Hard Cases And Bad Law

Lawyers have a saying: hard cases make bad law. A couple of pending cases over Net Neutrality offer a good illustration.

A bit of background: One of the many outrages perpetrated by the Trump Administration was the cynical elimination of net neutrality rules by Ajit Pai of the FCC, despite the fact that a huge majority of Americans supported those rules. Pai came to the agency from Verizon, where he’d been an executive; Verizon and other large telecom interests don’t want to be restrained by pesky regulations requiring that they treat internet users equally.

When the FCC eliminated Net Neutrality, more than 20 states filed lawsuits, arguing that the agency had acted arbitrarily. Those lawsuits are supported by companies like Mozilla, trade associations representing Amazon, Facebook and Google, and consumer groups like Free Press and Public Knowledge.

For its part, California responded to the elimination of Net Neutrality by passing a version of its own. On September 30th, The Washington Post reported

California on Sunday became the largest state to adopt its own rules requiring Internet providers like AT&T, Comcast and Verizon to treat all web traffic equally. Golden State legislators took the step of writing their law after the Federal Communications Commission scrapped nationwide protections last year, citing the regulatory burdens they had caused for the telecom industry.

That same Sunday, the Trump Administration announced that it would sue California to block that law, setting up what the Post characterized as a high-stakes legal showdown over the future of the Internet. The administration will argue that only the federal government has the authority to regulate the Internet, and that the reason Congress gave the federal government exclusive authority was to ensure that all 50 states wouldn’t write their own conflicting rules governing the web.

Fair enough. Fifty different regulatory approaches would be a nightmare for ISPs, and arguably impossible to enforce. On the other hand, the  federal government’s actions weren’t just bad policy that ignored the great weight of both expert and public opinion–its nullification of the net neutrality rules arguably constituted yet another gift by the administration to moneyed interests.

When the Justice Department announced that it would sue California, it set up a “lose-lose” “hard cases” scenario. In a sane world, the U.S. would have one comprehensive set of policies governing Internet practices–not 50. But in a sane world, the administration wouldn’t have repealed rules that were widely seen as necessary, reasonable and equitable.

If all this wasn’t bizarre enough, a couple of days ago, the FCC submitted its defense of the repeal in the lawsuit brought by the states by arguing that it had no authority to pass net neutrality rules in the first place.

Chairman Ajit Pai’s FCC argued that broadband is not a “telecommunications service” as defined in federal law, and therefore it must be classified as an information service instead. As an information service, broadband cannot be subject to common carrier regulations such as net neutrality rules, Pai’s FCC said. The FCC is only allowed to impose common carrier regulations on telecommunications services.

That argument would be a tad more convincing if the DC Circuit appeals court hadn’t ruled in 2016 that the rules were legal.

The argument also would seem to complicate the administration’s threatened preemption suit against California; lawyers defending the ability of states to pass rules say the FCC can’t preempt state laws that regulate conduct over which the FCC has no regulatory authority.

Does your head hurt yet? (Mine does.)

The various entities suing the FCC have until November 16 to file reply briefs. Final briefs are due November 27, and oral arguments are scheduled for February 1.

Oh what a tangled web we weave when trying to enrich an administration’s cronies.


  1. Our new extreme right Supreme Court is going to love this new argument to do away with regulations at all levels of government. The Republican Party’s dream come true… a complete laissez fair society run by corporations.

  2. Once again, the internet is a public good but when privatized becomes a nightmare due to private companies “competing in a free market.”

    All those entities which existed in the public realm must be returned to the public. The federal government is not acting on behalf of the public (we the people) because it is owned by corporate and billionaire interests. Comcast was one of the largest visitors to Barack Obama so this is not a political issue.

    As we’ve already concurred, both political parties are captured which is why there is no official political spectrum or political solutions. Both parties are used to oppress voters. The GOP eliminates minorities and poor communities while the DNC blocks progressives. The efforts of both parties benefit the Donor Class.

    As we’ve also discovered on this blog, Americans are sorting themselves out based on states and localities that are more progressive vs conservative. The Great Sort has been going on since the end of the Third Industrial Revolution.

    The Justice system is as corrupted as the political system…maybe even more prevalent with layers upon layers of systems. Everyone wants to be exempt or not held accountable, but this luxury only is rained upon the uber-wealthy but you can see it play out in your own communities.

    By the way, Ralph Nader pointed all this out and look what happened to him. He has been blackballed by Establishment Media (silenced). He also has a new book where Rats take back the country. His outline for what the people would rally behind is similar to what Wray and others have suggested.

    I would strongly recommend taking those policy ideas and merging them with the human development angle Albert Einstein took back in 1949 with his social planning dictum called, “Why Socialism”.

    Quite frankly, it’s more pertinent today than it has ever been and it was written in 1949.

  3. Theresa, just a note on Federal Judges:
    Democrats Face Ridicule and Ire for Letting GOP Ram Through Six More Right-Wing Judges
    “The ability of Senate Democrats to keep making the same strategic error over and over again is, in its own way, quite impressive.”

    Less than a week after Senate Democrats cut a deal allowing Republicans to fast-track 15 of President Donald Trump’s right-wing judicial picks in exchange for a recess that freed vulnerable lawmakers to hit the campaign trail, the GOP—surprising no one who has paid the slightest attention to American politics in recent decades—reneged on their so-called “truce” with the minority party on Wednesday and convened another hearing to start ramming through six more judges to lifetime federal court positions.

    “If the Democrats were going to fast-track all those Trump judges to get out of town for the rest of October,” Fallon added, “the least they could have gotten for their trouble was a commitment from McConnell to not still hold hearings while the Senate was adjourned.”

    But last week’s agreement included no such commitment, so Republicans took advantage of the opening left by Democrats and moved ahead with a hearing, even though the Senate is technically in recess. https://www.commondreams.org/news/2018/10/18/democrats-face-ridicule-and-ire-letting-gop-ram-through-six-more-right-wing-judges

    You will not need a slide rule or a calculator to determine how judges approved by President Agent Orange, Pastor Pence and McConnell will rule when Corporate Profits clash with Citizens Rights.

  4. Keep in mind that the current administration is impervious to logic. The question is, are the judges they have put in place just as bad? They have managed to turn both the 2nd and the 9th circuits to conservative majorities. Don’t be happy about the ability to take back the House. The Senate is much more crucial to our freedom. While we’re at it, why don’t we rename the Supreme Court to the Extreme Court.


  5. Just a follow-up to Corporate Profits and our “Justice System”.

    ‘We did the right thing’: jurors urge judge to uphold Monsanto cancer ruling
    After judge suggests she will overturn $289m verdict, those behind it call for justice for Dewayne Johnson.

    Jurors who ruled that Monsanto caused a dying man’s cancer are fighting to uphold their landmark $289m verdict, publicly urging a judge not to overturn their decision in a groundbreaking trial.

    Four California jurors told the Guardian that they were shocked and angry to learn that the judge overseeing their trial had moved to throw out their unanimous verdict, which said the agrochemical corporation failed to warn consumers that its popular weedkiller product posed health risks.

    The ruling in August, which sparked concerns across the globe about the Roundup herbicide, included $250m in punitive damages to the plaintiff, Dewayne “Lee” Johnson, who has terminal cancer. But San Francisco superior court judge Suzanne Bolanos stunned campaigners and jurors last week when she issued a tentative ruling on Monsanto’s appeal motion, saying she would likely grant a new trial due to the “insufficiency of the evidence”.

    “I was just gobsmacked and outraged. I was astonished,” Robert Howard, juror No 4, said in an interview on Thursday. “Why do we have a jury system if the judge can just toss it out?”

    Howard, 60, wrote a letter to Bolanos saying the jury’s “integrity, intelligence, and common sense has been cleverly and openly attacked by inference”, adding: “The possibility that, after our studious attention to the presentation of evidence, our adherence to your instructions, and several days of careful deliberations, our unanimous verdict could be summarily overturned demeans our system of justice and shakes my confidence in that System.”

    Bolanos hasn’t yet made a final ruling, leading to an unusual public plea from the jurors and mounting pressure on the judge in recent days.

  6. Republicans have been trying to allow public utilities to be controlled by their donors in corporate America since the beginning. As Todd and others have pointed out, this always fails the individual citizen by producing cheap and unreliable service. So, naturally, with the Trump, Ryan, McConnell triumvirate of anti-person ideology, this is to be expected.

    It is clearer every day that Republicanism and Republicans must be voted into extinction, or…..the horrors of an outright revolution will visit our land with its dark shroud of mayhem and destruction. With voter suppression going on in EVERY Republican-controlled state, it should be clear to every thinking person that these bastards ONLY care about winning and staying in power.


  7. see commondreams.org, yesterdays story,telecom industry firms subpeonared in net neut fog,
    seems stanford uni, investigated 800,000 thousand false filings with fcc on comment for change. seems the e mail addresses were hacked,and made false comments asking for net neut to be overturned. my question, who hacked what,and when?facebook?some big accounts,?telecom customers?who? in the age of gen 5G id say its obvious,telecom is looking for a windfall of profits in their new toy,at the comsumers expense again. here in nodak we still have a third world nations wifi,cell, and other comms. recent comments by bobcat,you know the little tractors that changes backbreaking? anyway,they commented that the state should do better because they monitor thier products via wifi,to keep track of thier systems,and farmers need gps,related needs for row crop planting satilite imagery when spreading fertilizer in recommended needs in diffrent need areas.. i believe kenya has a better system than here..anyway,as we look at the fcc con job,and allowing comments not aligned with the real comments,and ignoring the overall population,i.e. democracy, and corrupting a vote in congress,whats left? if the We do see the 5Gs benifit,its because its under the radar,and telecom wants the profits,though its installed and running,and another con job its costing more… like gasoline,internet is a staple,and we dont need a federal agency,depending on its own con job. now,we wait,and see what kind of con job trump bestows upon our sorry asses..
    vote blue,or get screwed

  8. Net neutrality had to go. It was too fair and too democratic (small d). It wasn’t wringing the last dime out of its consumers. It wasn’t squeezing out enough small competitors. It was, to capitalist blood suckers, too “American,” a use of the word itself indicating disregard for the rest of the Americas.

    Just give me my torch and pitchfork already. I hate these bastards.

  9. We are United States no more. We are two warring institutions. We, the people (of Constitutional note) and make more money regardless of the impact on others, represented by Wall St. Both General Eisenhower and George Orwell predicted long ago that these moments would come and here we are.

    Our founders broke with the tradition of their days and launched a great experiement in what has been termed self rule. We the people, the governed, choose who governs, by one “man” one vote. Of course even then compromise was necessary as some of the states struggling to get united built economies based on human livestock while others defined “man” literally by their genitalia. So, they compromised their great concept in the name of expediency.

    We spent about 200 years rectifying those compromises and assumed then that the dream of liberal democracy was realized and the benefits of freedom for all would be attained.

    However aristocracy continues to hover over us insisting that their wealth and power entitle them to rule. We threw them out in the Revolution, Civil, and World Wars to the point they finally abandoned military conquest but now have erected among us a great media network and filled that pipeline with 24/7 propaganda promising authoritarians among we the people power over us for the fee of their votes every election year. While moving on from mass slaughter of those wars to peaceful hypnosis as the means of conquest certainly should be deemed progress the result could be well be the same; the end of freedom and the return of entitlement power.

    We have perhaps one last chance in the next few weeks to reassert the vote as the newest tool of freedom before our options reset to violence.

    While it sounds melodramatic it is nevertheless true that history hangs in the balance of what we choose to do.

  10. Pete,,

    There’s nothing melodramatic about we the people fulfilling their responsibilities to remove the most egregious political movement in our country’s history, the Republican Party. They have gone full Nazi and full Fascist by combining big money and politics. The “ordinary” people, who are the idealized governors of this land are being kicked to the curb, one political donation at a time.

    Even with the horrors of the Trump daily insults to humanity, I predict that the voter turnout will be less than 60% and that there will still be another 20% who aren’t or refuse to register to vote. If the outcome just confirms the status quo, then we get what we deserve: a failed experiment in self-governance.

  11. The true irony is that the Internet was invented in America specifically because it was not created by the telecoms. They tried to create such a system in Europe, but each country’s telecom wanted to own it as proprietary and no two countries would work together. Here, the government, through DARPA, created it. At first it was for academics and the government, but soon it was opened to the public. Ever since, the telecoms wanted to take control.

    The Internet is still the government’s creation, which is why, unlike cell phones, when you switch carriers, you don’t have to buy a new computer, but control has finally been ceded to the telecoms. When they think about it, they got a better deal – no expenditure to create it, a more universal system, and total control to maximize their profits at the expense of the public.

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