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Court states that FCC's "unhinged" repeal of net neutrality cannot stop state laws – TechCrunch

The FCC's repeal of net neutrality rules has been significantly weakened by a federal appeals court, which ruled that the commission could not advance state laws such as those pending in California. And although the repeal largely survived something else, a judge called the logic it is based on "detached from the realities of modern broadband service."

The outcome of this case is not final, as the case may arise as far as the Supreme Court, if previously Decisions by lower courts are bound to follow, but increasingly are shown to be in line with the way technology and markets work today. (You can read the full 186-page court case here.)

But the threat of preventing state net neutrality rules with a weaker federal rule was a very serious one that promised a proliferation of legal battles when the inevitable state-federal conflicts arose. Fortunately for the states, the court completely dismissed the FCC's arguments that it had the authority to override states and completely reject the commission's rules.

Mozilla and several partners filed lawsuits against the FCC last year, challenging Chairman Ajit Pai's "Restoring Internet Freedom" regulation on a number of fronts. Few of them took advantage, as the court showed a marked disposition to address the agency's questions about, for example, the economic effects of previous regulations, the competitive landscape of broadband providers, and suggested consumer protection options.

Biggest miss was the challenge of classifying broadband as an information service from a telecommunications service ̵[ads1]1; the divide at the heart of this decade-long conflict.

The court found that FCC's explanation that DNS and caching services means that broadband providers do more than just move bits from place to place. This is a tremendously crazy argument, which I have discussed in detail before (involving Brett Kavanaugh, now on the Supreme Court), but the court ruled that it was bound by precedent to postpone the agency.

FCC erred on public safety, Lifeline and state laws

The court agreed with Mozilla et al. on some fronts.

First, there are potential threats to public security for potential blocking and throttling by broadband providers. The case last year by firefighters in California who had their Verizon units thrown in the middle of fire control checks showed that there are times when these threats can be life and death issues. Because the FCC barely touches on this case, the court ordered them to revise the order and do so.

The Commission's disregard for its duty to analyze the impact of the 2018 Public Security Order makes its decision arbitrary and whimsical in that part and guarantees a custodial sentence with direction to address the issues raised.

Secondly, it is the Lifeline program, which uses federal funds to subsidize mobile and broadband access for people in underserved areas, tribal lands, and so on. The law that defines Lifeline designates these things as telecommunications services, but the FCC has just reclassified broadband as an information service – which basically removes the authority to run the Lifeline program at all. The lawsuit points this out, and the court agrees that it is a tremendous oversight for the FCC not to address it.

The Commission brushes off the concern. This was a just mistake requiring custody.

Finally, the most important is the question of transgression. As I and others have noted before, in its repeal of the 2015 Net Neutrality Rules, the FCC abolished its only real authority to interfere with state rules. The Title II authorities controlling telecommunications services would allow the FCC to regulate education between trained carriers, but it relinquished its powers when it relinquished Title II.

Nevertheless, it still claimed to be able to stop states from doing their own thing, which the court rightly considered as an attempt to "create exemption authority out of the air."

The Commission ignored binding precedent by failing to justify its sweeping exemption directive – which goes far beyond freedom of conflict – in a legal source of statutory authority. This failure is fatal.

By reclassifying broadband as an information service, the Commission placed broadband outside its Title II jurisdiction.

As a matter of both basic bureaucracy and federalism, the power to prevent state laws must be conferred by Congress. It cannot be a by-product of self-produced agency policy.

Not only does the Commission lack its own statutory authority to predetermine, but its efforts to kick states out of intrastate broadband regulation also overlook the Communications Act's vision of dual federal state authority and cooperation in this area specifically.

The entire promotion part of the ruling government is therefore vacated, the court determined.

There is tremendous news. If federal rules, no matter what they are, do not take precedence over state rules, states are free to adopt their own and expect companies to follow them. We have seen how this works in some cases like Illinois, where biometric measures such as face recognition are strictly regulated. For example, this necessitated that Facebook make changes to the image labeling systems that also affect users outside of Illinois.

Similarly, state rules focused on net neutrality and user privacy, such as California's, could force companies to adjust policies at a global level. Comcast would have little sense and no problem with having a special "California edition" of its services.

This makes the FCC's national rules more of the lowest possible baseline than the country's law. Having such flawed and ill-founded rules in that the role is not so scary.

Mozilla was optimistic despite much of the complaint being thrown out. "We are urged to see the court's free states to introduce net neutrality rules that protect consumers," said the company's attorney general, Amy Keating. "We are considering our next steps in the FCC 2018 Order and are grateful to be part of a broad community that is pushing for net neutrality protection in the courts, states and Congress."

Condemning the FCC's "technological anachronism"

The Court repeatedly exposed the Supreme Court's rulings and to the FCC's freedom as an expert agency to provide "reasonable" interpretation of the law to justify its policy, even if that interpretation is not necessarily the "best." [19659002] But the FCC is testing the outer limits for the court's benefit in this, warned Circuit Judge Patricia Millett. She specifically referred to using the existence of DNS and caching as justification for requiring broadband services is more than just telecommunications.

This explanation has been made before by no less than Justice Brett Kavanaugh, who then received a sound, intellectual pummeling by his colleague, Circuit Judge Srinivasan.

Although the court had to allow it, Judge Millett, in an expanded concurrence, stated that she was "deeply concerned that the result would detach from the realities of modern broadband service":

Brand X [the relevant Supreme Court decision] was determined too soon fifteen years ago, during the bygone era of the iPod, AOL and Razr. The market for broadband access has changed dramatically in the meantime.

In 2005, the Commission's classification decision was "just barely" allowed. Nearly fifteen years later, the legal status of Internet broadband services hangs on DNS and cache, the technological reality flashes.

The question is whether the combination of transfer with DNS and cache alone can justify classification of the information service. If we wrote on a clean slate, the question seems to have only one answer given the current state of technology: No.

By placing singular and dispositional regulatory emphasis on the broadband's random offer of DNS and caching, the Commission misses the technological forest for a twig.

(Meaning mine.) She regrets that those in the lower court did not have the power to consider this, but that the Supreme Court can – and should. Or if it doesn't, Congress can act and intervene to expose the FCC's sad logic for its shame. Either intervention will avoid catching internet regulation in technological anachronism, "she concludes.

In other words, the FCC's entire argument rests on a constantly flimsy legal technology that only a higher court or congress can address.

Until that happens current FCC rules, which are much weaker than the 2015 rules, will be in effect – but as mentioned earlier, states are free to adopt better rules, and the Commission can do nothing about it, which is a huge victory for advocates for

"When the FCC rolled back net neutrality, it was on the wrong side of the American people and on the wrong side of history. Today's court decision shows that the agency also did wrong in the law, said FCC Commissioner Jessica Rosenworcel, who has consistently opposed the new rule, in a statement. "As the FCC revises its policy in light of the court's directives, I hope it has the courage to run an open and fair process."

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