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.
"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.
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.
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)
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.