10 ms·

Court says FCC’s net neutrality repeal can’t stop state laws

180 points by chimi 7y ago

CaliforniaKarl 7y ago
Caching and DNS. When I was a kid, we had 721-1700, a local number that you could call for the current time. It saved you from the long-distance call to the NIST (https://www.nist.gov/pml/time-and-frequency-division/radio-stations/wwv/telephone-time-day-service https://www.nist.gov/pml/time-and-frequency-division/radio-s...). That seems like the local phone company was doing caching. If I wanted to call a business (or, in many cases a person), I could call 411 (or, in a different area code, 555-1212); they would take my query, give me the number, and connect me to my intended party. Seems a lot like DNS. So then I guess the phone companies would also not be Title II?
- close04 7y ago
  Just "offering" DNS services is enough to not be telecommunications even if you may use a broadband connection without using the ISP's DNS or even any DNS (just IP)? Wouldn't a phone company offering you a phonebook (or simply using the address book in your phone) or a broadcasting station giving you the EPG more or less fall in the same category?
- paxys 7y ago
  Exactly! Telephone operators were the equivalent of DNS back in the day.
- OrgNet 7y ago
  we used to have the local AM radio give us the time weekly
rolltiide 7y ago
I dont understand how some federal laws cannot be strengthened by state laws within that state, while others can Is there a legal doctrine that explains this discrepancy? Wish I had examples for both scenario I’m not talking about conflicts though And please, no analogies you thought up in your head. Serious replies only
- SamReidHughes 7y ago
  It depends on whether the federal law says so, assuming the Commerce Clause permits it. Read about the Commerce Clause for examples.
- howard941 7y ago
  The question used to be whether the Federal law was so all-encompassing that it displaced all attempts by a state to regulate the subject matter in question. If it was then preempt. If not, state law survives. Preemption doctrine is not so clear cut anymore.
- javagram 7y ago
  Read https://en.wikipedia.org/wiki/Federal_preemption https://en.wikipedia.org/wiki/Federal_preemption
  - rolltiide 7y ago
    > I’m not talking about conflicts though (Where preemption applies)
    - javagram 7y ago
      That page has one section about conflicts and other sections explaining the rest. Look for the sentence starting “ Even without a conflict between federal and state law or an express provision for preemption, the courts will infer an intention to preempt state law if the federal regulatory scheme is so pervasive...”
      - rolltiide 7y ago
        Thank you, was browsing on mobile and it condenses all the sections into headers that didnt seem to describe these exceptions
gnode 7y ago
> DNS and caching services mean that broadband providers do more than simply move bits from place to place. With widespread adoption of HTTPS, and now browsers pushing towards DNS over HTTPS, it could become harder for ISPs to argue they provide more than communication. Most customers will then not only not be using their ISP's hosted services, but avoiding them, and enforcing their non-use by means of public key cryptography.
olodus 7y ago
The whole thing is a bit sad. We could have a real discussion about net neutrality. We could talk about how 5G probably will need different kinds of connections with different latency or reliability and that if you are building a normal Web service you probably don't need all that while some other services obviously do. And such specific improvement maybe should cost a bit more. But no. Because all ISPs will use non net neutrality for is to push more expensive subs on people without really offering something better to them. Or push out competition of their own services. Who in general would support Ait the way he behaves? He is so obviously a corporate ISP spokesperson, even without looking at his resume.
- wlesieutre 7y ago
  Looking at resumes, you would've thought Wheeler would be an awful FCC chairman, but he turned out ok. Which makes Pai even more frustrating because you look at him and think "I know he has ties to the industry, but he could choose do his job if he wanted to." >The FCC's mission, specified in Section One of the Communications Act of 1934 and amended by the Telecommunications Act of 1996 (amendment to 47 U.S.C. §151) is to "make available so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, rapid, efficient, Nationwide, and world-wide wire and radio communication services with adequate facilities at reasonable charges." Imagine having that mandate and going out of your way to take the position that you don't have any authority over internet connections.
  - kevin_b_er 7y ago
    That mission takes 2nd place to political party loyalty. The FCC runs against its own mission right down party lines.
  - shmerl 7y ago
    Pai is too corrupt to do the proper job. He only serves his ISP masters. Wheeler was doing the right thing for a change.
- pitaj 7y ago
  I'm still anti-NN because I hate how disingenuous and alarmist the pro-NN crowd has been. I don't think adding more regulation will fix anything. But at least now we'll get to witness the power of federalism with regulatory comparisons between states. Reasons: - general opposition to regulation, because compliance costs burden smaller firms more, raising the barrier to entry - does not address the root problem, lack of competition - reduces choices for consumers Lack of competition is caused by onerous local regulations which incumbents use to raise the barrier to entry. See: Google Fiber Because NN does not address the root cause, and in fact the support for NN has not resulted in any significant support for addressing the root cause, it can only serve to further enforce the status quo or makes things worse. Some examples of failed predictions / misleading statements made by NN supporters: - Most Americans have less than 3 ISPs. This may be true depending on how you restrict which ISPs you're referring to. Mobile carriers cover almost the whole US, so there's 3 or 4 right there. - ISPs will produce different packages for internet access. This hasn't happened. - Speeds will reduce. This hasn't happened.
nerdponx 7y ago
It's hard to tell from the article, how narrow or broad is this ruling? Does this have general implications for how federal agency rules interact with state laws, or does it really only apply to this case?
- larkeith 7y ago
  "As a matter of both basic agency law and federalism, the power to preempt the States’ laws must be conferred by Congress. It cannot be a mere byproduct of self-made agency policy." I am very much not a lawyer, but I don't see why that wouldn't apply to other agencies. OTOH, I'm unsure if that's really a precedent implying anything, any more than a court ruling that Emperor Norton had no legal authority would have been - it's simply reaffirming that arbitrary declarations have no inherent legal force.
DavidHm 7y ago
So this is interesting; assuming that this doesn't go to the Supreme Court or is otherwise unchanged by it, it could mean that after some states implement their own laws (and fight off the inevitable lobby/lawsuits attempts to stop from from doing so ), this could go down two ways: 1) The ISPs create two (or mor) versions of their packages that they can offer/operate in different states - this would be quite expensive (and I suspect in some cases quite difficult too), but it would allow them to leech extra profit off the hides of customers not protected by state law; it would generate a bit of outrage when users see their family and friends in other parts of the country are better off, but I doubt that will make the whole system collapse 2) Or they will give in and accept the higher(highest?) standard, similar to what's happening for car emissions. I am maybe too cynical, but I doubt that will happen so easily. Car emissions are a secondary thing for manufacturers - they can grumble, but at the end of the day it's just a bit of extra cost. The repeal of net neutrality is a matter of life or death for ISPs - it's what will make the difference between them being able to maintain outsized profits and power in their nice little oligopoly, vs becoming dumb pipes.
- paxys 7y ago
  > The ISPs create two (or mor) versions of their packages that they can offer/operate in different states - this would be quite expensive (and I suspect in some cases quite difficult too) I don't think this is really the case. ISP services are already very geographically fragmented since they involves so much local infrastructure. Users also (mostly) stay within state lines. Lots of ISPs already offer different pricing plans and features based on location. And there are tons of them which only operate within a specific region in the first place. This is very different from auto manufacturing or something like Facebook which operates from a central source and will have a very hard time segmenting users by state.
- michaelt 7y ago
  > The ISPs create two (or mor) versions of their packages that they can offer/operate in different states - this would be quite expensive Why should it be expensive? In State A, which doesn't have NN laws, you throttle Netflix until they pay you to stop doing so. In State B, which has NN laws, you don't. It's just a matter of router configuration, isn't it? It wouldn't be totally free, but I'd imagine it could pay for itself.
deleted 7y ago
[deleted]
lr4444lr 7y ago
So much Sturm und Drang here on HN when NN was repealed... 2 years later, how many people's business or personal computer use been significantly affected?
- JoeAltmaier 7y ago
  How many people here are living on the margins? How were their lives affected?
  - mlindner 7y ago
    Since that time period internet has gotten cheaper and faster. So no, there's been no effect.
- geofft 7y ago
  Net neutrality isn't about impact to personal computer use - it's about incentives to the ecosystem. It's about the viability of businesses like Netflix and new competitors thereto. You shouldn't expect to see an immediate impact, but you should expect to see new companies starting or not starting, existing companies deciding new ventures are viable or not viable, etc. It's like saying, "We shut down all military recruiting two years ago, has anyone been attacked by an invader?" Not yet, but there's probably been a few conflicts we didn't get involved in that we otherwise would have (which could be good or bad, to be clear!), which can have significant effects on the world in many more years. And in ten years or so there probably will be some people thinking about invading.
  - mlindner 7y ago
    > It's about the viability of businesses like Netflix and new competitors thereto. Why should the ISPs be forced to bankroll Netflix (or other startups) infrastructure? It's a different company making a business decision to suddenly massively increase their use of the ISPs networks. If the ISP is forced to both not block the traffic, and also not able to charge the provider for access, then I don't understand why you think that's ok. What makes Netflix a more moral company than the ISP that Netflix's business is more important than the ISPs?
Sir_Cmpwn 7y ago
The FCC's push here should tell you everything you need to know. They claimed that the regulations weren't their place and that they should be implemented by legislation instead of administration. Then, when that starts to happen, they argue that their oversight cannot be overruled by state legislation. Their true goal is plainly clear: the FCC is a captured organization working on behalf of telecoms interests. So what do we do about it? I'm not sure.
- deleted 7y ago
  [deleted]
gamblor956 7y ago
The telecoms won the battle... And lost the war. Now instead of one easily influenced regulator they have 50 regulators, many of whom are politically motivated but to play ball.
rayvd 7y ago
Will be overturned. Commerce Clause.
- sterban 7y ago
  This is more related to federal law preemption. The federal agency gave up powers to regulate. Similar to the betting regulation that has been overturned, allowing states to regulate betting.
- dragonwriter 7y ago
  Commerce Clause allows Congress to preempt state law when acting within it's bounds, sure. Executive agencies (including “independent” ones) don't have that power except through Congress exercising its own preemptive power, which this court does not find Congress did in a way which covers this particular FCC action.
shmerl 7y ago
Good. FCC caught its own tail with Pai getting the taste of his own medicine. They reclassified ISPs under Title I, and lost any ability to impose such kind preemptions in result.
tracker1 7y ago
Well, this is what the ISPs and providers asked for... FCC could either take on the role of they have the authority (and keep NN) or that they don't, and the states then do have authority. I'm happier the way it is... now as states lock things down, ISPs that cover multiple states have to either have wierd rules, or comply with the most restrictive (to them) implementation more broadly. They deserve what they get.

180 points by chimi 7y ago

Caching and DNS. When I was a kid, we had 721-1700, a local number that you could call for the current time. It saved you from the long-distance call to the NIST (https://www.nist.gov/pml/time-and-frequency-division/radio-stations/wwv/telephone-time-day-service https://www.nist.gov/pml/time-and-frequency-division/radio-s...). That seems like the local phone company was doing caching. If I wanted to call a business (or, in many cases a person), I could call 411 (or, in a different area code, 555-1212); they would take my query, give me the number, and connect me to my intended party. Seems a lot like DNS. So then I guess the phone companies would also not be Title II?

close04 7y ago
Just "offering" DNS services is enough to not be telecommunications even if you may use a broadband connection without using the ISP's DNS or even any DNS (just IP)? Wouldn't a phone company offering you a phonebook (or simply using the address book in your phone) or a broadcasting station giving you the EPG more or less fall in the same category?
paxys 7y ago
Exactly! Telephone operators were the equivalent of DNS back in the day.
OrgNet 7y ago
we used to have the local AM radio give us the time weekly

rolltiide 7y ago

I dont understand how some federal laws cannot be strengthened by state laws within that state, while others can Is there a legal doctrine that explains this discrepancy? Wish I had examples for both scenario I’m not talking about conflicts though And please, no analogies you thought up in your head. Serious replies only

SamReidHughes 7y ago
It depends on whether the federal law says so, assuming the Commerce Clause permits it. Read about the Commerce Clause for examples.
howard941 7y ago
The question used to be whether the Federal law was so all-encompassing that it displaced all attempts by a state to regulate the subject matter in question. If it was then preempt. If not, state law survives. Preemption doctrine is not so clear cut anymore.
javagram 7y ago
Read https://en.wikipedia.org/wiki/Federal_preemption https://en.wikipedia.org/wiki/Federal_preemption
- rolltiide 7y ago
  > I’m not talking about conflicts though (Where preemption applies)
  - javagram 7y ago
    That page has one section about conflicts and other sections explaining the rest. Look for the sentence starting “ Even without a conflict between federal and state law or an express provision for preemption, the courts will infer an intention to preempt state law if the federal regulatory scheme is so pervasive...”
    - rolltiide 7y ago
      Thank you, was browsing on mobile and it condenses all the sections into headers that didnt seem to describe these exceptions

gnode 7y ago

> DNS and caching services mean that broadband providers do more than simply move bits from place to place. With widespread adoption of HTTPS, and now browsers pushing towards DNS over HTTPS, it could become harder for ISPs to argue they provide more than communication. Most customers will then not only not be using their ISP's hosted services, but avoiding them, and enforcing their non-use by means of public key cryptography.

olodus 7y ago

The whole thing is a bit sad. We could have a real discussion about net neutrality. We could talk about how 5G probably will need different kinds of connections with different latency or reliability and that if you are building a normal Web service you probably don't need all that while some other services obviously do. And such specific improvement maybe should cost a bit more. But no. Because all ISPs will use non net neutrality for is to push more expensive subs on people without really offering something better to them. Or push out competition of their own services. Who in general would support Ait the way he behaves? He is so obviously a corporate ISP spokesperson, even without looking at his resume.

wlesieutre 7y ago
Looking at resumes, you would've thought Wheeler would be an awful FCC chairman, but he turned out ok. Which makes Pai even more frustrating because you look at him and think "I know he has ties to the industry, but he could choose do his job if he wanted to." >The FCC's mission, specified in Section One of the Communications Act of 1934 and amended by the Telecommunications Act of 1996 (amendment to 47 U.S.C. §151) is to "make available so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, rapid, efficient, Nationwide, and world-wide wire and radio communication services with adequate facilities at reasonable charges." Imagine having that mandate and going out of your way to take the position that you don't have any authority over internet connections.
- kevin_b_er 7y ago
  That mission takes 2nd place to political party loyalty. The FCC runs against its own mission right down party lines.
- shmerl 7y ago
  Pai is too corrupt to do the proper job. He only serves his ISP masters. Wheeler was doing the right thing for a change.
pitaj 7y ago
I'm still anti-NN because I hate how disingenuous and alarmist the pro-NN crowd has been. I don't think adding more regulation will fix anything. But at least now we'll get to witness the power of federalism with regulatory comparisons between states. Reasons: - general opposition to regulation, because compliance costs burden smaller firms more, raising the barrier to entry - does not address the root problem, lack of competition - reduces choices for consumers Lack of competition is caused by onerous local regulations which incumbents use to raise the barrier to entry. See: Google Fiber Because NN does not address the root cause, and in fact the support for NN has not resulted in any significant support for addressing the root cause, it can only serve to further enforce the status quo or makes things worse. Some examples of failed predictions / misleading statements made by NN supporters: - Most Americans have less than 3 ISPs. This may be true depending on how you restrict which ISPs you're referring to. Mobile carriers cover almost the whole US, so there's 3 or 4 right there. - ISPs will produce different packages for internet access. This hasn't happened. - Speeds will reduce. This hasn't happened.

nerdponx 7y ago

It's hard to tell from the article, how narrow or broad is this ruling? Does this have general implications for how federal agency rules interact with state laws, or does it really only apply to this case?

larkeith 7y ago
"As a matter of both basic agency law and federalism, the power to preempt the States’ laws must be conferred by Congress. It cannot be a mere byproduct of self-made agency policy." I am very much not a lawyer, but I don't see why that wouldn't apply to other agencies. OTOH, I'm unsure if that's really a precedent implying anything, any more than a court ruling that Emperor Norton had no legal authority would have been - it's simply reaffirming that arbitrary declarations have no inherent legal force.

DavidHm 7y ago

So this is interesting; assuming that this doesn't go to the Supreme Court or is otherwise unchanged by it, it could mean that after some states implement their own laws (and fight off the inevitable lobby/lawsuits attempts to stop from from doing so ), this could go down two ways: 1) The ISPs create two (or mor) versions of their packages that they can offer/operate in different states - this would be quite expensive (and I suspect in some cases quite difficult too), but it would allow them to leech extra profit off the hides of customers not protected by state law; it would generate a bit of outrage when users see their family and friends in other parts of the country are better off, but I doubt that will make the whole system collapse 2) Or they will give in and accept the higher(highest?) standard, similar to what's happening for car emissions. I am maybe too cynical, but I doubt that will happen so easily. Car emissions are a secondary thing for manufacturers - they can grumble, but at the end of the day it's just a bit of extra cost. The repeal of net neutrality is a matter of life or death for ISPs - it's what will make the difference between them being able to maintain outsized profits and power in their nice little oligopoly, vs becoming dumb pipes.

paxys 7y ago
> The ISPs create two (or mor) versions of their packages that they can offer/operate in different states - this would be quite expensive (and I suspect in some cases quite difficult too) I don't think this is really the case. ISP services are already very geographically fragmented since they involves so much local infrastructure. Users also (mostly) stay within state lines. Lots of ISPs already offer different pricing plans and features based on location. And there are tons of them which only operate within a specific region in the first place. This is very different from auto manufacturing or something like Facebook which operates from a central source and will have a very hard time segmenting users by state.
michaelt 7y ago
> The ISPs create two (or mor) versions of their packages that they can offer/operate in different states - this would be quite expensive Why should it be expensive? In State A, which doesn't have NN laws, you throttle Netflix until they pay you to stop doing so. In State B, which has NN laws, you don't. It's just a matter of router configuration, isn't it? It wouldn't be totally free, but I'd imagine it could pay for itself.

deleted 7y ago

[deleted]

lr4444lr 7y ago

So much Sturm und Drang here on HN when NN was repealed... 2 years later, how many people's business or personal computer use been significantly affected?

JoeAltmaier 7y ago
How many people here are living on the margins? How were their lives affected?
- mlindner 7y ago
  Since that time period internet has gotten cheaper and faster. So no, there's been no effect.
geofft 7y ago
Net neutrality isn't about impact to personal computer use - it's about incentives to the ecosystem. It's about the viability of businesses like Netflix and new competitors thereto. You shouldn't expect to see an immediate impact, but you should expect to see new companies starting or not starting, existing companies deciding new ventures are viable or not viable, etc. It's like saying, "We shut down all military recruiting two years ago, has anyone been attacked by an invader?" Not yet, but there's probably been a few conflicts we didn't get involved in that we otherwise would have (which could be good or bad, to be clear!), which can have significant effects on the world in many more years. And in ten years or so there probably will be some people thinking about invading.
- mlindner 7y ago
  > It's about the viability of businesses like Netflix and new competitors thereto. Why should the ISPs be forced to bankroll Netflix (or other startups) infrastructure? It's a different company making a business decision to suddenly massively increase their use of the ISPs networks. If the ISP is forced to both not block the traffic, and also not able to charge the provider for access, then I don't understand why you think that's ok. What makes Netflix a more moral company than the ISP that Netflix's business is more important than the ISPs?

Sir_Cmpwn 7y ago

The FCC's push here should tell you everything you need to know. They claimed that the regulations weren't their place and that they should be implemented by legislation instead of administration. Then, when that starts to happen, they argue that their oversight cannot be overruled by state legislation. Their true goal is plainly clear: the FCC is a captured organization working on behalf of telecoms interests. So what do we do about it? I'm not sure.

deleted 7y ago
[deleted]

gamblor956 7y ago

The telecoms won the battle... And lost the war. Now instead of one easily influenced regulator they have 50 regulators, many of whom are politically motivated but to play ball.

rayvd 7y ago

Will be overturned. Commerce Clause.

sterban 7y ago
This is more related to federal law preemption. The federal agency gave up powers to regulate. Similar to the betting regulation that has been overturned, allowing states to regulate betting.
dragonwriter 7y ago
Commerce Clause allows Congress to preempt state law when acting within it's bounds, sure. Executive agencies (including “independent” ones) don't have that power except through Congress exercising its own preemptive power, which this court does not find Congress did in a way which covers this particular FCC action.

shmerl 7y ago

Good. FCC caught its own tail with Pai getting the taste of his own medicine. They reclassified ISPs under Title I, and lost any ability to impose such kind preemptions in result.

tracker1 7y ago

Well, this is what the ISPs and providers asked for... FCC could either take on the role of they have the authority (and keep NN) or that they don't, and the states then do have authority. I'm happier the way it is... now as states lock things down, ISPs that cover multiple states have to either have wierd rules, or comply with the most restrictive (to them) implementation more broadly. They deserve what they get.