Legal Issues

by Karl Bode


Filed Under:
fcc, net neutrality, washington



Washington State Laughs At Federal Attack On State Net Neutrality Laws

from the good-luck-with-that dept

In the wake of the FCC's net neutrality repeal, nearly half of 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 giant ISPs like 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, some states aren't taking the FCC's threats very seriously, despite California being sued by both major ISPs and the Department of Justice. Washington State Governor Jay Inslee this week had some choice words for the Ajit Pai FCC:

“Bring it on. If the president sues us, we’ll be ready."

That sentiment was mirrored by Washington State Senator Rep. Drew Hansen at a panel in Seattle on Wednesday:

"At the state level, we’re still, to some extent, a functioning democracy and if you get a broad bipartisan coalition around standing up for a free and open internet, as it turns out, you can actually get that written into state law,” Hansen said."

While the worry is that the DOJ and ISP lawsuit against California will set precedent that ruins other state efforts on this front, numerous lawyers I've been speaking to over the last few weeks say the heart of these lawsuits rests on some very unsound legal footing. In short, when the FCC gave up its authority to seriously regulate broadband providers, it also gave up its authority to tell states what to do. As such, the preemption language ISPs convinced the FCC to embed in its "Restoring Internet Freedom" proposal isn't likely worth the paper it was printed on:

"An agency that has no power to regulate has no power to preempt the states, according to case law,” Stanford Law professor Barbara van Schewick said.

“When the FCC repealed the 2015 Open Internet Order, it said it had no power to regulate broadband internet access providers,” van Schewick said. “That means the FCC cannot prevent the states from adopting net neutrality protections because the FCC’s repeal order removed its authority to adopt such protections."

At best, lawyers believe the DOJ's lawsuit against California will only delay the state's law until the courts settle the looming, separate lawsuit against the FCC by 21 state AGs. So even if the broadband industry and FCC win that case, the attempt at state preemption isn't likely to stand. Even if it does, the broadband industry also has to find a way to prevent any future Congress and FCC from just passing tough rules again, which is why the industry is having their most loyal political allies (like Tennessee's Marsha Blackburn) push bogus net neutrality laws they write with a specific aim at crushing tougher state or federal efforts.

But even in the deepest swamps of DC a majority of politicians aren't dumb enough to sign off on such incredibly unpopular legislation, a sentiment that's only likely to grow after the midterms. Meanwhile, as ISPs (and the politicians paid to love them) continue to whine about the state effort to craft "discordant and fractured" state level laws, remember that none of this would be happening if those same politicians hadn't dismantled popular, modest, federal level net neutrality (and privacy) rules at the behest of giant, widely-despised telecom monopolies.


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  • identicon
    Anonymous Coward, 12 Oct 2018 @ 7:03am

    "He who breaks net neutrality must sit on the shards..."

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

  • identicon
    Anonymous Pussy, 12 Oct 2018 @ 8:15am

    The case will eventually land in Supreme Court, which will vote along party lines, guaranteeing victory for FCC.

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

  • identicon
    Anonymous Coward, 12 Oct 2018 @ 9:16am

    part of the problem that the ISPs and the FCC has seemed to of forgotten is that they lost the legal battle to pre-empt state law when it came the whole "one touch made ready" issue.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    D Bunked, 12 Oct 2018 @ 11:22am

    Laugh all want, but FCC choosing NOT to act IS its regulation.

    Doesn't mean that states step into a void, but that they'd be acting CONTRARY to FCC decision.

    In no way is it the legal sitch that the Fed gov't NOT acting in its area then allows states to do whatever wish in that area. Interstate commerce IS fed gov't area. Won't change. This'll just be more wasted effort.

    And for WHY do you keep running these pieces when there's NO harm evident yet? What's so compelling? (I ask the re-writer, since clearly few care. More will jump on my comment for ad hom than the four so far above.)

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

    • icon
      Stephen T. Stone (profile), 12 Oct 2018 @ 11:39am

      WHY do you keep running these pieces when there's NO harm evident yet?

      Because fools such as you believe there will never be any harm…up until you get punch in the face and end up regretting all your support for the entity that punched you. (Then again, maybe you enjoy getting decked in the schnoz.)

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

      • This comment has been flagged by the community. Click here to show it
        identicon
        D Bunked, 12 Oct 2018 @ 11:48am

        Laugh all want, but FCC choosing NOT to act IS its regulation

        Because fools such as you believe there will never be any harm…up until you get punch in the face and end up regretting all your support for the entity that punched you. (Then again, maybe you enjoy getting decked in the schnoz.)

        Apply that to Google, Facebook, Twitter. You've fallen for the notion that they're your political friends with same liberal agenda, but corporations are totally amoral. You're of zero value to them: power is all they want.

        I'm actually only commenting to point out that yet again, your schtick is to do a little personal attack, not address topic, nor the points that I make. -- Yes, I know you say my points aren't worth bothering with, but you do, just not directly, that's just part of your schtick to make it appear was answered.

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

        • identicon
          Anonymous Coward, 12 Oct 2018 @ 1:30pm

          Re:member when you left forever

          Why must you turn the forum into a house of lies!

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

        • icon
          Stephen T. Stone (profile), 12 Oct 2018 @ 1:59pm

          You've fallen for the notion that they're your political friends with same liberal agenda

          Not really. Because, as you put it…

          corporations are totally amoral.

          A corporate bigwig can claim their company is inclusive and supportive of “liberal” causes, but I take their word only so far as they can demonstrate their keeping it. Corporations are sociopathic entities by design; they cannot be “a friend” or “an ally” insofar as I can count on them to be there for me in such ways.

          As for the whole “apply that to Google, Facebook, Twitter” thing: I have little trust in these companies, and defending their right to Section 230 protections/choose what can and cannot be published on their platforms does not mean I think any better of them. I think the Westboro Baptist Church is an obscenely bigoted group to be pitied and ignored; my support for their First Amendment rights does not change that opinion.

          your schtick is to do a little personal attack, not address topic, nor the points that I make

          When you insult others first, it means I can stop being nice. If you want a discussion without the name-calling and the snark, by all means: Stop the name-calling and the snark, and I will give you the discussion you so desperately (and possibly sexually) desire.

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

        • identicon
          Anonymous Coward, 12 Oct 2018 @ 5:04pm

          Re: Laugh all want, but FCC choosing NOT to act IS its regulation

          Oh, corporations are completely amoral. That much is known.

          Which is why you love the RIAA, Comcast and Prenda so much, blue boy!

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

      • icon
        Toom1275 (profile), 12 Oct 2018 @ 12:23pm

        Re:

        Because fools such as you believe there will never be any harm

        Not only that, but the lie that "there wasn't any harm before" is often made knowingly.and deliberately.

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

    • icon
      Toom1275 (profile), 12 Oct 2018 @ 12:25pm

      Re: Laugh all want, but FCC choosing NOT to act IS its regulation.

      Said as though there were actually anything interstate covered by the state laws.

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

      • identicon
        Paul Brinker, 12 Oct 2018 @ 2:26pm

        Re: Re: Laugh all want, but FCC choosing NOT to act IS its regulation.

        Choosing not to act, while you have authority to ack, is one thing. The FCC said it has no authority to act, and that the FTC is the correct agency to act. As such the FCC should not be doing anything, the FTC should be the one saying "We've chosen to not regulate this area of the market".

        No such comment from the FTC has taken place yet, nor have they really agreed that they own the internet.

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

        • icon
          Killercool (profile), 12 Oct 2018 @ 7:46pm

          Re: Re: Re: Laugh all want, but FCC choosing NOT to act IS its regulation.

          Here's the thing - the FCC decided unilaterally that the internet wasn't their problem, and should be regulated by the FTC. It seems to me that only one of those declarations has any teeth to it.

          Someone can shirk their responsibilities all they want, that doesn't make it legal to call out a random third party as suddenly culpable for that decision.

          What I'm saying is, did the FTC ever agree that they are, in fact, over the internet, or (barring that) has Congress made such a declaration? If not, I don't see how the FTC has any need to touch this situation with a 10-ft pole.

          Your game of hot potato is pointless if the person you chuck it at refuse to catch.

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

  • identicon
    Anonymous Coward, 12 Oct 2018 @ 11:23am

    Never know what them wacky feds'll get up to.

    "An agency that has no power to regulate has no power to preempt the states, according to case law."

    Neither case law nor the Constitution itself has any provision that precludes a State's right to withdraw from the Union, but the Federal Government decided it could wage war on the basis of just such a premise.

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

    • identicon
      Anonymous Coward, 12 Oct 2018 @ 12:40pm

      Re: Never know what them wacky feds'll get up to.

      the Federal Government decided it could wage war on the basis of just such a premise.

      That's an odd complaint. The US can wage war on any foreign body. Why would an ex-state differ?

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

    • icon
      Killercool (profile), 12 Oct 2018 @ 7:55pm

      Re: Never know what them wacky feds'll get up to.

      Actually, "case law" has decided exactly that. The 1868 Supreme Court found that, as the Constitution only had provisions for joining, it was intended to be a one way trip. No take-backs, no erasies, triple-stamped it, touch blue make it true. However, with a big enough vote, you can get KICKED out.

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

  • icon
    Coyne Tibbets (profile), 12 Oct 2018 @ 10:35pm

    Gangland sophistry

    Never underestimate the sophistry of the gang that fostered the FCC repeal. Be prepared for SCOTUS (now operated by the same gang) to rule that the FCC was correct in its repeal...and then to rule that, somehow, the FCC can also magically overrule the states.

    This would follow the old adage: What one hand giveth [to the ISPs] the other hand also giveth [to the ISPs].

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

  • identicon
    Anonymous Coward, 13 Oct 2018 @ 2:47pm

    How long before Comcast, AT&T and Verizon pay to have more politicians that won't accept bribes, "taken care of" (i.e. assassinated)?

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

  • identicon
    tempest, 13 Oct 2018 @ 9:03pm

    I think the FCC is forgetting something. The FCC cannot revoke the sovereign rights of any state in North America from creating laws that each state governs. The FCC is also forgetting that it doesn't laws. Congress passes a bill and the president signs it into law. The FCC does not have the legal authority to restrict states rights to pass their own laws governing something like Net Neutrality when The FCC has already said it would no longer get involved with regulating telecommunications markets.

    The FCC simply cannot revoke a state's sovereign rights to govern its people. Each state has the authority to pass laws within their state. Before a state's sovereign rights could even be revoked, it would have to go through congress first.

    Not only that, but The FCC telling states it cannot pass a certain law is unconstitutional because a federal agency is now telling states what it can or can't do. Look for this argument not to withstand a constitutional challenge at the U.S. Supreme Court.

    More than that, there are more than 20 states currently suing the FCC over their repeal of the rules. States that are involved in the suit are: District of Columbia and New York, California, Virginia, Illinois, Pennsylvania, Connecticut, Delaware, Hawaii, Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Mississippi, New Mexico, North Carolina, Oregon, Rhode Island, Vermont and Washington.

    Even if the courts keep finding for The FCC, it's not bound to survive the Supreme Court.

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


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