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posted by janrinok on Tuesday August 21 2018, @01:52PM   Printer-friendly
from the its-not-over-until-the-fat-lady-sings dept.

From Reuters:

A group of 22 state attorneys general and the District of Columbia late Monday asked a U.S. appeals court to reinstate the Obama administration's 2015 landmark net neutrality rules and reject the Trump administration's efforts to preempt states from imposing their own rules guaranteeing an open internet.

The states, led by New York Attorney General Barbara Underwood, filed a lawsuit in January after the Federal Communications Commission (FCC) voted in December along party lines to reverse rules that barred internet service providers from blocking or throttling traffic or offering paid fast lanes, also known as paid prioritization.

Several internet companies filed a separate legal challenge on Monday to overturn the FCC ruling, including Mozilla Corp, Vimeo Inc, Etsy Inc, and numerous media and technology advocacy groups.

The FCC handed sweeping new powers to internet providers to recast how Americans use the internet — as long as they disclose any changes. The new rules took effect in early June but major providers have made no changes in internet access.

[...] The U.S. Senate voted in May to keep the Obama-era internet rules, but the measure is unlikely to be approved by the House of Representatives or the White House.

The state attorney generals suing represent states with 165 million people — more than half the United States population — and include California, Illinois, New Jersey, North Carolina, Pennsylvania and Virginia.


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  • (Score: 5, Informative) by DeathMonkey on Tuesday August 21 2018, @05:14PM (2 children)

    by DeathMonkey (1380) on Tuesday August 21 2018, @05:14PM (#724272) Journal

    The lawsuit alleges that the Obama admin did follow the rules and the Trump admin did not.

    Evaluating whether the Trump admin broke the rules or not is the purview of the court.

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  • (Score: 5, Informative) by MrGuy on Tuesday August 21 2018, @06:37PM (1 child)

    by MrGuy (1007) on Tuesday August 21 2018, @06:37PM (#724302)

    More generically,

    The legislative branch is responsible for creating laws. They are also responsible for creating agencies (like the FCC and the EPA) with the power to regulate certain agencies or behavior. The legislature can set laws to mandate certain processes or certain outcomes on the regulatory agencies.

    The established regulatory agencies are part of the executive branch. Once established by an act of congress, these regulatory agencies are empowered to create and enforce rules governing individual and/or corporate behavior within the mandate established by the legislature. The legislature establishes both the scope of their authority and the processes that the agencies must follow (including the rules governing the process by which regulations can be established or modified). Within those guidelines, the regulatory agency is free to create and enforce regulations, which have the effective force of law.

    The judiciary's role in the process is to ensure that regulations are created within the process mandates set by congress, and are within the scope of the responsibility delegated to the agency. So, if an agency creates a rule governing behavior not within its purview (for example, if the FCC created a rule governing forest fires), the courts would be the appropriate forum to challenge that rule as invalid. Or, if (as is alleged here) an agency does not follow the congressionally mandated process for creating or modifying regulations, the courts would be the appropriate forum to challenge that process change as invalid.

    The legislature does not generally need to do anything to empower the FCC (or any other agency) to create or enforce rules - they already did this when they established the agency. The reason the agencies are created in the first place is so that congress will not (for example) have to investigate and create laws that govern how airlines can structure and display prices and fees (the FAA does this), or exactly which radio transmission equipment power levels are consistent with a goal of non-interference with others (the FCC), or exactly which tax forms are required to document specific obscure tax requirements (the IRS). The agencies, within congress' expressed intent and laws, determine the lower-level rules. Congress effectively delegates its authority (within limits) to the regulatory agencies.

    That said, the agencies are delegated their authority by congress, and congress retains the power to overrule them (or even dis-establish the agencies) if they feel so inclined. The core of the debate around net neutrality is whether Title II of the communications act of 1934 (which established the FCC) gives the FCC the authority to regulate the internet under "common carrier" provisions established (at the time) for telephone systems, which is an 85 year old law that was drafted when the idea of a national-scale network of connections (the phone system) was envisioned, but the internet (obviously) was not. If congress were to pass a law that clarified whether they wanted the internet to be considered a "common carrier" as envisioned by this act, or as some new structure that they can define, the FCC would have to follow that guidance. Absent specific guidance, the FCC is free to pass any rules they want, as long as law and charter (as interpreted by the courts) allows them to.

    • (Score: 0) by Anonymous Coward on Tuesday August 21 2018, @10:29PM

      by Anonymous Coward on Tuesday August 21 2018, @10:29PM (#724423)

      They are also responsible for creating agencies (like the FCC and the EPA) with the power to regulate certain agencies or behavior. The legislature can set laws to mandate certain processes or certain outcomes on the regulatory agencies.

      Congress has no Constitutional authority to delegate their own power to legislate to agencies that they create. The agencies should serve as advisers at most, not be able to unilaterally create new regulations without acts of Congress.

      The only thing that would change this is a Constitutional amendment, but we've ignored this in the name of convenience for so long that the notion is laughable.