DOJ Continues Its Quest To Kill Net Neutrality In California

Sacrificing Consumer Protection, in the process

Adapted from an article by Karl Bode, Sept 22, 2020 6:22am | Original Techdirt article here.

After the FCC effectively neutered itself at telecom lobbyist behest, numerous states jumped in to fill the consumer protection void. As a result, California, 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.

The DOJ’s central argument was that California’s attempt to protect consumers was somehow "anti-consumer." And the lawsuit largely centered on language the FCC had included in its net neutrality repeal (again, at Telecom lobbyist behest) attempting to ban states from filling the void created by the federal government no longer giving a damn. The courts so far haven’t looked too kindly upon that logic, arguing that the FCC can’t abdicate its authority over telecom, Then try to lean on that non-existent authority to try to tell states what to do.

Last week California filed its first brief (pdf) in its legal battle with the DOJ. ISPs are seeking a preliminary injunction to prevent California from enforcing the rules during the lawsuit. Again though, their primary argument continues to be that states can’t enforce net neutrality because the FCC said so.

Stanford Professor Barbara van Schewick continues to point out, is still nonsense no matter how many times industry and the captured U.S. government repeat the claim:

"According to case law, an agency’s decision to deregulate can only block the states from stepping in when the agency has the power to regulate and decides not to use it.

But when the FCC eliminated net neutrality in 2018, it also removed its own authority over broadband providers. In essence, the agency decided that broadband providers are not telecommunications companies that simply shuttle data back and forth (like a telephone company), but information service providers which interact with and alter data, like a website.

This removed any authority that would have allowed the FCC to adopt net neutrality protections. Thus, the elimination of net neutrality did not establish a calibrated federal deregulatory regime, as the U.S. and the ISPs argue; it simply reflected the FCC’s lack of authority. Simply put, the FCC’s 2018 Order created a regulatory vacuum, and you can’t conflict with a vacuum."

Of course, one of the reasons you stack the courts with unqualified sycophants and partisan yes men is so basic, fundamental logic doesn’t apply. So as usual, while it’s likely the courts will laugh at the telecom sector’s efforts here, it’s certainly not guaranteed. And while the press will cover this story as a "government lawsuit," make no mistake: this is AT&T, Verizon, and Comcast using the federal government as a hand puppet as they attempt to have their cake and eat it too.

Namely, no real oversight on the .local, state or federal level, and no pesky market competition to keep their worst impulses in check. This fully contradicts the US Supreme Court ruling in 2005 re: the cooperative federalism scheme set up by the 1996 Telecommunications Act:

United States Supreme Court (2005)


No. 03-1601

Argued: January 19, 2005 | Decided: March 22, 2005


. . . on writ of certiorari to the United States Court of Appeals for the Ninth Circuit

March 22, 2005

Justice Scalia writes for the Supreme Court.

Enforcement of §332(c)(7) through §1983 would distort the scheme of expedited judicial review and limited remedies created by §332(c)(7)(B)(v). We therefore hold that the 1996 Telecommunications Act — by providing a judicial remedy different from §1983 in §332(c)(7) itself — precluded resort to §1983. The judgment of the Ninth Circuit Court of Appeals which awarded attorneys fees is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Breyer, with whom Justice O’Connor, Justice Souter and Justice Ginsburg join, concurring.

I agree with the Court. It wisely rejects the Government’s proposed rule that the availability of a private judicial remedy "conclusively establishes . . . a congressional intent to preclude (Rev. Stat. §1979, 42 U. S. C.) §1983 relief." Ante, at 8 (emphasis added).

The statute books are too many, federal laws too diverse, and their purposes too complex, for any legal formula to provide more than general guidance. Cf. Gonzaga Univ. v. Doe, 536 U. S. 273, 291 (2002) (Breyer, J., concurring in judgment). The Court today provides general guidance in the form of an "ordinary inference" that when Congress creates a specific judicial remedy, it does so to the exclusion of §1983. Ante, at 8. I would add that context, not just literal text, will often lead a court to Congress’ intent in respect to a particular statute. Cf. ibid. (referring to "implicit" textual indications). ​Context here, for example, makes clear that Congress saw a national problem, namely an "inconsistent and, at times, conflicting patchwork" of state and local siting requirements, which threatened "the deployment" of a national wireless communication system. H. R. Rep. No. 104-204, pt. 1, p. 94 (1995). — S4WT: View this side-by-side comparison of HR.1555 and S.652

Congress initially considered a single national solution, namely a Federal Communications Commission wireless tower siting policy that would pre-empt state and local authority. Ibid.; see also H. R. Conf. Rep. No. 104-458, p. 207 (1996). But Congress ultimately rejected the national approach and substituted a system based on cooperative federalism. Id., at 207-208. — S4WT: View this Conference Report for the 1996 Telecommunications Act.

State and local authorities would remain free to make siting decisions They would do so, however, subject to minimum federal standards [just "placement, construction and modification of personal wireless facilities" — both substantive and procedural — as well as federal judicial review.