(This is true, in fact, and the court cases it cites and the DC circuit have been clear on this point for years)
The order then reclassifies the ISP's outside of Title II.
Outside of the arguments around privacy jurisdiction (which were always dual jurisdiction with the FTC), i don't know what they are thinking.
Given that the courts have already decided the FCC has no authority to regulate in this space (outside of Title II), and Ajit himself has said it numerous times, arguing pre-emption seems like a loser. If they don't have the authority to regulate around it, it's hard to see how they will argue they have the right to pre-empt others: all the court rulings involve determinations about the scope of the statutes involved, which in turn is a valuation of what congress intended to regulate/how far pre-emption goes.
It'll be interesting to read the complaint to see what leg they are trying to stand on.
Besides the existing court cases making super-clear the lack of authority, just the sheer the number of statements and orders from Ajit saying the FCC has no authority here seems like it will be hard for the FCC to overcome.
They would have been much better off saying "we have plenty of authority here and we explicitly choose not to exercise it"
There have already been court rulings that states cannot regulate Title I information services. There was one just decided a few weeks ago in the 8th Circuit, Charter Advanced Services (MN), LLC v. Lange [1].
Pai immediately praised that decision [2].
That, in this suit coming so soon after that, suggests that is going to be the approach.
[1] https://scholar.google.com/scholar_case?case=162444264794194...
[2] https://www.fcc.gov/document/court-preempts-state-regulation...
Yeah, it did.
"There have already been court rulings that states cannot regulate Title I information services. There was one just decided a few weeks ago in the 8th Circuit, Charter Advanced Services (MN), LLC v. Lange [1]."
Interesting. This is not my area of legal expertise (i'm also way too lazy to read the 1996 act), but that looks like it would be a possibly winning approach if a bunch of courts have already accepted the pre-emption argument for Title I.
However, one important difference between this suit and those is that in those, the court agreed the FCC had the authority to regulate under Title I, and was choosing not to, explicitly pre-empting that set of state regulations.
See https://scholar.google.com/scholar_case?case=745168854586066...
Here, the DC circuit has decided in the past that the FCC has no authority to regulate net neutrality under Title I.
They could not actually regulate Net Neutrality under Title I if they wanted to.
Then it doesn't matter what the FCC does.
This is a bit weird of an argument because congressional intent was so unclear that the FCC tried to regulate it many times :) (and it required a court deciding what the statute said).
The FCC can reinterpret its own statutes, actually, including ones that say how much authority it has. Those interpretations are subject to various standards around precedent and consistency. I doubt they would meet them here if they suddenly reinterpreted them.
(Note also that appeals courts are becoming more concerned about the deference given here to agencies to say what their statutes/regulations mean, and the supreme court is likely to take it up again sooner rather than later)
I think Fed gov, is arguing that California cannot regulate interstate commerce. So they cannot, for example create an 'import tax'.
I suspect, that eventually the argument will be around Originating and Terminating IP addresses. If both are in CA, then they can regulate it. If at least one outside -- than they cannot.
In telecom US taxation is there a well known, rule called 2-out-3 Rule.
One has to look at originating number location, terminating number location, and the location of the billing address. Then the tax will be levied according the rules of the jurisdiction, that is identified by 2 same out of the 3.
(I do not remember, what would be the case when all 3 are different... ).
So in the case of internet, I suspect, FCC will argue that CA can enforce the rule only for the location that satisfy something similar to 2-out-3 rule.
So for CA resident to be within the scope of the enforcement, they would have to use, say a VPN that's is also in CA...
Otherwise, CA cannot regulate a genuine interstate service.
This isn't about traffic, it's about the terms of sale of access service to consumers in the state.
That would open the issue up to reregulation under a later administration.
(and courts already decided the answer).
So there's no point in not.
And for anything else require they pay the property owner or city/county (as appropriate) at market rates per square foot of usage. Basically if you have a "utility" line on my property I can't use that space, so you better actually bye a utility.
It is considered interstate commerce to grow wheat on one's own farm to feed one's own animals under the theory that by doing so, he removed himself from the interstate wheat market (where he would otherwise have bought his wheat).
Since the internet plays a major role in interstate markets, one could easily extend this arguement to say that even local internet connections are interstate commerce.
One could actually argue that most anything is interstate commerce. This is one of the main reasons we don't hear courts arguing that federal laws overstep the constitutional authority of the federal government: everything is interstate commerce.
For example, could the federal government preempt the states from having public schools, public roads or a police force under the commerce clause because they impact the interstate market for private schools, private roads and private security? It seems like maybe they should only be able to preempt when the thing is actually interstate commerce and not just affecting it. But is there any case deciding that issue one way or the other?
This type of abuse of the commerce clause should be rolled back to something more sane that reflects the original intent. The courts seem to bend the words of the constitution to increase central authority. Our freedoms suffer as a consequence in my opinion.
Do tautologic conclusions make legitimate precedents? Dang...
The heathcare system is another example of this. Emergency rooms in Texas are useless to people in Florida.
https://motherboard.vice.com/en_us/article/kzkx83/which-stat...
https://en.wikipedia.org/wiki/United_States_Court_of_Appeals...
A ruling on Cali's law in the 9th would impact WA as well.
https://www.nytimes.com/2018/04/05/us/politics/trump-califor...
Isn't this the same thing as regulating car emissions? Doesn't 822 only apply to providers in the state itself? Wouldn't it be that the telecoms are welcome to engage in another method of end-customer billing in other states?
What am I missing?
I think you're right, the motives are very similar.
> Attorney General Jeff Sessions said that California’s net neutrality law was illegal because Congress granted the federal government, through the F.C.C., the sole authority to create rules for broadband internet providers. “States do not regulate interstate commerce — the federal government does,” Mr. Sessions said in a statement.
I thought Republicans were pro-states rights and limited government? How does their position on this jive with their ideology?
Both sides twist the issue to their advantage. Rights for me, not for thee.
Does the federal government have the enumerated right under the Commerce Clause to, for example, ban football for anyone that doesn't have a disability? No!
Was the Commerce Clause sufficient authorization for Federal prohibition of alcohol? No! An Amendment to the Constitution was necessary. And, Federal Alcohol and the unequal necessary State Alcohol prohibitions miserably failed to achieve the intended outcomes.
Where is the limit? How can they claim to support a states' rights, limited government position while expanding jurisdiction under the Interstate Commerce Clause? "Substantially affecting" interstate commerce is a very slippery slope.
Furthermore, de-classification from Title II did effectively - as the current administration's FCC very clearly argued (in favor of special interests over those of the majority) - relieve the FCC of authority to regulate ISPs: they claimed that it's FTC's job and now they're claiming it's their job.
Without Title II classification, FCC has no authority to preempt state net neutrality regulation. California and Washington have the right to regulate ISPs within their respective states.
Outrageous!
Limited government: https://en.wikipedia.org/wiki/Limited_government
States' rights: https://en.wikipedia.org/wiki/States%27_rights
[Interstate] Commerce Clause: https://en.wikipedia.org/wiki/Commerce_Clause
Net neutrality in the United States > Repeal of net neutrality policy: https://en.m.wikipedia.org/wiki/Net_neutrality_in_the_United...
See, e.g, https://www.law.cornell.edu/uscode/text/42/7416
and
https://www.law.cornell.edu/uscode/text/42/7402
and
My understanding is that federal law gives states the option of either following the EPA rules or the CARB rules.
But we shall see what the courts find.
https://www.justice.gov/opa/press-release/file/1097306/downl...
I don't have any eggs in this game, so I maybe should have added : politics on both sides are primarly shape shifters and adapt their positions to their relative powers and current objectives. I only think that at one point both sides should take their responsabilities and own their previous positions, accountability is the only way to move forward imo.
No, they don't, and the ones that were once prone to had all become Republicans in the realignment beginning in 1964 that was largely complete by the 1990s.
Democrats might argue Constitutional limits on the power of the federal government, but “state’s rights” has been attached to a very specific ideology since before the Civil War.
States' rights do not apply in the opposite case when a fedral rule is made and the states don't want to enforce it or have a law that contradicts it. Their laws can't undermine the fedral law.
Hope that's helpful for your understanding of why this is different to the normal "states' rights" argument which is invoked when a state wants to avoid fedral rules.
I think this should be the key takeaway: it shouldn't be us vs them. Decent people exist on both sides, but they don't seem to run the show on either side :-/
We can certainly have each state have their own laws as to the terms on which internet service can be sold to consumers.
> We'd have the nightmare of dealing with gazillions of jurisdictions.
Which is true of consumer sales of many goods and services.
