The nation’s biggest internet service providers (ISPs) want to ensure that, once the Federal Communications Commission (FCC) votes to deregulate the internet, states won’t be able to set up new regulations to replace them.
Comcast and Verizon have demanded telecom regulators to make clear that the FCC’s new policy on net neutrality — which could be put to a vote as early as December — will preempt state and local regulations that might read differently.
The request marks the industry’s latest step to weaken federal rules that regulate broadband companies like legacy telephone companies.
Earlier this year, the Trump administration and GOP presented the nation’s telecom duopolies with a gigantic gift — at the great expense of the nation’s consumers — when they dismantled FCC broadband privacy protections. While ISPs complained incessantly about the rules, the protections were relatively modest — simply requiring that large ISPs be transparent about what personal data is being collected and sold, who it’s being sold to, and that working opt out tools be provided to consumers. The FCC’s rules were only created after Verizon was caught modifying packets to covertly track users around the internet and AT&T tried to make consumer privacy a luxury add on.
The net neutrality rollback targets the FCC’s February 2015 reclassification of fixed and mobile Internet providers as “common carriers,“ the same designation the agency applies to telephone service providers, under Title II of the Communications Act. Title II provides the regulatory authority the FCC used to prohibit ISPs from blocking, throttling, or giving preferential treatment to certain traffic and from giving priority to Web services and websites in exchange for payment. The FCC used Title II to impose the net neutrality rules after a previous court decision struck down rules issued without the step of reclassifying ISPs as common carriers.
The rules established under Title II designation were widely supported by advocacy groups who said they were a vital consumer protection. But they were also vehemently opposed by internet providers who said the regulations were illegal and overly burdensome.
Under Republican leadership, the FCC now wishes to backtrack on that policy change, seeking to reclassify broadband companies under “information services,” a more lightly regulated designation.
In the wake of the GOP’s dismantling of internet freedom protections, more than 30 states have started to consider establishing their own disparate privacy protections for consumers. The Electronic Frontier Foundation (EFF) supported one such bill in California, arguing that it could provide a good template for other states to follow in order to gain some uniformity. But Google, Comcast, AT&T and Verizon collectively lobbied to scuttle that law last month. Leaked documents reveal how they lied to California lawmakers by claiming the rules would have emboldened extremists, boosted annoying popups, and somehow harmed consumers.
Following the legislative victory in California, Verizon is now lobbying the FCC to ban states from trying to protect consumer privacy. FCC Commissioner Mike O’Reilly had already hinted at this path in recent speeches to industry-backed think tanks, but what this effort would look like isn’t yet clear. In a recent letter and white paper submitted to the FCC (pdf) late last month, Verizon also lobbied for preemption, citing moves by about 30 states — “an alarming number” — to adapt to a congressional measure repealing FCC privacy protections for consumers.
Further on in the white paper Verizon makes it clear that it’s also worried that states will rush to protect net neutrality after the FCC votes to kill existing net neutrality rules later this year:
“States and localities have given strong indications that they are prepared to take a similar approach to net neutrality laws if they are dissatisfied with the result of the Restoring Internet Freedom proceeding. Notably, the New York State Attorney General claims that “the role of the states in protecting consumers and competition on the Internet remains critical and necessary.”
Verizon urges the FCC to use its authority to block these state laws, and warned of the perils of states trying to actually protect consumers from unchecked broadband duopolists:
“Allowing every State and locality to chart its own course for regulating broadband is a recipe for disaster. It would impose localized and likely inconsistent burdens on an inherently interstate service, would drive up costs, and would frustrate federal efforts to encourage investment and deployment by restoring the free market that long characterized Internet access service.”
Verizon is ignoring several things. First, states wouldn’t be rushing to create a patchwork quilt of consumer protections if Verizon lobbyists hadn’t successfully convinced former Verizon lawyer turned FCC boss Ajit Pai to kill existing, modest federal protections.
It’s also worth noting that ISPs like Verizon have spent decades writing and buying protectionist, competition-killing state laws in order to protect their regional broadband mono/duopolies. When critics have pointed out that maybe giant ISPs shouldn’t be writing state law, ISPs (and their collection of sellout lawmakers) have whined about the trampling of “states rights.” Yet when those same states actually attempt to legislate to protect the end user, trampling those same rights appears to be a non-issue. That’s an obvious double standard by any measure.
The FCC should “include a clear, affirmative ruling that expressly confirms the primacy of federal law with respect to [broadband] as an interstate information service,” Comcast said in a recent regulatory filing.
“Allowing every State and locality to chart its own course for regulating broadband is a recipe for disaster,” the company said. “It would impose localized and likely inconsistent burdens on an inherently interstate service.”
John Bergmayer, a senior counsel at the consumer group Public Knowledge, said that FCC rules generally take precedence over state and local rules.
“If the FCC says X, and a state says Not-X, then, the FCC wins,” he said.
Verizon seems to believe it should be completely unburdened by anything even vaguely resembling oversight as it shifts its focus, rather clumsily, toward being a Millennial advertising engine. But while Verizon has argued for years it can self-regulate without adequate oversight, the lack of competition in most Verizon markets highlights how that’s simply not practical. From the company’s covert tracking of users using “zombie cookies,” to its ongoing efforts to sell your personal data without informing you or letting you opt out, Verizon continues to make it perfectly clear that privacy and transparency are a distant afterthought, a problem they won’t be fixing voluntarily.
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