Now, this does also mean the judge would quite likely ULTIMATELY rule in CA’s favor. But it is not a guarantee. And, as I said, then there’s appellate and Supreme Court review.
For reference, the 4-element test/standard for a preliminary injunction generally accepted in US courts is set out here:
“[G]enerally a plaintiff seeking preliminary injunctive relief must satisfy a four-factor test: (1) that he or she is likely to succeed on the merits of his claims; (2) that he or she is likely to suffer irreparable harm without preliminary relief; (3) the balance of equities between the parties support an injunction; and (4) the injunction is in the public interest.”
In this specific case it does, as the judge specifically seems to have ruled that the ISPs are u likely to succeed on the merits, but in general denial of a preliminary injunction does not. Granting an injunction requires (loosely) both probability of success on the merits and irreparable harm in the interim without the injunction, so you can't automatically read a denial as “likely to lose on the merits”, though you can read one being granted as the opposite more safely (but not entirely because the exact rules vary and it's something's more of a balancing of those two factors than an strict logical “and”, where more certainty and severity of harm allows an injunction with less probability of success on merits.
> Mendez reportedly was not swayed by ISPs' claims that a net neutrality law isn't necessary because they haven't been blocking or throttling Internet traffic.
> "I have heard that argument and I don't find it persuasive," Mendez said, according to The Hollywood Reporter. "It's going to fall on deaf ears. Everyone has been on their best behavior since 2018, waiting for whatever happened in the DC Circuit [court case over the FCC's repeal of net neutrality]. I don't place weight on the argument that everything is fine and we don't need to worry."
I think laws should be challenged in order to force coming to terms with second and higher order effects, and as a matter of course be measured and revisited for reconsideration over time.
That being said, from a heuristic driven, rhetorically defensive perspective, I totally get, and second your perspective in this case.
The "Thou dost protest too much" bell is strong with this one.
Politician's already criticize big tech for not doing enough to censor and remove fake news. I could see this laying the ground work for further involvement. Because "allow all legitimate content" can turn into disallow "illegitimate" content on the ISP level
Frequently, legislation intended to block things doesn't just say "this is illegal now – don't do it". It frequently includes things like reporting requirements to ensure that you are not doing these things without the government having to constantly keep tabs on you (and obviously hefty fines / etc if your reports are found to be inaccurate).
These reporting requirements (and other, similar requirements that usually accompany such legislation) can be an expensive hassle, possibly more expensive than "expensive litigation". The case only needs to be litigated once, while something like reporting requirements continue in perpetuity.
It's funny how some cable operators also offered the benefits of their video service not effecting your data usage, while other video services do. That is anti-competitive and designed to make you buy their services rather than other people's.
It has nothing to do with infrastructure as customers are allowed to stream unlimited data, and even if they go to a competitor, people generally watch at the same time. So your bandwidth is going to get hammered at the same time anyway.
If you had the choice of say 500 local ISPs then net neutrality isn’t an issue.
But the binge-on thing where any 1.5Mbps or less video is zero-rated is basically acceptable.
This has a terrible track record whenever there is a significant financial incentive for participants to do the thing.
As far as I know AT&T has not created a slow lane for download speeds, which is why most people probably do not notice.
It's true Comcast has been caught doing a packet forgery - https://www.eff.org/wp/packet-forgery-isps-report-comcast-af... . If ATT is also doing it, it should be straightforward to collect evidence. So is there any evidence collected that shows ATT is doing packet forgery ?
What? Is that an actual legal argument? "You can't pass a law unless people are actively breaking it" doesn't make any sense.
>...throwing away your umbrella in a rainstorm because you are not getting wet.
But in this context here, we aren't really talking about the validity of the law but about an injunction while the law is being challenged. Where, actually, that argument seems to cut against ISPs, since an injunction generally requires a showing of irreparable harm to the other party if the injunction is not granted; “we aren't doing what the law would prevent and have no intention of doing so” is exactly an argument that you have no need for an injunction.
Conceptually, it's not unlike adding the hardware to a car for a feature nobody will use. It's something that can break, for no benefit.
All that being said, I do not agree the law would be useless because I assume the ISPs will do everything in their power to make money at the expense of the well being of everyone else.
Also, we have absolutely shoddy education in the humanities. Economics, psychology, world history, etc, are 'useless' until you're reminded that we have to deal with human beings doing what they do.
Anyway, I don't see why ISPs would not break net neutrality laws especially if they can nickel and dime people even more.
It’s still a BS argument, to be clear, and good that the judge rejected it...
Even further, if you're not doing anything that would break the new law then why the need to oppose it?
1. Law enforcement itself has costs.
2. The US has so many random laws and the power given to the president and AG to selectively enforce said laws that it translates to "Whoever is in power at the executive level gets to attack whoever they want at their convenience".
3. I see a very clear line between this argument and "If you don't have anything to hide, why do you need privacy?" argument.
Edit: I hope that didn't come across as aggressive. I am genuinely curious about what you were demonstrating with your third point.
I agree with enforcing this laws against ISPs now as I think internet connectivity and accessibility protections are problems that need solved now.
I think their third point is likely just pointing out that many of the users of this site are probably opposed to the "If you don't have anything to hide then why do you need privacy argument", yet are taking what the author sees as a similar argument against the ISPs. It could be viewed as hypocritical and indicates that there needs to be more argument for why someone would want these enforced ASAP other than "If you aren't doing anything bad now then why do you want to block the law".
Towards your point on their third argument, the arguments aren't similar. You don't want to keep only illegal things private. You can have a bank account, but I would expect you wouldn't want to share your account number with just anyone. The argument is disingenuous because everyone does have something to hide.
Going to the latter portion of your third point, regarding the timeliness of your "bad" behavior, that sounds like a terrible way to come up with rules. I wouldn't wait for the first murder to decide that maybe people killing each other isn't the best way for society to function. Of course, I do have hindsight of history to aid me in this, but if that is what is required, I would point you towards my first point about unchecked power. Depending on the specificity your argument requires, I think it applies. I think this also applies a little bit to your first argument around keeping around only immediately purposeful laws.
I think the real solution is to only keep around sensible laws and eliminate those that aren't. And I would say in this argument, these laws do serve an immediate purpose as these telecoms have demonstrated time and time again that they are willing to abuse their customers in ways that are totally legal.
To get an injunction, the claimant (ISPs in this case) would need to show a likelihood of success on the merits _and_ irreparable harm during the pendency of the lawsuit. If the ISPs are not violating the law, it's hard to imagine that they can show that the law is harming them.
Is it though? Seems the opposite to me: reactive laws (aka sensational news items -> law) are generally ill considered and badly conceived. Trying to carefully consider how items and technologies can be used, and whether those uses are things which should be forbidden, seems like it'd generally lead to much better law-making, not attached to any sort of emotional "fog". This process won't catch every misuse, but any misuse it catches is one which'd almost certainly have been seen.
It's the same idea as trying to consider how an API could be (mis)used before deploying it, and deciding whether you want to allow that or specifically check against it.
So I guess the question is whether, in this analogy, net neutrality is about use cases or about valid states? Personally, I see it as more of the latter.
There is historical precedent of ISPs doing the behavior these laws are trying to protect against on large scales. They got caught, and because of the title classification they were forced to stop.
ISPs continue to have financial incentives to do these actively malicious behaviors to their customers so some level of protection needs to be in place.
Reactive law can work just as well too, it just needs to not be rushed. For example, Section 230 is a reactive law that allowed for the creation of the internet we have today.
I think your argument could be better made by saying that laws that are created quickly without lots of analysis and debate are bad. Interested parties on any given law need to be able to weigh in to provide insight about how it may impact them, and then it's up to lawmakers to find a good balance.
The public comment process that executive agencies have for rule changes could be nicely applied to our law making process as well.
The online experience is getting more and more centralized into fewer and fewer platforms. Additionally, more and more of the tasks we associate with "general purpose" computing devices are getting bundled up into locked-down app platforms or even into task-specific appliances. With the proliferation of 5G, I suspect we will start seeing a lot of these "appliances" come with their own, built-in-to-the-payment-model cellular modems. These platforms are increasingly hostile to freely running software from outside their locked-down ecosystems.
I guess the question I'm trying to ask is: How much will net neutrality matter if we're headed towards a world where all of the clients connecting to the net cannot freely run whatever software the users want?
We, the geeks, may value open-platforms, but observe that it’s Google, Apple, Samsung and Amazon that effectively control consumer home-automation and smart appliances - and they sure as heck aren’t interested in making their platforms open and interoperable. (I’m speaking as a Nest customer who got screwed-over by Google closing Nest’s open API - that was a blatant anti-competitive move).
Has that happened and I missed it? If not, why? Are ISPs just afraid of provoking the bear so they're behaving themselves?
To be clear, the implications were always expected to be that ISP would start running extortion rackets where they would charge fees to competitors or large internet money makers. Effectively double-dipping on consumers, so not only do you pay the ISP for internet access, but Google, Netflix, et al have to pay ISPs for access to you.
This did happen. Netflix was throttled a few years ago and they reached a "deal" with Comcast and a few months later, Netflix rates were increased.
1) This happened prior to net neutrality regulations.
2) This was a peering dispute, not throttling.
3) Net Neutrality did not regulate peering.
"It's going to fall on deaf ears. Everyone has been on their best behavior since 2018, waiting for whatever happened in the DC Circuit [court case over the FCC's repeal of net neutrality]. I don't place weight on the argument that everything is fine and we don't need to worry."
Maybe Covid restrained other ISP actions we would have otherwise seen
Comcast (and others) realized the PR nightmare that it would cause to keep the caps in this situation, but it seriously undermines their congestion argument.
No, no we weren't. Like any hot political issue, the ramblings of enthusiastic dummies should not be the standard by which we judge a position.
The most cursory of sober analysis recognizes that business models do not change overnight. Even if they wanted to act as quickly as possible, established ISPs have tons of inertia.
Extending a slightly charitable take to proponents of net neutrality recognizes that ISPs would use their existing leverage to take inches here and there, skillfully massaging the messaging with expensive PR and marketing teams each step of the way. The question is whether the sum of those changes is just a business taking advantage of negotiation power, or if it sums into too anti-consumer of a business model.
I will never stop recommending them so long as they remain what they are now.
Have Google Fiber now: gigabit all the time, no caps, 100% availability so far, $70/mo.
Also, Verio (NTT) had 512kb SDSL for $60/mo. in Davis CA with 8 ms to Stanford in 1999. Dotcom times, sigh.
Applying stricter standards than federal, or average, is not against the dormant commerce clause, as long as it's applied equally to everyone. So California would not be in breach as long as they apply net neutrality to:
* all ISPs period
* Californian ISPs only
There's also an argument against "inappropriately burdening" interstate commerce, but that argument doesn't really make sense against NN: traffic shaping and traffic-specific charges require the addition of systems dedicated to those ends. NN requires not doing anything.
The “inappropriately burdening” cases is what I was thinking of. I suppose I would disagree that the theory is inapplicable. The law burdens isps by requiring them to alter their ordinary business practices in a way that substantially affects interstate commerce.
That said, I’m sure the issue was raised and rejected.
It doesn't matter that a state law may affect a business' ordinary business practices in a way that affects interstate commerce. What matters is that the state law does so in a way that discriminates against interstate commerce (meaning that different rules are applied to out-of-state businesses than to in-state businesses).
Thus, if the law applies equally without regard to whether the transaction is intrastate or interstate, the dormant commerce clause is not implicated.
In this case, the CA net neutrality rules apply to all ISPs providing services in CA. It does not require them to apply net neutrality rules to non-CA customers. Therefore, the dormant commerce clause does not apply.
For example, gaming traffic and audio conferencing/telephony need low latency, which requires short queues (to minimize queuing delay) or no queues at all (e.g. cut-through routing.) However, short queues and cut-through routing break if the incoming data exceeds channel capacity. Typical solutions are separate queues/queue slicing and/or rate-limiting/throttling, and I'm completely OK with that because it enables low-latency, low-bandwidth applications like gaming and audio.
What I really don't want is a buffer bloat situation where everything goes into the same giant queue and gaming/audio traffic has to wait behind Netflix, software updates, cloud backups, etc..
There's a reason we have express checkout lanes at grocery stores, after all, as they tend to reduce queuing delay for people with fewer items.
Or would this just make it more reliable -- instead of jumping around a bit, a consistent connection with reliable, predictable responses?