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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.

27 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 freddieb · · Score: 2

      I agree. They also open the door to voip providers..ie not require them to pay fcc fees and possibility 911 access and fees also. Fb

    4. 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.

    5. Re:Dismiss the telecom suit with prejudice by Calydor · · Score: 2

      Headquartered, sure. Do you pay sales tax for the state your grocery store's headquarters is located in, or the one where the store is?

      --
      -=This sig has nothing to do with my comment. Move along now=-
    6. Re:Dismiss the telecom suit with prejudice by rgmoore · · Score: 2

      The contention that because the FCC claims they don't have the authority to enforce NN they cannot prevent the states from enacting the same regulation is not logically related.

      It is precisely related. The argument in the California case is a federal supremacy claim: that the FCC has the power to enforce network neutrality, and that it's refusal to do so is a positive action that supersedes any state action. But in this case they're claiming they lack the authority to regulate network neutrality. They can't have the authority in one case and not have it in another.

      --

      There's no point in questioning authority if you aren't going to listen to the answers.

    7. 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.
    8. Re: Dismiss the telecom suit with prejudice by rahvin112 · · Score: 2

      The problem with your claim about interstate commerce is that if the FCC declares a service a "data service" congress never gave the FCC authority to regulate it. So in theory you are correct, with the power over interstate commerce the FCC could block state level regulations that impact internet traffic the FCC removed their authority to do so by declaring the service a data service.

      This was all settled in 2014 when the Obama administration tried to implement net neutrality rules without the Title II designation (they were data services at the time). The court threw out the regulations because with those services declared as data services congress never gave the FCC authority to regulate data services. In effect the FCC has no authority to regulate or intervene in any case involving a data service and any regulation they attempt to apply on data services is void.

      What this means is that the FCC has no regulatory authority to block California nor do they have the authority to even intervene legally. Congress never gave them this power. When the FCC calls a service a data service it becomes entirely unregulated and impossible for the FCC to regulate on any level. The only way the FCC can regulate is to declare a service a Title II service.

    9. Re:Dismiss the telecom suit with prejudice by Green+Mountain+Bot · · Score: 2

      interstate commerce clause does have authority to regulate however

      The FCC has no general right to regulate interstate commerce, which makes that largely irrelevant. The federal government has the right to regulate it, but not the imperative, nor the sole right.

      Further, federal agencies may only regulate interstate commerce as authorized by federal law. There is no federal law allowing the FCC to regulate what regulations states may impose.

    10. Re: Dismiss the telecom suit with prejudice by MachineShedFred · · Score: 2

      When I contract with an ISP, I am paying for a next-hop router and an IP address. It is very likely that will be local to my address, the same as electrical grid connection or local water and sewer.

      The Federal Government doesn't prevent the State of Ohio from enacting regulations regarding those other utilities, why the hell is it one-size-fits-huge-corporations-and-everyone-else-is-screwed with this?

      Yes, I am calling an ISP a utility provider, and they should be classified and treated as such.

      --
      Slashdot still doesnâ(TM)t support Unicode after it was added to the HTML standard in 1997.
    11. Re: Dismiss the telecom suit with prejudice by Dragonslicer · · Score: 2

      It really doesn't matter whether you or I believe that its better for congress to create laws or not. The constitution states that congress is where laws get created.

      Executive agencies, like the FCC are only empowered to create regulations to enforce already created laws. they are not empowered to create laws of their own.

      Right, and Congress passed a law that empowered the FCC to create regulations, such as those pertaining to telecommunications providers. Congress frequently delegates the creation of regulations (which are really just laws that have more specific details) to executive agencies.

      Generally speaking regulatory capture is a bad thing and explains why this situation has even come up. In the Obama administration the FCC was under the control of industries that wanted net neutrality, because it served them. Now it is under the control of industries who don't want net neutrality, because that position serves them.

      In no case is anyone asking what serves the electorate or the consumer.

      You won't get any disagreement from me here.

    12. Re: Dismiss the telecom suit with prejudice by postbigbang · · Score: 2, Interesting

      Go back to school, please. Read about how the FCC came into being. Learn its jurisdiction. Learn the Title II vs Title XIII controversy. Read about the Telecommunications Act, as amended, of 1996.

      Rethink your answer. The reason for the current litigation has to do with both State's rights, but also their mis-classification of common carrier status, which would give them nexus, and their transformation of the concept of what defines telecommunications to arrive at ther ostensible lack of nexus and their assertion that the FTC has nexus over network traffic "fairness". It's convoluted, strange, and written by the telcos to deepen their monopolies, promote 5G turf, and suck money from your wallet while keeping their costs as low as possible.

      --
      ---- Teach Peace. It's Cheaper Than War.
  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/...

    1. Re:Then why does it try to stop states? by slack_justyb · · Score: 2

      States have no authority over interstate commerce.

      That's not entirely correct. States may enter into compacts with each other if they so wish. The Federal government may step in at any point, but absent that, States are free to have trade between each other should the Federal government be silent on the matter.

      In other words, the Federal government has the "right" to regulate interstate commerce, but it does not have the "imperative" to regulate interstate commerce. The FCC is indicating that the Federal government has not taken any steps at this time to regulate such. Thus, since the Federal government is silent on the matter, by the way of 10th Amendment, the States are free to enter into compacts and regulate as they see fit.

  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.

    2. Re:Great! by Anonymous Coward · · Score: 3, Interesting

      The citizens of California would be your customers. And we've decided how we want you to run your ISP. We've decided on some regulations that we've made in to law. If you can't run a business that follows these regulations, then we don't want you here.

  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. Pass It Through Congress. by Zorro · · Score: 2, Interesting

    This is what happens when presidents just make crap up instead of doing it the legal way.

    1. Re:Pass It Through Congress. by Dragonslicer · · Score: 2

      They did. The FCC exists because Congress created it, and the FCC has the authority that Congress gave it.

  6. 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.
  7. Ok then by fustakrakich · · Score: 2

    "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

    --
    “He’s not deformed, he’s just drunk!”
  8. Ajit Pai Must Go! by BrendaEM · · Score: 2, Informative

    File the attacks against Net Neutrality as "Clear Result of Corporate Payoff."
    Ajit Pai is slime.

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    https://www.youtube.com/c/BrendaEM
  9. Re:Definition in law by presidenteloco · · Score: 5, Interesting

    "tele" - to or at a distance
    "Communication" (from Latin commūnicāre, meaning "to share") is the act of conveying meanings from one entity or group to another through the use of mutually understood signs and semiotic rules.

    Sounds an awful lot like a good definition of what the information communication infrastructure of the Internet does.

    Internet information-communication service providers are CLEARLY telecommunications service providers under any non-crack-smoking interpretation of the common sense meaning of English language terms.

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    Where are we going and why are we in a handbasket?
  10. 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.