
Twenty-two states ask appeals court to bring back net neutrality - AhmadM91
https://techcrunch.com/2018/08/21/twenty-two-states-ask-appeals-court-to-bring-back-net-neutrality/
======
EpiphanyMachine
The system seems broken when states representing more than 50% of the
population have to sue in court to try to change something like this. Instead
with that much backing it should be done through the legislative branch. I'm
concerned about the growing use of courts to try to decide policies because
our legislative bodies can't work together and instead just try to force one
sided issues through or block each other.

> Together, the AGs represent states totaling 165 million people — more than
> half of the U.S. population.

~~~
peterwwillis
I came here to say the opposite. The states are doing what they can to limit
damaging actions by the federal government. This is the system working for the
people. Without the ability or interest from the states to push back against
the federal government's decrees, we would be stuck with an authoritarian
nation.

Currently, trying to pass meaningful legislation is like trying to squeeze a
watermelon through a pinhole. That should certainly be addressed, but we can't
ignore the current battle just to focus on the bigger war.

~~~
smsm42
> The states are doing what they can to limit damaging actions by the federal
> government.

Or rather, absence of action in this case.

> This is the system working for the people.

The system working for the people would be the states to make their own
legislation. Using courts to force federal government to take action that
elected executive and elected legislature do not support is not system
working.

> Currently, trying to pass meaningful legislation is like trying to squeeze a
> watermelon through a pinhole.

Legislature is complex and hard. Not the reason to try and make courts into
its replacement. That's not how the system is supposed to work, and doing that
will result in a system even more broken than now.

~~~
peterwwillis
> The system working for the people would be the states to make their own
> legislation. Using courts to force federal government to take action that
> elected executive and elected legislature do not support is not system
> working.

It's called checks and balances, and it was how the system was designed to
work.

> Legislature is complex and hard. Not the reason to try and make courts into
> its replacement. That's not how the system is supposed to work, and doing
> that will result in a system even more broken than now.

The courts aren't being used as a replacement, they're being used as a court.
When one part of the government does something, you use another part of the
government to counter it, until you've exhausted all your options. Then you
can go back to the drawing board, which is to start a grassroots movement to
push for overwhelming bipartisan support to force even a one-sided legislative
branch to adopt the reforms you seek. It's an iterative process. Using the
courts is not circumventing anything. You can always use legislation later to
determine law that supersedes ruling by the courts, unless such legislation is
found to be unconstitutional.

~~~
smsm42
> It's called checks and balances, and it was how the system was designed to
> work.

No, it's not. Just repeating "checks and balances" doesn't mean courts can be
abused for doing something that is not court's purpose. The court's purpose is
preserving the consistency of legislation (including the Constitution as
supreme, very hard to change part of the law) and adherence of executive to
the law. In this case, the executive is clearly within the law, but some
people are unhappy about it, so they want to abuse the courts to make them
legislate from the bench that the policy must be different. This is not how
the system is designed to work, this is the exact opposite of it.

> The courts aren't being used as a replacement, they're being used as a
> court.

They are being used to force through a policy that is not supported by either
legislature or executive. That's not a function of a proper court.

> When one part of the government does something, you use another part of the
> government to counter it, until you've exhausted all your options.

No, that's not how it's supposed to work. It's not "try anything until my side
wins, then block any attempt of other side to try anything at all". Your side
may temporarily win, but when the other side does the same, you end up with
the broken system where nobody respects any decisions and the only thing that
matters is which side you're on. I call such system broken.

~~~
peterwwillis
> They are being used to force through a policy that is not supported by
> either legislature or executive. That's not a function of a proper court.

They're asking the court to reverse the repealing of legislation, with the
argument that the FCC should not have been allowed to repeal it because their
legal reasoning was flawed.

Who is pushing policy? Was Obama pushing policy by instituting regulation? Was
the FCC pushing policy by repealing it? Are the states pushing policy by
trying to get the repeal revoked? Yes, Yes, Yes. Welcome to government.

It's _all_ about pushing policy, any way you can. The system regulates the
ability to push policy by _allowing_ you to push policy, within the confines
of the system, and _gives you the tools to continually push or pull policy_.

> Your side may temporarily win, but when the other side does the same, you
> end up with the broken system where nobody respects any decisions and the
> only thing that matters is which side you're on.

I re-watched the film Lincoln recently. It's basically about pushing for the
13th Amendment, well before it was politically tenable to adopt it. Bribery,
back room deals, switching allegiances, concealing moves, political pressure,
manipulation. Politics is the art of doing anything you possibly can to
advance your agenda, to the exclusion of others' agendas. Your side doesn't
even matter, it's what you can gain or lose that matters.

~~~
paulddraper
> the FCC should not have been allowed to repeal it because their legal
> reasoning was flawed

I have not been able to pin this down.

What law/rule did the FCC allegedly violate?

~~~
openasocket
Check out the NY filing for more complete information about their arguments
([https://ag.ny.gov/sites/default/files/nn_govt_petitioners_br...](https://ag.ny.gov/sites/default/files/nn_govt_petitioners_brief_and_addendum_final_filed.pdf)).
But the short answer is that the FCC is being accused of violating the
Administrative Procedures Act.

The APA was created in response to the growth of government agencies tasked
with creating regulations, essentially to curb the power of bureaucrats.
Agencies are required to keep the public informed about possible changes to
regulations and to allow for public participation, but what's relevant to this
case is the process by which proposed changes are approved. In order to change
the existing regulations, there has to be a formal review process, which
involves gathering evidence and making a decision based on that evidence.
Essentially, agencies like the FCC can't just change their rules on a whim,
they have to look at all available evidence and actually come up with an
argument for why the change needs to happen based on that evidence. Agency
heads still get a decent amount of leeway, but standard is that their
decisions cannot be "arbitrary and capricious." That's a legal term with a
whole body of precedent behind it, google for more info.

I should also point out that suing based on the APA has come up a lot in this
administration. My girlfriend is involved with environmental lobbying groups,
and a number of the EPA rule changes proposed under the Trump administration
have been thrown out because they did not properly follow the APA. The DOJ's
repeal of DACA is also currently being challenged as violating the APA.

~~~
paulddraper
> they have to look at all available evidence and actually come up with an
> argument for why the change needs to happen based on that evidence.

Make sense. Proving this seems like it would be an enormously uphill battle.

It would have to be an unambiguously wrong decision on the part of the FCC.
(Otherwise, the court essentially becomes the FCC by upholding/overturning any
"wrong" decision.)

Given that it only became a policy recently, and the current amount of
debate...it's hard to believe that the court would decide that not having NN
is egregiously in the wrong. But we shall see.

~~~
openasocket
Remember that the FCC has to explicitly provide their reasoning for making
their decision. Those bringing this suit don't have to prove that not having
NN is egregiously wrong, they just have to prove that the reasoning the FCC
gave is egregiously faulty. It is a difficult battle, but not as hard as you
might think.

~~~
lovich
Especially if the FCC points to things like the provably false public comments
they collected as their reasoning. When they say use evidence like
[https://www.fcc.gov/ecfs/filing/1051157755251](https://www.fcc.gov/ecfs/filing/1051157755251)
it's not hard to prove that they didn't actually have reasoning for their
decisions beyond "me and my lobbyists wanted it"

------
justinzollars
I would like to see Twitter, Google, CloudFlare and Facebook classified as
public utilities. While Alex Jones is a nut case (And shouldn't be defended),
other less publicized incidents of censorship by Social Media companies has
occurred (related to picking winners between Israel and Palestine) [1]. While
I am a Democrat who has been elected in the past, I agree with the
conservative argument that: Corporate censorship dampens the spirit of free
speech.

[1] Facebook Says It Is Deleting Accounts at the Direction of the U.S. and
Israeli Governments [https://theintercept.com/2017/12/30/facebook-says-it-is-
dele...](https://theintercept.com/2017/12/30/facebook-says-it-is-deleting-
accounts-at-the-direction-of-the-u-s-and-israeli-governments/)

~~~
delinka
What makes _these_ companies "public utilities" as opposed to others? I don't
need Twitter in my life. Nor Google. Definitely not Facebook. And maybe lots
of web sites use CloudFlare, but consumers don't interact directly with them.

Maybe applying common carrier status is something that's more palatable, but
classifying them as "public utilities" doesn't have to be the mechanism by
which CC is applied.

~~~
PurpleBoxDragon
What counts as a need? Does one need land lines? Electricity? People live off
the grid by generating these themselves and people live elsewhere without them
at all.

Of course, one could bring a distinction between things that naturally grant a
physical monopoly and things that don't, but I think one could make an
argument that certain sites have effectively become the new public square and
in doing so have a natural monopoly of our attention (or more pedantically a
natural cartel).

There is also a natural monopoly of technology. If you have a patent for
something, others can't use it unless you let them. Imagine if every major
tech corporation aggressively pursued every possible patent claim against any
companies trying to offer an alternate space for those banned from the
mainstream, would the little company have any greater chance that a new
electric company fighting against the entrenched players?

~~~
komali2
>what counts as need

When access to it is _required_ to be on an even playing field.

Hence internet, yes. Electricity, yes. Phone? Yup.

Facebook? Ehhhh

~~~
Vinnl
If you want to reach an audience, the vast majority of companies would reach
for Facebook and/or Google in a heartbeat. Either they're all wrong, or you're
not on an even playing field if you do not use them as an advertiser.

~~~
komali2
Ok, but you a seven year old still needs the internet to have a level
education playing field, and her mom needs it to sort out her taxes and ID
applications and look up nutritional information and SNAP information and
parks nearby and how to register a car and available jobs at the DMV and...

------
uses
Where did this new anti-NN talking point come from about how, if we're going
to have net neutrality then we also need to allow people to be terrible on
social media without taking responsibility for it? I swear I've seen this so
many times in the past few months, including multiple comments in this thread.
If moderation of corporate software platforms is an important issue for you,
great, but surely you can see the difference between that and NN? Attempting
to conflate the two looks pretty disingenuous and I'm pretty inclined to think
it's some kind of culture war talking point.

~~~
cududa
It’s being heavily pushed by conservative talking heads. Basically just
limping everything into “net neutrality” because everyone knows the phrase

------
IronWolve
>US Internet Speed Has Gone From 12th To 6th Fastest Since End Of Net
Neutrality

I see this being tossed around as a counter to the main point of NN being slow
down of speed.

Also, why do the state dem AG's always suing to enforce new laws instead of
the legislation process, it seems like the new way to pass laws is to get a
judge to give it to you. We have legal weed from legislation now.

~~~
shkkmo
I believe all the states that currently have recreation cannabis have it
because of referendums and ballot initiatives. The legalization process has
shown exactly how our legislatures have failed to address this issue. Canada
did legalize recreational use with legislation, but they are the only ones so
far.

I personally blame gerrymandering.

~~~
NickM
Vermont recently legalized it via the legislature, though I think your main
point still stands.

~~~
shkkmo
Ah yes, their law did go into effect last month didn't it. Reading up on it,
it sounds like Vermont has taken an approach like DC where commercial sales
are not allowed, but personal possession, cultivation, and gifting are.

I wonder if we'll look back in 10 years and wish more places had taken these
approaches, or if they well eventually also enact commercial legislation.

------
randyrand
this is one of the main reasons why states rights is important. Here are the
big ones:

1\. each state can be tailored to its population 2\. each state acts an an
incubator for new ideas and other states can follow 3\. usa citizens have more
choice in who governs then and can easily move between them

~~~
xena
The problem is that people poor enough they can't choose to move states get
kinda screwed over.

~~~
komali2
Well, yes, but that's also currently an issue for say your average rural
Indian farmer. Or north Korean.

I get that we're talking about Americans here, and can't be expected to solve
every problem across the world, but I'm having a hard time drawing some
arbitrary line in the sand here.

------
onemoresoop
I was wondering whether post the net neutrality repeal any IP has actually
started tiered internet packages based on what content is being accessed,
whether they stared throttling as many were fearing. If they hadn't it doesn't
mean that they won't, was just curious if it's happened yet

~~~
andymal
In the ARS article about Verizon throttling the CA fire dept's service they
said the throttling policy was changed from "throttling during high
congestion" to "throttling when they use their alloted amount of 'unlimited'
data". This change was made basically immediately after the repeal went into
effect.

------
mberning
One thing I don’t understand is why states do not enact their own net
neutrality legislation. As far as I know every state has a public utilities
commission of some sort that regulates power, water, etc. Why could this not
work for ISPs?

~~~
EpiphanyMachine
I think the FCC is trying to remove that ability from States now because
federal law overrules state law.

> The Attorneys General are hardly alone on this one. As Reuters notes,
> Mozilla, Vimeo and Etsy also joined forces today to file a legal challenge,
> while governors in six states have signed executive orders and three states
> have passed their own net neutrality laws.

~~~
craftyguy
> because federal law overrules state law

The FCC does not (and cannot) pass laws.

~~~
monocasa
The FCC gains it's authority to create regulation from federal law though.

~~~
Calib3r
Which many argue as unconstitutional.

We've essentially given an unelected group of people a blank check.

------
dmritard96
For anyone in a place with options, My suggestion is simply switching to a Net
Neutrality proponent. Ditching my comcast today in favor of Sonic fiber.
Cheaper, supports net neutrality, and waaayyy faster :)

~~~
_bxg1
A big part of the point is that almost nobody has any options. If there were
room for real competition in the space, regulation might not be necessary.
Part of the barrier of entry is inherent: building infrastructure is hard. But
part of it has been artificially constructed by the existing players through
lobbying: [https://www.wired.com/2016/09/utility-poles-important-
future...](https://www.wired.com/2016/09/utility-poles-important-future-
internet/)

~~~
dmritard96
yeap. I'm lucky enough to have options in Berkeley, but where I lived in the
past, there was only ATT and Comcast...

------
dpflan
The Entities involved:

The coalition of 23 Attorneys General collectively represents over 165 million
people – approximately 50 percent of the U.S. population – and includes the

Attorneys General of:

1\. New York

2\. California

3\. Connecticut

4\. Delaware

5\. Hawaii

6\. Illinois

7\. Iowa

8\. Kentucky

9\. Maine

10\. Maryland

11\. Massachusetts

12\. Minnesota

13\. Mississippi

14\. New Mexico

15\. New Jersey

16\. North Carolina

17\. Oregon

18\. Pennsylvania

19\. Rhode Island

20\. Vermont

21\. Virginia

22\. Washington

23\. District of Columbia

------
User23
I haven’t noticed any change in my Internet connectivity since so-called net
neutrality regulations were rolled back. That said, the fears of a single
party dictating what you can and can’t see on the Internet are not just clear,
they’re present. How many net neutrality supporters stood up for Alex Jones?
Or say anything about shadow bans on Twitter, Facebook, and Google search
results based on organizational capriciousness?

Net neutrality is just another example of a regulatory capture competition
between the old telcos and the new masters of the Internet. The massive PR
spending alone is proof. See Paul Graham’s article[1] for a better explanation
than I can give here.

Interestingly the authentic left has the answer: Publicly owned corporations,
universities, and perhaps other mainly local institutions providing network
connectivity are the real antifragile solution to the problem net neutrality
regulations claim to address.

[1][http://www.paulgraham.com/submarine.html](http://www.paulgraham.com/submarine.html)

~~~
jrockway
> How many net neutrality supporters stood up for Alex Jones?

Are ISPs refusing to peer with Alex Jones? If not, this has nothing to do with
net neutrality.

~~~
User23
If net neutrality is exclusively a regulatory power grab by Google and the
like at the expense of traditional ISPs, then it's true Alex Jones has nothing
to do with it. However, if one acknowledges some kind of moral principle that
content shouldn't be discriminated against based on the source, then one has
to show why that should apply to traditional ISPs and not to the newer
Internet companies that run all the same infrastructure the traditional ISPs
do.

~~~
jrockway
It seems unrelated to me. If I write an Op-Ed and send it to the New York
Times, it's not a net neutrality issue if they refuse to publish it. Maybe
they personally hate me. Maybe my idea seems dumb to them. Myabe I ka'nt spel
rite. Even though The NYT has a website, that doesn't mean they are under any
obligation to publish something there just because I want them to.

I don't see why Facebook is any different. It's their website, they have no
obligation to publish anything.

Whether or not you believe Facebook can exercise editorial control over user-
submitted content, it's not a net neutrality issue. Net neutrality is about
moving IP packets around without charging different rates based on what's in
the headers. That's all.

~~~
User23
You didn't respond to my central point.

You did however clarify that for you net neutrality is purely about
application layer providers strong-arming link layer providers via regulatory
capture. Thanks, it makes your position much clearer.

------
trumped
[https://www.reuters.com/article/us-usa-internet/twenty-
two-s...](https://www.reuters.com/article/us-usa-internet/twenty-two-states-
ask-u-s-appeals-court-to-reinstate-net-neutrality-rules-idUSKCN1L605W)

------
corerius
I'm still trying to grok why ISPs are supposed to treat all customers equally
while PayPal, eBay, youtube, GoDaddy, Twitter, etc. are allowed to pick and
choose.

I'd be more comfortable with the arguments if people were consistent in them.

~~~
_bxg1
The ISP's are more important because of their physical locality. It's
infinitely easier to create a competitor for Facebook than a competitor for
Time Warner (Google, one of the world's most powerful companies, tried and
failed).

That said, with the amount of ubiquity and sway on society that self-
proclaimed platforms like Facebook and Google have started to have, I would
not be opposed to regulating some of those as utilities too. But that's a more
nuanced issue. The ISP issue is so black and white as to be hilarious, if it
weren't so disheartening.

~~~
corerius
It seems to me that I have more choice between ISPs than in auction sites, as
an example.

The tendency towards monopoly in networks makes all these cases similar I
think.

~~~
_bxg1
Most people have exactly one choice of ISP. If you're lucky, there might be a
second one with the same price and 1/10 the speed.

Whereas I could go build an auction site myself if I really wanted to. Scaling
a business takes work, but the power of software is that it requires no
material resources to get started. Laying fiber is not only immensely
expensive in and of itself, but ISP's have also lobbied to stack the deck
severely against newcomers: [https://www.wired.com/2016/09/utility-poles-
important-future...](https://www.wired.com/2016/09/utility-poles-important-
future-internet/)

~~~
deadmik3
I think the amount of effort and traction you'd get from trying to launch your
own auction site to compete with eBay would be about equal to getting a couple
shovels and burying some cat5 around your neighborhood to compete with comcast

~~~
komali2
You aren't allowed to bury cat5 in your neighborhood without government
approval, and they'd tell you to just lease time off Comcast lines.

What will you connect your cat5 cable to?

~~~
deadmik3
Plug your router into your neighbor's, and everyone else that wants to join
your new ISP. I don't see the difficulty; it's just as easy as starting a new
eBay site and getting people to sign up

~~~
wvenable
You can create an ISP and then you have to work to get people to sign up.

You can create a eBay site and then you have to work to get people to sign up.

And your argument is the hard part of making an eBay site is signing people up
and hand-wave over the build part of both these things? Apples to Spaceships
comparison.

~~~
deadmik3
Well, the argument is that if you don't like eBay it's easy to just go make
your own. I'm not disagreeing with that. I'm just assuming that part of
"making your own" is getting the other users to sign up, since an auction site
with no one to bid isn't very useful. So it's the same with ISPs: if you don't
like it just make your own.

~~~
komali2
You cannot make your own ISP. You can make your own eBay.

There is no competition for Comcast, there is for eBay. It appears your very
premise is flawed but I welcome you to demonstrate why this isn't true.

~~~
deadmik3
Sure I can make my own ISP. It just won't be an international network with
billions of people on it. But I'll set up a server in my house with my new
ebay on it and connect it to my neighbor running his new facebook. We could
even do it wirelessly.

It won't be that great, because he wants to share pictures of his kids and I
want to sell my funko pops, but it's definitely easy. Unless your definition
of an ISP inherently includes a connection to millions of people, in which
case I don't understand why your definition of an eBay doesn't as well?

~~~
wvenable
That's funny because your eBay clone _will_ have a connection to millions of
people.

You also seem to forget that the "I" in ISP stands for Internet. Your
connection to your neighbor is just a LAN/WAN and by definition is not an ISP.

------
delbel
the system is broken when people care more about internet speed than voter
fraud. This title should be twenty two states ask court to bring back paper
voting ballot

------
_bxg1
Once more unto the breach.

------
RcouF1uZ4gsC
Be careful what you wish for. A significant portion of the general population
see Twitter, Google, and Facebook as infrastructure companies. If a large
enough portion of the population is convinced that net neutrality is important
and legislation must be written to accomplish it, the three companies and
likely CloudFlare will likely fall under its umbrella. If you ask people to
recall an incident of Internet censorship, if they recall anything, it will
most likely be something done by one of those 3 and not by an ISP.

~~~
landryraccoon
How would this not be a good thing? Facebook and Google probably should face
more public scrutiny, not less.

