Tag Archives: netneutrality

FCC’s have it both ways brief is California’s heads we win, tails you lose hope

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Besides doing rhetorical back flips to explain why broadband isn’t a telecommunications service, the Federal Communications Commission’s defence of its decision to scrap network neutrality rules also goes to great lengths to justify its declaration that states cannot impose their own laws as a substitute. This specific preemption, along with federal law and the general constitutional principle that the federal government has sole authority over interstate commerce, forms the basis for the court challenge to California’s net neutrality law mounted by lobbyists for AT&T, Charter, Comcast, Frontier and other monopoly model telecoms companies, and the allied law suit filed by the Trump administration.

In doing so, the FCC relies heavily on a recent ruling by a federal appeals court in Minnesota that barred that state from regulating what it defined as an “information service” – VoIP – provided by Charter Communications. Neither the District of Columbia appeals court hearing the challenge to the FCC decision or the one in California are obligated to follow the Minnesota court’s ruling.

But if they do, then they should also give equal weight to its assumption that the Internet access Charter provides is an underlying “telecommunications service”.

Although federal courts generally leave technical determinations up to administrative agencies such as the FCC, there’s a point where contradictory decisions – between courts and agencies, and within agencies themselves – have to be resolved. In this case, the FCC is trying to have it both ways, by declaring that broadband service itself is an unregulatable information service, then turning around and basing its supposed preemption of state laws regarding on its authority over communications services.

Some of the services ISPs provide are information services: video, productivity apps and, perhaps, VoIP. Basic Internet access, though – the transmission service they all ride on – is a telecommunications service. The FCC might have sufficient authority and evidence to say it isn’t for the purpose of defining its role and the reach of federal telecoms law – that’s the key question in front of the D.C. court.

If the D.C. court rejects the FCC’s reasoning and throws out the 2017 decision, federal net neutrality rules are back in effect. But if it agrees with the FCC, then the foundation of the case against California’s net neutrality law crumbles, and California has a fighting chance of keeping the Internet open.

FCC’s definition of information is a bad 1990s nostalgia trip

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The Federal Communications Commission is strenuously and – I’d say – unconvincingly arguing that broadband is an information service and not a telecommunications service, as it defends last year’s decision to roll back network neutrality rules. In a brief filed with a Washington, D.C. appeals court, the FCC defended both the logic of its decision and the way it arrived at it.

Courts have already told the FCC that it needs to define broadband as a telecoms services before it can impose common carrier obligations on providers, which, for all practical purposes is what network neutrality rules do.

The FCC’s defence of its conduct relies primarily on older rules, and even older studies, that prevailed before the Obama administration’s commission, with its democratic majority, changed course in 2015 and declared broadband is a common carrier, telecommunications service.

When the Trump administration’s republican led FCC reversed that decision last year, broadband went back to being a largely unregulated information service. It’s accused now of acting quickly without giving the decision as much consideration as the law requires. Its frontline defence amounts to the other guys were arbitrary and capricious, we’re just putting it back to what it was for 20 years.

In the mid–1990s, platforms like AOL offered generic internet access, but it was an add-on to the main business of providing a walled garden line up of data, services and fora. That’s not what broadband providers do now, though. Most Internet traffic is a simple transmission link, between a user and third party service or content platform. So the FCC brief tries to concoct a new definition that fits that model…

A service that offers a capability to generate and process information is an information service, but a service, like broadband, that offers a capability to acquire, retrieve, and utilize information is also an information service.

The problem with the FCC’s argument is that its new definition of information looks a lot like the legal definition of telecommunications…

The term “telecommunications” means the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.

It’s not 1995 anymore. This attempt to redefine information is blatant fantasy. The question will be whether the court will abandon the usual deference it shows to the supposed technical and subject matter expertise of federal regulatory agencies and come down on the side of reality.

Motions to block California’s net neutrality law to be heard end of November

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The federal justice department will work side by side with telecom industry lobbyists to block California’s new network neutrality law. The two challenges to senate bill 822, filed shortly after it was signed into law by California governor Jerry Brown, will be taken up as a package by a federal judge in Sacramento. For now, the two cases will be technically separate, but will be argued and decided together.

Judge John Mendez set a hearing for 28 November 2018 to decide if he’ll issue a preliminary injunction that would prevent SB 822 from taking effect in January. AT&T, Charter Communications, Comcast and Frontier Communications, among others, claim they “will suffer immediate and irreparable harm” if it’s enforced before the core issues are argued and, eventually decided, next year.

In theory, it shouldn’t have much effect, if any, on California’s monopoly wireline broadband providers – they claimed to be honoring net neutrality principles during their full throated – deep pocketedattacks on SB 822. The reality is likely different. The ferocity of the disinformation campaign they waged might lead you to believe they have something to fear. Mobile carriers certainly have immediate worries: SB 822 bans zero rating, which is common practice on the wireless side of things.

Mendez gave the California attorney general’s office an extra week to answer the two challenges. It has to file a single response by 26 October 2016. Then the federal justice department and the telco and cable front organisations have two weeks to prepare their rebuttals.

The door is also open for other interested parties to jump into the case. Anyone wanting to offer facts or arguments for or against California’s net neutrality law can request permission from the judge and file their briefs at the same time.

The schedule approved by Mendez gives any third party – an amicus curiae – that wants to support the Trump administration’s and telecom industry’s cases until next Friday, 19 October 2019, to file their paperwork. Those wanting to add their weight to California’s defence have until 2 November 2018.

FCC’s broadband paradox opens a door for California’s net neutrality law

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Both California and Washington now have laws on the books that, to one extent or another, reinstate network neutrality rules that were scrapped last year by the Federal Communications Commission. California’s law was challenged by the Trump administration in federal court a couple of hours after it was signed, on a Sunday afternoon, by governor Jerry Brown. Lobbying fronts for AT&T, Comcast, Charter, Frontier and other monopoly model telecoms companies soon followed.

Conventional wisdom has been that a state can’t regulate Internet access service, because it’s clearly a matter of interstate – international, really – commerce. Regulating it is, therefore, a responsibility that the U.S. constitution assigns to the federal government.

But when the FCC repealed its own 2015 net neutrality rules, it stepped away from the job completely, while at the same time telling states they couldn’t step in. That’s a paradox, according to communications law experts interviewed for a Wired article by Klint Finley

“It’s hard to find a case that’s perfectly, squarely applicable, where an agency says ’we’re vacating the field, and we’re not allowing anyone else to enter the field,’” says Marc Martin, a former FCC staffer during the presidency of George H.W. Bush who is chair of law firm Perkins Coie’s communications practice…

“Usually you have preemption where there is a federal rule and a state tries to enact an incompatible rule,” says Pantelis Michalopoulos, a lawyer with the firm Steptoe & Johnson who is representing net neutrality advocates in a federal lawsuit against the FCC. “You’re in a much weaker position when you try to preempt a state rule where there is no federal rule.”

On the same day that Wired posted its piece, the Wall Street Journal ran a scathing editorial accusing California’s “progressive imperialists” of breaking the Internet. Which won’t be allowed, because “the internet by definition is interstate communication”.

Except that the FCC’s most recent net neutrality ruling declares that broadband is not a telecommunications service and is, instead, an information service that’s outside of its control.

The FCC made an unconventional decision. There’s no particular reason to believe that the courts will rely on conventional wisdom to enforce it.

Big telecom drops lawyers and lobbyists on California’s net neutrality law

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Lobbying front organisations for AT&T, Charter, Comcast, Frontier and mobile carriers joined forces to mount another legal challenge to California’s new network neutrality law on Wednesday. The four are the American Cable Association (ACA), the Cellular Telecommunications Industry Association (CTIA), the National Cable Television Association (NCTA) and the U.S. Telephone Association (USTelecom) – they keep trying to rebrand themselves, but that’s what the initials originally stood for, and what they’re really about.

They filed a complaint and motion for an injunction in a Sacramento federal court, claiming that the network neutrality law – senate bill 822 – signed by governor Jerry Brown on Sunday is “a classic example of unconstitutional state regulation”. Because the Internet does not stop (or start) at California’s borders, it is inherently an interstate service, their argument goes. So, they say, the Federal Communications Commission’s most recent net neutrality decision overrides California law…

The 2018 Order expressly “preempt[s] any state or local measures that would effectively impose rules or requirements that [the FCC has] repealed or decided to refrain from imposing in this order or that would impose more stringent requirements for any aspect of broadband service” addressed in the 2018 Order.

SB–822 plainly falls within the scope of this express preemption provision. It is a state measure that seeks to reinstate net neutrality requirements that the 2018 Order repealed.

The lobbyists’ challenge follows a similar filing by the federal justice department on Sunday evening. It’s likely that the two cases will be combined, but for now the Trump administration’s challenge is taking the lead. It’s assigned to judge John Mendez, who scheduled the first hearing in the case for 14 November 2018.

California’s defence is led by attorney general Xavier Becerra, who has aggressively gone after high profile Trump administration policies, but also takes money from AT&T, Comcast and Charter. His response to their lawsuit was to tweet that it “was brought by power brokers who have an obvious financial interest in maintaining their stronghold on the public’s access to online content”. We’ll get a look at how he intends to do that in a couple of weeks, when his first response is due.

California’s new muni broadband law establishes rights, and net neutrality responsibility

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California governor Jerry Brown actually signed two network neutrality bills into law on Sunday. The Big Kahuna was senate bill 822, which establishes net neutrality rules for Internet service providers doing business in California. But alongside it was assembly bill 1999, which, among things, requires publicly owned broadband systems to abide by net neutrality principles, whether or not their private competitors have to.

It’s a mixed blessing. On the one hand, it’s good thing for muni broadband systems to operate on a net neutral basis, both from a public policy and a customer service perspective. On the other hand, it might not always be a viable way of doing business. If SB 822 is tossed out by a court, and the current anything goes federal policy stays in place, then a few years from now the broadband business might look completely different. If muni broadband systems are handcuffed to a business model that is no longer competitive, the only ones who will benefit are the big, monopoly model ISPs like AT&T, Charter and Comcast. That’ll be a problem to worry about later, though.

AB 1999 does two other things. It lifts a restriction on community service districts (CSDs) that effectively bars them from the broadband business. It was the only meaningful restriction on public agency broadband on the books in California.

The bill also clearly spells out that cities, counties and certain kinds of special districts, including CSDs, county service districts, utility districts and infrastructure financing districts can offer broadband service. It’s long been assumed they can, but there wasn’t much in the way of explicit legal authority. Cities have a long history of precedent to rely on, but other kinds of agencies don’t have that level of confidence to fall back on. I know from experience that there is a huge difference between “there’s nothing that says you can’t” and “the law specifically says you can” when you’re trying to convince local officials that a broadband enterprise is a good idea.

But there’s also potential danger. A law that explicitly allows muni broadband service is a tempting target for corporate lobbyists who want to fiddle with it, to the benefit of their business models and at the expense of the public. We’ll have to keep a permanent watch on California’s new muni broadband law.

Court gives California three weeks to defend net neutrality law

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The gears of justice are grinding on California’s newly minted network neutrality law. Yesterday, the federal court in Sacramento gave California attorney general Xavier Becerra three weeks to respond to the Trump adminstration’s attempt to nullify senate bill 822.

Signed Sunday afternoon by governor Jerry Brown, the law reinstates the core elements of the Federal Communications Commission’s 2015 ban on blocking, throttling and paid prioritisation of Internet traffic on the basis of content, and also clarifies that selective zero rating is prohibited. It’s a close cousin of paid prioritisation: Internet service providers charge subscribers to watch competitors’ video streams, but let them download in-house content for free.

If the court doesn’t act, ISPs have to begin following the new rules on 1 January 2019. The Trump administration is hoping for action before then. In a motion filed Sunday evening, the federal justice department asked the court to block California’s law before it takes effect. Acknowledging California’s influence, the justice department told the court that unless the law is blocked, net neutrality rules will return to all 50 states

Given that ISPs cannot realistically comply with one set of standards in this area for California and another for the rest of the Nation — especially when Internet communications frequently cross multiple jurisdictions — the effect of this state legislation would be to nullify federal law across the country.

Becerra has the job of defending SB 822. He tweeted his support for it after the lawsuit was filed on Sunday night. Yesterday, he told the Sacramento Bee information shouldn’t be throttled “simply because there are a few robber barons who get to control the flow of that information”, and promised what the Bee characterised as a “vigorous defence”.

So far, California’s big monopoly model ISPs – AT&T, Frontier, Comcast and Charter – have let the FCC and their other friends in the Trump administration do their talking for them. Republican commissioner Michael O’Rielly expressed his appreciation for the justice department’s action and defended paid prioritisation by ISPs.

Jessica Rosenworcel, currently the lone democrat on the FCC, offered “a hefty thank you to the Golden State for your effort to get right what the FCC got wrong”. But she stopped short of predicting that California’s law will survive court challenges. Rosenworcel is a smart lawyer – it pays to listen to what she doesn’t say.

Brown signs SB 822 and establishes Californian net neutrality rules, Trump lawyers hit back

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Jerry Brown doesn’t have a problem stepping into policy territory claimed by the federal government. He’s signed bills that fly in the face of Trump administration immigration policy, and carved out a place for California in international environmental diplomacy. You can add telecoms policy to that list. Yesterday, he signed senate bill 822 into law. Authored by senator Scott Weiner (D – San Francisco), it reinstates network neutrality rules that were approved by the democratic majority on the Federal Communications Commission in 2015, and quickly scrapped when republicans took over control of the FCC in 2017.

Trump administration lawyers were on hot standby. The federal justice department had a press release and two court filings ready to go, and found time between football games on Sunday night to upload them to a federal court in Sacramento (links below).

Assuming for the moment that SB 822 withstands legal challenges, come the new year Internet service providers in California won’t be able to block or throttle subscribers’ traffic on the basis of its content, or give some bits priority over others because someone is paying them to do so. Or because they own the content. That ban also applies to zero rating, which is a close cousin of paid prioritisation where ISPs let subscribers watch as much in-house video as they want for free, but charge for data used to download competitor’s content. California’s new rules bar ISPs from fiddling with upstream connections to content providers and others, if it’s intended to achieve the same result.

SB 822 travelled a rocky road to victory. Introduced by senator Scott Wiener (D – San Francisco) earlier this year, it was gutted by AT&T and Comcast’s friends on the assembly’s communications and conveyances committee. The committee chair, assemblyman Miguel Santiago (D – Los Angeles), was slammed by a tsunami of online rage, although his principle wingmen, Evan Low (D – Santa Clara) and Eduardo Garcia (D – Imperial) escaped unscathed. They were forced to back track, and the bill finally cleared the legislature on super majority votes, and yesterday won Brown’s approval.

The ink on Brown’s signature barely had time to dry before the feds filed a complaint, um, complaining that California “seeks to second-guess the federal government’s regulatory approach”.

Duh.

AT&T, Comcast and other monopoly model ISPs will pile on to the federal justice department’s lawsuit – they’ve promised as much. But the Trump administration is happy to do the heavy lifting for them. Its core argument is “pursuant to the supremacy clause [of the federal constitution] and federal statutes, the Federal Communications Commission sets uniform, national policies governing interstate communications, and contrary state laws — like the one challenged here — are preempted”.

The federal judge who gets the case will have to unravel a circular argument. The Trump administration claims that the FCC declared broadband isn’t a common carrier service, so California can’t impose common carrier rules. Which, it says, is what SB 822 does. SB 822’s supporters say that because the FCC also reclassified broadband as an information service, it gave up any preemption power it might have. So states can use the authority they share with the federal government to establish consumer protection laws. Which is what, supporters say, SB 822 does.

Although supporters of SB 822 have plausible arguments against federal preemption, it’s a question that’s very much in play. A lot can happen between now and the end of the year. Enjoy it while you can.

California senate bill 822, as signed by governor Jerry Brown, 30 September 2018

Complaint for declaratory and injunctive relief, the United States of America versus the State of California; Edmund Gerald Grown jr., governor of California and Xavier Becerra, attorney general of California, 30 September 2018
Memorandum of law in support of [the federal justice department’s] motion for preliminary injunction

Feds launch lawyers at California net neutrality law, on high political alert

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That didn’t take long.

Less than two hours after the announcement that governor Jerry Brown signed senate bill 822 and made network neutrality the law of the land in California, the federal government struck back. The federal justice department filed a lawsuit challenging it with the federal district court – the eastern district – that covers Sacramento.

They had their finger on the button. Two filings and the obligatory press release were ready to go. One is a complaint, um, complaining that California “seeks to second-guess the Federal Government’s regulatory approach”.

Duh.

The other asks for a permanent injunction that would squash California’s net neutrality law.

It’s Sunday, so it’s a fair conclusion that the rush to the courthouse door is political rather than an exercise in legal professionalism. But the complaint and motion for injunction will be waiting when Sacramento-based federal judges punch in tomorrow morning.

Governor Brown signs California net neutrality law

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Network neutrality is now the law of the land in California. Governor Jerry Brown signed senate bill 822 today. That’s according to a tweet by the bill’s author, senator Scott Wiener, (D – San Francisco).

It reinstates network neutrality rules that were scrapped last year by the Federal Commission. The three bright line rules established by the FCC in 2015 – no blocking, throttling or paid prioritisation of Internet traffic – are back on the books. Preferential zero rating is included on the list of banned practices. It’s a close cousin of paid prioritisation: Internet service providers let subscribers download unlimited in-house video but charge them to watch other platforms. Upstream tricks, designed to evade those rules, are also forbidden.

Court challenges are a dead certainty. But in theory, California’s net neutrality regime takes effect on New Year’s Day.