INSUBCONTINENT EXCLUSIVE:
The FCC repeal of net neutrality rules has been significantly weakened by a federal appeals court, which ruled that the Commission could
not preempt state laws like those pending in California
And although the repeal largely survived otherwise, one judge called the logic on which it is based &unhinged from the realities of modern
broadband service.
The outcome of this case is not final, as the issue may rise as far as the Supreme Court, whose past decisions lower
courts are bound to follow, yet are increasingly shown to be out of step with the way technology and markets work today
(You can read the full 186-page court opinion here.)
But the threat of preempting state net neutrality rules with a weaker federal rule was
a very serious one that promised a proliferation of legal battles when the inevitable state-federal conflicts arose
Fortunately for the states, the court completely shut down the FCC arguments that it had the authority to overrule states, completely
declawing the Commission rules.
Mozilla and several partners filed the lawsuit against the FCC last year, challenging Chairman Ajit Pai
&Restoring Internet Freedom& rulemaking on a variety of fronts
Few of these were availing, as the court showed a marked predisposition towards taking the agency at its word on matters of, say, economic
effects of previous rules, the competitive landscape of broadband providers, and suggested alternatives for consumer protection.
The biggest
miss was the challenge to broadband being reclassified as an information service from a telecommunications service — the distinction at
the heart of this decades-long conflict.
Commission Impossible: How and why the FCC created net neutrality
The court found that the FCC
explanation that DNS and caching services mean that broadband providers do more than simply move bits from place to place
This is a hugely disingenuous argument, as I have discussed in detail before (involving Brett Kavanaugh, now on the Supreme Court), but the
court determined that it was bound by precedent to defer to the agency.
FCC wrong on public safety, Lifeline, and state laws
The court did
on a few fronts.
First there are the potential threats to public safety of potential blocking and throttling by broadband providers
The case last year of firefighters in California having their Verizon devices throttled in the middle of wildfire control operations showed
that there are times when these threats may be matters of life and death
Because the FCC only barely touches on this matter, the court ordered them to revisit the order and do so.
The Commission disregard of its
duty to analyze the impact of the 2018 Order on public safety renders its decision arbitrary and capricious in that part and warrants a
remand with direction to address the issues raised.
Second there is the Lifeline program, which uses federal funds to subsidize mobile and
broadband access for people in underserved areas, tribal lands, and so on
The law defining Lifeline terms these things telecommunications services, but the FCC just reclassified broadband as an information service
— which basically removes the authority to run the Lifeline program at all
The lawsuit points this out, and the court agrees that it a huge oversight for the FCC not to address it.
The Commission brushed off their
That was straightforward legal error which requires remand.
Lastly and most importantly is the question of preemption
As I and others have noted before, the FCC in its repeal of 2015 net neutrality rules abdicated its only real authority for interfering with
The Title II powers that govern telecommunications services would allow the FCC to regulate interstate common carriers, but it gave up those
powers when it gave up Title II.
Yet it still claimed to be able to stop states from doing their own thing, which the court rightly deemed
an attempt to &create preemption authority out of thin air.
The Commission ignored binding precedent by failing to ground its sweeping
Preemption Directive—which goes far beyond conflict preemption—in a lawful source of statutory authority
That failure is fatal.
By reclassifying broadband as an information service, the Commission placed broadband outside of its Title II
jurisdiction.
As a matter of both basic agency law and federalism, the power to preempt the States& laws must be conferred by Congress
It cannot be a mere byproduct of self-made agency policy.
Not only is the Commission lacking in its own statutory authority to preempt, but
its effort to kick the States out of intrastate broadband regulation also overlooks the Communications Act vision of dual federal-state
authority and cooperation in this area specifically.
The entire preemption section of the rulemaking is therefore vacated, the court
decided.
That is huge news
If the federal rules, whatever they are, do not have precedence over state rules, then states are free to enact their own and expect
companies to abide by them
We&ve seen how this works in some cases like Illinois, where biometric measures like facial recognition are strictly regulated
This necessitated, for instance, Facebook making changes to its photo tagging systems that also affect users outside Illinois.
In a similar
vein, state rules focused on net neutrality and user privacy, like California&s, could force companies to adjust policies at a global level
It would make little sense and no little trouble for Comcast to have a special &California edition& of its services.
This effectively makes
the FCC national rules more of a lowest possible baseline than the law of the land
Having such inadequate and poorly justified rules in that role isn''t quite as scary.
Mozilla was optimistic despite much of its complaint
&We are encouraged to see the Court free states to enact net neutrality rules that protect consumers,& said the company chief legal officer,
&We are considering our next steps in the litigation around the FCC 2018 Order, and are grateful to be a part of a broad community pressing
for net neutrality protections in courts, states and in Congress.
Denouncing the FCC ''technological anachronism
The court repeatedly
deferred to previous Supreme Court rulings and to the FCC freedom as an expert agency to provide &reasonable& interpretation of the law to
justify its policies, even if those interpretation is not necessarily the &best.
But the FCC is testing the utmost limits of the court favor
in this, warned circuit judge Patricia Millett
She referred specifically to using the existence of DNS and caching as justification for claiming broadband services are more than just
telecommunications.
This explanation has been set forth before by no less than Justice Brett Kavanaugh, who subsequently received a sound
intellectual pummeling by his colleague, circuit judge Srinivasan.
Supreme Court nominee Brett Kavanaugh brutal education in net
neutrality
Although the court was bound to allow it, Judge Millett in an extended concurring opinion that she was &deeply concerned that
the result is unhinged from the realities of modern broadband service&:
Brand X [the relevant Supreme Court decision] was decided almost
fifteen years ago, during the bygone era of iPods, AOL, and Razr flip phones
The market for broadband access has changed dramatically in the interim.
In 2005, the Commission classification decision was &just barely&
Almost fifteen years later, hanging the legal status of Internet broadband services on DNS and caching blinks technological reality.
The
question is whether the combination of transmission with DNS and caching alone can justify the information service classification
If we were writing on a clean slate, that question would seem to have only one answer given the current state of technology: No.
By putting
singular and dispositive regulatory weight on broadband incidental offering of DNS and caching, the Commission misses the technological
forest for a twig.
(Emphasis mine.) She laments that as a lower court they had no power to consider this, but that the Supreme Court can —
Or if it won''t, Congress can act and intervene to expose the FCC threadbare logic for the sham it is
&Either intervention would avoid trapping Internet regulation in technological anachronism,& she concludes.
In other words, the FCC entire
argument rests on an increasingly flimsy legal technicality that only a higher court or Congress can address.
Until that happens the current
FCC rules, much weaker than the 2015 ones, will remain in effect — but as noted earlier, states are free to enact better ones and the
Commission can''t do a thing about it
That an enormous victory for net neutrality advocates.
When the FCC rolled back net neutrality it was on the wrong side of the American
people and the wrong side of history
Today court decision shows that the agency also got it wrong on the law,& said FCC Commissioner Jessica Rosenworcel, who has consistently
opposed the new rule, in a statement
&As the FCC revisits its policies in light of the court directives, I hope it has the courage to run an open and fair process.
