Texas, Arkansas, & Nebraska AGs Are Now Aiding The Broadband Industry's Assault On Net Neutrality

from the investment-apocalypse dept

Back in January, 23 state attorneys general sued the FCC over its net neutrality repeal, claiming it ignored the public, ignored the experts, and was little more than a glorified handout to uncompetitive, predatory telecom monopolies. That trial will also determined whether the FCC ignored rules like the Administrative Procedure Act, which requires you, oh, actually have data to support a major, wholesale reversal of such a major policy (if you're just tuning in, they didn't). The suit, which is also backed by a few companies (including Mozilla), could result in the FCC's repeal being overturned and the FCC's 2015 net neutrality rules being restored.

This week three additional state AGs (Texas, Arkansas, and Nebraska) decided to take the opposite tack, and filed a brief (pdf) last Friday in the US Court of Appeals for the District of Columbia Circuit, insisting that judges reject the lawsuit against the FCC. Not too surprisingly, the brief is filled with the kind of arguments net neutrality opponents have been trying to make for years, including the repeatedly, and clearly debunked claim that net neutrality simply had to be repealed because it was killing broadband industry network investment:

"The policy being repealed, in place since 2015, offered threats to investment and creative problem solving within the ISP community; those rules had also sought to regulate private business activity as a public utility."

Except again, neither of those claims are true. While industry lobbyists like to cherry pick data to suggest net neutrality caused an investment apocalypse, SEC filings, earnings reports, and even the public statements of countless broadband CEOs clearly show that's not the case. As for the effort to "regulate ISPs as utilities" we've also repeatedly noted how that's not true, as the former FCC went well out of its way to ensure some of the heavier, utility-style aspects of the Telecom Act (like rate regulation) wouldn't apply to broadband ISPs.

A cornerstone of the argument by the Texas, Arkansas, and Nebraska AGs is the FCC didn't violate the Administrative Procedure Act because precedent dictates that two agencies are allowed to look at the same exact data and have differing opinions, provided they justify their arguments:

"Accordingly, undoing or reversing agency action is permissible so long as the agency demonstrates awareness of the change and offers a satisfactory reason for it."

The problem for Ajit Pai and ISPs is they didn't offer anything close to a "satisfactory reason." ISPs make up justifications out of whole cloth, and the Ajit Pai just mindlessly repeats them. It got so bad, that at one point the FCC was literally just directing reporters who had questions to AT&T-funded lobbying organizations. Yes, lobbyists dictating government behavior using bogus data is nothing new, but usually there's at least a pretense that's not actually happening. The Pai attack on net neutrality is about as blatant an example of cronyism and corruption (given overwhelming public and expert opposition) as you're going to find.

In this age of hyper-partisanship and court stacking it's perfectly possible the industry gets a friendly judge willing to ignore reality and rule in their favor, but the facts continue to not be on their side. Especially in the full context of the FCC getting busted making up a DDOS attack, and ignoring identity theft and comment fraud in a bizarre effort to try and downplay massive public backlash to their decision to kill the rules.

When the court case kicks off next February, the outcome remains anything but clear. And even if the broadband industry wins, it still has to fend off state efforts to protect consumers (which the FCC repeal attempts to block, but the three AGs had no comment on). They also have to prevent any future FCC or Congress from passing tough net neutrality rules, which is why the broadband industry has attempted to convinced its most loyal supporters to pass flimsy net neutrality legislation in name only attempting to pre-empt any meaningful efforts to actually protect end users from largely-unaccountable telecom monopolies.

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Filed Under: arkansas, fcc, nebraska, net neutrality, state attorneys general, texas