
Court says FCC’s net neutrality repeal can’t stop state laws - chimi
https://techcrunch.com/2019/10/01/court-says-fccs-unhinged-net-neutrality-repeal-cant-stop-state-laws/
======
olodus
The whole thing is a bit sad. We could have a real discussion about net
neutrality. We could talk about how 5G probably will need different kinds of
connections with different latency or reliability and that if you are building
a normal Web service you probably don't need all that while some other
services obviously do. And such specific improvement maybe should cost a bit
more.

But no. Because all ISPs will use non net neutrality for is to push more
expensive subs on people without really offering something better to them. Or
push out competition of their own services. Who in general would support Ait
the way he behaves? He is so obviously a corporate ISP spokesperson, even
without looking at his resume.

~~~
pitaj
I'm still anti-NN because I hate how disingenuous and alarmist the pro-NN
crowd has been. I don't think adding more regulation will fix anything.

But at least now we'll get to witness the power of federalism with regulatory
comparisons between states.

Reasons:

\- general opposition to regulation, because compliance costs burden smaller
firms more, raising the barrier to entry

\- does not address the root problem, lack of competition

\- reduces choices for consumers

Lack of competition is caused by onerous local regulations which incumbents
use to raise the barrier to entry. See: Google Fiber

Because NN does not address the root cause, and in fact the support for NN has
not resulted in any significant support for addressing the root cause, it can
only serve to further enforce the status quo or makes things worse.

Some examples of failed predictions / misleading statements made by NN
supporters:

\- Most Americans have less than 3 ISPs. This may be true depending on how you
restrict which ISPs you're referring to. Mobile carriers cover almost the
whole US, so there's 3 or 4 right there.

\- ISPs will produce different packages for internet access. This hasn't
happened.

\- Speeds will reduce. This hasn't happened.

~~~
Lukeas14
General opposition to regulation

\- NN is not a cost regulation as far as I know. It's preventing companies
from doing something, not requiring them to do anything extra.

Lack of competition, reduces choice

\- These are the same thing and NN is not meant to be a solution to the lack
of ISP competition. I think you're right that local regulations are the root
case of that though. NN is meant to prevent reduced competition of services
that rely on the internet, particularly those that require heavy data use.
Would someone be able to start a Netflix today and compete with the media
services owned by the ISPs?

Less than 3 ISPs

\- Mobile service is not a replacement for home internet service. Even with
tethering most households would go way over their mobile data caps if that's
all they used.

ISPs will produce different packages

\- This happens all over the world in places without NN. But since most of the
major ISPs are also media companies in the US they simple zero-rate their own
media. This has the same effect of reducing competition among online services.

Also your username switched around is Ajit P. That's a little suspect ;)

~~~
pitaj
NN, as it was proposed, as implementation of Title II for ISPs, is a large
bundle of regulations. Regardless, every regulation has a cost to compliance.

I explained how NN reduces options for consumers in a different reply.

5G is meant to be a replacement for home internet service. Its primary
features: high bandwidth, low latency, etc. are specifically meant for that
purpose.

The one example I saw of this was a Portuguese mobile carrier. I didn't see
any other examples.

And zero-rating would be allowed under Title II.

> your username switch around is Ajit P

That's actually a pretty funny coincidence. Never recognized that before.

~~~
cogman10
> Regardless, every regulation has a cost to compliance.

I don't buy this. Is there a cost to statutes against murder? What about
trespassing laws? How about loitering laws? How about road laws, is there a
cost to automakers for speed limit compliance?

while regulations CAN have costs for compliance (see FDA testing for an
extreme example), they don't ALL have costs.

NN falls in the low to no cost bucket. "treat all traffic fairly" is a much
easier algorithm and maintenance scheme than "Slow down netflix because we are
partners with AT&T" or even "Slow down netflix because the user hasn't
purchased the fast netflix plan". That is MORE costly to maintain for a
network provider, not less.

About the only way to spin it as costly is if you talk about opportunity
losses (IE, they can have higher profits with shittier plans).

I'd be more sympathetic if ISPs hadn't attained regional regulatory capture
basically everywhere. If there were true competition in the ISP market then
you could sway me to thinking NN could go. However, as it stands, most areas
have only 2 competitors. In that case, either we need NN or we needs some
trust busting.

~~~
javagram
> I don't buy this. Is there a cost to statutes against murder? What about
> trespassing laws? How about loitering laws? How about road laws, is there a
> cost to automakers for speed limit compliance?

There absolutely are cost to statutes against trespassing and loitering. Other
countries with different laws have more freedom, for instance the “Right to
Ramble” in the UK and other countries guarantees citizens the right to pass
over privately owned woodlands and fields unmolested by trespassing law.

When it comes to compliance by a company, and not to your examples of statutes
against murder, the company is absolutely going to pay lawyers to examine the
regulation, promulgate internal rules about how to follow it, employees have
to read the regulation, there may be mistakes causing fines to be levied. I
don’t see how a regulation as big as net neutrality could not have costs
somewhere.

Edit: and slowing down traffic doesn’t have to be a positive decision, YouTube
and Netflix were slow on FiOS at one point because they hadn’t upgraded the
necessary peering due to a dispute over who should pay for the upgrade. Under
a net neutrality scheme, you now have to analyze the regulation to see if it
forces the ISP to pay for the upgrade themselves for instance.

------
gnode
> DNS and caching services mean that broadband providers do more than simply
> move bits from place to place.

With widespread adoption of HTTPS, and now browsers pushing towards DNS over
HTTPS, it could become harder for ISPs to argue they provide more than
communication. Most customers will then not only not be using their ISP's
hosted services, but avoiding them, and enforcing their non-use by means of
public key cryptography.

------
CaliforniaKarl
Caching and DNS.

When I was a kid, we had 721-1700, a local number that you could call for the
current time. It saved you from the long-distance call to the NIST
([https://www.nist.gov/pml/time-and-frequency-
division/radio-s...](https://www.nist.gov/pml/time-and-frequency-
division/radio-stations/wwv/telephone-time-day-service)). That seems like the
local phone company was doing caching.

If I wanted to call a business (or, in many cases a person), I could call 411
(or, in a different area code, 555-1212); they would take my query, give me
the number, and connect me to my intended party. Seems a lot like DNS.

So then I guess the phone companies would also not be Title II?

~~~
paxys
Exactly! Telephone operators were the equivalent of DNS back in the day.

------
Sir_Cmpwn
The FCC's push here should tell you everything you need to know. They claimed
that the regulations weren't their place and that they should be implemented
by legislation instead of administration. Then, when that starts to happen,
they argue that their oversight cannot be overruled by state legislation.
Their true goal is plainly clear: the FCC is a captured organization working
on behalf of telecoms interests. So what do we do about it? I'm not sure.

------
gamblor956
The telecoms won the battle... And lost the war. Now instead of one easily
influenced regulator they have 50 regulators, many of whom are politically
motivated but to play ball.

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DavidHm
So this is interesting; assuming that this doesn't go to the Supreme Court or
is otherwise unchanged by it, it could mean that after some states implement
their own laws (and fight off the inevitable lobby/lawsuits attempts to stop
from from doing so ), this could go down two ways:

1) The ISPs create two (or mor) versions of their packages that they can
offer/operate in different states - this would be quite expensive (and I
suspect in some cases quite difficult too), but it would allow them to leech
extra profit off the hides of customers not protected by state law; it would
generate a bit of outrage when users see their family and friends in other
parts of the country are better off, but I doubt that will make the whole
system collapse

2) Or they will give in and accept the higher(highest?) standard, similar to
what's happening for car emissions. I am maybe too cynical, but I doubt that
will happen so easily.

Car emissions are a secondary thing for manufacturers - they can grumble, but
at the end of the day it's just a bit of extra cost. The repeal of net
neutrality is a matter of life or death for ISPs - it's what will make the
difference between them being able to maintain outsized profits and power in
their nice little oligopoly, vs becoming dumb pipes.

~~~
michaelt
_> The ISPs create two (or mor) versions of their packages that they can
offer/operate in different states - this would be quite expensive_

Why should it be expensive?

In State A, which doesn't have NN laws, you throttle Netflix until they pay
you to stop doing so. In State B, which has NN laws, you don't.

It's just a matter of router configuration, isn't it? It wouldn't be _totally_
free, but I'd imagine it could pay for itself.

~~~
magashna
Only a few months ago did Verizon misconfigure their BGP causing a big outage.
Now imagine they need to have different routing for different states. It seems
like they're too incompetent to manage to best standards now, so how could we
trust them to do any better? We should've considered them dumb pipes from the
beginning.

~~~
ComputerGuru
Remember that time.. a few minutes ago when Verizon configured BGP correctly
and nothing happened? And yesterday and the day before and the day before
that, too? No? I didn’t think so.

------
tracker1
Well, this is what the ISPs and providers asked for... FCC could either take
on the role of they have the authority (and keep NN) or that they don't, and
the states then do have authority.

I'm happier the way it is... now as states lock things down, ISPs that cover
multiple states have to either have wierd rules, or comply with the most
restrictive (to them) implementation more broadly. They deserve what they get.

------
nerdponx
It's hard to tell from the article, how narrow or broad is this ruling?

Does this have general implications for how federal agency rules interact with
state laws, or does it really only apply to this case?

~~~
larkeith
"As a matter of both basic agency law and federalism, the power to preempt the
States’ laws must be conferred by Congress. It cannot be a mere byproduct of
self-made agency policy."

I am very much not a lawyer, but I don't see why that wouldn't apply to other
agencies. OTOH, I'm unsure if that's really a precedent implying anything, any
more than a court ruling that Emperor Norton had no legal authority would have
been - it's simply reaffirming that arbitrary declarations have no inherent
legal force.

------
shmerl
Good. FCC caught its own tail with Pai getting the taste of his own medicine.
They reclassified ISPs under Title I, and lost any ability to impose such kind
preemptions in result.

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rolltiide
I dont understand how some federal laws cannot be strengthened by state laws
within that state, while others can

Is there a legal doctrine that explains this discrepancy?

Wish I had examples for both scenario

I’m not talking about conflicts though

And please, no analogies you thought up in your head. Serious replies only

~~~
javagram
Read
[https://en.wikipedia.org/wiki/Federal_preemption](https://en.wikipedia.org/wiki/Federal_preemption)

~~~
rolltiide
> I’m not talking about conflicts though

(Where preemption applies)

~~~
javagram
That page has one section about conflicts and other sections explaining the
rest. Look for the sentence starting “ Even without a conflict between federal
and state law or an express provision for preemption, the courts will infer an
intention to preempt state law if the federal regulatory scheme is so
pervasive...”

~~~
rolltiide
Thank you, was browsing on mobile and it condenses all the sections into
headers that didnt seem to describe these exceptions

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rayvd
Will be overturned. Commerce Clause.

~~~
dragonwriter
Commerce Clause allows _Congress_ to preempt state law when acting within it's
bounds, sure. Executive agencies (including “independent” ones) don't have
that power except through Congress exercising its own preemptive power, which
this court does not find Congress did in a way which covers this particular
FCC action.

------
lr4444lr
So much _Sturm und Drang_ here on HN when NN was repealed... 2 years later,
how many people's business or personal computer use been significantly
affected?

~~~
geofft
Net neutrality isn't about impact to personal computer use - it's about
incentives to the ecosystem. It's about the viability of businesses like
Netflix and new competitors thereto. You shouldn't expect to see an immediate
impact, but you should expect to see new companies starting or not starting,
existing companies deciding new ventures are viable or not viable, etc.

It's like saying, "We shut down all military recruiting two years ago, has
anyone been attacked by an invader?" Not yet, but there's probably been a few
conflicts we didn't get involved in that we otherwise would have (which could
be good or bad, to be clear!), which can have significant effects on the world
in many more years. And in ten years or so there probably will be some people
thinking about invading.

~~~
mlindner
> It's about the viability of businesses like Netflix and new competitors
> thereto.

Why should the ISPs be forced to bankroll Netflix (or other startups)
infrastructure? It's a different company making a business decision to
suddenly massively increase their use of the ISPs networks. If the ISP is
forced to both not block the traffic, and also not able to charge the provider
for access, then I don't understand why you think that's ok. What makes
Netflix a more moral company than the ISP that Netflix's business is more
important than the ISPs?

~~~
geofft
I'm not saying (in this comment) that they should or shouldn't, only that this
is the argument for net neutrality. This is why I picked an analogy about the
military: whether you're a hawk or a dove, you should argue your position
based on the anticipated effects of well over two years of your policy.

