[DannyBee]

The interesting part of this to me is that if you read the details the FCC published about the order that was signed, https://docs.fcc.gov/public/attachments/DOC-347927A1.pdf it goes into great detail about the court cases about why the FCC has no authority to effectively regulate net neutrality unless the ISP's are classified under Title 2.

(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"

[tzs]

Did the order that killed net neutrality move them back to being Title I "information services"?

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...

[DannyBee]

"Did the order that killed net neutrality move them back to being Title I "information services"?"

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.

[dragonwriter]

Of course, reliance on the Title I status as the basis for arguing that the law is preempted means that both the substantive and procedural propriety of the action by which they were redesignated as Title I services are issues which might be raised against the suit, and would need to be resolved to resolve the suit.

[DannyBee]

Yes. California is definitely going to argue the FCC had no authority to reinterpret things when there is zero changed evidence/etc. It is definitely "arbitrary" (whether it meets the legal definition or not)

At least one trump agency that took a hard right turn has already lost in court on that point in the past few months. The case escapes me, but it was in fact "the evidence has not changed, you can't just decide you don't like what was done before for political reasons".

FWIW: I suspect the real argument here is that congress has preempted California.

IE they could regulate this space, and have chosen explicitly not to do so, through the '96 act, etc.

It's a little bit of a weird argument though, because it's saying "we explicitly didn't give the FCC authority because we didn't want anyone to regulate it", even though the FCC has in fact tried to regulate it in the past because they thought they had authority :)

(IE Congress's intent was not so clear that we didn't have years of regulation, etc)

[blihp]

It really is amazing that apparently no one at the FCC played devil's advocate and asked the question: 'what is the potential downside to getting what we want?' before making rather absolute declarations re: their lack of authority to regulate this. At least as a layperson, California's move seems reasonable and within their rights given the FCC's previous moves. It will definitely be interesting to see how this plays out. Given the corner the FCC seems to have painted itself into, is it even possible that it could reverse its own position at this point (and have the courts take them seriously) or would it take an act of Congress?

[DannyBee]

As mentioned, i suspect the argument they will try (and what Jeff Sessions appears to have said) is that congress intentionally chose not to regulate this space when they promulgated the comprehensive '96 act and didn't say anything.

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)

[75dvtwin]

> 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.

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.

[dragonwriter]

> I suspect, that eventually the argument will be around Originating and Terminating IP addresses.

This isn't about traffic, it's about the terms of sale of access service to consumers in the state.

[stult]

>They would have been much better off saying "we have plenty of authority here and we explicitly choose not to exercise it"

That would open the issue up to reregulation under a later administration.

[DannyBee]

That already happened in the past ;)

(and courts already decided the answer).

So there's no point in not.