Sixth Circuit Blocks Popular Net Neutrality Rules From Taking Effect
from the this-is-why-we-can't-have-nice-things dept
We recently noted how the telecom industry, with the help of the recent Chevron ruling, was gearing up to deliver what it hopes will be the killing blow to popular net neutrality protections. Protections designed to prevent telecom monopolies from abusing their market power to screw customers and competitors.
They appear to be having some early success. Last month, the Sixth U.S. Circuit Court of Appeals won the lottery to hear the industry’s net neutrality challenge; a boon for telecoms given the highly Republican makeup of the court (the GOP historically always sides with the policy interests of big telecom).
Last Friday the industry got another win, when the appeals court temporarily put the FCC’s reinstatement of the rules on hold until August fifth as it considers legal challenges from the broadband industry. The rules were originally slated to take effect on July 22.
The Supreme Court’s recent Chevron ruling effectively strips away decades of legal precedent and eliminates the authority of regulators (who ideally have subject matter expertise Congress doesn’t have) to make any enforcement decisions or new rules not strictly outlined by Congress.
Lobbyists have enjoyed framing this as some noble rebalancing of power for the greater good of mankind and puppies, but it’s largely a way to ensure regulators become the legal and policy equivalent of decorative gourds. A company like AT&T knows they have already lobbied Congress into abject corrupt dysfunction; now they’re setting their sights on the last vestiges of regulatory independence.
The goal for a company like AT&T and Comcast is to claim not just that the FCC lacks the authority to implement and enforce net neutrality rules, but no authority to protect broadband consumers whatsoever. “If you want consumer protections,” they’ll say, “they must be very very very clearly written by Congress” (a Congress we all well know we’ve corrupted to the point of uselessness via decades of lobbying).
Post Chevron, some variation of this will be playing out across every regulatory and industry that touches your lives, the impact and scope of which the press has woefully failed to aptly communicate to the public.
In a recent filing, FCC lawyer Scott Noveck argued that Chevron wasn’t integral in the legal justifications underpinning their net neutrality rules:
“Loper Bright has no direct relevance here because the [Net Neutrality] order under review does not turn or rely on Chevron. Instead, the order consistently focuses on ascertaining the best reading of the Communications Act using the traditional tools of statutory construction – exactly as Loper Bright instructs.”
The FCC could certainly still win the fight. But this isn’t an era known for strict adherence to logic or legal precedent, so it remains very much up in the air if the FCC will come out victorious.
One very real potential outcome is that the Republican courts will declare that Title II of the ‘34 Act simply does not apply to ISPs, ensuring the FCC can’t do much of anything on consumer protection; whether it’s net neutrality or simply demanding that big telecom be transparent about sneaky fees.
The one small bright spot here: courts have repeatedly and clearly ruled that if the federal government is going to abdicate its consumer protection oversight of widely disliked telecom monopolies, states are well within their right to fill the void and pass their own net neutrality rules. Though, even here, this creates a fractured landscape of inconsistent enforcement across each state border.
Again, this microcosm impacting net neutrality is going to apply to countless other efforts to hold corporations accountable across countless different industries and regulators, clogging the courts with a parade of legal challenges that will indisputably create (quite intentionally) a gridlocked mess for regulatory enforcement. I’ve found that, generally, people don’t quite understand what’s coming.
Filed Under: broadband, chevron doctrine, consumer protection, corruption, fcc, high speed internet, monopoly, net neutrality, telecom
Comments on “Sixth Circuit Blocks Popular Net Neutrality Rules From Taking Effect”
Sad thing is, of those who do understand, the ones who want to prevent those outcomes you mentioned might outnumber the ones who want to see those outcomes happen…but the numbers don’t really matter without the money, the power, and the Congresscritters needed to affect real change.
Anyone want to do a Kickstarter to see if we can buy off a Senator? 🙃
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A Kickstarter to buy politicians? I think that’s just a PAC.
There’s another way to look at it.
The whole BrandX thing, allowing the FCC to reclassify internet as Title1 from Title2, is based on Chevron. Net neutrality rules preceeded Chevron, so it’s possible that they could win in the whole Chevron thing, and lose because then it’s ruled to be title2 regardless, and the last 20 years of changing titles would be out the window.
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What’s worse there is that while the FCC classified Internet under Title 2, they also waived a lot of the Title 2 regulation as unwarranted or unnecessary. Taking away Chevron deference would take away the authority of the FCC to do that, resulting in ISPs coming under full regulation as common carriers. That’d be bolstered by the fact that many ISPs also offer voice telephone service carried over their IP networks, and telephone service is one of the things the FCC is expressly authorized to regulate in the original Communications Act.
Taking away any authority for the FCC to regulate it leads back to the states doing their own regulation with no way for any Federal agency to give them orders about how to do it.
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I’m about at the point where I don’t give a fuck about any state but my own anyway. I’m tired of my federal tax dollars protecting Republican voters from themselves.
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Which is, of course, the exact attitude that allows someone seeking power to use your vote against your own best interest.
The republican political machine takes advantage of distaste for “those other people” by directing hate at the group. The Dems exploit the same type of distate (and lack of competition) to make a “functional” “progressive” party out of wildly divergent voting blocks. You’ll never defeat the willingness of the republican party to feed you to the fires of authoritarian Captialism while you hold a willingness to let them feed others to those fires instead.
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Those “others” are jumping into the fires and doing their damndest to pull the rest of us in with them.
When trying to rescue someone who’s drowning, you have to first ensure that they don’t pull you under. Rescuing the drowning person is secondary to not drowning yourself.
My state is a federal donor state with solid consumer protections and social programs. I’d much rather my tax dollars go to protecting my neighbors than to people who will just use it to try to kill me.
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Anti-monopoly laws still exist. Who has the authority to enforce them here? Presumably the FCC or FTC would; and should, because all of the stuff these rules were meant to cover is anti-competitive when done by a monopolist.
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FCC does not has very limited authority to regulate or dismantle monopolies.
It does have limited authority to prevent monopolies involving the airwaves such as preventing mergers from acquiring spectrum or disbursement and ownership consolidation of over-the-air TV and radio stations.
Beyond that, not really.
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Sorry, mean that to say.
FCC has very limited authority to regulate or dismantle monopolies.
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They and the states did it in the past, including by directly setting telephone service rates. Have the laws changed, or have the regulators just become “feckless” as we like to say here?
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These days it’s “communism” if the government does anything good for the people. We can’t have that.
Since Internet was under informal Net Neutrality and Title II since it first existed, and was first reclassified in 2005 as Title I by a Republican commissioner, in an ideal world reversing all Chevron-based changes would restore the original Title II, of which there is extensive authority for the FCC to enact formal NN rules.
This isnt happening, BUT
Lets try something different.
REMOVE Tier 1 internet.
The Gov./WE paid for it. Didnt we?
The Corps Bought it out very easily, as its very boring to do.
AS the only Extra thing they WERE supposed to do, and THEY GOT PAID for it, was to leep it upgraded.
They arnt doing the job, and the gov. tried to protect them from the Citizens/public. NOW we take back the MAIN HUB and all the interconnections, they have added to it.
Aren;t courts supposed to see some reasonable evidence of harm from a law/regulation before they block it?
Since ISPs have never, ever demonstrated harm from Net Neutrality, the Sixth obviously skipped that step.