DOJ Continues Its Quest To Kill Net Neutrality (And Consumer Protection In General) In California

from the who-needs-monopoly-oversight? dept

After the FCC effectively neutered itself at telecom lobbyist behest, numerous states jumped in to fill the consumer protection void. As a result, California, in 2018, passed some net neutrality rules that largely mirrored the FCC's discarded consumer protections. Laughing at the concept of state rights, Bill Barr's DOJ immediately got to work protecting U.S. telecom monopolies and filed suit in a bid to vacate the rules.

The DOJ's central argument was that California's attempt to protect consumers was somehow "anti-consumer." And the lawsuit largely centered on language the FCC had included in its net neutrality repeal (again, at telecom lobbyist behest) attempting to ban states from filling the void created by the federal government no longer giving a damn. The courts so far haven't looked too kindly upon that logic, arguing that the FCC can't abdicate its authority over telecom, then try to lean on that non-existent authority to try to tell states what to do.

Last week California filed its first brief (pdf) in its legal battle with the DOJ. ISPs are seeking a preliminary injunction to prevent California from enforcing the rules during the lawsuit. Again though, their primary argument continues to be that states can't enforce net neutrality because the FCC said so. Which, as Stanford Professor Barbara van Schewick continues to point out, is still nonsense no matter how many times industry and the captured U.S. government repeat the claim:

"According to case law, an agency’s decision to deregulate can only block the states from stepping in when the agency has the power to regulate and decides not to use it.

But when the FCC eliminated net neutrality in 2018, it also removed its own authority over broadband providers. In essence, the agency decided that broadband providers are not telecommunications companies that simply shuttle data back and forth (like a telephone company), but information service providers which interact with and alter data, like a website.

This removed any authority that would have allowed the FCC to adopt net neutrality protections. Thus, the elimination of net neutrality did not establish a calibrated federal deregulatory regime, as the U.S. and the ISPs argue; it simply reflected the FCC’s lack of authority. Simply put, the FCC’s 2018 Order created a regulatory vacuum, and you can’t conflict with a vacuum."

Of course one of the reasons you stack the courts with unqualified sycophants and partisan yes men is so basic, fundamental logic doesn't apply. So as usual, while it's likely the courts will laugh at the telecom sector's efforts here, it's certainly not guaranteed. And while the press will cover this story as a "government lawsuit," make no mistake: this is AT&T, Verizon, and Comcast using the federal government as a hand puppet as they attempt to have their cake and eat it too. Namely, no real oversight on the state or federal level, and no pesky market competition to keep their worst impulses in check.

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Filed Under: california, doj, fcc, net neutrality, states rights


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  • identicon
    Glen, 22 Sep 2020 @ 7:37am

    So the Conservative argument was "Let the states decide" was a lie. I'm shocked. Shocked I say. /sarc.

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

  • icon
    Bloof (profile), 22 Sep 2020 @ 8:04am

    Another reminder, if any was needed, that a vote for the right is a vote against your interests.

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

    • icon
      That One Guy (profile), 22 Sep 2020 @ 8:16am

      Re:

      Sadly as several people in the comments have pointed out for far too many people that's not actually a workable argument, as something that screws them over is seen as perfectly fine so long as it screws over someone else they hate as well.

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

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 22 Sep 2020 @ 10:43am

      Re:

      Another reminder, if any was needed, that a vote for the left is a vote against your interests.

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

  • icon
    That One Guy (profile), 22 Sep 2020 @ 8:24am

    ... oops

    Imagine that, the 'small government' and 'states rights' crowd are only in favor of a small government when they don't want to control something, and state's rights only when those states are doing something they agree with, who could have ever seen that coming?

    If there's one silver lining here it's that Pai has got to be slamming his head on the desk in frustration, as his attempt to completely gut the agency he heads and let his past, arguably current, and future bosses have a regulation-free playing field kinda blew up in his face and left an opening for the states to take up the slack.

    By claiming that the FCC has no authority over telecom he also handed the argument to be used against him to his enemies(the public) on a silver platter, that being that he has no authority to tell others what they can't do either, and thankfully judges so far have been ruling accordingly.

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

  • identicon
    Anonymous Coward, 22 Sep 2020 @ 10:48am

    their primary argument continues to be that states can't enforce net neutrality because the FCC said so.

    So, like when the FCC originally said, "Net Neutrality", you just complied and were good corporate citizens, and then later the FCC arbitrarily decided that, "Simon says no net neutrality now".

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


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