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Trump Admin Hopes Kavanaugh Supreme Court Delivers The Killing Blow To Net Neutrality

from the pulling-it-up-from-the-roots dept

So you'll recall that before Comcast, AT&T, Verizon and friends convinced the Trump FCC to ignore the public and kill net neutrality, they had attempted to dismantle the rules legally. That effort didn't go very well, with the U.S. Court of Appeals for the D.C. Circuit upholding the FCC's Open Internet Order in June of 2016, and ISPs losing a subsequent en banc appeal. More specifically, the courts found that the former Wheeler-run FCC was well within its legal right to reclassify ISPs as common carriers under the Telecom Act.

The 2016 FCC victory made sense, especially if you recall that the agency lost its 2014 legal fight with Verizon in part because it tried to implement net neutrality without first putting itself on legal footing by classifying ISPs as common carriers under Title II. You might also recall that Wheeler at the time initially wasn't sure about the Title II route, but changed his mind based on available facts and evidence, back when people, you know, actually still did that.

But that was then and this is now. Lawyers for the FCC and Department of Justice filed a brief (pdf) with the Supreme Court last Friday, urging it to vacate the 2016 court ruling that upheld the Wheeler-era net neutrality rules. The move is necessary, FCC lawyers inform the court, because of the FCC's new, comically-named "Restoring Internet Freedom" proposal has purportedly changed the facts on the ground:

"The court of appeals upheld the 2015 Order primarily because it concluded that it was required to defer to the FCC’s legal and factual judgments as reflected in that order. But the Commission itself has now repudiated those factual and legal judgments in a new order issued after full notice-and-comment proceedings."

Of course we've noted time and time again how the repeal of net neutrality was a facts-optional shitshow of comical proportions. Given the FCC's entire justification for repeal was based on bogus ISP lobbyist math and bullshit, the FCC leaning on the facts here is pretty funny. Even if the courts don't agree with that, FCC lawyers state, the Supreme Court should just go ahead and agree with ISPs anyway:

"Alternatively, if this Court concludes that the 2018 Order did not render this case moot, or if it prefers not to resolve that issue, it should grant the petitions for writs of certiorari, vacate the judgment below, and remand for further proceedings to allow the court of appeals to consider in the first instance the effect of the 2018 Order on this litigation.

Wouldn't that be Comcastic!

So what is the Trump FCC and DOJ (read: AT&T, Verizon, Comcast and Charter) up to here? Because the FCC engaged in so much bizarre and shady behavior during the net neutrality repeal last fall (from making up a DDOS attack to turning a blind eye to identity theft and fraud in the public comment period), ISPs are well aware the FCC repeal could fall apart in court.

That could happen for a number of reasons, including the court finding the FCC violated the Administrative Procedure Act by dismantling a major regulatory effort based on little more than hot air and string cheese. The FCC can't just reverse such a massive regulatory move without first showing that broadband market realities changed dramatically enough to warrant it, something SEC filings, CEO statements and earnings report show didn't happen. That's why you'll often see Ajit Pai routinely lying about how net neutrality demolished sector investment, something that isn't supported by the facts.

In short, giant ISPs like Comcast and AT&T know they'll soon have to relitigate this in court. That's why they're pushing for a new fake net neutrality laws they've written with an eye on passing something that pre-empts both the restoration of the federal rules, or the myriad of state solutions that are now popping up. And they know that should they lose, this could very likely head to the Supreme Court. A Supreme Court that could soon be staffed by Brett Kavanaugh, who bizarrely bought the completely bogus ISP claim (during the first round of the FCC's fight with Verizon) that net neutrality rules violate an ISPs First Amendment rights.

The short version? ISPs are worried that Ajit Pai's ham-fisted and facts-optional attack on net neutrality won't survive the looming court challenge by consumer groups and Mozilla. As such, they're gearing up for what they hope will be a Kavanaugh-staffed Supreme Court to help deliver the killing blow, something that would be greatly aided by neutering existing precedent. ISPs are well aware that public sentiment, factual data and lower course rulings could restore the FCC's extremely popular net neutrality rules, and we wouldn't want that, right?


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  1. icon
    Stephen T. Stone (profile), 7 Aug 2018 @ 6:22am

    ISPs are well aware that public sentiment, factual data and lower course rulings could restore the FCC's extremely popular net neutrality rules, and we wouldn't want that, right?

    I…I want that.

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

  2. This comment has been flagged by the community. Click here to show it
    identicon
    N Vidious; association with Trump., 7 Aug 2018 @ 6:51am

    Just logical follow-up by lawyers to a mooted point.

    Lawyers do lawyering. Undoubtedly been in the works for months, and is actually LATE after bureaucracy. Only you imagine this is directly connected to Kavanaugh.

    Correlation is not causation. Post hoc fallacy. Your premise is invalid.


    consumer groups and Mozilla

    Clever trick, but Mozilla is NOT a "consumer group", but financed by GOOGLE with over ONE BILLION DOLLARS now:

    http://allthingsd.com/20111222/google-will-pay-mozilla-almost-300m-per-year-in-search-deal-best ing-microsoft-and-yahoo/

    https://techcrunch.com/2017/11/14/mozilla-terminates-its-deal-with-yahoo-an d-makes-google-the-default-in-firefox-again/

    Therefore, Mozilla speaks for Google's interest, no surprise that Techdirt has same notion since also indirectly funded by GOOGLE:

    https://copia.is/wp-content/uploads/2015/06/sponsors.png

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

  3. identicon
    Anonymous Coward, 7 Aug 2018 @ 6:54am

    this effort goes to show
    a) how good net neutrality was for everyone and that includes, in a large part, AT&T, Verizon, Comcast and friends, despite their continuous moaning about how bad it was
    b) how desperate this administration is to ensure there is almost nil as far as broadband competition is concerned, how desperate it is to ensure that monies keep flowing to various Senators and, to me, most importantly, how desperate it is to ensure that whenever necessary, the public can be stopped from having something that is beneficial to them, ie, a means to find out what these lying, cheating fuckers in Congress and in multi-billion $ companies are up to!!

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

  4. icon
    Stephen T. Stone (profile), 7 Aug 2018 @ 7:06am

    Your premise is invalid.

    Your face is invalid.

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

  5. identicon
    Anonymous Coward, 7 Aug 2018 @ 7:18am

    Re: Just logical follow-up by lawyers to a mooted point.

    Undoubtedly been in the works for months[1]

    1: need citation

    Only you imagine this is directly connected to Kavanaugh[2]

    2: unlikely as anyone with pattern recognition could come to this conclusion

    Clever trick, but Mozilla is NOT a "consumer group"[3]

    3: the quote states "by consumer groups and Mozilla." which anyone with a grade school education would see that the implication is that Mozilla is not implied to be a consumer group.

    Then the rest of your post devolves into some top shelf foaming at the mouth insanity.

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

  6. identicon
    Anonymous Coward, 7 Aug 2018 @ 7:19am

    The best way to save NN is voting in the midterms for the democrats!

    VOTE VOTE VOTE!

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

  7. identicon
    Anonymous Coward, 7 Aug 2018 @ 7:28am

    Re: Just logical follow-up by lawyers to a mooted point.

    A point is moot, not "mooted."

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

  8. identicon
    Anonymous Coward, 7 Aug 2018 @ 8:22am

    This article is empty fear mongering.

    The same article can be written about any supreme court nomination made by the President.

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

  9. identicon
    Anonymous Coward, 7 Aug 2018 @ 9:18am

    Re: Just logical follow-up by lawyers to a mooted point.

    I spent money to purchase a service from a business. Now the business for my interests!

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

  10. icon
    Stephen T. Stone (profile), 7 Aug 2018 @ 9:37am

    Re:

    Gee, can’t imagine why that would be the case, other than most (if not all) of the people on the president’s Supreme Court shortlist being vetted by a conservative think tank with a set of principles and beliefs that they expect their chosen judges to follow.

    …oh wait

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

  11. identicon
    David, 7 Aug 2018 @ 9:48am

    You are doing Wheeler an injustice

    You might also recall that Wheeler at the time initially wasn't sure about the Title II route, but changed his mind based on available facts and evidence, back when people, you know, actually still did that.

    Wheeler was exceptional even then. He worked for the telcom industry when the telcom industry paid his wages. That's not unusual. But he worked for the public when the public paid his wages. And that's unusual because the public does not have the means to fire a public servant and so public servants tend to take their salary for granted and instead work for the largest palm grease (or the largest sycophancy, an alternative that has gained a lot more traction lately) because in the U.S., corruption and bribes are institutionalized and legal.

    You'd have to be a fool not do. Or an honest person. But I repeat myself.

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

  12. identicon
    David, 7 Aug 2018 @ 9:54am

    Way too optimistic

    The FCC can't just reverse such a massive regulatory move without first showing that broadband market realities changed dramatically enough to warrant it, something SEC filings, CEO statements and earnings report show didn't happen. That's why you'll often see Ajit Pai routinely lying about how net neutrality demolished sector investment, something that isn't supported by the facts.

    Courts don't decide based on facts but based on expert witnesses. Experts work in the telcom sector.

    And want to keep working there. Would you want to risk your livelihood?

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

  13. identicon
    Anonymous Coward, 7 Aug 2018 @ 10:41am

    "Trump Admin Hopes Kavanaugh Supreme Court Delivers The Killing Blow To Net Neutrality"

    Something something .. chickens before they hatch.

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

  14. identicon
    Kevin Hayden, 7 Aug 2018 @ 12:44pm

    When is an isp a 'common carrier' and not an 'information service'

    All you US folks should take a look at your CALEA (Communications Assistance for Law Enforcement Act). Don't all of you find it weird that under this act ISPs are treated as common carriers for the purposes of wiretaps and information gathering. If it's good enough for law enforcement then why not for everything else? Maybe your Supreme Court can invoke one of its 'Looks like a duck, Quacks like a duck, rulings and rule once and for all that ISP are indeed common carriers.

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

  15. identicon
    Anonymous Coward, 7 Aug 2018 @ 12:47pm

    Re: Just logical follow-up by lawyers to a mooted point.

    I’m doing what another AC suggested and an reading all his rantings to the tune of Dani California.

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

  16. identicon
    Anonymous Coward, 7 Aug 2018 @ 2:38pm

    Re: Just logical follow-up by lawyers to a mooted point.

    I imagine you to be much like the Grinch in the live action version where he yells into his cave "I'm an idiot!", expecting to hear his echo yell back the same, but instead his echo replies back "You're an idiot!".

    This is not unlike your posts where you present supposed "gotcha's!" and smugly expect us to get owned by your superior intellect, only to have the entire TD community point out that you owned yourself instead of putting forth anything even remotely intelligent.

    Sadly I think it's too much to hope for that your heart would grow at all at the end of all this.

    To summarize: You're an idiot!

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

  17. identicon
    Anonymous Coward, 7 Aug 2018 @ 2:58pm

    Re: Never, at least not in regards to providing internet access.

    We find many things weird.

    Especially the assertion from anyone that internet access providers should be classified as anything other than common carriers and internet access as a telecommunications service. The mental gymnastics you have to do to reach this conclusion are mind boggling.

    Yet this is apparently the new reality we live in, where reality is determined by one's own view of it and mindset. Sadly, for all my attempts, I've yet to be able to conjure a sandwich out of mid-air by thinking it to be true. I guess I just must not believe enough.

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

  18. icon
    That One Guy (profile), 7 Aug 2018 @ 5:13pm

    Re:

    Have his other nominations also argued that network neutrality is a violation of the 'free speech' of ISP's in that it doesn't allow them to decide who gets a connection and who doesn't?

    If 'no', then no, it's not, because this one has made that argument.

    If 'yes', then that says more about his abysmal choice of nominations than it does this article.

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

  19. identicon
    Anonymous Coward, 7 Aug 2018 @ 5:40pm

    I knew I sacrificed NN when I voted for DJT. There were too many other issues at stake. Sigh.

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

  20. identicon
    Pete, 7 Aug 2018 @ 9:03pm

    Re: Re: Never, at least not in regards to providing internet access.

    "Sadly, for all my attempts, I've yet to be able to conjure a sandwich out of mid-air by thinking it to be true. I guess I just must not believe enough."

    You need a lobbyist. With the right financial backing from your wallet, he/she could make it happen.

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

  21. This comment has been flagged by the community. Click here to show it
    identicon
    Animal jam, 8 Aug 2018 @ 1:22am

    Here the homepage for how to get free animal jam codes online.

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

  22. icon
    DerekCurrie (profile), 8 Aug 2018 @ 8:08am

    As Many Lies As It Takes!

    S.J.R. 34 was quite successful. (Senate Joint Resolution 34)

    https://www.congress.gov/bill/115th-congress/senate-joint-resolution/34/text

    'Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Federal Communications Commission relating to “Protecting the Privacy of Customers of Broadband and Other Telecommunications Services”'

    03/28/2017, Marsha Blackburn (R, Tennessee) was liar-in-chief on the floor of the House of Representatives. The lies told were that the FCC had no ability to regulate ISPs (internet service providers) and that the FTC (Federal Trade Commission) did. Both lies were caught out during debate. Liar Marsh Blackburn admitted to both. That didn't stop the House from approving the resolution. It was signed by The Trump 04/03/2017, effectively providing for NO oversight of ISP collection of customer data, NO oversight of citizen privacy required by the Fourth Amendment to the US Constitution. ISPs can, as a result, collect surveillance data of all customer behavior on the Internet. They can then sell that data to any interested parties or provide it upon request to law enforcement without warrant.

    IOW: Unconstitutional.

    Author of the resolution:
    Sen. Flake, Jeff (R, Arizona).

    Sponsors of the resolution:
    Sen. Johnson, Ron [R-WI], Sen. Barrasso, John [R-WY], Sen. Blunt, Roy [R-MO]*, Sen. Boozman, John [R-AR], Sen. Capito, Shelley Moore [R-WV], Sen. Cochran, Thad [R-MS], Sen. Cornyn, John [R-TX], Sen. Cotton, Tom [R-AR], Sen. Cruz, Ted [R-TX], Sen. Fischer, Deb [R-NE], Sen. Hatch, Orrin G. [R-UT], Sen. Heller, Dean [R-NV], Sen. Lee, Mike [R-UT], Sen. Paul, Rand [R-KY], Sen. Roberts, Pat [R-KS], Sen. Rubio, Marco [R-FL], Sen. Shelby, Richard C. [R-AL], Sen. Sullivan, Dan [R-AK], Sen. Thune, John [R-SD], Sen. Wicker, Roger F. [R-MS], Sen. Moran, Jerry [R-KS], Sen. McConnell, Mitch [R-KY], Sen. Rounds, Mike [R-SD].

    Would that all for voted for it (including many Democrats) were jailed for subverting the US Constitution. That would effectively 'drain the swamp.'

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

  23. icon
    Bergman (profile), 8 Aug 2018 @ 9:57am

    Re:

    Considering that net neutrality had strong bipartisan support as well as congress-critters on both sides opposing net neutrality, your comment at best makes no sense, and at worst makes you a partisan shill.

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


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