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Net Neutrality: The Congressional Review Act, Supportive Constituencies (and Injunctions)

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By Lambert Strether of Corrente.

In this post I’ll review the state of play on FCC Chair Pai’s order abolishing net neutrality, and on the Congressional Review Act (CRA) resolution nullifying Pai’s order. I’ll also list as many of the constituenicies in favor of net neutrality — for example, readers of small blogs! — as I’ve encountered, and I’ll close with an introduction to injunctions, since ideally some player would seek one against Pai’s order, rather than waiting for the damage to be done. To review, what Yves and I most fear is a “tiered Internet” that works — Eeewww! — like cable, which would certainly provide the Internet Service Providers (ISPs) with the level of rental extraction they want. We are concerned that their concept of how to “provide” “service” looks like this:

Needless to say, the “tiered Internet” would put an end to the days when you could just enter a URL into your browser, and go there. In cartoon form:

We are also concerned that — conservative nostrums about the so-called “free market” aside — that almost half of America lives with ISP monopolies. That means they have no leverage against a tiered Internet, and in fact where ISPs already exist, they are already violating net neutrality. Community Networks provides this handy map:

They conclude:

More than 129 million people are limited to a single provider for broadband Internet access using the FCC definition of 25 Mbps download and 3 Mbps upload. Out of those 129 million Americans, about 52 million must obtain Internet access from a company that has violated network neutrality protections in the past and continues to undermine the policy today.

In locations where subscribers have the benefit of limited competition, the situation isn’t much better. Among the 146 million Americans with the ability to choose between two providers, 48 million Americans must choose between two companies that have a record of violating network neutrality.

The Status of Pai’s Order Abolishing Net Neutrality

Recall that lawsuits and the CRA can’t kick in until Pai’s rule has been published in the Federal Register, after which it goes into effect in 60 days. But the FCC is still working on it. Ars Technica:

[T]he FCC is still making edits to the repeal order and hasn’t released the final version. The final order should be similar to the draft released by FCC Chairman Ajit Pai three weeks before the vote, but some changes will be made.

FCC orders are sometimes released weeks after a vote, although orders are also often released the same day or within a few days of a vote. The time is used by FCC staff and the chairman’s office to fix any mistakes or omissions and to respond to concerns raised by commissioners. Since net neutrality supporters will file lawsuits in an attempt to overturn the repeal, the final edits could also help Pai’s office make the repeal order more legally defensible.

[Policy Director Matt Wood of advocacy group Free Press] noted that it isn’t unusual for orders to come out a few weeks after votes, and that the end-of-year holidays may have slowed this one down even more. Still, the absence of a final order nearly three weeks after the vote “seems a little more remarkable [because] Chairman Pai has gone so far out of his way to praise himself for transparency, speed, and quantity in his orders—apparently in the belief that he gets a gold star for releasing as many decisions as possible, as fast as possible, no matter how bad they are for the public,” Wood said.

At least one change to the repeal order was made at the request of the FCC’s chief technology officer, Eric Burger (not to be confused with Ars Technica’s Eric Berger). Burger noted in an internal FCC email that Pai’s proposal would allow ISPs to block legal Internet content as long as they disclose the blocking, Politico reported before the vote. (The repeal will allow ISPs to block, throttle, and charge for paid prioritization as long as they follow transparency rules that require disclosure about network practices.)

Another change was made at the request of Republican FCC Commissioner Michael O’Rielly, who said that the commission should not invoke its authority from Section 218 or Title III of the Communications Act to enforce the transparency requirements. O’Rielly said that Section 257 of the Communications Act provided enough authority to require ISPs to be transparent about network management practices.

Those changes to the draft look substantive to me, indicating that Pai’s draft was not perhaps as well thought through as it could have been.

The Congressional Review Act Resolution

I don’t think we should be looking to a CRA to restore net neutrality; the CRA can be vetoed, and I’m dubious that net neutrality proponents have the votes to over-ride. Here is the state of play:

That’s 29 Democrats; Ed Markey (D-MA), the resolution’s sponsor, says that only 30 votes are needed to force a vote on the Senate floor. Here’s a list of Democrats who have not signed on:

Liberal Democrat icons Booker and Feinstein[2] not on board? For shame! In any case, I encourage you to call your Congress Critter and either thank them for doing the right thing, or encourage them to do so. Even if the CRA, as legislation, is ineffective, the list above will be handy for altruistic punishment later.

Constituencies in Favor of Net Neutrality

In an earlier post on this topic, I mentioned gamers as a surprisingly large constituency who would be adversely affected by net neutrality. In this section, I want simply to list more constituencies that I encountered in my random research walk through the web (such walks shortly to belong only to the past, if Pai and his reactionary colleagues have their way).

Tricoteuses. New York Times:

The potential repeal outraged Lesley Perg, a 44-year-old adult education instructor in St. Paul. She heard of Mr. Pai’s plan in July and submitted her name, email and phone number to BattlefortheNet.com, a site run by Fight for the Future and its partners to see how she could fight back. She is among more than 1,500 volunteers, and for weeks she has put in four to eight hours a week in training organizers of demonstrations and congressional office visits.

“Net neutrality underlies everything I care about,” said Ms. Perg, an avid knitter who is deeply involved with knitting communities online.

And a Reddit thread:

It has often been said fiber people are the best people in the world, but we are also the most powerful lobbying group that doesn’t know their power. After 9/11 when all pointy and cutty things were outlawed on planes, the FIRST thing that was allowed back on was knitting needles followed by nail clippers (the knitters favorite cutting implement). This is not a coincidence. There are more knitters than golfers out there, and when you count spinners, crocheters, and weavers we touch everyone in the world.

The Times quote got me started thinking about constituencies, because the proponents of a “tiered Internet” have such an insanely impoverished view of human nature. I’m sure there are many, many small verticals with deeply committed participants. For example, suppose Ms. Perg to have a male significant other who is a model railroader. You can bet that Model Railroader, which has a big online presence with a lot of video and several forums, is going to be impacted for the worse by net neutrality as well.

LGBTQ Community. The Advocate:

One of the most important products of net neutrality is giving a voice to the voiceless — marginalized groups who historically never have had a “mainstream” platform. For the LGBTQ community, that has been fundamental component of the progress made over the past two decades.

When you look at the evolution of the LGBTQ movement, the Internet and blogging were critical to its growth and development. Chat rooms for queer people created safe spaces on a new scale and allowed for people to connect with individuals like them, regardless of distance. Net neutrality is also critical for things like political organizing because it is the digital embodiment of free speech, a hallmark of any social movement and a catalyst of change.

The Poor and the Working Class. Al Jazeera describes a neat initiative in Detroit:

“Who’s being affected by this? It’s poor people, people of colour,” Nyasia Valdez, a 22-year-old with Detroit’s Equitable Internet Initiative in Southwest Detroit, a predominately Latino area also known as Mexicantown, told Al Jazeera.

EII aims to foster greater internet access for Detroit residents by creating wireless networks and intranets within communities in the city.

These intranets, private networks shared among a group, are created by linking 50 households, who are then able to share news, files and communicate among themselves.

“If something were to happen in Detroit, if there’s a water shut-off or a fire or a natural disaster, [the intranet] is used as a communication system” to spread the news, she said.

The EII also installs routers for wi-fi access in these neighbourhoods, which has created new opportunities for entrepreneurs in Southwest Detroit who “have started their own businesses, whether it’s carpentry, laundry or food businesses”, Valdez said.

Valdez said making the internet more expensive would further economically disadvantage these workers, and by extension, the entire community: “It would be so devastating and further exacerbate the inequality that’s already there.”

Public Libraries and Their Patrons. The Verge, from an interview with the heads of the New York Public Library, the Brooklyn Library, and the Queens Library systems:

The simple fact is that the poorest of New York rely on the library as the only place they can go and get free use of computers and free Wi-Fi. It’s one of the reasons why the library is the most visited civic institution in New York. We have also, in recent years, been lending people what we call hot spots, which are Wi-Fi boxes they can take home, typically for a year. That gives them digital access at home — broadband access — which something like 2 million New Yorkers can’t afford and don’t have. We’re still doing thousands of those. We’d like to do more and we’re exploring how to do more, because in this day and age, if you don’t have internet access that works and goes fast enough, you can’t do your homework, you can’t do research, you can’t apply for jobs, you can’t find jobs.

We live in a world where access to information is essential for opportunity, for learning, for success, for civic life, for checking facts. Anything that reduces that, particularly for people who can’t afford alternatives, is a body blow to the basic democratic principles that the library stands for. Whether people or the library are shoved to the slow lane, and / or forced to pay to be in the fast lane with resources that are already stretched thin, is really sort of shocking. To put it sort of bluntly, the Federal Communications Commission should be defending communications.

And public librarians are as bad-ass as the knitters…

Entrepreneurs. From Iowa’s Clay and Milk:

A fair and open Internet has spawned a virtuous cycle of innovation where one breakthrough begets another begets another. This has led to some of history’s greatest advancements, many of which are now an integral part of our economic growth. This, in no small part, was fueled not only by net neutrality but by venture capital investing in the smallest, even poorest ideas.

There are examples of areas where investment chilled or were avoided. Barbara Van Schewick discusses many of these examples in her 2015 article in The Atlantic how mobile Internet VC investment suffered. She also quotes USV investor, Fred Wilson.

“Many VCs such as our firm would not invest in the mobile Internet when it was controlled by carriers who set the rules, picked winners, and used predatory tactics to control their networks. Once Apple opened up competition with the iPhone and the app store, many firms changed their approach, including our firm.” – Fred Wilson, USV

Let’s face it, raising capital anywhere is hard, but being in the risk averse Midwest doesn’t make it any easier. New restrictions on data and content could kill entire industries before they start. Meanwhile, ISPs—who argue they, too, will experience a chilling effect when it comes to their own investments—have continued to admit how existing net neutrality regulations have NOT reduced their infrastructure investments.

Mentally bookmark “chilling effect,” because I want to come back to it.

An Injunction Preserving Net Neutrality Against Pai’s Order

Some look to a deus ex machina to preserve Net Neutrality, as in this article from Forbes:

It’s time for Zuckerberg, Bezos, Larry, Sergey, Gates, and all the tech billionaires to preserve the internet freedoms which enriched them. They need to band together to provide lightning-fast, uncensored internet to all Americans for the continual advance of American society. Unlike many other issues, this can be fixed with money but it will not come easy.

The myth of the “good billionaire” dies hard, but if indeed Zuckerberg and all decide that net neutrality serves their class interests, they’ll work to preserve it.[3] If they do, I’d speculate that they’d work through the Internet Association, their trade group, and seek an injunction to prevent Pai’s order from taking effect in the first place:

When we eventually get to court, one or more of the litigants, perhaps one of the smaller tech companies that joins the suit, may ask the court to issue a preliminary injunction, or what the appellate courts called a “stay.” If granted, this would prevent the FCC’s order, or perhaps just portions of it, from going into effect until the court renders a decision.

The challenge for anyone seeking a stay, however, lies not in demonstrating long-term harm from the rules, but imminent and irreparable injury.

The American Bar Assocation explains:

Though considerations may vary from state to state, generally courts consider four factors before issuing an injunc­tion:

Irreparable harm—Courts con­sider the significance of threat to the requesting party if the injunction is not granted.

Balance—Next, courts consider the effects of issuing, or not issuing, the injunction on both parties. While the requesting party may be harmed if the court does not issue the injunction, the other party may be harmed if the court grants the injunction.

Likelihood of success—Courts consider whether or not the party requesting the injunction has a poten­tially successful case—that is, one that is likely to “succeed on the merits” at the end of litigation.

Public interest—Finally, courts consider the injunction’s possible effect on the public interest.

“Immediate and irreparable harm” (see, e.g., the Library Journal) seems to be the standard ad the sticking point, at least for a preliminary injunction to allow the case to be heard. Playing for a moment the lawyer I clearly am not, one reason I compiled the list of constituencies above was to find a use case that was “Immediate and irreparable.” I don’t think that the knitters, LGBTQ, poor and working class, or public libraries can meet that test; that’s because, for them, the effects of net neutrality will be delayed, since the ISPs will probably prefer to boil their frogs, rather than simply slay and eat them. However, entrepreneurs are a different matter. There, the “chilling effect” of loss of future returns is indeed immediate (the investment doesn’t take place) and is indeed irreparable (the startups don’t start up). It would be deeply ironic, given my views on startups, if startups proved to be the harmed plaintiff that saved the Internet, but it’s a funny old world, as Maggie Thatcher used to say.

Conclusion

The future lies ahead, and it’s not without hope. We can at least call our Congress Critters and get the CRA rolling.

NOTES

[1] ISPs are America’s most hated industry. One of the ISPs behind the drive to abolish net neutrality, Comcast, is America’s most hated company.

[2] Fast Company: “[E]ven one-party ruled California has had a hard time. Its ISP privacy bill also failed to move ahead last year.” Not a good sign for Internet Association action.

[3] To some, a successful injunction seems likely.

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About Lambert Strether

Readers, I have had a correspondent characterize my views as realistic cynical. Let me briefly explain them. I believe in universal programs that provide concrete material benefits, especially to the working class. Medicare for All is the prime example, but tuition-free college and a Post Office Bank also fall under this heading. So do a Jobs Guarantee and a Debt Jubilee. Clearly, neither liberal Democrats nor conservative Republicans can deliver on such programs, because the two are different flavors of neoliberalism (“Because markets”). I don’t much care about the “ism” that delivers the benefits, although whichever one does have to put common humanity first, as opposed to markets. Could be a second FDR saving capitalism, democratic socialism leashing and collaring it, or communism razing it. I don’t much care, as long as the benefits are delivered. To me, the key issue — and this is why Medicare for All is always first with me — is the tens of thousands of excess “deaths from despair,” as described by the Case-Deaton study, and other recent studies. That enormous body count makes Medicare for All, at the very least, a moral and strategic imperative. And that level of suffering and organic damage makes the concerns of identity politics — even the worthy fight to help the refugees Bush, Obama, and Clinton’s wars created — bright shiny objects by comparison. Hence my frustration with the news flow — currently in my view the swirling intersection of two, separate Shock Doctrine campaigns, one by the Administration, and the other by out-of-power liberals and their allies in the State and in the press — a news flow that constantly forces me to focus on matters that I regard as of secondary importance to the excess deaths. What kind of political economy is it that halts or even reverses the increases in life expectancy that civilized societies have achieved? I am also very hopeful that the continuing destruction of both party establishments will open the space for voices supporting programs similar to those I have listed; let’s call such voices “the left.” Volatility creates opportunity, especially if the Democrat establishment, which puts markets first and opposes all such programs, isn’t allowed to get back into the saddle. Eyes on the prize! I love the tactical level, and secretly love even the horse race, since I’ve been blogging about it daily for fourteen years, but everything I write has this perspective at the back of it.

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25 comments

  1. Jeff

    I may repeat myself, but ‘net neutrality’ died already almost twenty years ago.
    ISPs distinguish traffic according to usage (“video” and “voice” traffic is more important in some ways than ordinary data traffic), to source or to destination (a subscriber paying into a ‘platinum’ package gets more & better services than ‘basic’ subscribers).
    That distinction may bring better services (so brings new customers as they abandon their old ISPs), or not (as explained in the article, if the ISP in a monopoly position, why bother).
    There is a need for such services, so much need that Google, Netflix, Akamai,… have installed dedicated equipment into the ISP datacenters so that they can provide better services. So even if you succeed in repealing the FCC act, Google and Netflix will still have a ‘better Internet’ than others.
    A few examples.
    As iOS devices try to hog the highest bandwidth at the highest resolution, your smartphone may keep your smart TV from working correctly. A typical operator is so little neutral that he can distinguish between web data flowing e.g. to an iOS smartphone, an iOS tablet or an iOS smartTV, and he can limit the maximum bandwidth and/or resolution served to a smartphone, in order to allow better service on the tablet or smart TV.
    Or you can avoid network congestion on mobile networks by dropping all basic subscribers (or giving them very little bandwidth), and offering better services to subscribers that pay more.
    And all of this is on the market since several years.

  2. Synoia

    I have been thinking about a previous suggestion of yours, including mesh networking……

    I had dismissed mesh networking because I wondered “who’s going to buy and install the millions of routers required to make the mesh”…

    Until I realized the routers for the “mesh” are already bought, paid for, potentially available, and used every moment of every day…and we do not call them routers…

    They are cell phones crying for a mesh “router” app…

    The solution is a simple (/sarc) matter of “mesh” software, possibly a TOR-mesh, and wifi cellphones.

    And would be a great contingency plan to compete with the current ISPs…

    1. artiste-de-decrottage

      OpenGarden tried to do something like that – a mesh network between mobile phones sharing existing wi-fi and cell service. I don’t follow them closely anymore, can’t say that they’ve had a lot of traction but that may change

      “Decentralized Internet
      ​access for everyone
      Using Open Garden, anyone can share their WiFi with other Open Garden users. And any Open Garden user can connect to the Internet. Sharing cellular coming soon! “

    2. Fraibert

      One concern I’d raise about mesh networking is that someone is inevitably going to do something illegal through the network, and I can imagine a good number of people potentially getting pulled into the resulting investigation as their connections were used to facilitate the crime. If that happens a few times, I suspect it will sour the whole project.

    3. Michael B.

      The science fiction author David Brin has been pushing this for over a decade now. Its a great idea and the functionality is already built in to the hardware and has been for years. Aside from the fundamentally democratic nature of a cell phone based peer-to-peer mesh network is also has a VITAL capability of providing critical communications in an emergency. I think that is actually the reason it was built into cell phones in the first place. It just needs to be activated. The only big downside is that it would drain your cell phone battery pretty quickly.

      1. Joel

        In the 2013 Hieroglyph collection, there’s a story, “Johnny Apple Drone vs. the FAA” by Lee Konstantinou about a mesh network made out of drones. And of course the federal government tries to shut it down.

  3. Darius

    If the situation were reversed, the Republicans would force a CRA vote just to make the president veto it and embarrass her/him and the Democrats. Then they’d campaign on it. The Democrats, passivity personified, don’t think that way.

  7. JCC

    I’ve written and called Feinstein and have yet to make any sense out of her non-answer answers on Net Neutrality. She is as bad as any Democrat has ever been on this issue. The best I have gotten is a form letter stating “I’ll keep your views in mind.”

    Bullshit!

    Every citizen of CA that reads NakedCap needs to call and write her daily.

  8. readerOfTeaLeaves

    Telecomm is not just about Netflix; it is critical in improving public safety.

    Attorneys General will, hopefully, band together to make a clear case for telecomm as a utility. This has become even more urgent as telecomm has enabled state agencies to improve public safety by providing real-time information (traffic maps, Twitter updates, public service text alerts).

    Pai is impacting public safety, as well as government budgets everywhere.

    Examples of how telecomm can be used very effectively to provide timely information to the public, particularly via Twitter:
    Washington State Dept of Transportation (WSDOT) Twitter: https://twitter.com/wsdot_traffic
    Washington State Patrol (WSP) Twitter: https://twitter.com/wastatepatrol
    Washington State Governor https://twitter.com/GovInslee

  10. Anarcissie

    I wonder if there is not a freedom of expression issue here. I have read that at least Comcast has shut down or cut off websites which were critical of Comcast. In any case, without some sort of non-discrimination rule for the use of the Internet, the possibility of such actions is obvious. I conclude that in any area where a monopoly or quasi-monopoly position is held by an ISP, there is an open route to suppression of free speech. That strikes me as a violation of the First Amendment which could be the basis of a lawsuit.

    1. Fraibert

      I don’t think there’s a viable First Amendment attack on the grounds you outline because the First Amendment (or any Constitutional violation at all) can only exist where there is “state action.” Generally speaking, Comcast’s private business decisions aren’t state action, unless there is somehow an element of state interference or cooperation with the state.

      Still, your idea does have some viability in one strand of case law. In _Marsh v. Alabama_, the Supreme Court held that a state trespassing law could not be constitutionally applied to punish the distribution of religious materials in a company town (i.e., a town where a private company owned all land, etc.). However, only four Justices relied upon a First Amendment rationale in that case, which means that the rationale does not itself have precedential value but only the overall result.

      Also, it’s worth noting that in _Lloyd Corp. v. Tanner_, the Court found that a private shopping mall could prohibit people from distributing anti-draft materials and distinguished _Marsh_ on the facts. Basically, the majority found that there were plenty of other venues besides the mall for the desired speech.

      With that said, one way of slicing the cases is that a private actor in a position akin to a company town (arguably as an ISP with a monopoly in a particular region) should not be allowed to exclude speech in a public venue under its control/ownership. To be honest, I don’t think that the courts would agree with this synthesis, but rather that they’d limit _Marsh_ to its special facts–a company town (in the 1940s) where the residents were unlikely to gain exposure to speech that did not occur within the town limits.

      It’s also worth noting that a e-mail spammer once tried to make the argument before a trial court that America Online violated the First Amendment by filtering out e-mail using a spam filter, in part invoking the _Marsh_ type of theory. That did not work (see http://www.paed.uscourts.gov/documents/opinions/CYBER.pdf, starting around p. 16).

  11. Fraibert

    As to irreparable harm in the OP, I think that’s about right. It’s not clear to me that the standard would be met just by the potential that ISPs might deny access to some content in the future. Generally speaking, there needs to be some kind of concrete, imminent harm that monetary damages won’t compensate.

    However, I imagine a public interest petitioner might also try to argue that a different standard should be used in this case. Certain infringements of speech (basically public/political type speech) are treated as irreparable harm as a matter of law. Similarly, the argument would go, the present situation is so unique that it deserves a special standard, because the government’s present action threatens to have significant effects on the ability of citizens to speak and to be heard on the internet. To bolster this argument, I imagine the advocate would also make reference to the line of cases indicating that the First Amendment includes the right to hear others speak.

    Suspect it won’t work, but think it’s still worth raising.

    1. Lambert Strether Post author

      > Certain infringements of speech (basically public/political type speech) are treated as irreparable harm as a matter of law.

      Any real-life lawyers in the house who care to expand on this?

      1. pictboy3

        Any violation of your constitutional rights is considered to be an irreparable injury.

        That said, as Fraibert already mentioned up thread, private actors can’t violate your 1st Amendment rights except in very narrow circumstances, so the irreparable injury claim falls flat. Even if it didn’t, I wouldn’t put it past this Supreme Court to find some rationalization to overturn what little protection exists in Marsh.

        1. Fraibert

          Rumor has it I may have studied law at some time. Unfortunately, it’s hard to fill in specific details with recent case developments without access to legal research resources that cost significant money.

          With that said, I think _Marsh_ is essentially dead anyways. Company towns no longer exist, and so most claims would resemble the _Tanner_ type situation of a shopping mall.

          _Elrod v. Burns_ is, I believe, the main Supreme Court case for the proposition that infringements of free speech are generally irreparable injury. The case was, as I recall, the first in a line that applied the First Amendment as a kind of civil service rule. Specifically, the case found the First Amendment violated when the newly elected Democratic sheriff of Cook County, Illinois discharged Republican non-elected employees of his office.

          In analyzing whether a preliminary injunction should have been issued on the facts of the case, the Court explained “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” (https://supreme.justia.com/cases/federal/us/427/347/case.html)

          Still, it’s harder to see what First Amendment freedom is being violated by the revocation of Net Neutrality–people can still speak through other alternative venues, after all. (Whether these venues are as effective is a different story…)

          Basically, what I was outlining above is a theory along these lines:

          1. The internet is now a social necessity for participation in nationwide conversations. In fact, the internet has created the possibility of nationwide communities to engage in such conversations on a regular basis.

          2. Therefore, given the nature of the internet, government action that deliberately hinders general access to the internet infringes on the right to hear others speak.

          It’s not something that I think has any real support in current law but is worth thinking about.

          1. pictboy3

            I had a conversation with my internet law professor back in school on this very topic.

            Ironically, I think that Citizens United could actually be used to bolster this line of argument. After all, people still had alternative venues to speech aside from giving money to campaigns through corporations. By refusing to allow the government to prohibit that avenue, I feel like they’ve provided ammunition for a clever attorney to use for your theory.

            Unfortunately, the cynic in me believes that the SC is a political institution first and foremost, and arrives at its decisions first, then writes the opinions. So I have almost no faith in the Supremes to make decisions that are consistent with even their own judgments.

            I’m terrible with case names, so I hope you’ll forgive me, but there was a California state constitutional case (in the 80s I believe), where the state supreme court essentially ruled that a mall could not throw anti-apartheid pamphleteers off their property because they were a forum and essentially a quasi-public space because of the societal function they provided. At the time, my professor and I discussed whether this could be applied to internet sites like Facebook and Twitter when they tried to censor certain posts. In any case, even if net neutrality can’t be enforced at the federal level, state constitutions and state law are still an option. In another twist of irony, the arguments used by telecoms to try and blunt the spread of municipal broadband, actually work against them in this situation because of the lack of FCC preemption power (source).

            1. Fraibert

              I think the general understanding of litigators is that judges, at least where they’ve had time to fully review a case, have a gut position based on their experience and worldview. If that gut position is adverse to the advocate’s position, then the advocate has to present a good reason for the judge to change his or her mind, or the advocate is going to lose. I’ve always figured the Supreme Court behaves in the same way, though perhaps there may be lesser tendency to be pushed from the gut reaction.

              I know there has been some interest in asserting state constitutional rights in light of the last several decades of the Supreme Court. I’m not sure this is going to always work. While it’s true that the state constitutions can be more protective of rights than the federal Constitution, it’s also true that state constitutions have to be consistent with the federal Constitution. I’m not familiar with the California case you mention (quick google search indicates it’s likely _Robbins v. Pruneyard Shopping Center_, but it strikes me that there is probably a federal Constitutional problem lingering in those cases in terms of compelled speech or takings or some other theory.

              I would also suggest that a state attempting to generally regulate an internet content provider is going to run into trouble with the dormant commerce clause. (The dormant commerce clause is a doctrine holding that Congress’ power to regulate interstate commerce also means that the states cannot, without Congressional authorization, regulate interstate commerce or other activity with sufficient interstate connections.)

  12. Scott Dunn

    I found in the comments on the original order from Dr. Barbara Cherry, a noted authority on telecom law, what I think is one of the best arguments for net neutrality:

    The FCC is required by the communications act to treat those engaged in the business of carrying bits for the general public, aka, “common carriers”, as common carriers. It should also be noted that just because you “sell access” to the internet and top off your pipes with “information services” doesn’t necessarily mean you’re not a telecommunications service.

    https://poseidon01.ssrn.com/delivery.php?ID=367099102068003126070068092114028107038049048023079045090090083025029113024115025112053049038042059099045107067064104098127025020036071089003023113009112097082067106073052024119024104018086115001006125112125024071071084029080119075100073092121066117091&EXT=pdf

  13. Rich Bendall

    As a small business owner in New York City, I’m required to file my Sales, City and State Taxes online. If the ISP’s are no longer to be considered as Common Carriers, perhaps we should all insist on reverting to filing our tax returns by mail.

  15. XXYY

    Something I have not seen mentioned anywhere is the parallel between what’s happening now with the internet and what happened in the past with radio and (later) television. Namely, a public and potentially democratic communications medium was given away to private, for-profit entities, who then had permission to use them to make as much money as possible with little expected for the public in return.

    The FCC was the bad actor in the previous cases as well, instituting regulations and licensing processes to control who could and couldn’t use various parts of the electromagnetic spectrum (a public resource) and providing a basis to prosecute violators. The US had (perhaps still has) a pirate radio movement who claim the right to use spectrum for their own operations and who are in constant battle with the FCC.

    Obviously, when the internet came along, there was going to be a similar effort to try to capture it and devote it to generating private profit rather than anything more useful, let alone noble. We are seeing that play out now. If anything, privatization of the internet seems more “defensible” since data is generally carried over privately-owned equipment, in contrast to radio and TV that use public spectrum as a conveyance.

    IMO the way forward is to switch to publicly-owned internet infrastructure that will not be corrupted by the profit motive. Private ISPs are already widely detested and will have no defenders among the population, most of whom will be happy to see Comcast, et. al. go. This will parallel the conversion in the US to public fire departments and (hopefully) single-payer health care in the drive to make society better and more humane.

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