Tag Archives: Neutrality
Within hours of California governor Jerry Brown signing a sweeping net neutrality bill into law, the US Department of Justice sued the state, sparking the latest battle in the long legal war over the ground rules for the internet. Groups representing broadband providers followed suit on Wednesday, with their own lawsuit arguing that California’s law was illegal.
The California law, set to take effect on January 1, will ban internet service providers from blocking or otherwise discriminating against lawful internet content. The rules are designed to replace similar regulations passed by the Obama-era Federal Communications Commission but jettisoned earlier this year by the now Republican-controlled agency.
Lawyers say the dispute raises novel questions about the relationship between the federal government and the states. First is whether California has authority to impose net neutrality rules at all. Both the DOJ and the broadband industry claim that the inherently interstate nature of the internet means that only the federal government can regulate broadband services. A second, even thornier question is whether the FCC was within its rights when it effectively banned states from adopting net neutrality rules earlier this year.
At its heart is this conundrum: In repealing the Obama-era rules, the FCC said it didn’t have authority to impose net neutrality regulations. But the agency now claims it does have the authority to ban states from adopting their own rules.
“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.
The California net neutrality dispute is just one part of a larger struggle between progressive states and the Trump administration on issues including immigration bans, separation of families at the border, and vehicle emissions. On net neutrality, several states, led by New York, are suing the FCC, arguing, among other things, that its decision was “arbitrary and capricious” and therefore illegal. A few states, including New York and Oregon, have banned state agencies from doing business with broadband providers that don’t protect net neutrality. And Washington, like California, passed a law to protect net neutrality directly.
Supporters of the California and Washington laws say they don’t conflict with federal regulations because, well, there aren’t any federal net neutrality regulations to conflict with.
“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.”
It’s not unheard of for the federal government to preempt state or local regulations when those regulations conflict with federal policy, even when the federal policy is not to regulate. Martin, the former FCC staffer, points to the Airline Deregulation Act of 1978, which banned states from reimposing federal airline regulations.
But that was a decision by Congress, not a federal agency. More relevant to this case are court decisions upholding the FCC’s moves to block the state of Minnesota from regulating internet phone services like Vonage like traditional telephone carriers. But the Vonage cases differ from the California net neutrality case in that the FCC’s authority to regulate internet phone services wasn’t in doubt. It’s less clear that the FCC still has authority to regulate broadband in the same way.
The FCC spent years, under both the George W. Bush and Obama administrations, trying to enact net neutrality regulations, but was repeatedly shot down in court until the FCC reclassified broadband providers as “Title II” common carriers, not unlike traditional telephone services. When the FCC passed the Restoring Internet Freedom Order, which took effect earlier this year and repealed Obama-era federal net neutrality rules, the agency returned broadband to the less stringent “Title I” information service category. The agency also concluded that it doesn’t actually have the authority to ban broadband providers from blocking or discriminating against particular internet content.
In a lawsuit challenging the legality of the Restoring Internet Freedom Order, a coalition of state and local governments and technology companies argued in a brief that this admission by the FCC effectively undermines its ability to preempt state laws, pointing to a 1976 federal court decision striking down the FCC’s attempt to preempt state regulation of two-way communications over cable television connections. That case was primarily about intrastate communications, but highlighted what Judge Malcolm Wilkey called a “vital difference between a refusal to use granted power, and an attempt to prevent regulation by others in an area where no ordinary Commission jurisdiction appears to exist.” Combined with the earlier cases that blocked the FCC from imposing net neutrality regulations without classifying broadband providers as common carriers, net neutrality advocates argue that the FCC lacks the authority to preempt states.
The question that remains is whether having the option to classify broadband as Title II and refusing to do so helps the FCC’s case, because it clearly had the authority to regulate net neutrality at one point, or hurts it, because it has given that authority up.
Martin thinks the states that are trying to protect net neutrality through policies barring state agencies from using broadband providers that don’t respect net neutrality are on stronger footing than the California and Washington laws. States are typically allowed to make their own decisions about how they spend their budgets. But Thomas Nachbar, senior fellow for national security law at the University of Virginia, isn’t so sure. He says those rules go too far by dictating how broadband providers treat not just the state, but other customers.
More Great WIRED Stories
The FCC’s inspector general said that the agency’s commenting system was not hacked by distributed denial of service (DDoS) attacks on May 7, 2017, despite claims by FCC officials then and a refusal to address the issue by FCC Chair Ajit Pai and others in intervening months. This included the FCC failing to respond to congressional demands for more information. The comments related to the Pai’s plan to overturn network neutrality rules clarified during the Obama administration.
The actual cause? A technical failure to handle many people simultaneously heeding John Oliver on HBO’s Last Week Tonight to post comments in favor of net neutrality.
Pai now states that he was misled, despite ample time within the agency to review the information and made a determination separate from the Office of the Inspector General (OIG), especially after it admitted to Gizmodo in July 2017 in response to a Freedom of Information Act request that it had no record of an analysis that led to the conclusion of an attack, nor any written record of the IT staff documenting that an attack had occurred.
Separately, the issue that as many as 94% of the 23 million comments successfully submitted were clogged with duplicates and contained mostly forgeries remains unaddressed, and has also dogged the credibility of Pai and others at the FCC. The attorney general of New York at the time opened an investigation. In May 2018, two Democratic senators demanded new security measures for commenting and accountability for previous failures in a letter to Pai.
The OIG report denying an attack in May 2017 has not yet appeared, but FCC Chair Ajit Pai released a statement to try to set the news coverage agenda, ascribing all blame on one person, David Bray: “I am deeply disappointed that the FCC’s former Chief Information Officer (CIO), who was hired by the prior Administration and is no longer with the Commission, provided inaccurate information about this incident to me, my office, Congress, and the American people.”
This wasn’t the first time the comment system locked up, nor the first time Bray was fingered as making an unsupportable statement. In 2014, Oliver also asked viewers to post comments supporting net neutrality and the system went down. According to reporting in August 2017 from Gizmodo, Bray allegedly leaked information to Motherboard in 2014, following that crash, claiming that malicious activity was responsible.
Gizmodo reported that no information emerged showing an attack in 2014. Pai’s statement purports that the contents of the FCC’s Office of the Inspector General (OIG) reveals the same.
The FCC voted December 14, 2017, in a party-line 3-2 split, to repeal rules set in 2015 that prohibited Internet service providers from throttling, prioritizing, or discriminating data based on site, service, or device, among other regulations.
WASHINGTON (Reuters) – Web browser developer Mozilla Corp and video-sharing website Vimeo Inc said on Thursday they had refiled legal challenges intended to block the Trump administration’s repeal of landmark net neutrality rules from taking effect.
A coalition of more than 20 state attorneys general led by New York’s Eric Schneiderman separately plans to refile a legal challenge as early as today.
The Federal Communications Commission officially published its order overturning net neutrality rules in the Federal Register on Thursday, a procedural step that allows for the filing of legal challenges.
The Republican-led FCC in December voted 3-2 to overturn rules barring service providers from blocking, slowing access to or charging more for certain content. The White House Office of Management and Budget still must sign off on some aspects of the FCC reversal before it takes legal effect and that could take months.
Congressional aides say the publication will trigger a 60-legislative-day deadline for Congress to vote on whether to overturn the decision. U.S. Senate Democrats have the backing of 50 members of the 100-person chamber for repeal, leaving them just one vote short of a majority.
Even if Democrats could win a majority in the Senate, reinstatement of net neutrality would also require a favorable vote in the House of Representatives, where Republicans hold a larger majority, and would still be subject to a likely veto by President Donald Trump. Democrats need 51 votes to win any proposal in the Republican-controlled Senate because Vice President Mike Pence can break any tie.
On Friday, a coalition of more than 20 state attorneys general and advocacy groups agreed to withdraw a protective petition filed in January that sought to preserve the right to sue.
Amy Spitalnick, a spokeswoman for New York Attorney General Eric Schneiderman, said last week the office agreed to withdraw ”the original petition and will simply refile it once the final rule is published. Either way, our coalition of AGs is taking the FCC to court to challenge its illegal rollback of net neutrality.”
The repeal was a victory for internet service providers like AT&T Inc, Comcast Corp and Verizon Communications Inc, conferring power over what content consumers can access.
Technology companies including Alphabet Inc and Facebook Inc have thrown their weight behind the congressional bid to reverse the FCC December vote.
Reporting by David Shepardson; Editing by Steve Orlofsky
New York’s attorney general urged the Federal Communications Commission to delay a vote rolling back net neutrality rules because of the large number of fake comments submitted to the agency on the issue.
The FCC is expected to vote on Feb. 14 on Chairman Ajit Pai’s plan to scrap the 2015 landmark net neutrality rules, moving to give broadband service providers sweeping power over what content consumers can access. Pai is a Republican appointed by President Donald Trump.
New York Attorney General Eric Schneiderman has been investigating allegations that more than half of the 21.7 million public comments submitted to the FCC about net neutrality used temporary or duplicate email addresses and appeared to include false or misleading information.
Schneiderman said the FCC agreed on Monday to assist in the probe. “We’re going to hold them to that – and, in the meantime, it’s vital that the FCC delay the vote until we know what happened,” said Schneiderman.
The 2015 rules changed the designation of internet service providers, or ISPs, usually big cable and telephone companies, so they were banned from blocking or throttling (slowing) legal content or from seeking payments to speed delivery of certain content, called “paid prioritization.”
FCC Commissioner Jessica Rosenworcel, who opposes the net neutrality rollback, agreed that the vote should be delayed.
Get Data Sheet, Fortune’s technology newsletter.
“The integrity of the public record matters. The FCC needs to get to the bottom of this mess. No vote should take place until a responsible investigation is complete,” she said.
Under Pai’s proposal, the Obama-era rules would be reversed and ISPs would only have to disclose blocking or throttling.
The US Federal Communications Commission (FCC) acknowledged that its site went down on Monday after it was hit by multiple distributed denial of service (DDoS) attacks after TV anchor John Oliver blasted the agency on his show over its move to repeal net neutrality rules in the country. The timing here is crucial, as FCC Chairman Ajit Pai has already announced plans to reverse the principles currently in place, and the agency is set to vote on his proposal on May 18. While the recent episode of HBO’s Last Week Tonight saw Oliver urge viewers to head to gofccyourself.com and…
This story continues at The Next Web