in chronology ]

                • identicon
                  Anonymous Coward, 17 Jan 2018 @ 12:24pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Except this is not that. The state regulation only states that while operating within the state, they have to abide by net neutrality rules. ISP's can do whatever they want in the next state over.

                  That's why it would be such a pain for ISP's to have state level NN rules and not federal level because each state could have varying levels of NN rules they would have to comply with versus one federal standard.

                  It's not interstate commerce regulation, it's INTRAstate commerce regulation, which is permitted by the Constitution.

                  reply to this | link to this | view in chronology ]

                  • identicon
                    Anonymous Coward, 17 Jan 2018 @ 1:27pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    The Internet uses non-deterministic routing (see writings by Dijkstra re: OSPF). There is no instra-state only ISP when it comes to accessing anything on the Internet.

                    reply to this | link to this | view in chronology ]

                    • identicon
                      Anonymous Coward, 17 Jan 2018 @ 3:00pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      Merely accessing or routing information across state lines is not in and of itself "interstate commerce". It can be, especially if that particular information is being bought or sold, but simple access to the internet has not been traditionally defined or treated as interstate commerce.

                      Aspects of ISPs do make them able to be regulated by federal interstate commerce laws and states can not supersede that. At the same time, states can impose additional rules and regulations for companies that wish to operate within a particular state, provided those laws do not conflict with their federal counterparts.

                      If federal regulations prohibit states passing net neutrality laws then you have a valid point. However, currently, they do not. And even if they did, states could still refuse to do business with companies unless they abide by net neutrality rules. Which is what some are trying to do, just in case Pai's pre-emption order gets upheld.

                      reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 17 Jan 2018 @ 11:32am

              Re: Re: Re: Re: Re:

              You got a mouse typing for you? Or is it Mr Us?

              reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Jan 2018 @ 9:40am

    I think you are being a little loose with the "arbitrary and capricious" standard. You may think this repeal is such, but the legal standard is way way way more deferential to the agency. If the agency puts forward some evidence (which does not have to be convincing or overwhelming), engages in deliberation under the rules (like having a comment period, andI takng comment), and the agency's conclusion can logically follow (note, not that the agency is right, or picks the best option, just that its conclusion is not conpletely unsupportable), then the court should uphold it.

    The FCC loses in court all the time on its rulemaking and they could very well lose on this one. It should be noted that for the past several years the FCC has been trying to do lots of things with no or questionable statutory authority. Classifying broadband as not title two is one of the few things the courts have repeatedly told the FCC can actually do.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 17 Jan 2018 @ 4:49pm

      Re:

      If the agency puts forward some evidence

      Still waiting on that, as repeatedly debunks assertions like 'The rules decimated investment!' don't count.

      engages in deliberation under the rules (like having a comment period, andI takng comment)

      You mean like the one where they ignored blatant and widespread fraud, and took time off to mock those that disagreed with them? Yeah, I'd say that qualifies only technically in that people were able to comment.

      and the agency's conclusion can logically follow (note, not that the agency is right, or picks the best option, just that its conclusion is not conpletely unsupportable)

      The 'evidence' was bogus and the legitimate comments were overwhelmingly against their chosen action. The logical conclusion to that is not 'go ahead as planned'.

      Classifying broadband as not title two is one of the few things the courts have repeatedly told the FCC can actually do.

      ... What? The courts most certainly said that they could reclassify broadband as Title II, what they kept getting slapped down on was trying to regulate it without Title II classification.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 18 Jan 2018 @ 7:09am

        Re: Re:

        Look, I get that you have an opinion, and I am not going to argue it either way. But in this glorious administrative state, the whoke system is alligned to assume the agency is the expert and to defer all technical considerations to it. If the agency jumps through the right hoops and stays within its statutory authority, its rules are virtually impossible to overturn in court. And everything Pai has done furthers that hoop jumping (this is why he is pounding broadband investment, his justification does not have to be right, it just has to be established).

        I dont know why folks focus on the comments. The APA only required that an agency solicit comments, and read them. The FCC did that. There is NO requirement that an agency follow comments, treat them as votes for or against a rule, or even care whether the comments are all fake. All of those things are meaningless under the APA.

        Same with evidence. The courts dont weigh wether the FCCs analysis is right or wrong. They only look to support. Pai has his broadband investment studies. Many people can dispute their accuracy or relevance, but the court wont get there. It will leave the analysis of the studies to the agency.

        You can get all worked up about this, but never pretend that a rulemaking is a fact finding process or a guarantee to get the best or most popular rule put in place. It is a bureaucratic checklist that the agency must follow to do whatever it wants, within its statutory authority.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 18 Jan 2018 @ 6:36pm

          Re: Re: Re:

          Same with evidence. The courts dont weigh wether the FCCs analysis is right or wrong. They only look to support. Pai has his broadband investment studies. Many people can dispute their accuracy or relevance, but the court wont get there. It will leave the analysis of the studies to the agency.

          I would be greatly surprised were that the case, given he has to show that there has been a significant shift in the market to justify killing the rules, and doing so will require him to present his 'evidence' for the court to look over, 'evidence' which has been repeatedly debunked and shown to be false by the very people whining about how it hurt their investment.

          If the courts simply took the agency at it's word then the last time the FCC was challenged, when it was implementing the rules, it would have been over with in a day. 'The FCC says the rules are needed, who are we to say otherwise, therefore they are allowed to do whatever they want.' No, they actually have to show evidence, not merely make baseless assertions.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Jan 2018 @ 10:59am

    Can the old dogs learn new tricks?

    I am wondering: If big ISP and the FCC loses these cases and the courts find that there weren't ground for this change (as they should), would there be anything preventing them from trying again in a couple of years and at that time ISP's will hold back on major investments and then blame it on NN?
    I mean, it seems like they are so close here and even with the overwhelming opposition, the lies, and everything that is so wrong with this whole thing, really has no effect on the outcome... the only thing we have to really hold on to, is a decision by the courts about investment. This is just a single problem, and it is a problem the ISP's can affect completely if they want to.
    They have tens or hundreds of billion in their coffers, so I am quite sure that a couple of years taking a small hit for a chance of a huge score in the end, is no problem for them.
    Would there even be anything left that could prevent a similar situation very soon? A precedent set in court or something?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Jan 2018 @ 11:31am

      Re: Can the old dogs learn new tricks?

      You are expecting long term planning from those who only look at the next quarters profit? If they were into longer term planning, they would be investing in streaming services, and content delivery services, while winding down cable TV.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 17 Jan 2018 @ 11:34am

      Re: Can the old dogs learn new tricks?

      Likely because if they did that their stocks would plummet and they would lose a LOT of money in the short run. Not to mention it would effectively kill any semblance of them actually trying to build out to poor or underserved areas which would provide fodder for supporters of net neutrality. Plus, their profit margins would actually increase because they are spending less but getting the same amount of revenue.

      reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 17 Jan 2018 @ 11:12am

    This discussion brings a couple of questions to mind

    If the FCC can be sued, why can't the FTC be sued for failing to control monopolies?

    Political will is one answer (at least for state AG's), but could a group of plain old citizens sue?

    reply to this | link to this | view in chronology ]

  • icon
    ShadowNinja (profile), 17 Jan 2018 @ 12:14pm

    All of these suits will highlight the numerous instances of FCC incompetence or fraud, ranging from the fake DDoS attack the FCC apparently manufactured to downplay the John Oliver effect

    This one leaves me scratching my head more and more overtime.

    There's literally nothing for the FCC/ISPs to gain by denying the John Oliver effect. Especially when they're just going to ignore all the millions of signatures in support for Net Neutrality that the Oliver effect created. All they accomplished was making themselves look like a bunch of idiots who ought to be fired from their jobs due to incompetence.

    Not to mention who knows if they broke any laws with this BS claim. It's against the law to file false police reports. It wouldn't surprise me if the FCC violated a law by falsely claiming they were a DDOS attack victim.

    reply to this | link to this | view in chronology ]

  • icon
    roebling (profile), 17 Jan 2018 @ 12:15pm

    Anti-capitalist, anti-competition socialist bureaucrats don't give up without a fight

    reply to this | link to this | view in chronology ]

  • identicon
    Dan McLoen, 17 Jan 2018 @ 2:30pm

    Bye bye, to American Pai.

    One day we'll have someone else running the FCC.

    reply to this | link to this | view in chronology ]

    • identicon
      Iggy, 17 Jan 2018 @ 8:39pm

      Re: Bye bye, to American Pai.

      One day, instead of seeing his moronic smile on every headline about the FCC, we may just see some frowning. Better yet, one day we won't have to look at his face at all

      reply to this | link to this | view in chronology ]


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