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

17 October 2018 by Steve Blum
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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.