The Entire Broadband Industry Just Sued California For Daring To Protect Net Neutrality

from the flimsy-legal-theories dept

As expected, the broadband industry filed suit against the state of California today over the state's shiny new net neutrality law. The lawsuit (pdf), filed in US District Court for the Eastern District of California, echoes many of the same arguments made in the DOJ's own recent lawsuit against the state. For a moment, let's just stop and pause to appreciate the fact that the federal government is now, with zero pretense, officially working hand in hand with some of the least-liked monopolies in America to ensure their right to be able to screw you over.

It if it wasn't so obnoxious with so many far-reaching impacts on consumer welfare, internet health, and competition--it could be deemed high art.

ISP lawyers argue California's state law violates the dormant commerce clause of the Constitution (they've previously, unsuccessfully, tried to argue that net neutrality also violates their First Amendment rights). Both lawsuits rely heavily on language embedded in the FCC's net neutrality repeal (at direct Comcast and Verizon lobbyist behest) attempting to prohibit states from stepping in and filling the consumer protection void. This "preemption" language, the broadband industry insists, directly prohibits states from protecting consumers from bumbling telecom monopolies:

"This case presents a classic example of unconstitutional state regulation. The State of California has enacted SB-822, entitled the "California Internet Consumer Protection and Net Neutrality Act of 2018,” directly regulating the provision of broadband Internet access services (“BIAS”).

This statute was purposefully intended to countermand and undermine federal law by imposing on BIAS the very same regulations that the Federal Communications Commission (“FCC”) expressly repealed in its 2018 Restoring Internet Freedom Order (and by adopting even more restrictive regulations), despite the fact that both the FCC decision and the federal Communications Act of 1934, as amended (“Communications Act”), prohibit states from taking such action with respect to jurisdictionally interstate services like BIAS."

Shockingly, there are a few things here the industry is being misleading about. One, the industry likes to conflate "internet access services" with the internet itself. The former has always been regulated via joint cooperation between the federal and state government, which is why you have things like local public service commissions that regulate things like pole attachment, local franchising, and some privacy issues. There is no part of the Telecom Act that prohibits states from protecting consumers, and that was even something courts made clear in the net neutrality court cases the industry recently lost on this very subject.

The problem for ISPs, as numerous net neutrality legal experts have pointed out repeatedly, is that (ironically) when the FCC gave up its authority to regulate broadband providers by rolling back their classification of ISPs as common carriers, they also eliminated their right to tell states what to do. ISPs like Charter Communications have already tried to lean on this language to dodge state lawsuits over terrible service, and it hasn't gone well for them.

The cooperative lawsuits between the Trump DOJ and numerous ISP lobbying organizations gives you a pretty solid understanding of how worried the industry is about California's new law, which largely just reflects the 2015 FCC rules industry spent millions of dollars to repeal. Obviously ISPs can't just admit they don't want government preventing them from abusing a lack of broadband competition to overcharge consumers and (further) hamstring competitors, so groups like the CTIA issued statements trying to hold the industry up as a pillar of integrity on the assumption you're all aggressively dimwitted:

"The nation’s broadband providers are the innovation engine of America’s digital economy and remain committed to an open internet for consumers. We oppose California’s action to regulate internet access because it threatens to negatively affect services for millions of consumers and harm new investment and economic growth."

There is, if you're playing along at home, literally nothing in that statement is true. Claims that net neutrality hurts investment have been soundly and repeatedly debunked by the industry's own financial data and statements, and anybody believing Comcast and AT&T truly care about an "open internet for consumers" after the years of nonsense they've pulled on this subject should most assuredly avoid operating heavy machinery.

At best, the industry hopes to buy itself some time ahead of the looming lawsuit by 23 State Attorneys General, which will hope to show how the FCC engaged in all manner of unethical nonsense as it rushed to give the broadband industry a sloppy kiss last fall. Even if they win that lawsuit, numerous legal experts I've talked to consistently doubt the state preemption language holds up in court, since a regulatory agency that has abdicated its authority to regulate, can't then step in and prevent the states from doing so themselves.

And even if the broadband industry wins both the FCC legal fight and the state level battle (finding an idiotic or compromised judge is never out of the question), they still have to find a way to stop some future FCC or Congress from passing new net neutrality rules, an obvious threat given the likely, looming political sea change. That's why the industry is simultaneously pushing for a new federal net neutrality law; but only one that it has written in a bid to get something on the books that preempts tougher state or federal guidelines. Congress isn't buying, and isn't likely to after the midterms, either.

Sure, the federal government under both parties has long coddled the telecom sector by turning the other cheek as ISPs aggressively erode competition and consumer choice at every opportunity, saddle you with bogus fees, and generally misbehave. But this synchronous government/industry assault on consumers, consumer protections, state rights and democratic process is officially taking things to an entirely new level of corrupt dysfunction, all under the banner of purportedly "restoring internet freedom." If you believe what they're selling, I've got a cornucopia of used bridges and swampland I think you'll find irresistible.


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  • identicon
    Dave, 3 Oct 2018 @ 1:53pm

    Because of course it would.

    Every big corporation sends a huge message to the world to not fuck with its profits. This is just the latest example.

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

    • identicon
      Anonymous Coward, 3 Oct 2018 @ 2:03pm

      Re: Because of course it would.

      When those profits fuck with people's lives, it behooves the world to send a message to the corporations to fuck off and die.

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

      • identicon
        Dave, 3 Oct 2018 @ 3:20pm

        Re: Re: Because of course it would.

        Well, defence contractors fuck with people's lives for profit every day, and they show no sign of going anywhere.

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

        • identicon
          38Super, 4 Oct 2018 @ 2:57pm

          Re: Re: Re: Because of course it would.

          Those defense contractors and national laboratories also supplied us with the technology to win the Cold War without firing a shot. That alone saved untold millions of lives which to me at any rate, represents quite a profit, and maybe even a bonus.
          Sure it cost a few bucks but as veteran of the U.S. Navy and thirty plus year Los Alamos retiree I don't mind dropping a few bucks if it saves lives. Particularly when those lives are those of my buddies and myself.
          Rich in New Mexico.

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

  • identicon
    Anonymous Coward, 3 Oct 2018 @ 2:04pm

    At this point Comcast should just arm its cable repair staff and start murdering customers and stealing their wallets and stuff.

    It's what they want after all. They don't give two shits about customers or service.

    Hell, they bought the (failing) Sky TV which is down to a couple of million viewers (from a high of 12 million).

    Although it WAS funny to see them get screwed over, as Sky lies about its subscriber numbers, artificially inflating anyone that purchases a SINGLE football match or movie as a "long-term" full subscriber!

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

  • identicon
    Iggy, 3 Oct 2018 @ 2:07pm

    An "engine of innovation"? HAHAHA, if these telecoms were anywhere near as innovative as Google, Amazon, or Apple, we'd have free gigabit connections by now.

    It took lawsuits just to get third party phones to connect to the phone network. It took a DOJ breakup of Bell just to make low cost calls possible. In 1995, Bill Gates predicted TV over Internet, but its only in the last few years did speeds catch up and it took the 2015 Open Internet Order protect online TV from throttling.

    The industry is all but anti progress. Comparing them to innovative companies is laughable.

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

    • icon
      Anonymous Anonymous Coward (profile), 3 Oct 2018 @ 2:37pm

      Re:

      "The nation’s broadband providers are the innovation engine of America’s digital economy and remain committed to an open internet for consumers."

      The dumb pipe (well they're supposed to be dumb pipes) providers are not innovators. Platforms are. The only thing innovative about broadband providers are the new ways they come up with to lie, cover their lies, and screw over their own customers. That is if you don't consider 4G and 5G as innovative. Maybe they did some monkeying around with DSL to improve performance, but then let it rot in the ground.

      They only get away with this because they have 'innovatively' created ways to block competition through regulatory capture via the use of hard and soft money (aka bribes) to legislators and other government officials.

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

    • identicon
      Anonymous Coward, 3 Oct 2018 @ 3:38pm

      Re:

      Congress - the opposite of progress

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

    • identicon
      Anonymous Coward, 4 Oct 2018 @ 5:22am

      Re:

      "It took a DOJ breakup of Bell just to make low cost calls possible."

      This isn't true.

      The break-up of AT&T is *precisely* why you're seeing these cost increases today.

      What people don't remember is that AT&T wasn't forcing the prices up: states were, as each charged an "interstate access" fee for calls traveling through imaginary borders set up by the states.

      So lucrative were these fees, states started increasing the number of zones.

      Anyone who's lived in Indiana after the AT&T breakup knows this first hand (as well as other states) as the state refused to remove its "local long distance" boundaries a full 4 years after AT&T was split.

      I'm certainly not defending AT&T (past and present), but it sickens me when people think the whole "monopoly" fiasco of telecom was because AT&T was charging "too much".

      Once MCI pushed against the anti-trust of AT&T, the rest is, as they say, history.

      People are paying more for phone service today than they were with AT&T back then (inflation adjusted).

      All because "monopoly" was bad.

      What really sucks is the bad wrap AT&T got for it, despite:
      - Integrating the fastest deployment of communication lines in US history

      - Revolutionizing technology not once, but twice, first with the introduction of electronic switchboxes (which lead to the push button phone) but again with multi-channel line servicing allowing more people to use the same line without crossover or interference (packets, as the internet calls it now)

      - Lowest cost phone service to consumers, before MCI broke it up.

      I should also point out California had one of the most egregious service fee boundaries in the US, where citizens would often pay the fee twice just to make calls from the northern part of the state to the southern.

      Maybe this is retribution for screwing over people back then.

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

  • icon
    Jak Crow (profile), 3 Oct 2018 @ 2:18pm

    Not quite

    Let's be clear, the entire broadband industry didn't sue California. The big ISPs run by the bells and cableco did. The independent ISPs Like Sonic.net aren't part of this.

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

  • icon
    Ninja (profile), 3 Oct 2018 @ 2:20pm

    Ah the smell of panic. Awesome. I have zero sympathy towards the big telcos. If they are yelling it's awful then it must be good.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    I Doutit, 3 Oct 2018 @ 2:27pm

    "literally nothing in that statement is true" - Not even OPPOSE?

    So, you claim they DON'T oppose California's action? Either you over-reached with verbiage or you're contradicting self. -- Both, in fact.

    Anyhoo, my advice since don't like current ISPs and think you know better, is to do what several here advised regarding Internet Corps controlling "social media": BUY YOUR OWN EQUIPMENT AND RUN IT AS YOU PLEASE. -- And it'd have same result of being shunted off into obscurity since won't be able to easily connect to teh internets except major carriers locally, though of course can lay fiber to a major hub...

    Or, like those here who advised Google after GDPR to just get out of Europe: these ISPs should just disconnect California until legislators repeal this. -- Oh, but then you'd all shriek "monopoly!", "cartel!", "restraint of trade!", and claim that The Public should control them...

    Or, you could have faith in "capitalism" as claim you do and expect other corps to enter the market... Oh, NOW you shriek "not practical, natural monopoly!"

    Oy. Of course you're not going to admit how silly those suggestions are, nor how the current system is practical, and that regardless of flaws, it doesn't need much change.

    In fact with "net neutrality", worst you're predicting is higher rates and control by corporations other than Google / Facebook, the ones you don't mind being controlled by.

    So you kids are just doomed to whining.

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

    • identicon
      bob, 3 Oct 2018 @ 2:37pm

      Re: "literally nothing in that statement is true" - Not even OPPOSE?

      If ISP(s) just left a state, there would be some telecommunication problems for sure. Then a bunch of other smaller ISPs would come rushing in to setup shop and we would finally have competition in the ISP sector.

      Really the only down side would be the initial disruption of service and its many ripple effects.

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

      • identicon
        Anonymous Coward, 3 Oct 2018 @ 2:51pm

        Re: Re: "literally nothing in that statement is true" - Not even OPPOSE?

        California with a large part of the phone system and Internet switched off, even for a few days, would would suffer a major disaster as government and business shutdown. I mean how do people buy anything if their credit and debit card no longer work.

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

        • identicon
          Anonymous Coward, 4 Oct 2018 @ 4:54pm

          Re: Re: Re: "literally nothing in that statement is true" - Not even OPPOSE?

          That's stupid and uneducated idiocy.

          If you shut California off from the rest of the world's communications, pretty much the entire world would just shutdown (communications wise) as massive amounts of the world relies on Californian businesses for their core technology.

          Never mind Google et. al. Visa's HQ is in Silly Valley. So are a bunch of mission critical companies you've never heard of...

          As for California itself? It would be just fine. Makes all it's own food, most of it's power and quite a lot of telco connections to the rest of the world.

          You may not like California, it's politics or the people living there, but much of the world's infrastructure is heavily dependent on what is produced and manage from there....

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

    • identicon
      Anonymous Coward, 3 Oct 2018 @ 2:49pm

      Re: "literally nothing in that statement is true" - Not even OPPOSE?

      Even your logical inconsistencies are inconsistent. But what can you expect from someone who has admitted to being a professional troll and liar.

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

    • icon
      Jak Crow (profile), 3 Oct 2018 @ 2:56pm

      Re: "literally nothing in that statement is true" - Not even OPPOSE?

      Do these guys have a list of industry talking points they need to use when the subject comes up?

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

    • identicon
      rk57957, 3 Oct 2018 @ 3:26pm

      Re: "literally nothing in that statement is true" - Not even OPPOSE?

      >BUY YOUR OWN EQUIPMENT AND RUN IT AS YOU PLEASE.

      Here is the thing, I can't because fucking AT&T has gone out of it's way to make sure there isn't competition. Even if I wanted to buy my own equipment and wanted to start my own ISP I'd have to run cable and even though the city (not AT&T) owns 80% of the poles AT&T has wielded bureaucracy with such frightful precision that it takes 90 days for them to move their equipment on the pole they don't own so someone else can connect to it ... oh and then it takes another 90 days for them to move the equipment on the next pole so in a full year I can connect 4 fucking poles. In two years I could actually make it from my house to the closest main street. Eventually I'd be able to make it to an edge provider ... maybe in 10 years or so.

      And if that sounds fucking ridiculous it is, because AT&T protested that doing multiple poles at once was too burdensome and they could only do them one at a fucking time ever 90 days.

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

      • icon
        Ninja (profile), 4 Oct 2018 @ 6:34am

        Re: Re: "literally nothing in that statement is true" - Not even OPPOSE?

        Ouch, no mercy towards the troll eh?

        I'd really love to hear from said troll on this issue. But given the lack of reply I doubt I ever will.

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

    • identicon
      Anonymous Coward, 3 Oct 2018 @ 3:27pm

      “So you kids are just doomed to whining.”

      He whined.

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

    • identicon
      Anonymous Coward, 3 Oct 2018 @ 4:01pm

      Re: "literally nothing in that statement is true" - Not even OPPOSE?

      Who knew that the fifth-largest economy in the world passing net neutrality legislation was just "whining?"

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

      • identicon
        Anonymous Coward, 3 Oct 2018 @ 5:16pm

        Re: Re: "literally nothing in that statement is true" - Not even OPPOSE?

        Yeah, you'd think that if they were just whining, ISPs wouldn't be pissing their pants like this.

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

  • identicon
    Anonymous Coward, 3 Oct 2018 @ 2:40pm

    This could backfire monumentally. If California wins, then you can bet your ass NN will become the next go-to "think of the children" hot button topic across the country. Every State across the union will have their own laws. Talk about a nightmare situation for the ISP's....They would have been better off trying to take the high road, just admit they fucked up when they destroyed NN at a Federal level, and let the issue die.

    Brings to mind the old saying; Never interrupt the enemy when they are making a mistake.

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

    • icon
      Jak Crow (profile), 3 Oct 2018 @ 2:54pm

      Re:

      That's one of the major effects of the CA NN law. It's going to force the fed to either deal with the headache of multiple states NN laws or actually implement real NN on a national level instead of the transparent handouts to the industry.

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

      • icon
        Uriel-238 (profile), 3 Oct 2018 @ 10:54pm

        Let the states pass their own laws.

        At this point I've developed a taste for well-aged corporate schadenfreude.

        Let them deal with fifty different sets of ISP end-user protection rules. Heck, maybe some states might want to do it county-by-county or parish-by-parish.

        In ten, twenty years we can offer to nationalize it. Maybe they'll jump for the chance.

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

    • identicon
      Anonymous Coward, 3 Oct 2018 @ 2:56pm

      Re:

      Why is it, necessarily, a disaster? It could become one but some seem to think it is inevitable.

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

      • identicon
        Anonymous Coward, 3 Oct 2018 @ 4:40pm

        Re: Re:

        Many states will end up copying what California has done and if half the states are doing it, you might as an ISP do the same everywhere else on your own before they also throw up their own rules.

        Really, they did this to themselves. They've gotten their way for so long, they screwed up!!! So focused on getting the Federal Government to give up its powers, they forget that what the Federal Government is not controlling, gives the states back their own powers and they'll do what they want if they feel they need to.

        The GOvernment can't stop it. They no longer have any power to stop it from happening. California will end up winning and the federal government and these ISP's will lose.

        The government created these Monopolies. Because these company's said it had to be this way. Once they got all this power and started writing all the laws to give them more control, they've been screwing over the people ever since, and it's just gotten worse and worse.

        I'm all for smaller Government, and GOvernment getting out of the way, so as soon as we have a free and open market where ANY COmpany can easily come in and start up an ISP and be able to run their cables where ever they want to easily, and have Comcast and TWC and everyone else in every city and town, I'd be right there telling the Government to throw out Net Neutrality and get out of the F'in way!!!! Let the free Market work!!! We don't have that now. The closest we came to that was way back for Dial-Up service. You could buy your modem from whoever, plug it in and sign up to one of many company's for your ISP service needs.

        What I really think should be done is the City's themselves run the Fiber everywhere. Then Comcast and others can come in and pay a fee to the city for use of that line, and a fee for each person using the system. That money goes to pay for the Fiber Network and to maintain that fiber Network. It doesn't go into the City's general fund to be use on anything while the network rots away from lack of maintenance.

        Then TWC, Comcast and anyone else. Even YOU could setup service, charge anything you want. For whatever speeds you want to support. have Caps or No Caps, and however good of Customer service, etc you want. Anyone can go to the store and buy whoever's Fiber Modem they want, Plug it in can call anyone they want for service in that area.

        So far these company's have pretty much Stopped this from happening.

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

        • icon
          Anonymous Anonymous Coward (profile), 3 Oct 2018 @ 4:55pm

          Re: Re: Re:

          Everyone would probably be better off if we separated the infrastructure from the ISP's. Running multiple cables doesn't seem like a great idea, in the end we all pay for that overbuilding. Make it so that each customer gets to choose their ISP and all ISP's use the same infrastructure, and pay some modest amount for infrastructure upkeep. Then run fiber to every resident except for those who are very far from anyone. I hear they have some different solutions for those folks that isn't practical for the bulk of the population.

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

        • identicon
          Anonymous Coward, 4 Oct 2018 @ 4:37am

          Re: Re: Re:

          >here ANY COmpany can easily come in and start up an ISP and be able to run their cables where ever they want to easily,

          How many poles outside your house is too many? How many in your yard? How much will you pay for service, because every duplication of infrastructure increases the prices, as they have a smaller share of the customers for the same outlay.

          Infrastructure is expensive and intrusive, which is why Telcoms, water, electricity etc are all natural monopolies.

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

        • identicon
          Anonymous Coward, 4 Oct 2018 @ 7:07am

          Re: Re: Re:

          That's all fine and dandy, but to just give up ... ?

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

    • icon
      That One Guy (profile), 3 Oct 2018 @ 6:30pm

      'My foot hurts!' shouted the person who just shot it

      They would have been better off trying to take the high road, just admit they fucked up when they destroyed NN at a Federal level, and let the issue die.

      Or, even better, not sued to overturn the previous rules that caused the FCC to introduce actual NN rules, which upon being overturned then resulted in the states picking up the slack.

      That's the best part of the schadenfreude here, the problem the broadband industry is facing is entirely self-inflicted. Had they just left well enough alone they'd still be dealing with the weaker rules, but no, they just could not stand the idea of any regulations impeding their greedy hands and as such kicked off the whole mess, which they are now whining like spoiled children about.

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

  • icon
    Rico R. (profile), 3 Oct 2018 @ 5:20pm

    Funny how ISPs are calling themselves BIAS, as they clearly are showing how biased they are against the free and open internet they want to "protect"!

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

  • icon
    ECA (profile), 4 Oct 2018 @ 2:13pm

    TIME..

    Lets ask something stupid..
    Is this REALLY federal? NOT really. its only in California. it has little to NO affect on others.

    How much does it cost to Run lines around the area?? these lines have been installed on poles for ALONG time..is there a RENT/LEASE to pay for this?? lets start charging them.. If the services wish to over CHARGE, then let the STATE over charge FIRST...AND as they did with not allowing STATES to regulate..FORCE the Charges to be on PROFITS ONLY, and not transferable to the customer.

    Gov. has no regulation over STATE laws. Its only based on Constitution.. and WHY laws change from state to state on Guns, Alcohol, tobacco, Drugs, Traffic laws and soforth.. And WHY crossing state lines is very fun.

    Anyone notice that Cellphones are being charge tax on state level?? It WAS on a profit margin After the purchase..

    Good luck folks..

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

  • identicon
    Anonymous Coward, 8 Oct 2018 @ 8:37am

    Adapt or die, ISPs.

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


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