UPDATE: Why Tech Freedom Are Totally Wrong About The CRA.

Last week, I wrote this blog post addressing the argument that the Markey resolution under the Congressional Review Act would not actually restore the 2015 net neutrality rules. Since then, my opposite numbers at Tech Freedom have put together this 8-page letter saying otherwise. To save myself the trouble of repeating myself, I will update my previous blog post to explain why Tech Freedom specifically is utterly and completely wrong.

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“A Woman of Valor Who Can Find?” Farewell to Commissioner Mignon Clyburn.

This week has been the going away for Chairwoman Mignon Clyburn, often called “the Conscience of the Commission.” Not some soppy, Jiminy Cricket-style conscience sitting helplessly on your shoulder pleading and wheedling to try to get you to be good. Clyburn has been a conscience that kicks ass and takes names. The fact that, despite these hyper-partisan times, so many of her Republican colleagues and former colleagues were positively clamoring at her official FCC send off to praise her with genuine warmth for her empathy, graciousness and passion proves (as I once said about Jim Cicconi, who came out of retirement to add his own praise at Clyburn’s official farewell), you can be extremely effective without being a total jerk.

 

Many people understand the duty of public service. But for Mignon Clyburn, it is a calling.

 

As you can tell, I’m a big fan. If you wonder why, read her going away speech from the appreciation/going away party the public interest community held for her last Wednesday — although simply reading the words cannot convey the stirring passion and eloquence with which she read it. Too many people who care deeply about social justice dismiss communications law as a wonky specialty. Those with the passion to follow the instruction of the prophet Isaiah to “learn to do good, seek justice, comfort the oppressed, demand justice for the orphan and fight for the widow” often chose to go into fields where this struggle is more obvious such as civil rights or immigration law. But as Clyburn made clear through both words and actions, we desperately need this same passion in communications law. “The communications sector does not just intersect with every other critical sector of our economy, society, and democracy; it is inextricably intertwined. Healthcare, education, energy, agriculture, commerce, governance, civic engagement, labor, housing, transportation, public safety—all rely on this modern communications infrastructure. Any weaknesses or shortcomings, systemic or isolated, will have ripple effects that can be difficult to discern, but are unmistakable in their impact.”

 

Some reflections on Clyburn’s tenure below . . .

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UPDATE: Net Neutrality Repeal Goes Into Effect June 11 (Absent CRA Passage Or Anything Else).

We now have an official date on when the 2017 Net Neutrality repeal will go into effect. The Government Printing Office now gives a preview of what will get published in Fed Reg 24 hours in advance. They announced today that tomorrow will have both the OMB approval of the new and undermined transparency rule and the FCC notice that things will officially go into effect in 30 days from tomorrow.

 

Apparently stung by being called out on this peculiar process, Pai has issued a new and exciting statement totally doubling down on everything he has ever said about the terribleness of the previous rules and the awesomeness of our new and exciting Internet freedom. You can read it here. (I have got to believe this Administration at least borrows speech writers from Russia. This reads like something from Pravda in the Cold War announcing “glorious triumph of new 5 year plan in crushing capitalist running dogs.”) Commissioner Rosenworcel has a much shorter and rather less bombastic counterpoint here.

 

Stay tuned . . .

 

Yes, the 2017 Net Neutrality Repeal Is A “Rule” Under the CRA.

I have a rule of thumb that when I hear a stupid argument three times or more, I will blog about it so I don’t have to keep repeating myself. In this case, the argument that the CRA would not undo the FCC’s 2017 Net Neutrality Repeal Order/Declaratory Ruling because it is not a “rule,” and the CRA only applies to “rules.” See 5 U.S.C. 801.

 

This argument falls into the stupid category because the CRA defines what it means by “rule.” See 5 U.S.C. 804. In typical legal fashion, Section 804 refers you to 5 U.S.C. 551. Section 551(4)(a) defines “rule” as follows:

 

rule” means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing.

 

Section 804 excludes rules relating to agency organization (which clearly does not apply to the 2017 Net Neutrality Repeal Order), or decisions applicable to a specific individual or group of individuals (such as merger decisions) (again, clearly does not apply here), or specific tariff/rate making/wage setting proceedings (again, clearly not applicable here). It clearly is a “statement of general or particular applicability and future effect designed to implement, interpret or prescribe law or policy.”

 

Put another way, did the agency action require notice and comment? Is it governed by the Administrative Procedure Act? Congratulations! You have a “rule” for purposes of the CRA.

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How Popular Is Net Neutrality? Opponents Have to Hide They Are Campaigning Against It.

Nothing brings home the peculiar nature of “the D.C. Beltway Bubble” than listening to the local news station WTOP. Lets start with the fact that our local 24-hour news station is actually the most popular radio station in the D.C. market. It’s also fun when some incident around the White House or the Capital ends up sequentially on the national news, the local news, and the traffic report.

 

But what really sets D.C. apart is our advertisements. The political ads never stop. Particularly when a major vote is about to happen — such as the upcoming vote in the Senate on S. J. Res. 52, aka the “net neutrality CRA,” aka the repeal of the FCC’s net neutrality repeal. Today (May 9), Senator Markey will file the resolution to force the vote — which is expected to actually happen next week. So, naturally, we are getting all kinds of ads from broadband companies and their various associations (e.g., Broadband for America) trying to push the public to get their Senators to vote against the resolution.

 

The problem for the anti-net neutrality folks, however, is that network neutrality remains enormously popular with the general public. Which leaves these groups trying to rally the public with a problem. Die-hard anti-net neutrality folks like Rep. Marsha Blackburn may think “let ISPs discriminate so that your online experience can be more like going through a TSA security line before flying” is a selling point, people who actually sell stuff for a living recognize that “make your browsing experience like your airline experience with long waits and hidden fees” is kind of a loser.  So if you just advertise “The Senate is considering a resolution to restore the network neutrality rules the FCC repealed last December, call your Senator today and tell them to stand up for ISP freedom to throttle competitors charge new fees ‘innovate’!” — odds are good you will actually drive lots of people to call their Senator and tell them to vote for the resolution and restore net neutrality. (Which, btw, you can do here.) So how do you campaign against network neutrality without actually telling the public you are voting against restoring the net neutrality rules?

 

UPDATE: Jay Cassono has this piece in Medium providing details on a similar scam opposing net neutrality while pretending to be in favor.

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