Lawyers have a saying: hard cases make bad law. A couple of pending cases over Net Neutrality offer a good illustration.
A bit of background: One of the many outrages perpetrated by the Trump Administration was the cynical elimination of net neutrality rules by Ajit Pai of the FCC, despite the fact that a huge majority of Americans supported those rules. Pai came to the agency from Verizon, where he’d been an executive; Verizon and other large telecom interests don’t want to be restrained by pesky regulations requiring that they treat internet users equally.
When the FCC eliminated Net Neutrality, more than 20 states filed lawsuits, arguing that the agency had acted arbitrarily. Those lawsuits are supported by companies like Mozilla, trade associations representing Amazon, Facebook and Google, and consumer groups like Free Press and Public Knowledge.
For its part, California responded to the elimination of Net Neutrality by passing a version of its own. On September 30th, The Washington Post reported
California on Sunday became the largest state to adopt its own rules requiring Internet providers like AT&T, Comcast and Verizon to treat all web traffic equally. Golden State legislators took the step of writing their law after the Federal Communications Commission scrapped nationwide protections last year, citing the regulatory burdens they had caused for the telecom industry.
That same Sunday, the Trump Administration announced that it would sue California to block that law, setting up what the Post characterized as a high-stakes legal showdown over the future of the Internet. The administration will argue that only the federal government has the authority to regulate the Internet, and that the reason Congress gave the federal government exclusive authority was to ensure that all 50 states wouldn’t write their own conflicting rules governing the web.
Fair enough. Fifty different regulatory approaches would be a nightmare for ISPs, and arguably impossible to enforce. On the other hand, the federal government’s actions weren’t just bad policy that ignored the great weight of both expert and public opinion–its nullification of the net neutrality rules arguably constituted yet another gift by the administration to moneyed interests.
When the Justice Department announced that it would sue California, it set up a “lose-lose” “hard cases” scenario. In a sane world, the U.S. would have one comprehensive set of policies governing Internet practices–not 50. But in a sane world, the administration wouldn’t have repealed rules that were widely seen as necessary, reasonable and equitable.
If all this wasn’t bizarre enough, a couple of days ago, the FCC submitted its defense of the repeal in the lawsuit brought by the states by arguing that it had no authority to pass net neutrality rules in the first place.
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.
That argument would be a tad more convincing if the DC Circuit appeals court hadn’t ruled in 2016 that the rules were legal.
The argument also would seem to complicate the administration’s threatened preemption suit against California; lawyers defending the ability of states to pass rules say the FCC can’t preempt state laws that regulate conduct over which the FCC has no regulatory authority.
Does your head hurt yet? (Mine does.)
The various entities suing the FCC have until November 16 to file reply briefs. Final briefs are due November 27, and oral arguments are scheduled for February 1.
Oh what a tangled web we weave when trying to enrich an administration’s cronies.