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

Broadband

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.

Filed Under: broadband, net neutrality, vermont
Companies: ctia, ncta, ustelecom

NY's AG Is Trying To Tie Major ISPs To Those Bogus Net Neutrality Comments

(Mis)Uses of Technology

from the ill-communication dept

Last year you might recall that the New York AG’s office began investigating who was behind all of those bogus comments that flooded the FCC’s website during the net neutrality repeal. As we noted then, “somebody” paid a proxy organization to flood the FCC comment period with a myriad of fake comments. Some of those comments hijacked the real identities of real people (like myself). Others utilized a bot to post a myriad of fake support for Ajit Pai using a hacked database of some kind. Some of the most enthusiastic supporters of Ajit Pai’s policies were, interestingly enough, dead.

When the AG’s office reached out to the FCC for help getting to the bottom of who was behind the fake comments, the FCC completely stonewalled them, rejecting nine requests for data between June and November of last year. The FCC has subsequently stonewalled numerous FOIA requests regarding who used the necessary APIs to submit the fraudulent comments in bulk, resulting in a lawsuit by journalist Jason Prechtel. A court recently ruled in Prechtel’s favor, demanding the FCC release at least some data (in a month or two) that could identify the culprits.

Meanwhile, New York AG Barbara Underwood has expanded her investigation into the bogus comments, subpoenaing more than a dozen ISP-linked lobbying groups (and a few consumer advocacy firms) for additional data on the methodology used to submit the fake support for the FCC’s plan. Subpoena targets including groups like the telecom-industry funding lobbying vessel Broadband for America, which we’ve pretty consistently highlighted for some fairly sleazy and disingenuous behavior.

In her statement to me, Underwood stated that at this juncture they’ve found that 9.53 million of the 22 million net neutrality comments submitted to the FCC were fake:

“The FCC?s public comment process was corrupted by millions of fake comments?and our investigation found that as many at 9.53 million of those comments stole the identities of real people,? Underwood said in a statement.

?The law protects New Yorkers from deception and the misuse of their identities. And all Americans deserve a fair and transparent process for determining public policy that impacts their daily lives. My office will get to the bottom of what happened and hold accountable those responsible for using stolen identities to distort public opinion on net neutrality.”

It’s worth noting that Prechtel’s analysis and reporting so far has claimed that one of the key players in this whole shady affair may have been DC-based news website and lobbying and policy organization CQ Roll Call, which e-mailed the FCC last year looking for advice on how to submit millions of comments on behalf of an unnamed client. CQ Roll Call was indeed among those subpoenaed by the NY AG this week. Granted there’s a universe of fairly shady organizations that routinely help all manner of companies submit fake comments to try and sway government policy during official proceedings.

Again, it’s fairly obvious who benefited from trying to downplay the massive public opposition to the FCC’s plan by using cardboard cutouts. Getting a hold of all of the FCC API and other server-side data will certainly go a long way toward that end. The question really, as it has always been, is whether any of the proxy organizations involved were dumb enough to leave a paper trail leading to funders like AT&T, Verizon, Comcast, or Charter.

Filed Under: ajit pai, barbara underwood, fake comments, fcc, net neutrality, ny attorney general

99.7% Of Original Comments Opposed FCC Repeal Of Net Neutrality

Studies

from the not-so-democratic dept

A new study has once again confirmed that the vast, vast majority of the public opposed the FCC’s ham-fisted repeal of net neutrality.

Like most government proceedings, the FCC’s net neutrality killing order’s public comment period was filled will all manner of comments (both in favor and against) generated by automatic letter-writing campaigns. Like most government proceedings in the post-truth era, the net neutrality repeal was also plagued by a lot of shady gamesmanship by companies trying to disguise the fact that the government was simply kissing the ass of giant, unpopular telecom monopolies. But what happens if you eliminated all of the letter-writing campaign and bogus bot-comments?

A new report from Stanford University (pdf) did just that. It eliminated all automated or form-generated comments and found just 800,000 Americans willing to take the time to put their own, original thoughts on the net neutrality repeal into words. And of those 800,000 real people, 99.7% of them opposed what the FCC did:

“The unique comments are overwhelmingly in support of retaining the protections of the 2015 Open Internet Order. A manual analysis of 1,000 of these comments showed that 99.7% of the comments opposed the repeal.”

That’s not to say that form-letters opposed to the repeal should be ignored; millions of angry Americans voiced their concerns via form letter campaigns operated by (actual) consumer groups like Public Knowledge, Free Press, and the EFF. Previous analysis has indicated that even among these form letters, the vast majority opposed Ajit Pai’s assault on meaningful consumer protections. Even studies funded by ISP-backed lobbying organizations have come to this same conclusion, making the FCC’s claims that everybody supported its attack on net neutrality even more patently absurd.

Meanwhile, like countless surveys before it, the Stanford report also once again notes that this opposition was largely bipartisan in nature, coming from heavily “red” and “blue” districts alike:

“Polls have consistently shown that net neutrality protections are popular across party lines. This is supported by the geographical breakdown of the comments. While the highest number of unique comments come from traditionally Democratic urban districts, the average number of comments in all districts was 1,489, with an average of 1,202 in Republican-held districts”

Again, that’s in stark contrast to claims that people “don’t understand what net neutrality is” or that this somehow isn’t an important issue to voters. Most Americans have pretty direct, first-hand experience of what it’s like to deal with an apathetic broadband monopoly, whether it’s AT&T, Verizon, Comcast, or Charter. As such, disgust at these companies is one of the very few things that bridges the country’s deep, partisan divides. And most realize then letting Comcast abuse a broken, uncompetitive market doesn’t end well for consumers or competitors alike.

Past analysis has suggested about half of the 22 million comments submitted to the FCC were likely fake, and somebody utilized a bot and hacked databases to flood the FCC with fake support for the FCC’s plan. The GAO, New York State AG, and numerous lawsuits are still busy trying to get to the bottom of the obvious effort to try and drown out legitimate opposition with no real help from the FCC, which was eager to ignore the entire mess for what should be obvious reasons.

Filed Under: ajit pai, comments, fcc, internet, net neutrality, public concern

Oh Look, The FCC Is Lying Again In Its Latest Court Filings On Net Neutrality

Legal Issues

from the ill-communication dept

As the FCC gears up for legal battle against the numerous net neutrality lawsuits headed its way, its latest filing with the courts acts as a sort of a greatest hits of the agency’s biggest fallacies to date. 23 State AGs have sued the FCC, stating last fall’s repeal of net neutrality ignored the law, ignored standard FCC procedure, and ignored the public interest. The FCC?s new filing with the U.S. Court of Appeals (pdf) for the District of Columbia Circuit declares these concerns “meritless,” despite indisputible evidence that the FCC effectively based its repeal largely on lobbyist nonsense.

At the heart of the matter sits the Administrative Procedures Act, which mandates that a regulator can’t just make a severe, abrupt reversal in policy without documenting solid reasons why. The FCC has some legal leeway to change its mind on policy, but as we’ve long noted, the FCC’s justification for its repeal (that net neutrality was somehow stifling broadband investment) has been proven false. Not just by SEC filings and earnings reports, but by the CEOs themselves, publicly, to investors (who by law, unlike you, they can’t lie to).

Unsurprisingly then, the FCC’s brief leans heavily on the Supreme Court’s 2005 Brand X ruling, which states the FCC has some leeway to shift policy course at its discretion if it has the data to back it up. Also unsurprisingly, the brief goes well out of its way to pretend that ignoring the experts, ignoring the public, and demolishing consumer protections purely at Comcast, Verizon and AT&T’s behest is reasonable, adult policy making. And again, the false claim that net neutrality harmed “innovation, investment and broadband deployment” takes center stage:

“While the Commission?s legal analysis alone suffices to support its return to an information service classification and repeal of the 2015 rules, the Commission also offered robust public policy support for its actions. It explained in detail how Title II classification and regulation hampered broadband innovation, investment, and deployment. The Commission accordingly adopted a light-touch approach that relies on transparency, market forces, and enforcement of existing antitrust and consumer protection laws to protect against harmful conduct. This approach, the Commission reasoned, would foster innovation and investment in keeping with the dynamic and evolving nature of the Internet.”

Of course the press has noted time and time and time again how these claims of a net neutrality-induced investment apocalypse are absolutely false. Ajit Pai has similarly gone before Congress repeatedly and falsely made the claim anyway, with absolutely zero repercussions thus far. The FCC’s claims that its rules embrace transparency are equally hollow, given the agency’s replacement transparency provisions are entirely voluntary. And the idea that “market forces” can fix the broken and uncompetitive broadband industry should be laughable to anybody that’s experienced Comcast customer service.

Whether the FCC and broadband industry can convince a judge that bogus claims of hampered investment was the honest catalyst of their handout to telecom monopolies sits at the heart of this entire looming legal battle. The FCC and broadband industry will come prepared for battle with an ocean of ISP-funded economist data breathlessly insisting that the broadband industry was devastated by some arguably modest (by international standards) consumer protections. Net neutrality activists, in contrast, will try to argue the FCC was being “arbitrary and capricious” in its aggressive repeal of the rules at industry behest.

One of the major reasons the telecom industry wanted Brett Kavanaugh on the Supreme Court is because this entire battle could rest on his shoulders. Kavanaugh supported the idiotic ISP argument that net neutrality rules somehow violate ISP First Amendment rights (we’ve dismantled this previously, noting your ISP is not making “editorial” decisions as a network operator). Given ISPs are trying to argue that state and federal oversight is a free speech issue, Kavanaugh’s appointment could prove fatal in that regard if this fight makes it to the highest court in the land.

Meanwhile, there should also be some interesting sideshows during this looming legal battle, including discussions of why the FCC made up a DDOS attack, and ignored comment fraud and identity theft during the public comment process, both part of a pretty obvious effort on the FCC’s part to downplay the massive, bipartisan public opposition to what the FCC was doing. This is a story about corruption, misinformation, and ignoring the public welfare to the benefit of widely despised telecom monopolies. The FCC, in contrast, desperately wants the courts to believe this was all just adult policy making as usual.

Filed Under: administrative procedures act, arbitrary and capricious, dc court of appeals, fcc, investment, net neutrality

Washington State Laughs At Federal Attack On State Net Neutrality Laws

Legal Issues

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.

Filed Under: fcc, net neutrality, washington

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

Legal Issues

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.

Filed Under: broadband, california, competition, fcc, net neutrality, state's rights
Companies: ctia, ncta, ustelecom

The DOJ's New Net Neutrality Lawsuit Is A Giant Middle Finger To State Rights, Consumers, Competition & The Democratic Process

Broadband

from the straight-up-bullshit dept

So let’s be clear about something: the Ajit Pai FCC’s repeal of net neutrality was already a mammoth fuck you to the American public, open competition, and a healthy internet. The effort to neuter the rules was based on bogus telecom lobbyist data, lots and lots of shady behavior, and oceans of complete nonsense. And while folks like Ajit Pai like to speak loftily about his noble effort to “strip away burdensome regulations,” the reality is that killing net neutrality served one real purpose: giving natural telecom monopolies the green light to (ab)use a broken, uncompetitive broadband market to screw consumers and competitors alike.

When the FCC killed these overwhelmingly popular consumer protections it wasn’t just killing net neutrality, it was killing the federal government’s ability to adequately hold lumbering telecom monopolies accountable on the federal level. In addition to neutering the FCC and shoveling any remaining, fleeting oversight to an FTC ill-equipped for the job, ISPs convinced the Trump administration to also try to prevent states from filling the void. As such, both Comcast and Verizon successfully lobbied the FCC to include language in the net neutrality repeal “preempting” (read: banning) states from holding giant ISPs accountable as well.

Again the goal here is obvious: to eliminate any meaningful state or federal oversight of natural telecom monopolies, which will now be left unchecked by neither regulatory oversight nor meaningful competition.

This little gambit came to a head over the weekend, when California Governor Jerry Brown signed the state’s shiny new net neutrality law. That law took an incredible collaborative effort to pass, after ISPs tried to neuter most of the bill’s key components via procedural gamesmanship, and even took to lying to senior citizens about the proposal in misleading robocalls. The public backlash to these efforts forced the California Assembly and Senate to pass the law in late August, before Brown (amid some uncertainty) signed the bill yesterday afternoon.

Within hours of Brown’s signing the bill, the Department of Justice announced it would be suing California, insiting that California’s consumer protections were, mystically, somehow “unlawful and anti-consumer”:

“Under the Constitution, states do not regulate interstate commerce?the federal government does. Once again the California legislature has enacted an extreme and illegal state law attempting to frustrate federal policy. The Justice Department should not have to spend valuable time and resources to file this suit today, but we have a duty to defend the prerogatives of the federal government and protect our Constitutional order. We will do so with vigor. We are confident that we will prevail in this case?because the facts are on our side.”

You might be shocked to learn that no, the facts are most assuredly not on the Trump administration’s side, here.

The DOJ’s twelve page complaint (pdf) leans heavily on the state-preemption language, insisting that FCC authority preempts any state authority over broadband. As a result, the DOJ argues, states can do nothing but stare dumbly at the problem as the FCC abdicates its authority over broadband consumer protection at the direct behest of lumbering telecom monopolies:

“…the 2018 Order expressly ?preempt[s] any state or local measure that would effectively impose rules or requirements that [it] ha[s] repealed or decided to refrain from imposing in this order or that would impose more stringent requirements for any aspect of broadband service that [it] address[es] in this order.” This includes ?any so-called ?economic? or ?public utility-type? regulations, including common-carriage requirements akin to those found in Title II of the Act and its implementing rules, as well as any other rules or requirements that [the FCC] repeal[ed] or refrain[ed] from imposing? in the 2018 Order.”

Here’s the ironic bit. Legal experts like Ernesto Falcon at the EFF and Stanford Law Professor Barbara Van Schewick have long noted that when the FCC obliterated its authority over ISPs and net neutrality (by rolling back their classification of ISPs as Title II common carriers under the Telecom Act), it also ironically obliterated its authority to tell states what to do. Shorter version: an agency that has abdicated its regulatory authority can’t then go and try to utilize this now nonexistent authority to dictate state consumer protection efforts.

Short version: the FCC was a little too clever by half, and managed to shoot itself in the foot. ISPs like Charter Spectrum have already tried to use the FCC’s preemption language to tap dance out of a New York State lawsuit over terrible service and slow speeds, but the courts so far have shot these efforts down.

The central argument the DOJ is attempting to make in its complaint is that the looming DC Circuit case should should be settled and the FCC’s preemption language deemed lawful before California’s law can take effect. You’ll recall that 23 State Attorneys General sued the FCC claiming it ignored the facts and the public interest in the rushed repeal. Given all of the bizarre nonsense Ajit Pai’s FCC was up to during the repeal (making up DDOS attacks, ignoring identity theft and fraud during the comment period), the FCC has a not-insubstantial risk of losing that case and having the original 2015 rules restored.

Knowing that pesky state laws could disrupt the telecom industry’s master plan as we all wait for that trial’s outcome, the DOJ is trying to buy some time. And while it’s certainly possible that the DOJ could nab a sympathetic Judge that’s willing to ignore logic, the facts really aren’t on the ISPs’ side, here.

There’s multiple levels of grotesque going on. One, you might recall that Ajit Pai has routinely proclaimed his adoration of “state rights” when states are busy passing terrible protectionist legislation hamstringing broadband competition. You’ll notice that this breathless concern over state rights has suddenly gone completely missing when states actually (gasp) try to protect consumers from predatory natural monopolies like Comcast.

Two, the DOJ is literally using taxpayer funds to give California voters the middle finger, trample state rights, and ensure that telecom monopolies with two-decades of anti-competitive behavior under their belts can rip off captive, disgruntled customers. Whatever you feel about net neutrality rules, the reality is that it’s what the bipartisan majority of Americans wants. Yet here we are, making repeatedly sure that not only are their voices stifled and distorted, but that their votes don’t matter. If you ever doubted the telecom lobby’s influence on policy, this little stage play should put that to rest very quickly.

The irony here remains that the FCC’s net neutrality rules weren’t even very onerous in the first place. The FCC used forbearance to avoid any real rate regulation, while also providing giant loopholes on stuff like zero rating. All told, they were pretty modest protections by international standards. But because some monopoly companies nobody likes couldn’t deal with even modest oversight, they’ve set off a chain reaction that has now created years of litigation and numerous fractured state-level efforts to protect consumers.

As you watch giant ISPs and the politicians who love them lament the rise of “multiple, onerous and discordant” state level protections, it’s important to remember that this is entirely their creation. Verizon sued to overturn the FCC’s 2010 rules, despite the fact that AT&T and Comcast thought those rules were acceptable. That prompted the FCC to craft tougher rules that could be supported in court, which ISPs then sued over yet again. The reality is they’re not interested in any meaningful rules that hamper their ability to abuse the broken broadband market, and all else is pretense.

Again, people tend to get fixated on net neutrality “dying” or being “restored” via the passage of net neutrality protections. But the reality is the quest for net neutrality persists so long as the lack of underlying broadband competition continues to exist. And since the same folks trying to kill net neutrality have also made it clear they have zero interest in policy that addresses this lack of competition, this is an idiotic cycle of dysfunction we’ll likely be stuck in for some time. At least until America realizes that letting potent and growing monopolies like Comcast dictate federal tech policy is utterly idiotic and patently self-destructive.

Filed Under: ajit pai, california, doj, fcc, net neutrality, state's rights

ISPs Push Employees To Urge Governor Brown Veto New California Net Neutrality Bill

Broadband

from the down-to-the-wire dept

Last week we noted how California managed to shake off ISP lobbyists and pass meaningful net neutrality rules. The rules largely mirror the FCC’s discarded 2015 rules, in that they prohibit throttling or blocking of services that compete with ISP monopolies. But the rules also go a bit further in that they prohibit all of the sneaky bullshit ISPs have creatively-shifted to as their anti-competitive impulses evolved, including restrictions on zero rating and interconnection shenanigans out toward the edge of the network (the cause of those Netflix slowdowns a few years back).

While the California Senate has passed the new law, it still hasn’t been signed by California Governor Jerry Brown. Given Brown’s tendency to occasionally veto efforts that have broad public support, net neutrality activists are a little worried he may shut the entire effort down. Potentially via the argument that the bill would somehow harm ISPs ability to make a living (which has never been true, since you only run afoul of the rules when you behave badly).

ISPs meanwhile have been making a zero hour push to encourage Brown to veto the bill, with activists telling me the CTIA (the wireless industry’s top lobbying organization), Comcast and AT&T all met with Brown at his office last Tuesday. Other ISPs, like Frontier Communications, have taken to urging their employees to demand Brown veto the bill. And, as is usually the case, their arguments aren’t exactly what you’ll call fact-based:

“The email directs users to an online form letter to Brown claiming that Frontier ?supports an open Internet,? but that the bill will ?create significant new costs for consumers, hinder network investment and delay Frontier?s hard work to help close the Digital Divide in California.?

Except Frontier?s ?support? for net neutrality has involved participating in a coalition of ISPs that repeatedly sued the FCC over its modest rules. And claims that net neutrality somehow harms network investment have been repeatedly, painstakingly debunked using public SEC filings, ISP earnings reports, and countless public statements by ISP executives themselves.

The e-mail to employees, which urges them to sign this letter to Brown, also relies on an ISP industry falsehood from way back; the idea that the bill (SB822) would somehow give Netflix and Google “free internet”:

“The email, which notes that employee participation is voluntary, contains numerous other unsubstantiated allegations, including one claim that the bill would somehow create ?free internet for big users like Netflix and Google.”

Obviously there’s nothing about that statement that’s true, though ISPs have long leaned on this idea that content companies are just “free riders” on their networks, hoovering up revenues that, by imaginary divine mandate, should be going into the pockets of the ISPs. Of course every time we suggest to an ISP that they pay Netflix or Google’s bandwidth bill, they go oddly quiet. That’s because, like most ISP talking points on net neutrality, ISPs have to make up points out of whole cloth, since admitting “we just want the freedom to anti-competitively cash in on broken broadband markets” isn’t a winning argument.

If Brown signs the bill, the entire west coast will soon be covered in state-level net neutrality protections, which is certainly not what ISPs had in mind after spending millions to kill net neutrality. If Brown doesn’t sign the bill, he’s going to be opposing the bipartisan majority of Americans who want some degree of meaningful protection standing between them and historically anti-competitive telecom monopolies like Comcast.

While broadband tends to be an issue politicians pay empty lip service to, the FCC’s grotesque handout to Comcast and friends has changed the game. Should Brown veto the bill, he’s only reiterating that monopoly welfare trumps the public interest and the health of the internet, a position that’s likely to hold political consequences moving forward.

Filed Under: california, competition, isps, jerry brown, net neutrality

California Shakes Off ISP Lobbyists, Embraces Real Net Neutrality

Broadband

from the fat-lady-singing dept

Despite a rocky start, California has shaken off the lobbying influence of Comcast, AT&T and Verizon and passed meaningful net neutrality protections for the state’s broadband residents. California’s SB822, which pretty closely mirrors the FCC’s discarded 2015 rules, almost had its most important parts stripped away courtesy of some early committee gamesmanship by AT&T. When that failed, ISP-connected lobbying and influence orgs tried to scare voters away from the effort by making misleading robocalls to state senior citizens insisting the bill would dramatically raise their phone bills.

Given the continued, overwhelming and bipartisan support for net neutrality, those efforts didn’t work. SB822, which the EFF has called the “gold standard” for state-level rules, passed the California Assembly last Thursday, then managed to nab the necessary votes in the State Senate last Friday. It’s now headed to the desk of California Governor Jerry Brown for signing:

Like most protections, the rules simply prevent ISPs from using their broadband monopolies to unfairly throttle, block, or censor competing content and services. Unlike weaker bills (like those being proposed by ISPs), the bill also takes aim at all of the creative anti-competitive efforts ISPs have been engaged in in recent years, from anti-competitive abuse of usage caps and overage fees (zero rating), to the anti-competitive abuse of interconnection points with transit operators and content companies.

With SB822’s passage, the entire west coast is now covered with net neutrality rules thanks to laws passed in Oregon and Washington State; certainly not the end game most ISPs envisioned after spending millions to lobby the federal government.

You’ll likely now hear ISPs, ISP lobbyists, and their literal armies of think tankers, payrolled academics, consultants and others whine incessantly for weeks about the unfairness of having to deal with numerous, discordant state-level protections. Of course none of these folks will acknowledge that’s the telecom industry’s fault, since this wouldn’t be happening if they hadn’t waged endless war on modest (by international standards), popular, and cohesive federal rules. Whatever your thoughts on net neutrality, this move was a reflection of what the public wanted (aka, Democracy).

ISPs will now shift their attention to slowing the spread of state laws, likely by suing individual states. They’ll likely lean heavily on the “pre-emption” language Ajit Pai’s FCC included in its net neutrality repeal at the behest of Comcast and Verizon, though early efforts by ISPs to use this language to dodge state oversight for terrible service haven’t gone particularly well. Other lawyers have noted that when the FCC neutered its Title II authority under the Telecom Act at the behest of telecom monopolies, it also ironically eroded any authority to tell states what to do. Whoops.

The goal still needs to be to improve competition in the broadband space, since net neutrality violations are just a symptom of limited competition and a broken market. But until somebody in government grows a spine and is willing to stand up to deep-pocketed campaign contributors like Charter, AT&T, Verizon, CenturyLink and Comcast, net neutrality rules are the next best thing. Meanwhile, there’s still a chance to restore the FCC’s 2015 rules courtesy of the looming lawsuits headed the FCC direction; suits that will highlight the laundry list of bizarre and shady FCC behavior that accompanied the repeal.

Filed Under: broadband, california, competition, net neutrality, state's rights
Companies: at&t, comcast, verizon

Big Telecom Resorts To Lying To Senior Citizens To Scuttle Net Neutrality In California

Say That Again

from the disinformation-nation dept

With the bipartisan majority of Americans supporting net neutrality, the broadband industry often has to resort to outright falsehoods to try and make its case that we don’t need net neutrality rules (or any meaningful oversight of natural telecom monopolies). From paying civil rights groups to parrot industry positions to hiring fake journalists to deny the obvious, the broadband industry has a long, proud, multi-decade history of using outright bullshit to scare the public, press and regulators away from the idea of net neutrality.

The latest case in point: after AT&T lobbyists successfully sabotaged initial efforts to pass new net neutrality rules in California, the state this week revisited the effort with a new vote on the state assembly floor. In a bid to try and scuttle the effort, an AT&T-linked group by the name of Civil Justice Association of California (CJAC) has been robocalling senior citizens in the state, informing them that their cell phone bill will jump $30 if the new rules pass. California State Senator Scott Wiener, the author of California’s bill, wasn’t particularly impressed:

The group is informing seniors that should California pass net neutrality rules, they’ll not only see a $30 hike in their cellular phone bills, but their data will be “slowed down”:

“Your Assembly member will be voting on a proposal by San Francisco politicians that could increase your cellphone bill by $30 a month and slow down your data. We can’t afford higher cell phone bills. We can’t afford slower data. We can’t afford Senate Bill 822.”

Of course the bill in question, SB822, does nothing of the sort. Like most net neutrality bills, it prohibits AT&T from throttling or slowing down your cellular data connections anti-competitively, and if anything will likely save California consumers money by preventing AT&T from nickel and diming them (via zero rating, interconnection shenanigans, charging you more just to watch HD video as intended, or countless other creative abuses of the largely-uncompetitive broadband market). The information conveyed by the robocall is patently false.

Knowing the bill is likely to pass in some form, AT&T, Verizon and Comcast lobbyists have spent the last few months trying to strip away most of the integral parts of the bill. With those efforts struggling in activist-heavy California, apparently the broadband industry thought the next best move would be to lie to senior citizens, which speaks volumes of the quality and integrity of its arguments.

Filed Under: california, lobbying, net neutrality, scott weiner
Companies: at&t, civil justice association