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FCC Tells Court It Has No 'Legal Authority' To Impose Net Neutrality Rules (arstechnica.com)

Posted by msmash on from the how-about-that dept.

The Federal Communications Commission opened its defense of its net neutrality repeal yesterday, telling a court that it has no authority to keep the net neutrality rules in place. From a report: Chairman Ajit Pai's FCC argued that broadband is not a "telecommunications service" as defined in federal law, and therefore it must be classified as an information service instead. As an information service, broadband cannot be subject to common carrier regulations such as net neutrality rules, Pai's FCC said. The FCC is only allowed to impose common carrier regulations on telecommunications services. "Given these classification decisions, the Commission determined that the Communications Act does not endow it with legal authority to retain the former conduct rules," the FCC said in a summary of its defense filed yesterday in the US Court of Appeals for the District of Columbia Circuit. The FCC is defending the net neutrality repeal against a lawsuit filed by more than 20 state attorneys general, consumer advocacy groups, and tech companies. The FCC's opponents in the case will file reply briefs next month, and oral arguments are scheduled for February.

13 of 226 comments (clear)

  1. Dismiss the telecom suit with prejudice by srmalloy · · Score: 5, Insightful

    If the FCC has no authority to impose net neutrality regulations on telecommunication services, then it equally has no authority to prevent states from imposing their own net neutrality regulations, because their is no federal authority that they are usurping. This means that the fundamental premise behind the suit filed by the telecom companies to invalidate California's net neutrality legislation has no footing, since it requires the FCC to have the authority Mr. Pai just disclaimed it possessing.

    1. Re:Dismiss the telecom suit with prejudice by sconeu · · Score: 2, Insightful

      Mod parent up. I came here to say the exact same thing.

      --
      General Relativity: Space-time tells matter where to go; Matter tells space-time what shape to be.
    2. Re:Dismiss the telecom suit with prejudice by Green+Mountain+Bot · · Score: 5, Insightful

      That's a big fat affirmative. The FCC is trying to not have their cake and keep anyone else from eating it, too.

    3. Re: Dismiss the telecom suit with prejudice by saloomy · · Score: 2, Insightful

      That doesn't matter for most connections, but it does matter since you are using interstate connections most of the time you connect to anything (except maybe your corporate office or mail server).

      While I am a proponent in general of Net Neutrality, and I want ISPs to treat the internet as just a phone call with no ifs, ands or buts; the FCC is right in this case. What we really need is for this question to be answered where the framers meant for it to be answered: in law.

      We can't change the rules for something as long-lasting and fundamental as the internet every time we change administrations. We can't rely on the executive branch to define the rules. The constitution calls on Congress to make the rules, and the administration (executive branch) to enforce them. Congress has to act. This purview should be codified into a bill, and passed. Thereby Establishing legal authority and imperative.

    4. Re: Dismiss the telecom suit with prejudice by postbigbang · · Score: 4, Insightful

      It was answered IN LAW. See Title II and common carrier assertion that the previous FCC administration re-classified broadband directly into the scope of jurisdiction. Then Pai say, nope, mishandled the public input process with a faux astroturfing complaint, and proceeded to let the telcos have their ways-- no nexus under Title II.

      So there WAS law. It treated all of those old fashioned 56K, ISDN, private line, inter-NAP, and other cricuits from SONET and ATM through to WDM lambas.... until it didn't, under Pai.

      And so the states litigating this are indeed correct, and if we don't bust the monopolies, they will indeed strangle you and I and have already started the processes to do so. While this is happening, 5G promises to unwind many decades of state control nexus over telecommunications IN IT'S ENTIRETY by a wholesale reclassification of all telephony away from telecommunications into something UNREGULATED. Don't be a fool. The regs were there, are there, and they're being end-run by countless telco attorneys that are sidestepping the law by FCC fiat.

      --
      ---- Teach Peace. It's Cheaper Than War.
    5. Re: Dismiss the telecom suit with prejudice by BlueStrat · · Score: 1, Insightful

      Full disclosure: I'm not American so I am not familiar with all these interstate laws from more than seeing them mentioned a lot on the internet.

      Are your connections to servers in other states and countries any different from buying things that were made in other states or countries in your local grocery store? At least in my mind, my ISP is a local connection similar to a local store, and they provide ACCESS to goods that were made in a lot of other places.

      First, let me say that you have a better grasp of the basic civcs of the US system as they apply here than many, many Americans, sadly.

      You are also correct in that internet service is simply access, the data/voice/etc which is the product, in essence, comes from around the world. It is not only interstate in nature, it is inter-State, as in sovereign foreign States and thus plainly fall under the purview of the US Federal government. Traditional Constitutional interpretations and countless precedents would have to be turned on their head, and the current SCOTUS will be far too mainstream to overturn so much legal/judicial weight of precedent and historic Constitutional principle.

      The only reasons to prefer net neutrality be enacted by administrative fiat rather than through legislative action is in order to use it as a partisan political weapon and a tool of authoritarian social control over the population and to set the precedent to do the same with other Federal agencies and other sectors in order to keep on expanding government scope and control.

      Strat

      --
      Progressivism (aka US 'Liberalism'): Ideas so good they need a police/surveillance-state to enforce.
  2. Then why does it try to stop states? by hawguy · · Score: 5, Insightful

    Ok fine, so the FCC says it has no legal standing to enforce net neutrality, then it ought to step aside and let the states do it.

    https://www.theverge.com/2018/...

  3. Great! by Jahoda · · Score: 2, Insightful

    So, sounds like Calfornia can do whatever the fuck they want to regulate internet inside their state.

    1. Re:Great! by Anonymous Coward · · Score: 5, Insightful

      Good, gtfo. We don't want your shit-ass ISP in our state.

  4. A subtle but important difference by Sarten-X · · Score: 4, Insightful

    The big difference between a "carrier" and "information service" is that an information service produces the information is gives to customers, even if it's produced from information other sources provide.

    In other words, an "information service" is not only permitted to, but is expected to be adding to or changing the information passing through it. A related example would be a local network television station inserting its own ads in network programming. For an ISP, it means they would have full legal justification to run proxies that MITM encrypted streams and inject their own ads, or extract the data you send and resell it to advertisers. Essentially, any security effected by HTTPS is compromised, and because the CA trust model is inherently broken, that insecurity can even be made undetectable.

    --
    You do not have a moral or legal right to do absolutely anything you want.
    1. Re:A subtle but important difference by edi_guy · · Score: 5, Insightful
      FTFA

      "[B]roadband providers do not make a stand-alone offering of telecommunications," the FCC also said. "[B]roadband providers generally market and provide information processing capabilities and transmission together as a single service, and consumers perceive that service to include more than mere transmission."

      This to me is further reinforcement that Pai only really cares about the corporations involved. Everyone I know from tech saavy-to-noob, young-to-old, just wants straight up Internet access. None of the extra junk services that Comcast, TimeWarner, etc want to sell you. Pai is just such a straight up Corp shill I can't believe people from all political stripes aren't insisting that he be fired.

  5. Re:Nobody on the left believes in Common Carrier by Sarten-X · · Score: 5, Insightful

    The problem is that they aren't just private corporations.

    They're private corporations with natural and artificial monopolies on several aspects of the market, which means there is a necessity for regulation to ensure they don't abuse those monopolies to the detriment of society.

    Completely neutralize the monopolies, and net neutrality isn't a problem.

    --
    You do not have a moral or legal right to do absolutely anything you want.
  6. Wouldn't this go against previous court rulings? by timrod · · Score: 4, Insightful

    I don't have exact case names, but I specifically remember that the Obama-era FCC went to court because the telcos sued them claiming the FCC did not have the authority to regulate net neutrality under Title 1 (information services). The telcos won, and the courts told the FCC that if they wanted to mandate net neutrality, they'd have to do it under Title 2 (by regulating ISPs the same as telephone companies).

    That was EXACTLY what Tom Wheeler did - he moved ISPs under title 2 and began regulating them as Title 2 Common Carriers, which DID give the FCC the authority to mandate net neutrality because that's what the courts told him he had to do.

    I would hope the court would respect stare decisis and tell Ajit Pai that he cannot have it both ways, preferably forcing him to restore the regulation of ISPs under Title 2.