
Justice Department Sues to Stop California Net Neutrality Law - jonburs
https://www.nytimes.com/2018/09/30/technology/net-neutrality-california.html
======
DannyBee
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](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"

~~~
tzs
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.

[1]
[https://scholar.google.com/scholar_case?case=162444264794194...](https://scholar.google.com/scholar_case?case=16244426479419445038&hl=en&as_sdt=6&as_vis=1&oi=scholarr)

[2] [https://www.fcc.gov/document/court-preempts-state-
regulation...](https://www.fcc.gov/document/court-preempts-state-regulation-
information-services-pai-statement)

~~~
dragonwriter
Of course, reliance on the Title I status as the basis for arguing that the
law is preempted means that both the substantive and procedural propriety of
the action by which they were redesignated as Title I services are issues
which might be raised against the suit, and would need to be resolved to
resolve the suit.

~~~
DannyBee
Yes. California is definitely going to argue the FCC had no authority to
reinterpret things when there is zero changed evidence/etc. It is definitely
"arbitrary" (whether it meets the legal definition or not)

At least one trump agency that took a hard right turn has already lost in
court on that point in the past few months. The case escapes me, but it was in
fact "the evidence has not changed, you can't just decide you don't like what
was done before for political reasons".

FWIW: I suspect the real argument here is that _congress_ has preempted
California.

IE they _could_ regulate this space, and have chosen explicitly not to do so,
through the '96 act, etc.

It's a little bit of a weird argument though, because it's saying "we
explicitly didn't give the FCC authority because we didn't want anyone to
regulate it", even though the FCC has in fact tried to regulate it in the past
because they thought they had authority :)

(IE Congress's intent was not so clear that we didn't have years of
regulation, etc)

------
olliej
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.

------
analog31
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.

~~~
gizmo686
Wickard v. Filburn

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.

~~~
AnthonyMouse
Is there a case that considers how this applies to preemption?

For example, could the federal government preempt the states from having
public schools, public roads or a police force under the commerce clause
because they impact the interstate market for private schools, private roads
and private security? It seems like maybe they should only be able to preempt
when the thing is _actually_ interstate commerce and not just affecting it.
But is there any case deciding that issue one way or the other?

~~~
wahern
It's hyperbole to say everything effects interstate commerce as a legal
matter. See
[https://en.wikipedia.org/wiki/United_States_v._Lopez](https://en.wikipedia.org/wiki/United_States_v._Lopez),
where the court struck down the Federal Gun-Free School Zones Act of 1990.

On the other hand, that's a _really_ low bar for the Federal government to
meet. Especially in light of
[https://en.wikipedia.org/wiki/Gonzales_v._Raich](https://en.wikipedia.org/wiki/Gonzales_v._Raich),
where the court upheld Federal criminal prohibition of homegrown marijuana for
personal use, and where everybody stipulated (IIRC) that her marijuana
wouldn't enter the stream of commerce. Note that both Kennedy and Scalia
upheld Federal powers here, which is why their vehement opposition to
Obamacare's individual mandate was so hypocritical.

------
org3432
What's odd too is that Washington State passed a net neutrality law and I
don't see any FCC response to block it. So why only California?

[https://motherboard.vice.com/en_us/article/kzkx83/which-
stat...](https://motherboard.vice.com/en_us/article/kzkx83/which-states-have-
net-neutrality-washington)

~~~
ForrestN
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."

[https://www.nytimes.com/2018/04/05/us/politics/trump-
califor...](https://www.nytimes.com/2018/04/05/us/politics/trump-california-
lawsuits.html)

~~~
Gibbon1
Republicans have been trashing California since the Vietnam war.

~~~
dragonwriter
Republicans dominated California in federal elections for most of its history
until 1992; it was one of the most solid of Republican strongholds.

Republicans have been trashing _Hollywood_ and _San Francisco /Berkeley_ for a
long time, though.

~~~
jliptzin
It's amazing how many "conservatives" I've run into who've never been to San
Francisco, but somehow "know" that it's a liberal hellhole that everyone
hates.

~~~
stephengillie
Stories about NIMBYism on HN don't help.

~~~
pas
Isn't NIMBYis a very conservative-ish thing? (Though I think this just shows
the failure of this mindless political labeling.)

It places the individual's need, which are only incidental due to their
current residence above the community's need. Whereas liberal-ish things tend
to require something from every member of the community. (Less gun right,
mandatory health insurance, more spending on refugees and unlucky folks, etc.)

------
zwerdlds
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?

What am I missing?

~~~
everdev
> 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?

~~~
wolf550e
The GOP does not have an ideology. Anything you could name as a position of
their ideology they will (and did) betray for either "winning" or at the
behest of their corporate masters.

~~~
exabrial
You left out how both... all political parties cater to special interests but
otherwise accurate

~~~
pm90
> all political parties cater to special interests but otherwise accurate

Your statement is so broad as to be effectively meaningless. Sun rises in the
east. So what?

The difference is that the GP is beholden completely to its corporate masters
and does not hesitate in engaging in lies, false propaganda and bad faith
politics to achieve its goals. All of which are corrupt and very anti-
democratic.

~~~
WillPostForFood
Democrats now get as much money from corporations as Republicans, but no
strings attached, eh?

[https://www.opensecrets.org/overview/sectors.php?cycle=2018](https://www.opensecrets.org/overview/sectors.php?cycle=2018)

~~~
specialist
Whataboutism is so tedious.

There are plenty of other contributors, both direct and indirect. PACs,
billionaires, unions, earned media, Russians, grandmas, etc.

~~~
WillPostForFood
On both sides, yes. I'd say the Democrats are more dishonest. GOP claims to be
the pro-business party, so no surprise when they act that way. Democrats take
the corporate money, pay lip service to the left, and act pro-business as
well. Look at Obamacare - we didn't get single payer, we got government
subsidies for insurance companies.

~~~
pm90
Obamacare was a compromise precisely because the Democrats had to make it
palatable to Republicans. If it was upto Democrats, they would have passed
Single Payer.

~~~
amanaplanacanal
Obama was under the illusion that he could reach across the aisle and work
with the Republicans, and tried very hard to do something that both sides
could support. I think he didn't realize yet that making sure your side has
wins, and the other side has losses, is how the game is played now at that
level.

So after all that, he got no Republican votes. Even thought the plan was, at
it's base, a conservative plan. He was naive.

~~~
pm90
Which is really what infuriates me to no end. I'm not saying Obama was
perfect, but he was engaging in good-faith dealmaking, hoping to get everyone
on board. But the Republicans weren't. And now, everyone seems to think that
Mitch McConnell is a super effective Senate leader. But at what cost?
Republicans seem to be plagued by a lot of short term thinking... Precisely
what the Senate, with its long tenure, was supposed to avoid.

~~~
wolf550e
They believe they are engaged in long term thinking - seize power so
completely, popular support and laws cease to matter. Then do to the country
what has been done to Toys R Us. And Democrats are willing to let them do it
because they think it's a game.

~~~
pm90
This sounds true but is also really depressing. Do you think the popular wave
of democrats seeking office this election season will make any difference? I
like the energy in the democratic base, but I trust process over people. I
fear after the election, people will again lose interest and we'll fall right
back where we started.

~~~
specialist
Belated response (pep talk) to both you and 'wolf550e'.

Yes, the world sucks. But there's great stuff too.

Working towards a better future is my coping mechanism.

I encourage everyone to volunteer somewhere that helps restore your faith in
humanity. Finding those people, those groups can be a challenge. (Most do
gooders are also tedious to be around.)

I used to volunteer as a tree hugger. Now I'm very politically active. I
somehow fell in with great people doing great things. Their friendships and
the shared effort is what keeps me going.

Unbelievably, I'm now super optimistic. Yes, the challenges are terrifying,
I'm not in denial. But I also believe the opportunities are insurmountable. [
h/t Yogi Bera :) ]

------
dd36
So was this lawsuit prepared by a lobbyist’s law firm? How on earth would DoJ
be ready this quickly?

~~~
aw1621107
Probably because the bill didn’t pop out of nowhere. There was debate over the
bill in the legislature, news stories, etc.

~~~
close04
Unfortunately this doesn’t exclude the premise above. I’m sure lobbyists are
all over this.

~~~
dd36
Why would DoJ spend time drafting a lawsuit against a law that isn’t yet law?
Just seems odd. Why is DoJ sending messages on behalf of telecoms? Doesn’t DoJ
have enough on its plate?

~~~
olliej
That's the point, the DoJ isn't spending time, they're regurgitating material
produced by lawyers working for the carriers.

Why is DoJ sending messages on behalf of the carriers? Because the current
administration has demonstrated it will do anything they're paid to do.

Doesn't the DoJ have enough on its plate? Like what? The purpose of the DoJ is
/ostensibly/ to protect people from abuses by people who have more
money/resources than them. Including the police. The GOP/WH has demonstrated
that human rights are low priority compared to most other things (especially
those that can pay them).

~~~
mrhappyunhappy
Don’t forget when the too big to fail banks were given passes without so much
a slap on the wrist under Holder’s oversight. The whole thing is a joke. Oh
and he is now back serving the masters he protected. I can only imagine how
much they are paying him for doing their bidding.

~~~
pas
I agree with the need for more responsibility assignment, but claiming that
banks were given a pass as a somehow atrocious thing is just shouting for mob
justice.

The way would have been through Congress, SEC, FTC and the other relevant
bodies.

The DoJ did pursue investigations against banks, but ... guess what, they were
very likely compliant with criminal law, thus there was not much to stand on,
and you are right, that it's a joke, because despite this, the DoJ managed to
secure billions on Deferred Prosecution Agreements.

Do I weep for poor banks? Fuck no, but I hate the arbitrariness of this
"justice".

No, this was no justice - as everyone rightly feels, but the DoJ was not in
the position to make things right, Congress was. They could have mandated
simpler, safer, cheaper banking for everyone, they could have taxed the
irresponsible lenders and borrowers, they could have empowered the SEC to be
able to proactively act, but no, they did only regulate a few investment
banking things (and created a new consumer protection bureau, that is being
gutted by the current administration).

Furthermore, the lack of criminal convictions is of course a problem, but just
that would not be enough to disincentivize fraud and other criminal behavior,
like money laundering. Both (as in personal responsibility for branch managers
and hefty fines for the whole corporation) are needed to keep things in check.
And the DoJ does not go after persons, most likely because the enormous
interference from the whole war on x, from the ATF, DEA, DoD, etc. at the
affected regions.

------
doe88
Not surprised. Republicans advocate for judicial restraint only as long as it
suits them.

~~~
briandear
And Democrats argue states’ rights when it suits them.

~~~
pm90
Democrats use state rights to protect scientifically and economically sound
policies when there is an obvious bad faith actions on the part of the Federal
Government.

~~~
jedberg
That’s a bad argument to make, only because conservatives believe that their
state’s rights issues also stem from scientifically and economically sound
policy.

~~~
pm90
No they don't. Their arguments are based around different interpretations of
the constitution and protection of various ill-defined "freedoms" (freedom
from religious persecution, freedom of choice etc.)

They happily do not include science in their political calculus.

------
jhabdas
The article disappears the moment I touch it within the HN app. Who needs
paywalls when you can just force the attention onto your site.

------
onetimemanytime
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.

~~~
dragonwriter
> I am with CA, but we cannot have each state have their own laws when it
> comes to the internet.

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.

