California Poised To Defeat Broadband Industry In Scrum Over Net Neutrality

from the round-and-round-we-go dept

You'll recall that after the Trump FCC effectively neutered itself at telecom lobbyist behest in 2017, numerous states jumped in to fill the consumer protection void. Most notable among them being California, which 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, claiming they were "radical" and "illegal" (they were neither).

And while the broadband industry had a great run during the Trump era nabbing billions in tax breaks and regulatory handouts, that era appears to be at an end.

Earlier this month the Biden DOJ dropped its lawsuit against California, leaving the industry to stand alone. Now a Judge has refused the broadband industry's request for an injunction, allowing California to finally enforce its shiny new law. Worse (for the broadband sector), Mendez also made it very clear that while the case isn't over yet, the broadband industry isn't likely to win. He was also less than impressed by the broadband industry's claim that because the broadband industry has tried to behave as it awaits a legal outcome, that this somehow meant net neutrality rules weren't necessary:

"I have heard that argument and I don’t find it persuasive,” said Mendez. “It’s going to fall on deaf ears. Everyone has been on their best behavior since 2018, waiting for whatever happened in the DC Circuit [weighing the FCC’s repeal of net neutrality]. I don’t place weight on the argument that everything is fine and we don’t need to worry."

As we've noted a few times, there's a misinformed refrain in some tech policy circles that goes something like this: "the internet didn't immediately implode in a rainbow, therefore net neutrality's repeal must not have mattered." That's wrong for several reasons.

One, ISPs are still violating net neutrality, they're just being more clever about it (see: AT&T only charging you broadband overage fees if you use a competitor's service). Two, the only reason ISPs behaved half as well as they did is because they were awaiting a federal legal ruling, and worried about running afoul of state net neutrality rules. Three, killing net neutrality didn't just kill "net neutrality," it dismantled the FCC's consumer protection authority over everything from anticompetitive behavior to billing fraud. If you're applauding the government ignoring the public and neutering itself because some Comcast lobbyists told it to, you might not be half as clever as you think you are.

As you might expect, a coalition of broadband industry policy and lobbying organizations like US Telecom were quick to complain about the ruling, whining that it creates a haphazard patchwork of state protections:

"A state-by-state approach to Internet regulation will confuse consumers and deter innovation, just as the importance of broadband for all has never been more apparent,” a coalition of broadband industry organizations said in a joint statement. “We agree with the Court that a piecemeal approach is untenable and that Congress should codify rules for an open Internet."

Of course the only reason we're now looking at a fractured, state-by-state approach to consumer protection is because the broadband industry keeps suing to dismantle popular and modest federal rules. The industry sued (successfully) to kill the FCC's flimsy 2010 rules, despite the fact that had giant loopholes and didn't even cover wireless. Then, when the Wheeler FCC passed tougher rules (but still arguably thin by international standards), the industry sued again. When they lost that case, they got the Trump FCC to ignore the public and kill the rules, using an ocean of sleazy tactics--including paying firms to use fake and dead people--to pretend it was a good idea (something the press and some telecom policy wonks seems oddly intent on forgetting).

The industry has long proclaimed that it wants Congress to pass consistent rules to end this ongoing game of regulatory ping-pong at the FCC. Yet the industry knows full well that our gridlocked Congress is so slathered with telecom campaign contributions that's never going to happen. If a federal net neutrality law does get passed, it's extremely likely it will be ghost written by AT&T and Comcast. As a result it's inevitably going to include numerous loopholes and caveats, while pre-empting any tougher, more consensus-driven state or federal solutions. This exact same gamesmanship, it should be noted, is playing out simultaneously surrounding efforts to pass meaningful broadband privacy rules.

While the industry is likely to appeal any looming loss dragging this case out for much longer than needed, it likely isn't going to matter. There's every indication that the Biden FCC is going to restore net neutrality. But that can't happen until the Biden administration and Congress finally get around to appointing and seating a third Democratic FCC Commissioner, breaking the current 2-2 partisan Commissioner gridlock.

While policy wonks, the press, and the public are clearly fatigued by the endless legal skirmishes surrounding net neutrality, there's only one reason they continue: a broadband industry that has fought tooth and nail, using every gross tactic in their playbook, against even the most modest consumer protection guidelines. If the heavily monopolized US telecom industry truly wants to put this issue to bed, it could perhaps stop spending millions of dollars every year to dismantle even the most modest attempts at state or federal oversight.

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Filed Under: california, fcc, net neutrality


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  1. icon
    Samuel Abram (profile), 24 Feb 2021 @ 10:55am

    Mendez?

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

  2. icon
    Samuel Abram (profile), 24 Feb 2021 @ 10:56am

    Re: Mendez?

    Who's Mendez? Is Xavier Menendez the new Attorney General? Has he been confirmed? I'm confused.

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

  3. icon
    Samuel Abram (profile), 24 Feb 2021 @ 10:57am

    Re: Re: Mendez?

    Oh, never mind. It's from the link:

    U.S. District Court Judge John Mendez.

    Karl, I would appreciate you editing your TechDirt article so we're not kept in the dark. Thank you.

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

  4. icon
    ECA (profile), 24 Feb 2021 @ 11:33am

    Is it time for the trojan horse vs reality?

    Time to get the state to find someone to take over the Corps.
    At least the threat of it.
    'Who want to take over a CORP and make good money?'
    Not as much as the CEO and other WERE but we have to keep those jobs THEY had created working.
    Need to create NEW contracts, and everything from the ground up. Person hired Must know the inside out of these corps, and will get a Fair salary, around 1/4(? what? 1-10 million per year?) of what was paid recently.
    You will have to deal with the state regulatory. And get things fixed up to transfer to the State control.
    You will have the backing of This state and OTHERS to deal with the larger corps. CBS/NBC/FOX/all of them.

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

  5. identicon
    Anonymous Coward, 24 Feb 2021 @ 11:40am

    'If the heavily monopolized US telecom industry truly wants to put this issue to bed, it could perhaps stop spending millions of dollars every year to dismantle even the most modest attempts at state or federal oversight'
    and putting equal amounts into the pockets of certain politicians who cant do enough to screw the public over and keep the telecoms industries in complete control and having NO FUCKING COMPETITION!!

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

  6. identicon
    Dave, 24 Feb 2021 @ 11:50am

    The broadband industry is just going to appeal this decision to a higher court. And if going through the courts won't work, the industry will just steer its lobbying behemoth toward getting California's net neutrality law repealed.

    The big corporations will not stop applying this colossal force until they get what they want.

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

  7. icon
    That One Guy (profile), 24 Feb 2021 @ 12:14pm

    Are the rules 'we can do anything?' No? Then get rid of them.

    “We agree with the Court that a piecemeal approach is untenable and that Congress should codify rules for an open Internet."

    Gee, if only there had been a single set of rules put in place, rules that would have been the same across every state and cause none of that 'customer confusion' and 'harm to innovation'...

    I'd love it if they would just stop with the lying already and flat out admit that the only 'rules' they'll accept are ones that they themselves wrote, but I suppose so long as gullible or compromised individuals and 'reporters' keep parroting the lies there's no need to change.

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

  8. icon
    TaboToka (profile), 24 Feb 2021 @ 1:19pm

    because the broadband industry has tried to behave as it awaits a legal outcome, that this somehow meant net neutrality rules weren't necessary

    You Honor, as I have successfully refrained from murdering anyone for decades, laws against murder aren't necessary and should be repealed immediately.

    Further, a state-by-state approach to laws prohibiting murder will confuse law-abiding citizens and actually increase murder rates; it is too difficult and expensive to not murder someone at present.

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

  9. identicon
    Anonymous Coward, 24 Feb 2021 @ 1:51pm

    Re: Are the rules 'we can do anything?' No? Then get rid of them

    Gee, if only there had been a single set of rules put in place, rules that would have been the same across every state and cause none of that 'customer confusion' and 'harm to innovation'... - TOG

    I disagree, TOG. Laws are not regulations. Had a Net Neutrality law been passed, it would not (thereafter) be subject to the whims of the ruling political party. Or at least, not nearly so easily. You should be agreeing with what the "coalition of broadband industry organizations" put in their statement, however little they actually mean it.

    “We agree with the Court that a piecemeal approach is untenable and that Congress should codify rules for an open Internet." - broadband industry organizations

    So who was it again, who lobbied against the Save the Internet Act of 2019 such that it died in the Senate? Oh, yeah. You guys. Blowing smoke like that can give you cancer, you know.

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

  10. identicon
    Rocky, 24 Feb 2021 @ 2:33pm

    Re: Re: Are the rules 'we can do anything?' No? Then get rid of

    So who was it again, who lobbied against the Save the Internet Act of 2019 such that it died in the Senate? Oh, yeah. You guys. Blowing smoke like that can give you cancer, you know.

    Is "you guys" a synonym for telecom lobbyists and republicans?

    The house passed the bill, Mitch McConnel called the "net neutrality bill dead on arrival" and the WH at the time said the would veto it if it passed in the Senate.

    AFAIK no one here "lobbied" against the bill, what was said at the time was that it wasn't enough since it would allow zero-rating.

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

  11. icon
    That One Guy (profile), 24 Feb 2021 @ 2:47pm

    Re: Re: Are the rules 'we can do anything?' No? Then get rid of

    Laws can be revoked, amended or 'updated', so 'it can be changed therefore it doesn't count' doesn't undermine regulations any more than they do laws. As for changing a regulation on a whim that's not how it works either, one need only look at the lawsuits the FCC faced for trying to apply Title II and then revoking it when Pai was in charge to see that, because strangely enough it's considered a no-no to just change regulations without a good reason.

    You should be agreeing with what the "coalition of broadband industry organizations" put in their statement, however little they actually mean it.

    If I take a few dozen blows to the head and/or a bunch of drugs I might, because that's what it would take for me to believe that they're arguing in good faith and for the good of the public. It would be one thing if I believed that any such laws would have the public's best interest in mind, but given the only reason they want the process run through congress is because they own enough politicians in congress that any resulting bill might as well be(assuming it literally isn't) be written by those 'broadband industry organizations' I'll take regulations that might not be the greatest over laws that have been written by the ones they cover any day.

    So who was it again, who lobbied against the Save the Internet Act of 2019 such that it died in the Senate?

    You mean the one that then Senate Majority Leader Mitch McConnel called 'dead on arrival', and that got a whopping one republican vote in the house, suggesting rather strongly that it would get nowhere in the senate and that if they wanted anything to be done they'd have to try something else? That one that democrats 'lobbied against'?

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

  12. icon
    That Anonymous Coward (profile), 24 Feb 2021 @ 3:48pm

    “We agree with the Court that a piecemeal approach is untenable and that Congress should codify rules for an open Internet."

    Then why oh why did y'all lobby to remove the rules in the first place?
    We had a group that is supposed to put us first, but in true DC fashion, we don't matter. Astroturf groups can use our names & face not even a hint of a disapproving look.

    Even as the modest ideas of net neutrality are being thrust upon them in states that are finally fed up with high prices for shit service, they are trying to buy a federal law blocking muni-broadband.

    The horror of people discovering actual service, actual speeds, actual competition, the real free market where they need to not change your name to asshole on the bill b/c you can replace them in 4 minutes without having to be trapped in a 45 min retention session of lies & empty promises to try and keep you.

    One has to wonder how an industry that routinely lies...

    Speeds up to

    • well it COULD reach the speed of light in a lab test

    No limitations

    • well no limitations we'll mention until we're 47 pages deep into the fineprint & we can triple your bill for going over the 5 mb monthly limit but we're great guys after we triple it we don't charge you more... we just throttle you to actual dialup speeds.

    GIG CONNECTIONS!

    • No in your market & maybe in 15 years when we can buy the expensive new tech at a discount from providers around the globe who have moved onto the next upgrades at a steep discount we MIGHT connect you

    5G!!!!!!!!!!!!!!

    • You'd be shocked how much extra you suckers are willing to pay for something we haven't actually built out yet.

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

  13. icon
    Toom1275 (profile), 24 Feb 2021 @ 10:11pm

    Re: Re: Are the rules 'we can do anything?' No? Then get rid of

    Speaking of blowing smoke, the part that shills leave out is that when they say "Congress should pass a law" they mean "I want Marsha Blackburn's 'ISPs can do whatever they want' and Republicans' 'local competition to our ISP donors is now illegal' anti-consumer laws to in force."

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

  14. icon
    ECA (profile), 25 Feb 2021 @ 11:41am

    But, what did you NOT do?

    "He was also less than impressed by the broadband industry's claim that because the broadband industry has tried to behave as it awaits a legal outcome, that this somehow meant net neutrality rules weren't necessary"

    So during this time, did they do anything, besides doing NOTHING to improve hardware, access, Stopped over charging, Stopped Strange addon prices, on and on.
    Did you update things to better hardware, besides Stopgap Products that will NOT meet any future access?

    Now, on the other end. Where is the fed and state money given to you, for services NOT YET RENDERED. We would love to have that back. And we would LOVE a list of those person you Paid monies to, that are elected State persons.

    Now, who was that other company that wanted access to this area and the internet. Oh! here it is, and there are 3-4 companies that want access to your Lines. We will be discussing that next.

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

  15. icon
    ECA (profile), 25 Feb 2021 @ 12:03pm

    Re:

    Considering trump was acting as a nationalist.
    WHY not take those corps Back into the Public domain.
    Scare them REAL good, to loose all that Money in a FLASH.

    I would suggest another way to do this. FORCE them to buy up all their stocks on the market and NOT use it again.
    when you have a CEO making more money then the WHOLE of congress in 1 year. Things need to be PAID BACK FIRST.

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

  16. icon
    ECA (profile), 25 Feb 2021 @ 1:22pm

    Re:

    There are a few things here,
    Back awhile ago, a Judge said, That a Corp is not responsible to Citizens for much of anything, they are only responsible for the Stock holder.(not really quoted as I would need to look up the exact)

    BUT, that statement say allot. But also along those lines is WHAT are/were Stocks for? What were they supposed to do? And at this time there are 3-4 Types of Stocks from each corp. 1-2 of them give you Very little and NO control over the company. STOCKS can say Anything, and give you Nothing, except maybe a 1% payment each year. there are so many games happening with the stock exchange, its STUPID, beyond belief.
    Stocks were supposed to be Temporary. Not last for years and years and years. But its Just as bad as a REAL LOAN from a bank. Just cheaper interest, and WHEN you try to buy them back, the VALUE goes up, WHICH THEY DONT WANT TO PAY.
    How can you have Stocks worth more then the company, when the Value of the Stocks is the evaluation of the company?
    Estimated value of the USA corps, even after most left for OTHER countries, is Estimated to be over 100 times the Amount of money on the planet.
    Thats about as bad as letting a corp borrow from a bank, 100 times more money then they THINK they are worth??

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


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