Washington State Laughs In The Face Of FCC Attempts To Ban States From Protecting Net Neutrality

from the unicorns-at-the-fcc dept

In the wake of the FCC's net neutrality repeal, nearly half the states in the union are now in the process of passing new net neutrality rules. Some states are pushing for legislation that mirrors the discarded FCC rules, while others (including Montana) have signed executive orders banning states from doing business with ISPs that engage in anti-competitive net neutrality violations.

Of course incumbent ISPs saw this coming, which is why both Verizon and Comcast successfully lobbied the FCC to include language in its repeal that tries to "preempt" state authority over ISPs entirely. But this effort to ban states from protecting consumers (not just from net neutrality violations) rests on untested legal ground, which is why some ISPs are also pushing for fake net neutrality laws they hope will preempt these state efforts.

So far, states aren't taking the FCC's threats very seriously.

Washington State for example became the first state in the union this week to pass net neutrality legislation (though Oregon is neck and neck). Washington's new law largely mirrors the discarded FCC rules by prohibiting the anti-competitive throttling and blocking of competitors, as well as "paid prioritization" deals that prevent ISPs from letting deep-pocketed content companies buy an unfair advantage over smaller companies and startups. Also like the FCC's rules, it carves out notable exemptions for "reasonable network management" -- as well as for the prioritization of legitimate services that may need it (medical, VoIP services).

Amusingly, the bill's sponsor doesn't appear particularly flummoxed by FCC restrictions on what states can and can't do:

"Just because the FCC claims it has the power to preempt state laws doesn’t mean that it actually does,” says (Drew) Hansen. “I can claim that I have the power to manifest unicorns on the Washington State Capitol lawn. But if you look outside right now, there are no unicorns."

ISPs have already started complaining that complying with an ocean of discordant state-level rules is hard on them, though that's something they might have wanted to give a little more thought to before lobbying to dismantle what were arguably (by international standards) pretty modest federal-level rules.

Note that's not to say state-level protections will be perfect. Many politicians are just trying to score political brownie points, and in many instances the rules will only be as good as those willing to actually enforce them. Several of them also are a little shaky on how they define "reasonable" network management, a term ISP lobbyists have a long, proud history of trying to redefine to include pretty much anything. Still, these are all problems that could easily been avoided by actually listening to the public, the experts, and the data and leaving the federal rules alone.


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  • icon
    Ninja (profile), 2 Mar 2018 @ 6:03am

    I do hope they can't pass legislation in the Federal level to enshrine the cronyism we are witnessing with the FCC into law before Republicans get a beating in the ballots in the next midterms. The subject has become a much uglier shit show than they (ISPs, their corporate shills and congress puppets) expected I believe.

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

    • identicon
      Anonymous Coward, 2 Mar 2018 @ 7:12am

      Re:

      That would be technically Unconstitutional, but it's not like anyone cares about that any more. There are already more than enough unconstitutional laws to make it clear we just exactly have zero respect at all for it.

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

  • icon
    Bt Garner (profile), 2 Mar 2018 @ 6:43am

    So, ISPs are learning what consumers learned a long time ago. Be careful what you wish for.

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

  • icon
    NeghVar (profile), 2 Mar 2018 @ 6:49am

    Fear of losing a challenge

    I have heard that one of the reasons why both the federal government and big ISP are hesitant about challenging the 10th amendment is because if a state wins and does not have to abide by the regulation or law, then that puts every federal law and regulation at risk of being ignored or nullified on a state-by-state basis.

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

    • icon
      James Burkhardt (profile), 2 Mar 2018 @ 8:19am

      Re: Fear of losing a challenge

      IANAL, but based on a number of legal analysis I have read on both sides, I find it unlikely. The specific reasoning would be very important. A court would be unlikely to upturn the entire history 10th amendment jurisprudence over this single issue, and if the 10th amendment argument prevailed, it would likely hinge on specifics in this case which may not be widely applicable. As broadband has long been considered an interstate issue concerning interstate communication, it is clearly within federal purview. Removing federal jurisdiction would be tough. Thankfully, the FCC has already done that.

      Assuming the FCC repeal holds, the repeal states that congress did not intend to provide the FCC authority over broadband at all, so it can not regulate it under Title II. It is how Ajit Pai attempts to get around the inevitable court challenges. That presents a clear hole that states can use to assert the 10th in this situation. As the government, by way of the recent FCC order, has abdicated authority over broadband, and the FCC has repeatedly stated that numerous concerns over broadband including the restriction of municipal broadband are states rights issues, the government, by way of the FCC, is clearly ceeding regulatory authority to the states. If they have no regulatory authority, they can not preempt the state's regulatory authority. The FTC does not have regulatory authority, and does not factor into this question.

      Basically, in an attempt to remove FCC regulatory authority now and forever, he has opened up the door for state regulators to take up the regulatory burden. By trying to prevent regulatory ping pong, he has neutered his authority to preempt the states. It is unlikely another agency will try that tack, and therefore unlikely another interstate issue would be able to cite this case successfully.

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

      • identicon
        Anonymous Coward, 2 Mar 2018 @ 8:47am

        Re: Re: Fear of losing a challenge

        "As broadband has long been considered an interstate issue concerning interstate communication, it is clearly within federal purview."

        That depends on a lot of semantics. On a technical level if an ISP only operates within a state then Federal laws do not apply. ISP's are NOT the internet and it is very possible to operate an ISP at a non-federal level.

        But you do point out how quickly people will just allow the letter of the law be ignored for political expedience.

        Now tell me, if you can go it, why can't everyone else do it? Hence our current "fuck the constitution" attitude at the Federal, State, and Citizen levels.

        Welcome to being a part of the problem while thinking you are not part of it.

        "The FTC does not have regulatory authority, and does not factor into this question."

        They do have "some" regulatory authority. Like when an ISP falsely advertises their product for example. They can also hit ISP's on anti-competitive laws, but the problem here is the the FCC approves of and encourages monopolies as part of its operation manifesto, so how can the FTC do it's job?

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

        • icon
          James Burkhardt (profile), 2 Mar 2018 @ 9:32am

          Re: Re: Re: Fear of losing a challenge

          Allow me to address your questions out of order.

          I was unclear. The FTC only has enforcement authority, not rule making authority. Therefore it can not craft regulations that preempt the state. Such was the Thrust of my statement. Your question, how can the FTC fuction as an anti-competition enforcement given the FCC's actions is non-sensical given my post. I argue that they can not, and therefore can not preempt state authority on the issue. I am not sure what point you are trying to make by asking that question, nor what information you are seeking, as the question seems to assume a position I do not have.

          The issue is not about the company's presence entirely within a state or not - Net Neutrality addresses not the company, but the communications it facilitates. Because of the nature of the internet, an ISP no matter how narrow its footprint, will facilitate communications that are interstate communications. It does not matter that the company only operates within a single state, and only sells to in-state consumers, what it is selling is interstate communications, which provides federal jurisdiction. Very few communications could be from a technical standpoint considered purely intrastate, by nature of the internet. Even an AIM conversation with the guy down the street is likely to be mediated by AIM servers out of state, leading to the communication being an interstate communication, from a technical standpoint. As a matter of settled law, a business whose faces regulation on interstate operations can face regulation even on those transactions that are intrastate, if those intrastate operations are closely related to interstate operations. Seriously, this was covered in my my first law course "Legal Environment of Business", which doesn't come close to a comprehensive Intro to Law course. But even if federal regulation could not address the incidental intrastate communications, it would not harm my analysis of the likely legal approach. Rather than undermine the entire consumer regulatory scheme, and lead to the very issue ISPs are complaining about throughout our consumer sphere, the challenge would likely hinge on the FCC's explict vacating of regulatory authory as granting that authority to the states, because it can not preempt state's power if it has no power, and never did.

          Welcome to being a part of the problem while thinking you are not part of it. What problem? The "fuck the constitution" problem? I mean if supporting the idea that states can regulate interstate communications via the FCC position and the 10th amendment means fuck the constitution, i guess you are right.

          Nothing in my words supported political expedience. I failed to write out my rationale for interstate communications but I had assumed that people understood that the internet inherently dealt with interstate communications.

          I was merely noting that this case was unlikely to upend federal regulation in general, as the specifics are what make this a case likely to be ruled on 10th amendment grounds.

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

          • identicon
            Anonymous Coward, 2 Mar 2018 @ 10:54am

            Re: Re: Re: Re: Fear of losing a challenge

            There is not enough space to address everything because in order for you to hold some of your positions you require education correction which I am willing to bet you will not appreciate.

            Only congress can make laws per the constitution. Not regulatory agency, even if congress said they could. Yes I know a lot of bankrupt people disagree with plain English but it is also not hard to get people to believe in lies or non-facts either. The system cannot be deconstructed now because there is over a century of abuse supported by many people, you being one of them, hence the "being part of the problem comment"

            In short, this issue is not getting fixed. Not only is it not going to get fixed, whatever repairs that are going to be implemented are likely going to be more of the same loophole riddled, nausea inducing pro business anti-consumer regulations that have been done for nearly the past Century since the FCC was formed.

            "I was merely noting that this case was unlikely to upend federal regulation in general, as the specifics are what make this a case likely to be ruled on 10th amendment grounds."

            On this point I can agree with you. I was not trying to imply that it would, just saying that on a case by case basis that it is possible for the state to indeed trump the FCC rules.

            And remember, just because a data packet I send to netflix goes from me, to my ISP, which my ISP sends onto a major backbone like hurricane or level3 does not constitute that the ISP I sent the packet to as being an international operation. You are either not well informed of how networks function or you are being intentionally obtuse.

            ISP's are NOT guaranteed to be part of the internet, some are simply just small operations that pay for a connection to one of the backbone providers that are federally regulated. There really are a lot of differences depending on each operation.

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

  • identicon
    Anonymous Coward, 2 Mar 2018 @ 7:23am

    Reasonable

    "Reasonable" is the legislative equivalent of punting to the judicial system on first down.

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

  • identicon
    Pixelation, 2 Mar 2018 @ 7:37am

    Use more money

    “I can claim that I have the power to manifest unicorns on the Washington State Capitol lawn. But if you look outside right now, there are no unicorns."

    The FCC and Comcast want us all to know, he's not doing it right.

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

  • icon
    Toom1275 (profile), 2 Mar 2018 @ 8:07am

    "ISPs have already started complaining that complying with an ocean of discordant state-level rules is hard on them"

    Complying with NN is far less technologically challenging than violating it.

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

    • identicon
      Anonymous Coward, 2 Mar 2018 @ 9:33am

      Re:

      Which is why I never understood that it was going to be more expensive to follow net neutrality. Some of the equipment I have had to purchase that allows me to manipulate traffic has considerable costs and that was only for a 1gbps line. I can't image what it would cost to have to manage hundreds of line at higher speeds. Then you will have to high a bunch of staff as well to maintain it.

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

      • identicon
        Anonymous Coward, 2 Mar 2018 @ 11:11am

        Re: Re:

        The killing of net neutrality has more to do with protecting cable revenues by allowing them to throttle the competition into uselessness unless they more than make up for cable cutters by paying to access their audience.

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

        • identicon
          Anonymous Coward, 2 Mar 2018 @ 1:12pm

          Re: Re: Re:

          There is NEVER a point where you pro NN guys are not twisting the story or leaving out relevant facts. You couldn't tell the truth if you life depended on it.

          All an ISP has to do to work around NN rules is to buy the content then they can throttle away through the Zero Rating loophole. They only wanted NN dead so they do not have to jump through the hoops of buying the content. Much easier to just charge extra because you people can be easily duped. So they charge you and give that money to Pai and you fall for the same gimmick again asking for more regulation when it was regulation that allowed them to do this to you in the first place.

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

          • identicon
            Anonymous Coward, 2 Mar 2018 @ 2:53pm

            Re: Re: Re: Re:

            All an ISP has to do to work around NN rules is to buy the content then they can throttle away through the Zero Rating loophole. They only wanted NN dead so they do not have to jump through the hoops of buying the content.

            Please explain how any one ISP has enough money to buy all of Amazon, Netflix, Hulu, Youtube, Spotify, Facebook, etc...

            Also please explain how other ISPs, the public, and the government would let them get away with essentially buying up all of the Internet and Hollywood.

            What was that you were saying about "twisting the story or leaving out relevant facts"?

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

          • icon
            That One Guy (profile), 2 Mar 2018 @ 3:57pm

            Re: Re: Re: Re:

            All an ISP has to do to work around NN rules is to buy the content then they can throttle away through the Zero Rating loophole.

            Which does not mean the rules were/are bad, it means they didn't go far enough.

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

          • icon
            Jeremy Lyman (profile), 8 Mar 2018 @ 6:41am

            Re: Re: Re: Re:

            You know that Zero Rating is not a core part of Network Neutrality, right? It's, as you said, a loophole put in place by the people who don't want Network Neutrality to function.

            Don't mistake bad regulation to mean that regulation is bad.

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

  • icon
    Capt ICE Enforcer (profile), 2 Mar 2018 @ 8:40am

    Funny and Insightful comment of the week

    I officially vote is both the funniest and most insightful comment of the year.

    "Just because the FCC claims it has the power to preempt state laws doesn’t mean that it actually does,” says (Drew) Hansen. “I can claim that I have the power to manifest unicorns on the Washington State Capitol lawn. But if you look outside right now, there are no unicorns."

    Well played sir. Well played.

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

  • identicon
    Anonymous Coward, 2 Mar 2018 @ 8:50am

    Pai: But, but, but ... they can't do that!

    Wanna bet?

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

  • identicon
    Anonymous Coward, 2 Mar 2018 @ 8:52am

    Government in a nutshell

    "and in many instances the rules will only be as good as those willing to actually enforce them."

    This is why giving government too much power is bad, and also why government intentionally does a bad job at enforcing them. Like a self fulfilling prophecy, poor enforcement leads to an outcry asking for more protections. All while peasant nobodies are being crushed under its regulatory girth while the rich remain buoyed by their connections and punishment repelling money.

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

  • identicon
    Anonymous Coward, 2 Mar 2018 @ 8:57am

    out_of_the_blue's not going to like this, is he?

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

  • icon
    McAden (profile), 2 Mar 2018 @ 10:11am

    but is it good?

    I read the bill. It's pretty simple and straightforward. However, I see nothing that specifically addresses some of the stuff unique to cell. Is that appropriately handled?

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

  • identicon
    Luke A, 27 Mar 2018 @ 5:03pm

    Rules

    "ISPs have already started complaining that complying with an ocean of discordant state-level rules is hard on them"

    Well boo g-d-damn-hoo.

    Shouldn't have taken away very modest rules that were working.

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


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