States Push Back After Net Neutrality Repeal
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Hilarious, but not really surprising to read, as a non US-ian.
e.g. Congress empowers the FDA to enforce the Food, Drug, and Cosmetic Act. Congress created the FCC to enforce the Communications Act of 1934. Congress created the CIA in 1947 in the National Security Act, etc, etc.
AFAIK none of those 3-letter agencies, nor the countless others would exist without the Congress approving it first (and then of course being approved by the Executive, to quiet the pedantic's...)
Amendment XXVIII: Congress shall make no law with respect to preventing the free flow of data on the public internet; Congress shall take necessary steps to prevent data from being throttled based on: identity of the publisher, content, size, or frequency of transfer; except in cases where such volumes of data can be shown to be a deliberate, malicious attempt to prevent access to a given publisher(s) content.
I personally don't want the government "taking necessary steps to prevent data from being throttled.." because that means we've just given the government permission to be actively monitoring and controlling the internet -- including direct monitoring of the ISPs, and by extension full access to the content of your traffic -- ostensibly to "protect" you from throttling. The government would have to be able to inspect your traffic in order to ensure it isn't being discriminated against.
You want to know how you stop throttling? If your ISP throttles you, you call them up, cancel your service and go to a new company and you tell both old and new company why you're doing that. If something "important" gets throttled, you throw a post on Reddit, Twitter, wherever and suddenly you get thousands of people canceling their service -- and quickly the ISP will change course in response to the public demand.
In Cupertino right now, there are 9 residential ISPs from which to choose and 23 business ISPs. https://broadbandnow.com/California/Cupertino#
What the government SHOULD be doing is promoting ISP competition. Why not provide tax incentives for new ISP startups or innovative programs? Why not reduce regulation, make it easier for ISPs to start? Why not incentivize competition? Why not provide tax credits for entering underserved markets?
There is a free market way to ensure a fast and free internet -- using the government for such things has a tendency to lead us down roads we might not want to go down.
Because one crappy DSL provider and one Cable provider per town is a free market... Natural monopolies have a need to be regulated to prevent consumer abuse.
Yes, but NN opponents on the right continuously argue against FCC pro-NN regulations based on the premise that Congress has not done so with regard to the FCC and the regulation of internet service, so it's odd to see right-wing NN proponents arguing that the states cannot regulate net neutrality because not only is the FCC empowered to do so, but its power is exclusive.
The Congress shall have power ... To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
First, AEI is not a partisan think-tank. They're ideologically conservative, but they are non-partisan.
Secondly, it's hard to argue that advocating the Commerce Clause is an "ideological" or partisan viewpoint. A hundred years ago, it definitely would have been, but not in 2018. If anything, the current interpretation of the Commerce Clause is the antithesis of conservative ideology: it expands federal powers, limits the rights reserved by states, and (if you want to make things partisan) predominantly happened because a Democratic president nearly caused a Constitutional crisis when he tried to stack the courts in order to get court rulings in favor of his agenda.
I'm an advocate of net neutrality, but I'm not going to say that the position being advocated here by AEI is a particularly partisan one. If anything, they're smart, by framing a Republican-sponsored policy within the context of case law that Democrats have consistently supported for a century.
Am I missing something?
Yes, you're missing the part where this isn't particularly antithetical to conservative ideology anymore (it would have been a century ago, but not recently).
There's a common caricature of conservative ideology under which any use of federal powers to limit state powers is hypocritical. But that's not a particularly accurate depiction of conservative ideology, any more than the caricature that any use of state powers is somehow hypocritical under a liberal ideology. (If that were the case, then this push by New York and California could itself be characterized as similarly hypocritical).
In this case, both the left and the right have agreed for the better part of the last century that the federal government has this sort of power, and they have both used that power for their own respective causes at many different points in the last century. People who believe that the federal government doesn't (or shouldn't) have this sort of power are in the minority and are not a dominant force in any political party.
Again, this is a relatively new development in US Constitutional history; in 1818 or even 1918, the situation was very different; almost all the rulings that expanded the Commerce clause have happened in the last 100 years.
I probably shouldn't bother engaging with such a low-effort comment, but: no, there's plenty of precedent throughout the last 50-75 years for ideological conservatives leveraging and supporting this interpretation of the Commerce Clause.
Well, I'll happily admit that I'm not guilty of doing ornate argmentative gymnastics to justify my position... I consider that a feature, not a bug, though ;-)
AEI and other conservative think tanks were throwing fits about over-reaching interpretations of the commerce clause throughout Obama's entire presidency.
AEI's current position on the commerce clause is motivated by their partisan preferences.
AEI, like many think tanks, is extremely partisan in practice and has deep connections with the Republican political establishment. (There are a number of think tanks on the Democratic side where this is true, as well.)
Like basically all think tanks, it claims to be “nonpartisan” based on the lack of any formal or overt association with any political party, but that is as practically meaningful as Fox News’s old claim to be “Fair and Balanced”.
And yet, AEI is advocating for the current interpretation of the Commerce Clause because it empowers deregulation. You can bet your last horse that they'd be making the opposite argument and rambling about King George and unelected regulators if Democrats controlled the federal government.
I can't help but feel that you've reinforced awinder's point... AEI reasons backwards from what it wants on a case-by-case basis to justify its policy preferences, which change depending on which party is in power. If that's not the definition of partisan, then your definition of partisanship is broken.
> If anything, they're smart, by framing a Republican-sponsored policy within the context of case law that Democrats have consistently supported for a century.
1. Yes, exactly, their constitutional justification is an insincere post-facto justification for policy they like, and their policy preferences when it comes to the commerce clause largely depend on which political part is in control of the federal government.
2. But they're totally non-partisan, right? ;-)
Again, that's not really a partisan position either. If anything, there's an argument to be made (as has been made elsewhere in the comments) that this would be more of an ideologically liberal position to take.
AEI is being very strategic here: they've found a legal position that is wholeheartedly aligned with mainstream liberal and left-wing ideology and which is supported by a century of case law, and they're using that position to advocate their favored outcome. The outcome notwithstanding, the legal position itself is emphatically not a partisan one, nor is it one that is particularly conservative ideologically.
Of course, that doesn't mean that AEI is correct, either legally or morally. They could still lose on other grounds. (Or, they could still win, despite you and me agreeing that their position is morally wrong).
Nope, liberal and left-wing ideology doesn't actually support the idea of federal regulatory agencies inventing preemption authority not granted to them by Congress.
If the answer is "no" -- and, seriously, the answer is most definitely "no" -- then your "AEI isn't partisan" claim goes out the window.
The court has ruled exactly the opposite, in fact. Rice v. Norman Williams Co. made that very clear. That case established the test of preemption of state statutes by the Sherman Act.
There's nothing that prevents a state from regulating commerce, even interstate commerce provided that such regulation isn't pre-empted by Sherman or other relevant federal laws.
It does seem like the states would be on very thin ice with regulating ISPs however. The Dormant Commerce Clause doctrine states that if the federal government has remained silent on a point of interstate or international commerce, states can pass laws regulating it if that law doesn't discriminate against or burden interstate commerce.
However, the federal government as explicitly NOT remained silent on net neutrality.
The Dormant Commerce Clause affirms that regulating interstate commerce isn't exclusively a federal power -- as long as the federal government has not remained "silent" on the regulatory area in question.
I might suggest reading the following legal note since the ideas contained within are extremely relevant to the discussion: https://repository.law.umich.edu/cgi/viewcontent.cgi?article...
That note deals with The Dormant Commerce Clause and California's Low Carbon Fuel Standard -- I would expect some similar arguments to appear in the event that state-enforced Net Neutrality hits the courts.
Why is it hilarious? It's hard to argue that net neutrality isn't about commerce, because most of the common talking points in favor of it explicitly refer to commercial activity ("paid lanes", etc.).
While I dislike the implications of this argument for net neutrality, legally, it's actually a pretty solid argument. The Supreme Court has already ruled - many, many, many times - that states have very little power to restrict interstate commerce. These cases all happened around the turn of the last century, so the precedents are pretty well-established. And the ability of the federal government to regulate interstate commerce is an enumerated power, so there's pretty much no way to deny it.
Conversely, the Supreme Court has also expanded the scope of the Commerce Clause so far over the course of the 20th century that it's basically given the federal government the authority to regulate absolutely anything that happens in the states, because anything has the potential to impact interstate commerce.
To give you an idea of how new this idea is: at the time Prohibition [of alcohol] was enacted in 1919, it was a Constitutional amendment enforced via the prohibition of "manufacture, sale, or transportation" rather than posession, because it was believed that the federal government did not have the power to outlaw possession of a substance. Similarly, the original ban on marijuana wasn't even a ban at all - it was a cleverly-worded tax act which made it illegal to possess marijuana that hadn't been taxed, but also made it impossible to prove that you'd paid the tax.
Because the AEI is a right-libertarian propaganda mill (or, if you prefer, “think tank”) that generally (though there are some prior exceptions, too) is in lockstep with the general right-libertarian minimalist interpretation of Commerce Clause authority.
> To give you an idea of how new this idea is: at the time Prohibition [of alcohol] was enacted in 1919, it was a Constitutional amendment
Prohibition was first passed in 1918 as a statute law (the Wartime Prohibition Act.)
> enforced via the prohibition of "manufacture, sale, or transportation" rather than posession, because it was believed that the federal government did not have the power to outlaw possession of a substance.
Thst makes no sense; since the Constitution defines the power and obligations of the federal government, in adopting an Amendment they could have just added possession. Prohibition—both in it's statutory and Constitutional forms—addressed only manufacturer and trade and not possession or consumption not because of any concern about fundamental limits of federal power, but as a simple policy priorities decision.
You'd be hard-pressed to find an ideologically libertarian person well-versed in Constitutional law who wouldn't concede that regulating interstate commerce at the federal level is covered under the Commerce Clause.
There are other grounds on which to have the discussion about net neutrality besides the Commerce Clause - and proponents of net neutrality would be well-advised to shift the discussion to those terms, because if we're strictly talking about the Commerce Clause, it's about as clear-cut as things get: the federal government has the power to regulate explicitly-interstate commercial activity.
Because the internet is a global network and China/Canada/etc. aren't under the auspices of the FCC.
The article also cites CA's car emission standards, which appears to be good precedent both for the legality of such measures, as well as state lawmakers' willingness and ability to enact these laws.
So I have no idea what you might be referring to by "grandstanding".
The short of it is that it's totally grandstanding. In New York, the plan isn't to try to affect the consumer market directly, it's to limit any state agency from purchasing telecommunications service with any provider that doesn't fit net neutrality rules [2]; which is obviously unlikely to do anything meaningful except make the government pay more, and hence is grandstanding.
In California, Wiener proposed the following [3]:
> * Regulate business practices to require net neutrality
> * Condition state contracts on adhering to net neutrality
> * Require net neutrality as part of cable franchise agreements, as a condition to using the public right-of-way for internet infrastructure
> * Condition the right to attach small cell or other broadband wireless communications to utility poles on adherence to net neutrality
Every point except the second one is likely to be challenged successfully in court, bringing us back to the New York problem-- pushing net neutrality by throwing the government's purchasing power behind the issue. It's legal, but the other points are likely to tie up the courts for a predictable outcome. I'm not saying that it's useless to have it play out in the courts; I think it's worth doing. I'm just saying that every representative pushing these plans forward knows that the potential effects of their legislation is primarily limited to restrictions on government spending, and thus, it's reasonable to suspect that their motivation is primarily to grandstand rather than to make a difference.
[1]: https://reason.com/blog/2017/12/19/can-states-reimpose-net-n...
[2]: https://arstechnica.com/tech-policy/2017/12/new-york-tried-e...
[3]: http://sd11.senate.ca.gov/news/20180103-senator-wiener-intro...
With that in mind, I'd personally place taking legislative actions that are doomed to fail from the start, wasting my representative's time and my tax money, under the banner of "grandstanding".
It sets a precedent. It may not be a good one. CA's regulations force anyone who makes anything with an engine to build a CA specific version. The CA's emissions laws for commercial trucks (which are subject to federal regulation) have a huge effect on businesses that have anything to do with moving goods in or out of CA. While I don't like how the commerce clause expanded over the 20th century I CA's emissions laws are begging to be struck down using it.
No, because the repeal of the Title II-based Open Internet regulations ends meaningful enforcement of the net neutrality principles.
> Net neutrality has been a long standing principle in the governance of the internet
Well, in the FCC regulation of ISPs, yes.
> that everyone agrees with.
This is manifestly false; if everyone agreed with it, there would be no acts in violation of net neutrality principles except by accident.
> This debate isn't weather we should have net neutrality or not
Yes, it is.
> it's over what regulatory instruments should or should not be used to ensure it.
Which is equivalent with whether we should have it, because it has repeatedly been shown that ISPs will not provide it unless compelled to do so.
> All of the examples pro tittle 2 advocates being up about Comcast, Verizon and other Isps where resolved in favor of the consumer Under Tittle 1 regulitions
The courts struck down the FCC’s ability to use Title I regulations to enforce net neutrality in 2014, which is what prompted the Title II regulations adopted in 2015.
Title 2 is a massive blob of legislation that, as one of its many provisions, ensured a kind of net neutrality, while still leaving the door open for other types of abuse.
Net neutrality is a concept that transcends law - kind of like how freedom of speech transcends the first amendment.
It is quite possible to, in good faith, be against Title 2 with its flaws while still supporting the concept of net neutrality.