by Karl Bode

Filed Under:
broadband, net neutrality, vermont

ctia, ncta, ustelecom

Broadband Industry Sues Vermont For Daring To Protect Consumers, Net Neutrality

from the ill-communication dept

As we've made pretty clear, the broadband industry is successfully obliterating most meaningful federal and state oversight of their broken, largely uncompetitive broadband monopolies. They've had great success in convincing the Trump administration to effectively neuter the FCC, driving any piddly, remaining enforcement authority to an FTC that's ill-equipped for the job. At the same time, the federal government and ISPs like Comcast are also waging a not-so-subtle and completely coordinated war on state authority to step in and fill the consumer protection void.

Earlier this month, the entire broadband industry, hand in hand with the Trump DOJ, filed lawsuits against the state of California for passing a net neutrality law the majority of the public supports. This week broadband industry lobbying organizations like US Telecom (primarily funded and directed by AT&T) filed suit against the state of Vermont (pdf), again claiming that the state's new net neutrality law is prohibited by the legally dubious "pre-emption" language embedded in the FCC's net neutrality repeal at direct telecom lobbyist request.

I've discussed at length here and elsewhere why these efforts aren't likely to work: the simple version being that when an agency (in this case the FCC) abdicates its authority to regulate an industry (which the FCC did with its rollback of Title II classification of ISPs under the Telecom Act), it also eliminates its right to tell states what to do. This isn't a nuanced debate; I've been hard pressed to find a single telecom lawyer that thinks the FCC's state pre-emption efforts are on sound legal footing. It's generally seen as a delay tactic to prevent states from protecting users until the looming suit against the FCC is settled.

The lawsuit against Vermont parrots the oft-repeated falsehood that the FCC justly dismantled net neutrality because it was stifling sector investment, a claim that has indisputably and repeatedly been proven false. From the complaint:

"Capital investment in broadband actually declined when the Title II Order went into effect, but increased dramatically after the FCC announced its intent to repeal that order. By lifting the burdens imposed by Title II regulation, the Restoring Internet Freedom Order opens the way for providers to freely invest in crucial broadband infrastructure and experiment with new business models."

The reason Pai's FCC and broadband ISPs keep lying about this purported dip in investment (which SEC filings, CEO statements, and earning reports disprove) is because it's a violation of the Administrative Procedure Act to massively overhaul regulatory policy without basing it on hard facts and data. And since the FCC's repeal was based largely on bogus lobbyist-provided nonsense, they've been forced to make up a legitimate-sounding justification for the FCC's mindless ass kissing delivered unto some of the most disliked and anti-competitive companies in America. This will be a cornerstone of the looming lawsuits against the FCC.

In a statement, US Telecom clings to the usual claim that it's only suing to kill net neutrality because it truly adores an open internet:

"Broadband providers are united in support of an open internet and committed to delivering the content and services consumers demand. We oppose the actions in Vermont because states cannot use their spending and procurement authority to bypass federal laws they do not like. A 50-state patchwork approach threatens service for customers, hampers innovation and dampens investment in local communities, which is why Congress should adopt a permanent, enforceable, national framework to safeguard an open internet for all Americans."

Again, the telecom lobby forgets to mention that we wouldn't be looking at a "50 state patchwork approach" if they hadn't sued to kill arguably modest federal protections, making this a problem of the industry's own making. Also: remember when respecting state rights was a thing?

Telecom lobbyists want to stall these state-level rules from taking effect until the looming lawsuits against the FCC (by 23 state AGs and companies like Mozilla) is settled. After that, they're hoping to pass some flavor of flimsy law they write that will enshrine weak protections into law, preventing tougher state or federal protections. But given the overwhelming anger at the telecom sector right now, combined with a likely looming political sea change, a lot of the industry's biggest allies may soon find their political careers in jeopardy, leaving the industry with fewer allies than ever.

And while the inevitable policy and regulatory backlash that will hit the industry could be a few years in coming, when it does arrive it will be hard to argue that it wasn't incredibly well earned by Comcast, AT&T and friends.

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  • identicon
    Anonymous Coward, 22 Oct 2018 @ 7:04am

    I personally hope for somebody to get jail time.

    I know this is unlikely, but I'm allowing myself to dream.

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

  • icon
    That One Guy (profile), 22 Oct 2018 @ 8:01am

    A damning level of argument

    It's telling that all they have to defend their position are lies and self-inflicted wounds.

    "Title II decimated investment!"

    No, no it didn't, and if it did then it would seem that more than a few broadband execs/companies needs to be investigated for lying to their investors(who, unlike the general public they are not supposed to lie to) and in SEC reports.

    "50 different sets of rules would be a huge problem to deal with!"

    Well maybe you should have thought of that before killing the single, modest set of federal rules.

    It would be nice for the judge to point one or both of these out, but even if they don't twist the knife that much if this is the level of their argument then I would hope that the case is all but laughed out of court, because to call it 'pathetic' is a serious understatement.

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

  • identicon
    TDR, 22 Oct 2018 @ 8:21am

    The lawsuits against them have been "looming" all year. When are they actually going to start?

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

  • This comment has been flagged by the community. Click here to show it
    Bhaskar Jyoti Bhuyan, 22 Oct 2018 @ 9:30am

    They've already started.

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

    • identicon
      TDR, 22 Oct 2018 @ 10:50am


      Then why do they keep being referred to as "looming"? That word means imminent but not yet arrived.

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

      • identicon
        Anonymous Coward, 22 Oct 2018 @ 10:54am

        Re: Re:

        Probably because they are not yet concluded. While the process is started, until the lawsuit is settled or a ruling is brought, it's inconclusive. While the use of the word "looming" would, yes, seem to indicate the lawsuit is inbound, in this context it would be more appropriately termed the "looming conclusion to the" etc.

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

  • identicon
    Anonymous Coward, 22 Oct 2018 @ 9:54am

    While in general I think the telecom industry brought this on themselves, I think their argument holds more water in the California case than in this one. The CA case involves an actual net neutrality law.

    The VT case involves a law that says "if you want to do business with the State, you need to follow NN guidelines." The providers can simply choose not to do business with the State if they don't want to meet those standards. They mention it in passing in P. 10 of the filing but then mischaracterize it:

    The State cannot escape the preemptive force of the 2018 Order and federal law more broadly by claiming that it is merely exercising its spending power like any private market participant. The Executive Order and S. 289 expressly regulate ISPs’ provision of service to all customers throughout the State, not just to government customers and contracts.

    The giant hole in their case is what they leave out of the second sentence there: the Order expressly regulates ONLY IF the plaintiffs are vendors to the State. If they're not, the law doesn't affect them at all.

    I don't see how it's any different than if the State said to a car manufacturer, "we won't do business with you if you assemble your cars outside of the US."

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

    • icon
      R.H. (profile), 22 Oct 2018 @ 12:37pm


      Then the ISP's run into the problem of the state realizing that for some, if not all, of their locations they have no choice except for certain NN abusing ISPs for service and therefore deciding to set up municipal broadband service to avoid violating their own law. This may be why the ISPs are trying to attack this type of law too.

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

  • icon
    ECA (profile), 22 Oct 2018 @ 12:24pm

    Lets really scare them..

    As 90% of the features and abilities rely on 1 Major thing, created and PAID FOR BY CITIZENS..
    Why dont we tell them to consolidate it all into 1 and WE PAY only for 1 service rather then 3-4 individually..

    Lets force them to consolidate Cellphones, Phones, Internet, CABLE/SAT TV and everything ELSE on the main system backbone..That they are controlling. then make the Whole thing available in 1 signal path to every home in the USA..

    they have taken 1 tech, SLOWED/restricted its pace, and split its Options into Multiple parts and are charging for it...Like pieces of PIE...when it can all be installed in 1 package at everyones home.

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

  • identicon
    Anonymous Coward, 23 Oct 2018 @ 7:09am

    When the broadband industry loses this battle, do they then have to re-reimburse the tax payers of Vermont?

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

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