The Trump Administration is now taking even stronger measures to eradicate net neutrality protections in the United States.
Despite a major repeal of net neutrality protections by the Federal Communications Commission (FCC) this year, the Trump Administration is now taking additional steps. Just this week, the U.S. Department of Justice demanded that the Supreme Court invalidate a 2016 lower court ruling that affirmed net neutrality protections.
“This Court should grant the petitions for writs of certiorari, vacate the court of appeals’ judgment, and remand with instructions to dismiss the petitions for review as moot,” the demand states (full document here).
That lower court ruling belongs to the D.C. Court of Appeals, which ruled that broadband services from mega-corporations like Verizon, AT&T, and Comcast could properly be restricted under then-active net neutrality provisions. In its decision, the court relied on findings from the FCC itself, then under the Obama Administration.
If the Supreme Court complies with the Trump Administration demand, the stamped-out ruling would make it far easier for ISPs to invalidate legal challenges against the FCC and its net neutrality repeal.
And those challenges are great. Almost immediately after FCC chairman Ajit Pai forcefully ripped down net neutrality provisions, two US states — Oregon and Washington — approved laws protecting net neutrality. Additionally, California and New York are threatening to pass extremely protective laws of their own in the coming months, creating a regulatory nightmare for mega-ISPs.
Other state governors quickly issued orders to preserve net neutrality, while dozens of state attorneys general contested the measure. Throughout, serious questions about the FCC’s ability to enact a nationwide net neutrality ordinance have been raised.
An aggressive Supreme Court reversal could change that situation, and essentially force U.S. states to comply with the FCC’s decree.
The Department of Justice has argued for a complete invalidation of the ruling, without broader deliberation on the matter.
The reason, according to the DOJ, is that the FCC has completely updated its findings related to net neutrality. “The court of appeals upheld the 2015 Order primarily because it concluded that it was required to defer to the FCC’s legal and factual judgments as reflected in that order,” the DOJ demand reads.
“But the Commission itself has now repudiated those factual and legal judgments in a new order issued after full notice-and-comment proceedings.”
Sadly, that ‘notice-and-comment proceeding’ was ruled to be a complete joke, with fake comments essentially invalidating the process. Subsequently, FCC commissioner Jessica Rosenworcel admitted that Russian interference likely played a role in the commenting meltdown.
During the commenting period, John Oliver commanded viewers to flood the FCC’s website with dissenting comments, a move the FCC seems to have misinterpreted as a denial-of-service (DOS) attack. In fact, the FCC and U.S. Government are still investigating that far-fetched possibility.
The extremely aggressive Trump Administration measure is unlikely to smooth tensions with resisting states — to say the least.
Just recently, the State of New York invalidated the business license of Spectrum, owned by Charter Communications. State officials effectively kicked the ISP out of the lucrative state for failing to comply with promised broadband rollouts to poorer communities, among other violations.
Charter is contesting that ruling and defiantly continues to do business in the state. But the escalating war is likely rooted in hostility towards powerful ISPs like Charter, with state officials unhappy to be taking orders from mega-corporations.
The Supreme Court situation will be closely watched by a number of major media companies, including Netflix, Spotify, Apple, and others.
And the reason is pretty obvious. Instead of being forced to deliver whatever customers want, ISPs can now throttle, block, or prioritize on a whim, while forcing companies to pay for access. In the case of a company like Spotify, that could result in drastic cost increases simply to deliver a great product to music fans.
Those issues become even more pronounced if a mega-ISP like Comcast decides to introduce their own media platforms, in music, video, or any other area. In fact, a powerful gatekeeper like Comcast could quickly make life miserable for Spotify, Deezer, or SoundCloud, simply given its extreme leverage over customer access.