Section III Federalism
If you’re wondering why the FCC is preempting state consumer protection laws in this item without notice, let me help you with a simple jingle that you can easily commit to memory: If it benefits industry, preemption is good; if it benefits consumers, preemption is bad.
How else can we explain the now-majority’s loud dissent when the last Administration attempted to open markets through preemption of laws that unduly restricted municipal broadband? How is it that the now-majority was shocked that state’s rights were being countermanded when it came to creating the Lifeline Broadband Provider certification process? But when it comes to ensuring that states cannot enact broadband privacy protections, net neutrality protections, or other consumer protections, it somehow becomes urgent for the FCC majority to step in and preempt states from doing so.
Just how much notice was given for this state preemption position from a then minority that cried process fouls every other meeting? None. This is contrary to the Administrative Procedure Act, and a Reagan-era Executive Order that requires “notice and an opportunity for appropriate participation in the proceedings” whenever federalism issues are presented. It is unfortunate that the FCC majority was vocal and vociferous about their request for adequate notice, but those concerns seem to have now fallen by the wayside.
But industry rightly should have been concerned because when the FCC has refused to act in the past, states and localities often move on their own. Just look at issues like broadband privacy or contribution reform, where states are soldiering ahead where the federal government is unwilling to act. I expect that the FCC’s preemption actions here will be challenged, and doubt that they will be defensible.
Reclassification will do more than wreak havoc on our rules. It will also undermine our universal service construct for years to come, something which the Order implicitly acknowledges.
Right now, we have a universal service framework which allows us to support voice service, and requires these voice service providers to deploy broadband-capable facilities. The 10th Circuit has upheld this as reasonable. But as legacy voice goes the way of the dodo, we no longer have a supported telecommunications service, something that sections 214 and 254 of the Act require. And heaven forbid a disgruntled auction loser in our Connect America Fund or Mobility Fund auctions challenges the results because the auction winner is not deploying a telecommunications service. Mark my words, as our communications networks continue to transition away from legacy voice service and towards services which the Commission refuses to recognize as common carrier services, our universal service construct will become weaker. As legacy voice continues to shrink, so does the foundation of our universal service mechanism. Eventually, it will all come toppling down.
This impending implosion cannot be made clearer than in the Lifeline context. In 2016, the Commission boldly moved into the 21st century with a certification construct that would have allowed broadband-only Lifeline service. Unfortunately, in 2017, we have a FCC majority that refuses to use that construct to allow providers into the program, and has in fact proposed to use its legal authority to limit participation to facilities-based providers. This Order reaffirms that path, and suggests that the majority is not moving from its conclusion that over 70% of the market for Lifeline will be decimated under this Commission’s watch. The majority continues to remain silent as to how we can enable a broadband-only Lifeline offering. I suspect there will be none which puts this agency out of compliance with its primary directive “to make available, so far as possible, to all the people of the United States, without discrimination… adequate facilities at reasonable charges.”
As I close my eulogy of our 2015 net neutrality rules, carefully crafted rules that struck an appropriate balance in providing consumer protections and enabling opportunities and investment, I take ironic comfort in the words of then Commissioner Pai from 2015, because I believe this will ring true about this Destroying Internet Freedom Order:
I am optimistic, that we will look back on today’s vote as an aberration, a temporary deviation from the bipartisan path, that has served us so well. I don’t know whether this plan will be vacated by a court, reversed by Congress, or overturned by a future Commission. But I do believe that its days are numbered.
Amen to that, Mr. Chairman. Amen to that.