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
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federal law by imposing on BIAS the very same regulations that the Federal Communications Commission (“FCC”) expressly repealed in its 2018 Restoring Internet Freedom Order (and by adopting even more restrictive regulations), despite the fact that both the FCC decision and the federal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.
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