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FCC Tells Court it has no "Legal Authority" to Impose Net Neutrality Rules:
FCC defends repeal in court, claims broadband isn't "telecommunications."
The Federal Communications Commission opened its defense of its net neutrality repeal yesterday, telling a court that it has no authority to keep the net neutrality rules in place.
Chairman Ajit Pai's FCC argued that broadband is not a "telecommunications service" as defined in federal law, and therefore it must be classified as an information service instead. As an information service, broadband cannot be subject to common carrier regulations such as net neutrality rules, Pai's FCC said. The FCC is only allowed to impose common carrier regulations on telecommunications services.
"Given these classification decisions, the Commission determined that the Communications Act does not endow it with legal authority to retain the former conduct rules," the FCC said in a summary of its defense [pdf] filed yesterday in the US Court of Appeals for the District of Columbia Circuit.
The FCC is defending the net neutrality repeal against a lawsuit filed by more than 20 state attorneys general, consumer advocacy groups, and tech companies. The FCC's opponents in the case will file reply briefs next month, and oral arguments are scheduled for February.
Then why not let the states implement it?
(Score: 2) by The Mighty Buzzard on Sunday October 14 2018, @03:40PM (4 children)
The CA regs don't stand much chance of not being overturned. It's too easy to argue providing access to an interstate medium is interstate commerce and invoke the Supremacy Clause.
My rights don't end where your fear begins.
(Score: 1, Interesting) by Anonymous Coward on Sunday October 14 2018, @05:20PM (3 children)
I disagree.
There is almost no need to argue against the FCC to win this case. The FCC can flog the supremacy clause all it wants. The supremacy clause applies to the law, not the absence of it. If the FCC is under the impression that it can constrain the states from legislating, then it would have to do so on a constitutional basis other than the supremacy clause. Which is to say it would have to argue the 1st amendment. And the only way it could win that argument, is if CA pulled a "Citizens United" and threw the case intentionally.
The FCC isn't the FTC. If it wants to argue Wickard v. Filburn that is outside of its jurisdiction. It said so itself. Not that it matters, because this isn't really a trade case either.
It is a 1st amendment case. Jim Crowe laws were enforced by private persons and enterprises. Often standing outside the polls with a billy club. Really this is the argument that is absolutely incontravertable. The telecoms have, by means of ad-tracking dns mining and targetted ads, positioned themselves between the people, and the government, with the ability and active interest to interfere with their communications and right to redress grievances. Without common cairrage regulations, the presumption that this is not currently, and will not continue to be abused, is laughably ignorant.
Perhaps Ajit Pai's whole intention was to get this kicked down to the states? Maybe the conflict of the argument was set up specifically to do that.
Of course you can count on most of the south to try and use the telecoms as a new form of Jim Crowe-ism. But of all the regs, CA has the best. So the best solution is for CA to win, and then those regs to percolate through the union, and eventually be codified back into the FCC, as closely as possible to the current CA version. In that case, Ajit Pai wins, since he has kicked the regs out of the FCC's pervue. But the states win, because they now (hopefully) have NN regs that are workable. Except of course in GA,SC,NC, and TX, who will fuck shit up so bad they might end up trying to secede again. ;-p
(Score: 2) by The Mighty Buzzard on Monday October 15 2018, @12:06AM (2 children)
That argument would simply invoke the Commerce Clause from the other side. Anything considered interstate commerce falls squarely and constitutionally under the federal government's authority and is actively forbidden to the states and people.
My rights don't end where your fear begins.
(Score: 2) by deimtee on Monday October 15 2018, @06:44AM (1 child)
I quite admire the US constitution, and I think you are misreading it.
When they meant exclusive power, they said so. In other cases, constitutional Federal law trumps State law, but only if they actually pass them.
If Idjit Pai revokes the Federal regulations by disclaiming the power to pass them, the states are free to pass their own.
If you cough while drinking cheap red wine it really cleans out your sinuses.
(Score: 2) by The Mighty Buzzard on Monday October 15 2018, @02:48PM
Good luck with that argument. It hasn't held up thus far. Mind you, I'm not saying what's right or wrong in interpreting the constitution, just what is going to happen.
My rights don't end where your fear begins.