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Justice Department Sues to Stop California Net Neutrality Law (nytimes.com)
201 points by jonburs on Oct 1, 2018 | hide | past | web | favorite | 124 comments

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.

[1] https://scholar.google.com/scholar_case?case=162444264794194...

[2] https://www.fcc.gov/document/court-preempts-state-regulation...

"Did the order that killed net neutrality move them back to being Title I "information services"?"

Yeah, it did.

"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]."

Interesting. This is not my area of legal expertise (i'm also way too lazy to read the 1996 act), but that looks like it would be a possibly winning approach if a bunch of courts have already accepted the pre-emption argument for Title I.

However, one important difference between this suit and those is that in those, the court agreed the FCC had the authority to regulate under Title I, and was choosing not to, explicitly pre-empting that set of state regulations.

See https://scholar.google.com/scholar_case?case=745168854586066...

Here, the DC circuit has decided in the past that the FCC has no authority to regulate net neutrality under Title I.

They could not actually regulate Net Neutrality under Title I if they wanted to.

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.

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)

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?

As mentioned, i suspect the argument they will try (and what Jeff Sessions appears to have said) is that congress intentionally chose not to regulate this space when they promulgated the comprehensive '96 act and didn't say anything.

Then it doesn't matter what the FCC does.

This is a bit weird of an argument because congressional intent was so unclear that the FCC tried to regulate it many times :) (and it required a court deciding what the statute said).

The FCC can reinterpret its own statutes, actually, including ones that say how much authority it has. Those interpretations are subject to various standards around precedent and consistency. I doubt they would meet them here if they suddenly reinterpreted them.

(Note also that appeals courts are becoming more concerned about the deference given here to agencies to say what their statutes/regulations mean, and the supreme court is likely to take it up again sooner rather than later)

> 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 suspect, that eventually the argument will be around Originating and Terminating IP addresses.

This isn't about traffic, it's about the terms of sale of access service to consumers in the state.

>They would have been much better off saying "we have plenty of authority here and we explicitly choose not to exercise it"

That would open the issue up to reregulation under a later administration.

That already happened in the past ;)

(and courts already decided the answer).

So there's no point in not.

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.

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.

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?

It's hyperbole to say everything effects interstate commerce as a legal matter. See 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, 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.

I think this was a serious abuse of the commerce clause. It seems you could effectively argue that anything affects interstate commerce and extend this type of reasoning in a way that circumvents the idea of commerce within the confines of the state border.

This type of abuse of the commerce clause should be rolled back to something more sane that reflects the original intent. The courts seem to bend the words of the constitution to increase central authority. Our freedoms suffer as a consequence in my opinion.

You of course can argue that anything and everything affects interstate commerce, but ... in 1995 in Lopez the Court held that, no, there are truly local things, and laws not dealing with commerce (like the gun-free zone for schools act that was struck down at that time) lack authorization from the Constitution.

And this view was again reinforced in Morrision. Congress tried to use the Commerce clause to criminalize rape against women. The Court held that even though violence against women surely has some effect on the economy, that is very far from substantial. Even if viewed in the aggregate.

Our freedoms suffer some, sure, but the wheat (and other) market(s) got saner, which helped a lot of people, greatly expanding their freedoms. (On the other hand Wickard is used to regulate medical marijuana, which takes away some freedom.) But, but... it also allowed (and would allow) fixing healthcare, which was (would be) a big freedom improvent.

I am not quite sure the market(s) got saner. I would argue that these laws impeded the recovery during the great depression. We had a mini depression in 1921 that recovered much faster without this overreach of the commerce clause.

I'd argue that this is one of those rulings that any sane person would think is in error; it's effectively the result of "modernization" of our government through the court system. Federalism is (for better or for worse) just not the way any modern democracy is run. We've stepped quite cleanly away from localization of powers to join other modern countries, and stepped away from strict construction of constitutional provisions in the process. Is this a problem? Maybe.

Wow. Learning about cases like this makes me wish I trained to be a lawyer just so I understood exactly how weird law really is.

There is so much emphasis placed on precedent in the US justice system and I don't understand why.

With that line of argument I could also argue anything you do or say within the confines of your house is also public's business because it affects the public ultimately one way or another.

There's a lot of value placed on consistency and predictability both in civil and criminal law. If the law were arbitrary, then there really is no single set of rules that apply equally to everyone. So when a court decides X in a given case, any other parties going to a court in the same jurisdiction with the same set of facts and circumstances expects the case to be decided in a similar way. Of course, that's the perfect world theory and caveats apply.

I would emphasize "any other parties": one of the goals is that if I or if someone who is rich, famous or influential were to be defendants in court cases with similar facts, we would receive similar judgements - who the defendant is shouldn't matter, and paying attention to relevant precedents helps ensure that.

I would also mention that the internet tends to misuse precedent in the same way, well, the internet misuses logical fallacies. Finding a precedent you think is applicable to a court case doesn't mean the verdict is decided. Both sides, assuming they have competent lawyers, will submit numerous precedents they believe favors their side, after all. It is up to the courts to decide whether the precedents are applicable and whether to apply the precedent in any give case; precedents inform the court, they do not replace it.

Because the US justice system inherits from English common law. The moral motivation is that it is unfair to judge equivalent cases differently. This contrasts with civil law systems, used predominantly throughout mainland Europe / ex-Roman empire, which have the moral motivation that explicit codification of the law is the best way to be fair.

Civil Law systems have a doctrine similar to stare decisis with the same logic--fairness in outcomes. It just operates differently because of different views about the structure of government.

I think the main reason that Civil Law systems have voiced opposition to judge-made law is because since their advent (French Revolution onward) Continental systems have emphasized democratic control and thus the supremacy of the legislature, whereas Anglo-American law historically emphasized (or reflected) competing power structures. An early French constitution made it criminal for a judge to "invent" a rule to settle a case; if the law was ambiguous the judge was supposed to refer the case to the legislature. But guess how many times a court declared a law ambiguous and referred it to the legislature? (Point being, Civil Law systems noisily refuted the legitimacy of judge-made law, but the reality was different.)

It's notable that Parliamentary Supremacy didn't completely solidify in Britain until the late 1700s. American law didn't inherit such a notion of unlimited legislative authority. The concept of Substantive Due Process emerges from this environment, as does the far less controversial Judicial Review (from Marbury v Madison).

Also, FWIW, there's a common misconception (even among lawyers) that the Civil Law is somehow more closely related to Roman Law than the Common Law. That's not really true. Roman Law actually had judge-made law and something like stare decisis, though the technical details were quite different. Emperor Justinian attempted to impose reforms, but these were widely opposed and occurred at the tail end of the Roman Empire. In as much as the Civil Law was based on interpretations of the Justinian Code, that doesn't mean it was reflective of actual Roman Law. And in any event, most of the major distinctions between the Civil Law and Common Law emerged long after misinterpretations of Roman Law had permeated everybody's legal thinking.


> American law didn't inherit such a notion of unlimited legislative authority.

I wonder if this is due to US's structure being that of a constitutional republic rather than a democratic republic. I.e. the Supreme Court (which executes the constitution) must be superior to the legislature.

There's no reason that the legislature cannot be the arbiter of constitutionality. This is the case in many other systems, including many Common Law nations with a written constitution but which adhere to the doctrine of Parliamentary Supremacy. At the time of the Revolutionary War there were a diversity of opinions on this, though I think resolving the issue wasn't at the forefront of the debate as other questions about the structure of government (especially Federalism) were considered much more interesting and important.

In fact, the Supreme Court has carved out an exception to judicial review that leave some questions of constitutionality to Congress: https://en.wikipedia.org/wiki/Political_question This is especially relevant given the buzz about impeachment because one would normally think that the definition of "High Crimes and Misdemeanors" is precisely the kind of question our courts were intended to answer.

The U.S. is rather unique in investing constitutional review so thoroughly with the judiciary. Most nations, I believe, either adhere to Parliamentary Supremacy or have a special Constitutional Court even though almost every political system subsequent to the U.S. has a written constitution. Also, U.S. judges have lifetime appointments, whereas most other systems permit the legislature to more easily replace judges (see, e.g. the recent controversy in Poland regarding its Constitutional Tribunal).

The U.S. inherited a very strong normative legal system from Great Britain. The nascent U.S. didn't experience the same turmoil and radicalism as did the French, even though there was a ton of cross-pollination of ideas. Because we had such a strong legal system from the outset I think there was less pressure to put all our eggs into the basket of populist democracy, and were able to leave dormant some difficult questions, both at the state and Federal levels. A few decades later (and culminating in the Civil War) we resolved many of them differently (at least in their technical operation) than Europe did because we had set on our own path so early.

Justice Scalia is often held in esteem for his flavor of Originalism and statutory interpretation, but if you read Scalia's scholarly works he very much believed that U.S. courts (including the Supreme Court) should adhere more closely to a Continental European model, one which circumscribes judicial review to the narrowest possible scope. But that's a normative political philosophy that emerged after the Founding of the U.S. (not to mention on a different continent), which means its absolutely not original in any sense. The 19th century Continental European model clearly emphasizes the supremacy of the legislature as the preeminent democratic institution. But this was not the case in the U.S. Issues of Federalism were of primary concern, and those issues meant that the U.S. was grappling with a more complex definition of "democracy", one that wasn't just about how to allow the population to exercise political autonomy in accordance with moral law[1], but how to allow several distinct populations to exercise and moderate their autonomy in tandem.

[1] Moral law meaning concepts of justice and liberty shaped by Western Christianity (including Greek philosophy and Roman law), the Enlightenment, and the Scientific Revolution.

So it's interstate because it doesn't participate in interstate commerce?

Do tautologic conclusions make legitimate precedents? Dang...

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.

You can’t see internet across state lines. You can sell wheat across state lines, which seems like a major difference.

The heathcare system is another example of this. Emergency rooms in Texas are useless to people in Florida.

Yet the ACA (Obamacare) was held constitutional due to the Commerce Clause.

Sure, if the ACA would regulate non-economic aspects of ER visits, those parts would have been likely struck down. (Unless otherwise authorized by the Constitution.)

Silicon valley is a unique and quite humorous example of your point, but to play devil's advocate, the internet definitely extends beyond California

Is the last mile local or interstate? I know we used this for the healthcare law, affordable care act ACA which I never understood. Is it illegal to shut down a quick service restaurant location for health code violation? Food extends beyond California as well.

Is there a substantial economic effect of regulating the activity? Well, California might be its own enemy this time, but so is are the Federalist judges the GOP/Republicans prefer. As CA is too big to hide in the bushes, anything it does has likely substantial effect on the US - though it's easy to argue that ISPs are _very_ adept at adapting to local regulations, so they would simply configure their network devices this or that way depending where the subsribers are.

And of course Federalist judges are not exactly that consistent either.

So we shall see, but I sincerely don't see how this would affect interstate ISP markets substantially.

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?


Washington is also in the 9th circuit:


A ruling on Cali's law in the 9th would impact WA as well.

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."


Republicans have been trashing California since the Vietnam war.

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.

Interestingly, a lot of states are like that: https://en.wikipedia.org/wiki/List_of_United_States_presiden...

That branch of the Republican party is extinct though.

Immigration changed California to solidly blue more than anything else.

You could also argue that it was Republican's refusal to address the needs of immigrants that lost them California.

But only American citizens can vote. And I can't seem to find any data on the increase of the California population from naturalized citizens.

Not sure what you're confused about, and OP was talking about legal immigration.

Prior to 65 immigration act, California was over 90% white.

By 2010, non-hispanic white was down to %40, hispanic ~%37%.

That is a huge demographic change. Hispanics nationally vote for Democratic/liberal politicians on avg. 70%.

So.. ergo, the dramatic blue turn California has taken politically can be accounted for by drastic change in demographics.

Your first statement is just restating the same premise: a dramatic change of the makeup of the electorate (whatever their "needs" or preferred political policies) changed the outcome of elections.


section: "Population of California according to racial/ethnic group 1960–2010"

After Prop 187 about a million Mexican resident aliens got their citizenship. That also coincided with a hard turn towards fascism by the Republican party under Gingrich.

Immigration is part if it, and the other part is the Republican party's policies got too extreme for a lot of Californians. California Republicans were more like Schwarzenegger, who later in his term simply abandoned the Republican party. (I think he called Republican operators, crazy and unable to get anything done)

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.

Stories about NIMBYism on HN don't help.

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.)

I live there now, can confirm.

I think Republicans hate all blue States. Due to America's peculiar Electoral College system one man is not one vote. This keeps California severely disenfranchised in American politics.

Californians are second class citizens. And when they try to exercise their state rights the Republicans are quick to stop them.

California should secede. It has enough people to form its own government representative of the population.

That's pretty much the nuclear option. Everyone, both the rest of the Union and the State of California, would all suffer if they did that.

Not unique to Trump. California has been the boogeyman of the right for quite a while now.

But if a liberal makes a joke abut southern rednecks than they get all indignant about how elitist and offensive they are. So tiresome.

Bigotry is wrong on both sides. Seems odd to make it partisan when 'both' sides are spewing hate. Most of us just wish either extreme would pack it in.

I believe that pointing to a location and saying “look at what policies X and Y have done, let us adjust our messaging and policies in accordance with this new information” is perfectly fair. Characterizing the locals in those environs as inferior or fundamentally incorrect is morally wrong.

So in this regard, desparaging california’s policies is completely fair. So would bashing on say, Kansas. But calling California the home of “libtards” or calling Kansas full of rednecks would not be fair.

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?

> 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?

Both sides are only "states rights" if it benefits them on any given issue. Dems are against states rights until they get to pass legislation legalizing pot or net neutrality, then suddenly it's not so bad. Similarly, Republicans are all for states rights until some blue state starts passing legislation they disagree with.

Both sides twist the issue to their advantage. Rights for me, not for thee.

Expansion of federal jurisdiction under the Commerce Clause is an egregious violation of Constitutional law.

Does the federal government have the enumerated right under the Commerce Clause to, for example, ban football for anyone that doesn't have a disability? No!

Was the Commerce Clause sufficient authorization for Federal prohibition of alcohol? No! An Amendment to the Constitution was necessary. And, Federal Alcohol and the unequal necessary State Alcohol prohibitions miserably failed to achieve the intended outcomes.

Where is the limit? How can they claim to support a states' rights, limited government position while expanding jurisdiction under the Interstate Commerce Clause? "Substantially affecting" interstate commerce is a very slippery slope.

Furthermore, de-classification from Title II did effectively - as the current administration's FCC very clearly argued (in favor of special interests over those of the majority) - relieve the FCC of authority to regulate ISPs: they claimed that it's FTC's job and now they're claiming it's their job.

Without Title II classification, FCC has no authority to preempt state net neutrality regulation. California and Washington have the right to regulate ISPs within their respective states.


Limited government: https://en.wikipedia.org/wiki/Limited_government

States' rights: https://en.wikipedia.org/wiki/States%27_rights

[Interstate] Commerce Clause: https://en.wikipedia.org/wiki/Commerce_Clause

Net neutrality in the United States > Repeal of net neutrality policy: https://en.m.wikipedia.org/wiki/Net_neutrality_in_the_United...

The limit is established, and constantly reevaulated by the Supreme Court. For example it was held that gun control cannot be done through the Commerce Clause.

Car emissions and ISPs are different. As ISPs are very much perfect examples of truly local things (they need to reach your devices with EM signals either via cables or air radio), the Federal government might try to argue that the net neutrality regulation of California affects the whole economy substantially, because it allows too much interstate competition due to the lack of bundling/throttling by ISPs.

Similarly, the problem with car emissions might be that requiring thing at the time of sale affects what kind of cars are sold to CA.

Is the Commerce Clause too vague? Yes. Is there a quick and sane way to fix it? I see none. Is it at least applied consistently? Well, sort of. But we shall see.

ISPs are the very opposite of local, as the only reason I have an ISP is to deliver bits from the rest of the world. Of course, the FCC doesn't seem to understand that...

To summarize the points made in [1]: products can be sold across state lines, internet service sold in one state cannot be sold across state lines.

[1] https://news.ycombinator.com/item?id=18111651

In my opinion, the court has significantly erred in redefining interstate commerce to include (1) intrastate-only-commerce; and (2) non-commerce (i.e. locally grown and unsold wheat)

Furthermore - and this is a bit off topic - unalienable natural rights (Equality, Life, Liberty, and pursuit of Happiness) are of higher precedence. I mention this because this is yet another case where the court will be interpreting the boundary between State and Federal rights; and it's very clear that the founders intended for the powers of the federal government to be limited -- certainly not something that the Commerce Clause should be interpreted to supersede.

What penalties and civil fines are appropriate for States or executive branch departments that violate the Constitution; for failure to uphold Oaths to uphold the Constitution?

The problem is, someone has to interpret what kind of economy the Founders intended.

Is it okay if a State opts to withdraw from the interstate market for wheat? Because without power to meddle with intra-state production, consumption and transactions, it's entirely possible.

I've replied to your other comment, but to reiterate, you subsrcibe to a particular ISP, and especially in case of a cable/wire mediated connection, your choices are by definition all local.

Even if it is provided by corporations from out of state.

The Internet is the very opposite of local, yes. But the last mile connection, the way your packets get to the nearest IXP is local. And that's where the oligopoly and thus the throttling happens.

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.

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

> 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.

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


Whataboutism is so tedious.

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

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.

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.

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.

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.

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.

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.

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 :) ]

California's rules are explicitly allowed by the clean air act, otherwise they would not be okay.

See, e.g, https://www.law.cornell.edu/uscode/text/42/7416





Those links are about air pollution not general interstate commerce or Title II.

The parent post was about air pollution rules and whether/why/why not they could be used as a corollary to understand what might happen in this case.

The post you are responding to explains that the specific type of legislation that the parent is asking about was explicitly identified in federal law as allowable.

Thank you.


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.

But I thought the whole idea was that the FCC is refusing to regulate the internet, because it's not their jurisdiction to do so? Wasn't that Pai's reasoning? I'm having trouble finding a source though so maybe my memory's off.

> Isn't this the same thing as regulating car emissions?

My understanding is that federal law gives states the option of either following the EPA rules or the CARB rules.

Nah, the clean air act specifically is meant to be cooperative with the states and for the states to retain some authority.

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.

Not so fast. The same clause also does not cover a lot of things. And ISPs are very much the perfect example of truly local things. And those are not covered.

But we shall see what the courts find.

I don't have an ISP to talk to the ISP's server, I have an ISP to talk to the global internet, so it's very much not local...

Your choices of ISPs is. You buy a connection to a network. Thus the trade happens between you and locally present businesses.

The interstate effect could be due to different services available on the network. So due to the lack of throttling the bundles that the ISPs like to sell wouldn't work, because you could easily buy Netflix or any other non local content.

My selection of ISPs is local, but so is my selection of power companies, housing, heck, even grocery stores. I choose my ISP on primarily non-local considerations, so I don't think it's quite as cut and dry as you state. (i.e. I choose my ISP because of it's connections to other states and countries, not because of my connection to it.)

But there's no market for ISPs where far away ISPs come and present their connections to you. Similarly with housing, even though it's physically possible, real estate markets don't go to the buyers, you don't see houses physically moving to potential buyers. Similarly, thousand mile cables are not laid down for everyone.

And out of state grocery stores don't go to you, even though you can go to them online nowadays. (And in that sense they advertise to you from out of state.)

So, just as you can pick a barber/hairdresser because it can show you the newest trends from other barbers from out of state, you still do the transaction locally, even if the whole hair-onomy might be global.

That said, this is a complex multifaceted problem. (Otherwise everyone would have understood it well by now, even Pai, and everyone would be on the same side, etc. Just as water is wet, the Earth is round, vaccines have amazing cost-benefit ratio, the climate is changing, and emission reduction is the right response, and so on. Ha-ha.) And ultimately we can reason however we want, it's up to some judges to figure this out.

If there were a federal law regulating ISPs, and the whole telecom market, and they were challenged based on lack of constitutional authorization, it'd probably get dismissed fast. (As there are already such laws.) But this is the other way around, and on top of that this is a set of regulations that don't clash with the federal ones, they are merely stricter. (And I'm completely out of my depth about the question of whether the FCC could write rules that'd give rights to ISPs that states can't abridge - or only Congress could do that. But I suspect it can, but only if the regulation has a substantial difference in interstate commerce --- which is the question, is there even an interstate ISP market, and I guess that there isn't.)

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

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

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

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?

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).

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.

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.

That process started under the bush administration, so it’s not just dems.

The answer for that of course is that banks especially pay every representative, regardless of party.

What if Brown vetoed it?

His veto rate is around 12% (88% signed). It's relatively unlikely.


Those numbers are misleading. For most bills he is likely asked if he'd go along with it, before the bill is even written.

He regularly vetoes bills that I wouldn’t expect him to. It’s just odd to me is all. A few weeks after it becomes law makes sense for DoJ. A telecom might file for an emergency injunction but the DoJ?

Nope. US Attorneys but this was passed awhile ago so they had time to prepare a filing.


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

Please keep partisan flamewar off HN. It will burn everything else up if allowed to.


Sorry, I didn't know it was controversial, I thought it was a fact. I listen to a lot of podcasts about the supreme court from the Constitution Center (very very good btw) and some of the judicial philosophies very often advanced by conservatives are originalism and judicial restraint.

I don't have any eggs in this game, so I maybe should have added : politics on both sides are primarly shape shifters and adapt their positions to their relative powers and current objectives. I only think that at one point both sides should take their responsabilities and own their previous positions, accountability is the only way to move forward imo.

It's impossible to have a moderate discussion when extremists keep shouting at each other.

And Democrats argue states’ rights when it suits them.

> And Democrats argue states’ rights when it suits them.

No, they don't, and the ones that were once prone to had all become Republicans in the realignment beginning in 1964 that was largely complete by the 1990s.

Democrats might argue Constitutional limits on the power of the federal government, but “state’s rights” has been attached to a very specific ideology since before the Civil War.

The net neutrality debate is about the repeal of fedral rules rather than adding an additional law. Thus a state's right to set their own rules applies. There is no fedral law to make ISPs behave in a certain way, just the lack of one, so the states should be able to set their own rules in cases like this as long as they are not unconstitutional.

States' rights do not apply in the opposite case when a fedral rule is made and the states don't want to enforce it or have a law that contradicts it. Their laws can't undermine the fedral law.

Hope that's helpful for your understanding of why this is different to the normal "states' rights" argument which is invoked when a state wants to avoid fedral rules.

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.

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.

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.

It feels like there's this blanket belief that both parties are, by nature of the cosmos, equally as wrong when you add it all up.

Upvoted you both.

I think this should be the key takeaway: it shouldn't be us vs them. Decent people exist on both sides, but they don't seem to run the show on either side :-/


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.

There is no substantiation.

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.

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.

> 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.

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