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Court says FCC’s net neutrality repeal can’t stop state laws (techcrunch.com)
180 points by chimi 11 days ago | hide | past | web | favorite | 58 comments





The whole thing is a bit sad. We could have a real discussion about net neutrality. We could talk about how 5G probably will need different kinds of connections with different latency or reliability and that if you are building a normal Web service you probably don't need all that while some other services obviously do. And such specific improvement maybe should cost a bit more.

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


Looking at resumes, you would've thought Wheeler would be an awful FCC chairman, but he turned out ok. Which makes Pai even more frustrating because you look at him and think "I know he has ties to the industry, but he could choose do his job if he wanted to."

>The FCC's mission, specified in Section One of the Communications Act of 1934 and amended by the Telecommunications Act of 1996 (amendment to 47 U.S.C. §151) is to "make available so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, rapid, efficient, Nationwide, and world-wide wire and radio communication services with adequate facilities at reasonable charges."

Imagine having that mandate and going out of your way to take the position that you don't have any authority over internet connections.


That mission takes 2nd place to political party loyalty. The FCC runs against its own mission right down party lines.

Pai is too corrupt to do the proper job. He only serves his ISP masters. Wheeler was doing the right thing for a change.

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

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

Reasons:

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

- does not address the root problem, lack of competition

- reduces choices for consumers

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

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

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

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

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

- Speeds will reduce. This hasn't happened.


General opposition to regulation

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

Lack of competition, reduces choice

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

Less than 3 ISPs

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

ISPs will produce different packages

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

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


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

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

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

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

And zero-rating would be allowed under Title II.

> your username switch around is Ajit P

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


> Regardless, every regulation has a cost to compliance.

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

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

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

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

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


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

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

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

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


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

This is not actually true. NN was a new thing that was added relatively recently that will require ISPs to basically bankroll the infrastructure for companies like Google/Netflix/Amazon etc. Especially ISPs that don't have Google/Netflix/Amazon as customers. These companies increase the bandwidth going over the ISPs networks to a subset of the ISPs customers. The ISPs either need to force all customers to pay by raising rates among all customers, adding data caps, or throttling data rates in peak times, if NN is in play. If NN is not in play then they can require that the content providers (Google/Netflix/Amazon/etc) pay for the increased data from these providers. The ones most at risk in a non-NN world are the tech giants that want to use the web as a the location applications reside (and they ran a very effective marketing campaign to convince average folks to believe that it would harm them).

If they are regulated as "common carriers" then that means they can't bill the source of the data for the data. This is a very bad trend that will just increase the cost of internet.


> ... to basically bankroll the infrastructure for companies like Google/Netflix/Amazon etc.

You mean like they already did? If Netflix was actually a problem for ISPs, we’d be hearing a lot more about it from others. Instead, all we hear is ISPs complaining about increased cost. What they fail to mention is that: the internet will continue to grow; ISPs will need to grow their infrastructure anyways.

> The ISPs either need to force all customers to pay by raising rates among all customers, adding data caps, or throttling data rates in peak times, if NN is in play.

Not true. Nothing in the Obama-era regulations prevented data caps.

> If they are regulated as "common carriers" then that means they can't bill the source of the data for the data. This is a very bad trend that will just increase the cost of internet.

Again, not true. Nothing about common carrier status prevents the current double dipping of charging the uploader and downloader; Phone services already charge the caller and the receiver both.


I would venture to guess that the majority of the HN crowd is pro-NN.

You are correct in that the real problem is that, starting in the 90s, municipalities traded exlusive rights for quick rollouts. The "onerous local regulations" are what created the unfair monopolies in so many cities. In San Francisco, you have AT&T still offers 10Mbit DSL because the only other game in town is Comcast (or MonkeyBrains).

Mobile/Wireless ISPs and fiber providers are not in the same universe when it comes to where we want to go. If you are talking about crossing the digital divide to get marginalized groups of rural people connected to the internet then, yes, wireless is an answer. If you want to start building the next generation of infrastructure that will support the next generation of technology then we need to be rolling out fiber to as many places as we can.

To do that we need to undo the regulations that prevented the appropriate competition from growing alongside the lazy incumbants, and, we need to protect the internet as it is today with net nuetrality regulations.

Just because we haven't seen an ISP charge for different packages doesn't mean that it won't happen. It is legal after all. Why wouldn't a free market take advantage of that? Especially when I can only choose between Comcast or 10Mbit AT&T DSL?

There needs to be a transitionary period. Open up all the municipalities to new broadband companies. Wait 20 years, then sunset net nuetrality.


Being upset by "alarmism" when you haven't learned the facts and why it's worth being alarmed about is a disturbing trend.

That is a vacuous and irrational accusation that you have butted with weasle words. Are you attacking OP or "the world"? What are you basing your assumption on that she hasn't learned the facts?

I don't know what parent meant but I would personally say that fits OP to a T. All of OPs claims of "this hasn't happened yet" have happened outside of the US where there is no NN.

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

In your favor, I'm aware of at least one regional co-op ISP in Minnesota that either shut down or sold out due to the reporting/compliance overhead that Title 2 placed on them. This isn't a conspiracy theory, this is simple organizational dynamics - larger corporations are able to absorb larger regulatory burdens that smaller players cannot.

This is something that NN advocates seem to have a very hard time accepting. The law that was shot down wasn't "net neutrality", it was classifying ISPs whole of Title 2 (which is a ginormous blob of legislation, minus a couple of "forbeared" provisions) which had a specific form of net neutrality as one of its many provisions.

>reduces choices for consumers

This, I don't get. How so? What choice is being meaningfully restricted by the requirement that you don't discriminate based on source or destination?

>Most Americans have less than 3 ISPs. This may be true depending on how you restrict which ISPs you're referring to.

Mobile carriers are not realistic internet providers for daily home use because of draconian bandwidth caps and other forms of fuckery (like restricting video streams to 480p) even when "unlimited", and that's not getting into the latency/reliability issues that make things like online gaming difficult.

Most people will have a telephone company and a cable TV company to choose from, with a smattering of third party DSL carriers (that still require the telephone company's lines), and some very niche options like fixed wireless (see latency/reliability) or satellite (high pings and bandwidth caps).

----

I do think it's interesting that most of the doomsaying has yet to come true. I don't think there's any demand for these tightly segregated services NN people seem to think we'll get, or else we would have seen meaningful, industry-wide pushes in that direction, and as for speeds, they've only been increasing.


> This is something that NN advocates seem to have a very hard time accepting. The law that was shot down wasn't "net neutrality", it was classifying ISPs whole of Title 2 (which is a ginormous blob of legislation, minus a couple of "forbeared" provisions) which had a specific form of net neutrality as one of its many provisions

It was something like 700 forbeared provisions. There were only 8 pages of regulations in the 2015 Open Internet Order.

If you recall seeing Pai and some members of Congress waving around a 400 page document and claiming it was the 2015 Open Internet Order, what they were waving about was actually 8 pages of the Order, plus a long analysis of the legal history of net neutrality, responses to comments, analysis of the FCC's authority to regulate, and things like that.


The open internet order and the title 2 reclassification are two different things. After they were sued and lost the ability to enforce the order, they moved forward with reclassification.

I believe you may be thinking of the 2010 Open Internet Order. That was the net neutrality order that was struck down in court. The court said that Section 706 did not provide sufficient authority for the regulation, but Title II would if ISPs were reclassified.

The Wheeler FCC set about to restoring net neutrality consistent with the court's ruling. Wheeler proposed doing so without reclassification by basically keeping those things that the court had not had a problem with and dropping those things that needed Title II. The main such thing dropped was the ban against paid prioritization. In that proposal, he also asked for comments on reclassification.

The comments overwhelmingly supported reclassification and he went with that, issuing the 2015 Open Internet order, which reclassified ISPs under Title II with most Title II provisions forborne and imposed net neutrality.


> > reduces choices for consumers

> This, I don't get. How so? What choice is being meaningfully restricted by the requirement that you don't discriminate based on source or destination?

Let's say an ISP offers a plan allowing their users to have full-speed access to partner video steam providers, and slower access to their main competitors. This plan is half the price of their main plan, which gives full-speed access to everyone.

The plan I described would be illegal, as I understand it, under NN. This means that that choice had been removed as an option for consumers. There are many consumers who would use this plan: people who do very little video streaming at all, people who use their partner's video streaming service, and people who use very small competing services which fly under the radar of their throttling. Those people now have to pay more because a choice that would have benefitted them is illegal.


But that's deceptive; it's cheaper for the consumer because it's a plan subsidized by the partnered video streaming services. But in the long-term, that reduces choices in different areas, e.g. fewer video stream providers because the providers that can't afford to pay off ISPs find it harder to gain an audience. Something already exacerbated by the network effect.

And ISPs that have those plans have an additional guaranteed income stream, whereas smaller ISPs that can't get income from partnered websites have less money to compete with and a higher hill to climb.

Additionally, ISPs aren't falling behind in speeds, available plans, and costs because they don't have money. They're profitable. They have money. What we need is a combination of NN and municipal ISPs that provide actual competition.


Please add evidence to the comment. A lot of your statements are vague rhetoric that could be flipped in the other direction.

Edited

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

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


Caching and DNS.

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

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

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


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

Just "offering" DNS services is enough to not be telecommunications even if you may use a broadband connection without using the ISP's DNS or even any DNS (just IP)?

Wouldn't a phone company offering you a phonebook (or simply using the address book in your phone) or a broadcasting station giving you the EPG more or less fall in the same category?


we used to have the local AM radio give us the time weekly

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

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

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

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

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

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


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

Why should it be expensive?

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

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


ISPs tend to be rotten from the inside out. You know when you call them and it's a mess to get any help, and you inevitably get stuck explaining your basic problem 3+ times to someone who thinks wifi is magic? Yeah, it's not any better when you're an employee of those companies.

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

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

If an ISP is indeed too incompetent to manage two configurations, nothing is stopping them from deploying the State B config everywhere, as if there were nationwide net neutrality.

This just mean that they will likely make mistakes. They can obviously configure their BGP just fine most of the times.

> The ISPs create two (or mor) versions of their packages that they can offer/operate in different states - this would be quite expensive (and I suspect in some cases quite difficult too)

I don't think this is really the case. ISP services are already very geographically fragmented since they involves so much local infrastructure. Users also (mostly) stay within state lines. Lots of ISPs already offer different pricing plans and features based on location. And there are tons of them which only operate within a specific region in the first place.

This is very different from auto manufacturing or something like Facebook which operates from a central source and will have a very hard time segmenting users by state.


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

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


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

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


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

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


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

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

Is there a legal doctrine that explains this discrepancy?

Wish I had examples for both scenario

I’m not talking about conflicts though

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


It depends on whether the federal law says so, assuming the Commerce Clause permits it. Read about the Commerce Clause for examples.

The question used to be whether the Federal law was so all-encompassing that it displaced all attempts by a state to regulate the subject matter in question. If it was then preempt. If not, state law survives. Preemption doctrine is not so clear cut anymore.


> I’m not talking about conflicts though

(Where preemption applies)


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

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

Will be overturned. Commerce Clause.

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

This is more related to federal law preemption. The federal agency gave up powers to regulate. Similar to the betting regulation that has been overturned, allowing states to regulate betting.

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

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

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


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

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


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

How many people here are living on the margins? How were their lives affected?

Since that time period internet has gotten cheaper and faster. So no, there's been no effect.



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