chevron deference – Techdirt (original) (raw)

Net Neutrality Heads Back To Court; Corrupt Supreme Court Could Dismantle U.S. Broadband Consumer Protection

from the the-authority-to-do-nothing dept

Recent Supreme Court rulings have thrown most U.S. regulatory enforcement into operational and legal chaos. The dismantling of Chevron, with the Loper Bright ruling in particular, now dictates that regulators can’t implement new rules or reforms without the explicit approval of Congress.

Two problems: one, regulators ideally have very specific subject expertise Congress doesn’t have (think about Ted Cruz trying to craft new rules managing wireless spectrum). Two, Congress has been lobbied into corrupt dysfunction, ensuring these theoretical, better, clearer laws and reforms never actually arrive.

Corporations (and the various policy tendrils employed to parrot them) have dressed Chevron up as some noble rebalancing of institutional power. In reality they’ve just taken a hatchet to what’s left of U.S. corporate oversight. Corporate lawyers know they’ve effectively lobotomized Congress. Now they want to dismantle what’s left of federal regulatory oversight. When that’s done, they’ll take aim at state power.

It gets dressed up as some sort of sophisticated ethos, but the goal for corporations has always been the absolute unchecked accumulation of unlimited wealth, free of any government intervention, regardless of the market, labor, or human cost. A lot of ink gets spilled pretending otherwise.

It’s with that backdrop that ISPs and the FCC have started squaring off in court in the latest skirmish over net neutrality. You’ll recall the Republican-stocked 6th circuit put the FCC’s restored net neutrality rules on ice last August. Last week, ISPs and the FCC started having their arguments probed by a three court panel comprised of one Trump appointee and two George W Bush appointees.

Historically, precedent has suggested that the FCC has the authority to classify/reclassify ISPs as common carriers or enact/repeal net neutrality provided they do so within the confines of the Telecom Act and use basic, supporting data. As the EFF notes, Post Loper Bright, that’s all out the window, and the goal for industry is to be able to abuse their regional telecom monopoly power without government opposition:

“These companies would love to use their oligopoly power to charge users and websites additional fees for “premium” internet access, which they can create by artificially throttling some connections and prioritizing others.”

As usual, the telecom industry is claiming that the FCC is abusing its authority to restore net neutrality. You’re to ignore that the telecom industry routinely argues that absolutely any effort by the FCC to do absolutely anything is an abuse of power. If the Sixth Court doesn’t accept the industry’s argument, it heads to the Trump-stocked Supreme Court, where they’ll likely get a sympathetic ear.

All the coverage and analysis I see focuses a bit too myopically on net neutrality. To be clear the FCC isn’t just fighting for net neutrality, it’s fighting for the right to be able to engage in consumer protection at all under current law, whether that’s the policing of unfair usage caps, trying to end racial discrimination in broadband deployment, or trying to stop your cable company from ripping you off with shoddy fees.

Post Loper Bright, telecoms are going to argue that any consumer protection effort by the FCC is an abuse of power well outside of any interpretation of the Telecom Act, and with a court system stocked with Trumpists with an active disdain for precedent, they’re likely to win their arguments more often than not. That’s going to create legal chaos, chill federal willingness to protect users, and punt most broadband consumer protection to an inconsistent platter of state consumer protection efforts.

So far the courts have repeatedly ruled that if the federal government abdicates its responsibility to protect broadband consumers, states have the legal authority to fill the void on net neutrality (or anything else). But we’ll see how long those efforts hold up once an industry (that spends $320,000 every day on lobbying) shifts the entirety of its attention to dismantling state authority.

The story playing out with net neutrality isn’t restrained to telecom. Some variant of this is going to be playing out across every consumer protection effort across every industry and issue that touches your lives.

Because consumer protection is generally deemed as boring, and the “regulatory state” has been demonized as useless for a generation, I still don’t think the public, press, or policy folks have fully fleshed out what our new reality means for everything from labor rights to public safety.

But it’s going to be anything but boring when the real-world impact of Trump’s Supreme Court Loper Bright ruling starts having cascading and potentially fatal impacts across the country over the next few years, at which point a lot of people are going to suddenly be wondering how exactly we let it get to this point, and why people didn’t speak up earlier in a bid to stop it.

Filed Under: broadband, chevron deference, consumer protection, donald trump, fcc, high speed internet, loper bright, net neutrality, telecom

FCC Tries To Pre-Empt Telecom Industry Claim That The Supreme Court Neutered Its Authority To Protect Consumers

from the powerless-in-the-face-of-comcast-corporation dept

Thu, Oct 3rd 2024 05:23am - Karl Bode

As noted a few times, recent Supreme Court rulings have thrown most U.S. regulatory enforcement into operational and legal chaos. The dismantling of Chevron in particular now dictates that regulators can’t implement new rules or reforms without the explicit approval of Congress.

Two problems there: one, regulators ideally have very specific subject expertise Congress doesn’t have (think about Ted Cruz trying to craft a law managing spectrum auctions). Two, Congress has been lobbied into utterly corrupt dysfunction, ensuring these theoretical, better, clearer laws never actually arrive. Corporations have dressed Chevron up as some noble rebalancing of institutional power; in reality they’ve just taken a hatchet to the roots of corporate accountability.

This will impact every regulatory agency governing every industry touching every aspect of your lives, as corporations from a wide variety of sectors insist the regulators overseeing them now have no power to do anything they don’t like (ProPublica has a good recent breakdown of the broader impact).

This impact isn’t going to be subtle, and in many instances (labor, environmental, civil rights) it will prove fatal at significant new scale. On many fronts, the groundwork is being laid to make many regulators entirely decorative. I’ve repeatedly found that most people (including a lot of people in policy and media) don’t really understand what’s coming courtesy of the radical Roberts’ majority.

Over in telecom, the regional broadband monopolies (with their well-lobbied congressional allies in tow) are already busy trying to claim the FCC no longer has the authority to protect consumers, whether it’s policing predatory fees on your broadband bills, or trying to enforce basic net neutrality principles. Everything (including efforts to stop racism in broadband deployment) is being challenged anew.

The FCC has been firing off letters to various Senators trying to get ahead of the claim it can no longer do its job. In short, FCC boss Jessica Rosenworcel argues that the the Communications Act of 1934 and the Administrative Procedures Act gives the agency broad latitude to continue to function in the post-Chevron era:

“The staff at the Commission work diligently to ensure that all regulations have a firm grounding in the law and I remain confident that the Commission’s rules and decisions will withstand judicial review under the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo and other applicable precedent.”

One problem is we’re no longer operating in an environment where logic or precedent actually mean all that much. The top court of the land has shown it’s easily bribe-able by a free Winnebago. Lower courts are now stocked with all manner of Trump-era sycophants keen to see the last, already fairly pathetic vestiges of corporate oversight stripped away.

Telecom giants already take the FCC to court for pretty much every new ruling or reform it tries to implement, however minor. Their position has always been that the agency is powerless to stop them from taking advantage of captive broadband customers trapped under a monopoly or duopoly. But now those same companies have significant new legal leverage in their quest to dismantle oversight.

There are instances where the FCC might be able to prevail. There are also instances (like net neutrality) where states might jump in and fill the consumer protection void. But it’s anything but certain. And again, some variation of this same mess will be playing out in every sector that governs your lives, whether it’s the FCC trying to protect you from Comcast, or the EPA trying to protect you from cancer.

There’s a segment of journalists and policy folks who seem insistent that this isn’t going to be all that bad, or believe that the folks ringing alarm bells post Chevron are being hyperbolic. But as somebody who has watched regulators feebly try to protect consumers more than twenty years, I have no idea what reality they’re operating in.

Filed Under: broadband, chevron deference, consumers, fcc, high speed internet, major questions doctrine, net neutrality, regulators, telecom

The Corrupt Supreme Court Makes A Reckless Mess Of Broadband Consumer Protection (And Everything Else)

from the look-kids,-we're-dismantling-the-federal-government dept

Tue, Jul 9th 2024 05:25am - Karl Bode

The Supreme Court issued a recent ruling that could take an absolute wrecking ball to everything from consumer protection and environmental reform to public safety. It was a ruling that dismantled decades of precedent and puts nearly all regulatory enforcement efforts at risk, yet it somehow barely warranted much coverage by a largely disinterested, billionaire-owned U.S. press.

It’s being sold as some sort of noble, good faith rebalancing of power by industry, but the Loper Bright v. Raimondo ruling eliminates Chevron deference and upends the major questions doctrine, which, in many instances, risks turning U.S. regulators into the legal and policy equivalent of decorative gourds.

Chevron deference delegated independent regulators (often with detailed subject matter expertise Congress doesn’t have) the authority to craft policy (and sometimes new rules) provided they were within the reasonable confines of the law. The Loper ruling strips that authority away, leaving many policy determinations in the hands of an increasingly corrupt, and increasingly extremist, court.

From Feckless Mush To Something Much, Much Worse

You can already routinely see how hard it is for a U.S. regulator like the FCC, whose domain is telecom and (some) media, to pass even fairly-feckless policy choices without them being sued into oblivion. Even in instances where they’re clearly acting within their Congressional mandate.

You saw it with net neutrality and consumer privacy. You see it with their fairly basic effort to rein in broadband discrimination. Even efforts to make ISPs clear about their pricing have seen bottomless legal challenge by a telecom industry incessantly trying to claim regulators have zero authority whatsoever to do anything to protect American consumers under the law.

All enforcement and reform is much, much harder now. Every policy and reform effort by regulators (even long established) will now be challenged anew, flooding the courts with numerous new contentious debates once believed somewhat settled. And it’s going to impact everything you deal with on a daily basis, from the quality of your local drinking water to your local labor protections.

In broadband land, efforts like net neutrality are at particular risk. In part because the Communications Act of 1934 was particularly murky in terms of the width and breadth of FCC authority. We’d settled much of that over the decades with various legal fights from Brand X to several rounds of net neutrality fights; fights that, more often than not, already routinely came down on the side of telecom giants.

But even the existing corrupt, feckless mess that passes for coherent consumer protection in telecom is about to be upended by a Republican minority. An unelected minority keen on dismantling the regulatory state on behalf of corporations looking to eliminate most, if not all, meaningful oversight.

University of Colorado Professor Blake Reid has an excellent post exploring how the Loper ruling could send broadband consumer protection into complete disarray with the dismantling of decades of precedent. His wager, which is likely the right one, is that the court (historically in lockstep with AT&T and Comcast) will simply declare the FCC lacks all consumer protection authority:

“The easy money is that the Court’s conservative majority (including then-Judge Kavanaugh, who wrote a blistering dissent against an earlier iteration of the rules in USTA v. FCC), will simply rule that Title II of the ‘34 Act does not apply to ISPs. This result would obliterate the Damoclean pendulum of rules that has more or less kept ISPs in check over the last two decades and make it clear that America’s oft-reviled ISPs have free rein to, um, dutifully serve their customers.”

As Blake notes there are some bright spots.

The legal debates over FCC authority are so extensive and tortured that a court looking to dismantle FCC authority has to trample many of their own past determinations to fit a square peg into a round hole, which could provide ample legal opportunities for those challenging the dismantling of the regulatory state. There’s also the fact that the courts have repeatedly declared that states have the right to protect broadband consumers (and net neutrality) if the feds won’t.

So we’re not doomed. And people should not give up hope. But in my opinion, informed by 25 years of studying and writing about U.S. consumer protection, it’s very, very, very bad.

The Supreme Court, in corrupt fealty to large corporations, simply decided it would be fun to throw several large grenades into the belly of what’s left of semi-coherent U.S. federal policy governance. But if you read the insights of folks like the American Enterprise Institute’s Daniel Lyons, they’ll try to tell you it’s all for the greater good:

“By overturning Chevron, the Court hopes to shift the locus of legislative decision making back to Congress, where it belongs. There are significant benefits to shifting important, politically sensitive issues from agencies to Congress. It increases political accountability by placing key decisions in the hands of directly elected officials. And the legislative process makes more room for bipartisan compromise, assuring more gradual but more lasting change supported by a broader swath of the political spectrum.”

This pretty common framing of the ruling teeters somewhere between delusion and lying. Corporations didn’t lobby the unelected Supreme Court because they were just super concerned about the balance of policy power among “unelected bureaucrats.” They did it because they know they’ve already lobbied Congress into absolute, corrupt dysfunction on nearly all meaningful reform and corporate oversight. Now they’re taking aim at the already shaky authority of U.S. regulators.

All during the net neutrality debate you saw some variation of the claim that “if we want net neutrality protections, Congress should just pass a law.” This was usually made by companies like AT&T who know full well they’ve ensured that Congress is a corrupt, feckless mess. Now they’ve ensured regulators often can’t implement reforms without the explicit instruction of a Congress too corrupt to function.

This is not a good faith effort at meaningful reform of policy power, and you don’t drop rulings like this the Friday before a major holiday because you’re proudly attempting to serve the public interest.

Once corporate America has the federal regulatory state handcuffed and neutered, they’ll shift their collective attention and resources toward undermining state rights. This is the culmination of a 50+ year Republican effort to dismantle coherent federal corporate oversight and accountability. All fights, on everything, are now local. And which state you currently live in matters more than ever.

The goal isn’t some noble defense of freedom or constitutional balance. The goal is legal gridlock for all meaningful reform. The goal is near-zero meaningful oversight of giant corporations. And there are decades upon decades of evidence as to precisely how that’s going to go for everybody without a seven figure lobbying budget.

And again, we’re not just talking about telecom or your expensive broadband bill. We’re talking about entirely new, bottomless legal fights over every last regulatory policy that impacts your everyday life. Every reform and every effort by every regulator governing every sector in the U.S. is going to be inundated with lawsuits by corporations claiming regulators lack the authority to do anything they view as detrimental to their goal of improved quarterly returns.

This intentional fracturing of coherent federal regulatory authority also comes as we collectively face unprecedented chaos caused by a destabilizing climate that’s only just getting started.

I’m not sure the impact and scope of this ruling is even calculable. And I don’t think the folks saying things like “this can’t possibly be that bad” or “the impact of dismantling Chevron is being overstated” fully understand precisely what we’re talking about just yet. Fortunately for them, the impacts over the next five to ten years won’t be subtle, so the learning opportunities should prove limitless.

Filed Under: chevron, chevron deference, corruption, general questions, loper, regulators, supreme court

Big Telecom Allied GOP Lawmakers Pretend New FCC Net Neutrality Push Is ‘Unlawful’

from the here-we-go-again dept

Thu, Oct 19th 2023 05:27am - Karl Bode

As noted last month, the Biden FCC is finally getting ready to restore net neutrality rules stripped away during the Trump administration amidst a lot of bullshit and fraud. And unpopular telecom giants, with the usual support of the GOP, are already busy trying to undermine the effort with a whole new list of manufactured grievances they’ve been seeding in a lazy U.S. press.

You’ll recall that the courts have repeatedly ruled that not only was the Obama FCC well within its legal authority to impose net neutrality rules, they’ve repeatedly shot down the industry’s attempt to sue state-level protections into oblivion. There’s no real debate over the legality of what’s happening.

Yet in a new letter to the FCC written by 29 Republican members of Congress, the lawmakers proclaim that the FCC’s looming attempt to restore net neutrality is somehow “unlawful.”

Their reasoning? Because the corrupt right wing brunchlords at the Supreme Court could possibly defang some regulators via looming rulings in January, they think the FCC just, gosh, shouldn’t try to protect consumers or implement very popular policies:

“This proposal is unlawful. Regulation of broadband is undoubtedly a major question of economic and political significance. Under the major questions doctrine, articulated in West Virginia v. EPA, an agency must wait for Congressional authorization before acting. In other words, if broadband needs to be regulated as a utility, that is a decision for Congress to make, not the FCC. Congress has not spoken on this issue.”

This is an idea the telecom industry has been seeding in the press for a few weeks via assorted covert policy and lobbying proxies. But you’ll surely be surprised to learn the GOP lawmakers aren’t being honest.

Yes, the Supreme Court is poised to deliver the GOP its long desired killing blow to regulatory authority via two cases it will likely rule on in January. Those cases will take aim at a longstanding legal doctrine dubbed Chevron deference, which gives regulators the authority and latitude to make decisions for themselves, provided it’s generally within the authority given them by Congress.

If successful, the ruling would dramatically scale back the ability of regulators to make decisions for themselves and interpret statutes using their specific subject-matter expertise. The goal: to ensure regulators can’t do much of anything without the explicit approval of a Congress industry knows it lobbied into apathy and dysfunction decades earlier (it’s of course dressed up as something far more noble).

What happens to Americans if industry and the GOP succeed in hamstringing already shaky regulatory authority really hasn’t been discussed enough. The ruling will effectively put labor, public safety, consumer protection, and environmental regulators on their heels, ensuring these already long-understaffed and under-funded agencies can’t do their fucking jobs.

And when these regulators fail to do their jobs, industry giants will insist it simply proves the inherent untrustworthiness of government, and somehow wasn’t the direct result of a generation of successful lobbying by self-serving billionaires and giant monopolies like AT&T.

The goal has long been: zero meaningful oversight of corporate power. While it’s dressed up as serious adult policymaking and some noble deference to the sanctity of Congress and constitutional balance, it’s basically just part of the endless and wildly successful American quest for utterly unconstrained greed.

But here’s the thing: that ruling hasn’t happened yet. It’s still possible it doesn’t happen. Telecom policy gurus like Harold Feld have noted he’s not sure the Supreme Court has the votes, and even if it does, the FCC’s legal history should make it more resilient to the change than other regulators:

“One of the most important rulings relied upon by the courts regarding this doctrine is a 2005 case Gonzales v. Oregon, which blocked the Attorney General via the Drug Enforcement Agency from regulating doctors’ prescriptions under the public interest standard. In that ruling, the Court went out of its way to note that, while Congress delegated limited powers to the DEA, the FCC was an example of an agency that had far more expansive powers via its writ from Congress.

In other words, the court said that the FCC possesses a much stronger “Chevron deference,” a related legal standard that holds that when there’s ambiguity the courts should defer to the administrative bodies’ interpretation.”

The fight is important but complicated, ensuring it doesn’t see much traction among headlines about nonexistent billionaire fist fights. I’d highly recommend reading this American Prospect piece on how the telecom industry is seeding this stuff in a lazy press. I’d also recommend this post by the Natural Resources Defense Council or this piece over at Vox on the broader issues at play.

The telecom industry has long argued that it should be up to Congress (and Congress only) to craft net neutrality rules. But again, the industry knows they’ve lobbied Congress into a corrupt bowl of pudding long ago, ensuring any such effort could never pass. Now they’re arguing because a corrupt Supreme Court might make future rulings in industry’s favor, the FCC shouldn’t bother trying.

It’s all bad faith bullshit, well in line with the kind of bad faith bullshit we saw the last time net neutrality was consistently making headlines. Remember, at its core net neutrality is actually about how to counter the impact of harmful, concentrated monopoly power. Big telecom and its GOP BFFs, unsurprisingly, would prefer regulators sit on their hands like obedient toddlers, public interest and impact be damned.

Filed Under: big telecom, broadband, chevron deference, fcc, ftc, general questions, monopolies, net neutrality, telecom

NY AG Doles Out Wrist Slap Fine To Companies That Helped Telecom Giants Use Fake And Dead People To Lie About Net Neutrality

from the fake-plastic-trees dept

Fri, May 12th 2023 05:31am - Karl Bode

You might recall how when U.S. telecom giants lobbied the Trump FCC to kill net neutrality, they hired a bunch of PR firms to flood the FCC with fake comments from a bunch of fake and dead people. The goal: create the illusion of support for shitty, unpopular policies. It’s a pretty popular tactic by corporations and lobbying firms looking to influence the government and/or create the illusion of consensus.

In 2021, New York Attorney General Leticia James unveiled a report (also see accompanying statement) proving what most people already knew: the broadband industry was behind the use of fake and dead people to generate bogus support for the FCC’s controversial 2017 repeal of net neutrality. The report didn’t name any specific broadband companies and only singled out the proxy firms they used.

Several years later, and James’ office has finally managed to dole out a wrist slap fine ($615,000) for the three PR and policy firms used by the broadband industry: LCX Digital Media, Lead ID, LLC., and Ifficient Inc. All three “lead generation” companies also worked for other companies looking to influence policies at agencies like the EPA. And not for the betterment of competent policymaking or mankind.

Once again, none of the telecom monopolies that actually hired the firms (Comcast and AT&T are often suspected to be the most active in these kinds of campaigns) are even named in the announcement, despite James likely knowing full well who paid for these “services.” In a statement, James tries to pretend that such a half-assed penalty will actually change anything:

“No one should have their identity co-opted by manipulative companies and used to falsely promote a private agenda,” said New York Attorney General Letitia James in an announcement Wednesday.

Again, these fake comment efforts are glorified propaganda campaigns by deep-pocketed corporations designed to provide flimsy cover for corrupt and captured regulators to make policy decisions that are opposed by a majority of Americans (the repeal of net neutrality saw widespread, bipartisan opposition).

One such effort plagued a proceeding at the Labor Department, where numerous people who either don’t exist or don’t recall ever sending messages breathlessly opposed agency efforts to prevent conflicts of interest in retirement advice. The same problem plagued the Consumer Financial Protection Bureau when it proposed a rule trying to rein in some of the nastier habits of the payday lending industry.

Nobody in government or policy circles ever seems to show much interest in getting to the bottom of this problem. The public rarely can be bothered to care either (kudos to you if you made it this far down this article). And in the rare instance where somebody does act (like the NY AG), the fines are a tiny pittance in relation to whatever policy proposal the companies were attempting to game out.

Now pause for a moment and consider how “AI” tech like ChatGPT will make these kinds of lobbying influence and propaganda campaigns cheaper and easier than ever just as we face a well-funded, deeply coordinated campaign to finally and fully defang the regulatory state once and for all.

Filed Under: broadband, chevron deference, consumer rights, fake comments, fcc, letitia james, net neutrality, propaganda, regulators, trump
Companies: ifficient, lcx digital media, lead id