loper – Techdirt (original) (raw)

Big Telecom Asks The Corrupt Supreme Court To Declare All State And Federal Broadband Consumer Protection Illegal. They Might Get Their Wish.

from the our-solution-is-to-simply-break-everything dept

As we recently noted, telecom giants like AT&T and Comcast are having some very good luck using a corrupt, MAGA-heavy court to not only kill popular net neutrality rules — but to effectively lobotomize the FCC’s ability to protect broadband consumers at all.

Leveraging the recent Supreme Court Lopper rulings, telecom lawyers are trying to argue that pretty much any effort to protect consumers from telecom monopolies is outside of the scope of the 1996 Telecom Act, whether or not precedent (whatever that’s worth now) or logic agrees. It’s the same story you’ll soon see played out across every industry that touches your lives post Chevron.

But in their so-far successful effort to kill the federal regulatory state, Comcast, AT&T, and friends have created a new quandary. Courts have repeatedly ruled that if the federal government abdicates its authority to protect broadband consumers from monopoly harm, states are fully within their legal right to step in and fill the void.

For every state whose legislature telecoms have completely captured (Arkansas, Missouri, Tennessee), there’s several that have, often imperfectly, tried to protect broadband consumers, either in the form of state level net neutrality laws (California, Oregon, Washington, Maine), crackdowns on lies about speeds or prices (Arizona, Indiana, Michigan), or requiring affordable low income broadband (New York).

In 2021 at the peak of COVID problems, New York passed a law mandating that heavily taxpayer subsidized telecoms provide a relatively slow (25 Mbps), $15 broadband tier only for low-income families that qualified. ISPs have sued (unsuccessfully so far) to kill the law, which was upheld last April by the US Court of Appeals for the 2nd Circuit, reversing a 2021 District Court ruling.

New York’s efforts to provide broadband to poor people was predicated on the Trump administration’s unpopular decision to repeal net neutrality and strip away the FCC’s Title II authority over telecoms. If big telecom blocks the restoration of this authority (and it’s looking likely so far based on hints from the sixth circuit), states are bolstered, as noted above, to step in and fill the void.

Telecoms like AT&T are frightened of states doing their jobs to protect consumers and market competition from their bad behavior. So a group of telecom trade groups this week petitioned the Supreme Court with a very specific ask. They want the court to first destroy FCC broadband consumer protection oversight and net neutrality, then kill New York’s effort, in that precise order, in two different cases.

Verizon, AT&T, and Comcast argue that if they are successful at killing FCC oversight of broadband consumer issues, states will follow NY’s lead and (gasp) try to offer poor people inexpensive broadband. Something they falsely claim will stifle their ability to expand broadband access:

“Other States are likely to copy New York once the Attorney General begins enforcing the ABA [Affordable Broadband Act] and New York consumers can buy broadband at below-market rates. As petitioners’ members have shown, New York’s price cap will require them to sell broadband at a loss and deter them from investing in expanding their broadband networks. As rate regulation proliferates, those harms will as well, stifling critical investment in bringing broadband to unserved and underserved areas.”

Big Telecom lawyers trot this claim out any time the government attempts to hold them accountable for anything (they falsely claimed the same about net neutrality and numerous merger approvals). But as local monopolies that see little real oversight or competition, they’re already disincentivized to actually care about shoring up broadband access, especially to poor, rural, minority markets.

In short, leveraging MAGA court corruption, telecoms want to make federal and state broadband consumer protection effectively illegal. The bullshit claim they feed a lazy press is that they’re rebalancing constitutional power and protecting the public from “renegade regulators.” If people want specific protection, they’ll insist, Congress should step in and pass a new, very clear, well-crafted law.

But telecoms spend an estimated $320,000 on lobbying Congress every day to ensure Congress never reforms much of anything. In reality, what these companies want is to protect their lucrative and harmful regional monopolies from federal/state government oversight and market competition. They want it all, they want no limits, and they don’t much care about the broader impact on real people.

And there’s a very real chance they’re going to get it.

Telecom consumer protection groups (which have been all but invisible in terms of modern strategic vision or social media public messaging as this shitshow unfolds) will almost certainly insist that something will protect the public from the worst possible outcome here. But post-Roe, rosy cheeked optimism as to what our corrupted courts will or won’t do just doesn’t carry the same weight.

You’d like to think that somewhere in the bowels of the sixth circuit exist adults who realize the madness and chaos caused by dismantling the federal government with no real additional backup plan. But I don’t think after the last few years that’s any sort of easy assumption.

Again, post-Chevron, some variation of this is going to be playing out in every industry that touches your lives. Logic or precedent be damned, corporate lawyers are going to argue that every consumer protection, public safety, environmental, or campaign finance regulator in the country can’t enforce or create new protections without the approval of FedSec judges or a corrupt Congress.

You’re getting an early sneak peak with telecom and net neutrality, but some variation of this will soon be playing out everywhere thanks to an easily-bribeable Supreme Court stocked with people who think utterly demolishing the girders of governance forges an amazing new utopia. For them.

For the rest of us, the result is going to be absolute legal chaos and an almost incalculable level of every day real-world harms, as any existing and future regulatory enforcement U.S. corporations don’t like grinds to a halt. Already feckless U.S. regulators will also be less incentivized than ever to push for reforms for fear of costly legal challenge.

Journalists, public policymakers, and activists have done an utterly abysmal job at making the full scope and impact of all of this clear to the public. But without immediate and massive Supreme Court and congressional campaign finance reforms (which, by any indication, aren’t coming anytime soon) the impact is going to be anything but subtle, and in many cases, deadly.

Filed Under: broadband, chevron, consumer protection, high speed internet, loper, new york, supreme court, telecom
Companies: at&t, comcast, verizon

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