The interesting part of this to me is that if you read the details the FCC published about the order that was signed, https://docs.fcc.gov/public/attachments/DOC-347927A1.pdf it goes into great detail about the court cases about why the FCC has no authority to effectively regulate net neutrality unless the ISP's are classified under Title 2.
(This is true, in fact, and the court cases it cites and the DC circuit have been clear on this point for years)
The order then reclassifies the ISP's outside of Title II.
Outside of the arguments around privacy jurisdiction (which were always dual jurisdiction with the FTC), i don't know what they are thinking.
Given that the courts have already decided the FCC has no authority to regulate in this space (outside of Title II), and Ajit himself has said it numerous times, arguing pre-emption seems like a loser. If they don't have the authority to regulate around it, it's hard to see how they will argue they have the right to pre-empt others: all the court rulings involve determinations about the scope of the statutes involved, which in turn is a valuation of what congress intended to regulate/how far pre-emption goes.
It'll be interesting to read the complaint to see what leg they are trying to stand on.
Besides the existing court cases making super-clear the lack of authority, just the sheer the number of statements and orders from Ajit saying the FCC has no authority here seems like it will be hard for the FCC to overcome.
They would have been much better off saying "we have plenty of authority here and we explicitly choose not to exercise it"
Did the order that killed net neutrality move them back to being Title I "information services"?
There have already been court rulings that states cannot regulate Title I information services. There was one just decided a few weeks ago in the 8th Circuit, Charter Advanced Services (MN), LLC v. Lange [1].
Pai immediately praised that decision [2].
That, in this suit coming so soon after that, suggests that is going to be the approach.
It really is amazing that apparently no one at the FCC played devil's advocate and asked the question: 'what is the potential downside to getting what we want?' before making rather absolute declarations re: their lack of authority to regulate this. At least as a layperson, California's move seems reasonable and within their rights given the FCC's previous moves. It will definitely be interesting to see how this plays out. Given the corner the FCC seems to have painted itself into, is it even possible that it could reverse its own position at this point (and have the courts take them seriously) or would it take an act of Congress?
> Given that the courts have already decided the FCC has no authority to regulate in this space (outside of Title II), and Ajit himself has said it numerous times, arguing pre-emption seems like a loser.
I think Fed gov, is arguing that California cannot regulate interstate commerce. So they cannot, for example create an 'import tax'.
I suspect, that eventually the argument will be around Originating and Terminating IP addresses. If both are in CA, then they can regulate it. If at least one outside -- than they cannot.
In telecom US taxation is there a well known, rule called 2-out-3 Rule.
One has to look at originating number location, terminating number location, and the location of the billing address.
Then the tax will be levied according the rules of the jurisdiction, that is identified by 2 same out of the 3.
(I do not remember, what would be the case when all 3 are different... ).
So in the case of internet, I suspect, FCC will argue that CA can enforce the rule only for the location that satisfy something similar to 2-out-3 rule.
So for CA resident to be within the scope of the enforcement, they would have to use, say a VPN that's is also in CA...
Otherwise, CA cannot regulate a genuine interstate service.
I feel like it would be a perfectly American solution to say that utilities only get free access to people's property and city's resources if they are neutral utilities.
And for anything else require they pay the property owner or city/county (as appropriate) at market rates per square foot of usage. Basically if you have a "utility" line on my property I can't use that space, so you better actually bye a utility.
I wonder how the business that I conduct with my ISP is "interstate commerce." The wire connecting my house to my ISP begins and ends in my state. As I understand things, it's the speed of data running up and down that wire that net neutrality seeks to protect.
It is considered interstate commerce to grow wheat on one's own farm to feed one's own animals under the theory that by doing so, he removed himself from the interstate wheat market (where he would otherwise have bought his wheat).
Since the internet plays a major role in interstate markets, one could easily extend this arguement to say that even local internet connections are interstate commerce.
One could actually argue that most anything is interstate commerce. This is one of the main reasons we don't hear courts arguing that federal laws overstep the constitutional authority of the federal government: everything is interstate commerce.
Wickard v. Filburn is the landmark case here. A farmer growing wheat on his own land, to feed to animals on his own land, all in the same state, is considered interstate commerce. The supreme court decided that the test is not about whether it is really interstate commerce, but if the activity exerts a substantial economic effect on interstate commerce.
California has been especially committed to challenging some of the administration's various injustices. Trump has made California one of his symbolic, non-white boogeymen in order to manipulate his "base."
Sorry if I get some basic understanding of the law wrong but...
Isn't this the same thing as regulating car emissions? Doesn't 822 only apply to providers in the state itself? Wouldn't it be that the telecoms are welcome to engage in another method of end-customer billing in other states?
> Like California’s auto emissions laws that forced automakers to adopt the standards for all production, the state’s new net neutrality rules could push broadband providers to apply the same rules to other states.
I think you're right, the motives are very similar.
> Attorney General Jeff Sessions said that California’s net neutrality law was illegal because Congress granted the federal government, through the F.C.C., the sole authority to create rules for broadband internet providers. “States do not regulate interstate commerce — the federal government does,” Mr. Sessions said in a statement.
I thought Republicans were pro-states rights and limited government? How does their position on this jive with their ideology?
The idea is that California's law conflicts with a federal rule, the one the FCC recently put into effect. The FCC says its authority preempts that of states on issues like broadband providers, which in a way provide interstate services, arguably making it a federal issue. That's far from settled however and this lawsuit will be a closely watched one.
If the commerce clause covers a farmer growing his own wheat that he doesn’t sell, it covers internet regulation. The question is if the FCC is authorized by Congress to set the regulations nationwide for internet companies.
I've never understood this style of comment. You say you agree and make a claim, but might you care to substantiate it or otherwise elaborate on your point of view? I am not saying you are wrong, just, I can't actually engage with the comment here because it doesn't provide anything to engage with.
Intention wise, I am with CA, but we cannot have each state have their own laws when it comes to the internet. We'd have the nightmare of dealing with gazillions of jurisdictions.
DannyBee|7 years ago
(This is true, in fact, and the court cases it cites and the DC circuit have been clear on this point for years)
The order then reclassifies the ISP's outside of Title II.
Outside of the arguments around privacy jurisdiction (which were always dual jurisdiction with the FTC), i don't know what they are thinking.
Given that the courts have already decided the FCC has no authority to regulate in this space (outside of Title II), and Ajit himself has said it numerous times, arguing pre-emption seems like a loser. If they don't have the authority to regulate around it, it's hard to see how they will argue they have the right to pre-empt others: all the court rulings involve determinations about the scope of the statutes involved, which in turn is a valuation of what congress intended to regulate/how far pre-emption goes.
It'll be interesting to read the complaint to see what leg they are trying to stand on.
Besides the existing court cases making super-clear the lack of authority, just the sheer the number of statements and orders from Ajit saying the FCC has no authority here seems like it will be hard for the FCC to overcome.
They would have been much better off saying "we have plenty of authority here and we explicitly choose not to exercise it"
tzs|7 years ago
There have already been court rulings that states cannot regulate Title I information services. There was one just decided a few weeks ago in the 8th Circuit, Charter Advanced Services (MN), LLC v. Lange [1].
Pai immediately praised that decision [2].
That, in this suit coming so soon after that, suggests that is going to be the approach.
[1] https://scholar.google.com/scholar_case?case=162444264794194...
[2] https://www.fcc.gov/document/court-preempts-state-regulation...
blihp|7 years ago
75dvtwin|7 years ago
I think Fed gov, is arguing that California cannot regulate interstate commerce. So they cannot, for example create an 'import tax'.
I suspect, that eventually the argument will be around Originating and Terminating IP addresses. If both are in CA, then they can regulate it. If at least one outside -- than they cannot.
In telecom US taxation is there a well known, rule called 2-out-3 Rule.
One has to look at originating number location, terminating number location, and the location of the billing address. Then the tax will be levied according the rules of the jurisdiction, that is identified by 2 same out of the 3.
(I do not remember, what would be the case when all 3 are different... ).
So in the case of internet, I suspect, FCC will argue that CA can enforce the rule only for the location that satisfy something similar to 2-out-3 rule.
So for CA resident to be within the scope of the enforcement, they would have to use, say a VPN that's is also in CA...
Otherwise, CA cannot regulate a genuine interstate service.
stult|7 years ago
That would open the issue up to reregulation under a later administration.
olliej|7 years ago
And for anything else require they pay the property owner or city/county (as appropriate) at market rates per square foot of usage. Basically if you have a "utility" line on my property I can't use that space, so you better actually bye a utility.
analog31|7 years ago
gizmo686|7 years ago
It is considered interstate commerce to grow wheat on one's own farm to feed one's own animals under the theory that by doing so, he removed himself from the interstate wheat market (where he would otherwise have bought his wheat).
Since the internet plays a major role in interstate markets, one could easily extend this arguement to say that even local internet connections are interstate commerce.
One could actually argue that most anything is interstate commerce. This is one of the main reasons we don't hear courts arguing that federal laws overstep the constitutional authority of the federal government: everything is interstate commerce.
imbur|7 years ago
exabrial|7 years ago
org3432|7 years ago
https://motherboard.vice.com/en_us/article/kzkx83/which-stat...
clubm8|7 years ago
https://en.wikipedia.org/wiki/United_States_Court_of_Appeals...
A ruling on Cali's law in the 9th would impact WA as well.
ForrestN|7 years ago
https://www.nytimes.com/2018/04/05/us/politics/trump-califor...
zwerdlds|7 years ago
Isn't this the same thing as regulating car emissions? Doesn't 822 only apply to providers in the state itself? Wouldn't it be that the telecoms are welcome to engage in another method of end-customer billing in other states?
What am I missing?
everdev|7 years ago
I think you're right, the motives are very similar.
> Attorney General Jeff Sessions said that California’s net neutrality law was illegal because Congress granted the federal government, through the F.C.C., the sole authority to create rules for broadband internet providers. “States do not regulate interstate commerce — the federal government does,” Mr. Sessions said in a statement.
I thought Republicans were pro-states rights and limited government? How does their position on this jive with their ideology?
DannyBee|7 years ago
See, e.g, https://www.law.cornell.edu/uscode/text/42/7416
and
https://www.law.cornell.edu/uscode/text/42/7402
and
https://www.law.cornell.edu/uscode/text/42/7410
devindotcom|7 years ago
Alex3917|7 years ago
My understanding is that federal law gives states the option of either following the EPA rules or the CARB rules.
RcouF1uZ4gsC|7 years ago
dd36|7 years ago
aw1621107|7 years ago
CalChris|7 years ago
https://www.justice.gov/opa/press-release/file/1097306/downl...
unknown|7 years ago
[deleted]
doe88|7 years ago
dang|7 years ago
https://news.ycombinator.com/newsguidelines.html
stephengillie|7 years ago
briandear|7 years ago
mychael|7 years ago
[deleted]
forrrealman|7 years ago
jhabdas|7 years ago
onetimemanytime|7 years ago
dragonwriter|7 years ago
We can certainly have each state have their own laws as to the terms on which internet service can be sold to consumers.
> We'd have the nightmare of dealing with gazillions of jurisdictions.
Which is true of consumer sales of many goods and services.