Judge Mendez’s ruling is not surprising in that the telecom industry had no real argument and the Trump administration’s argument was so vacuous the only reason it was being made was because Donald Trump was president of the United States. Ajit Pai’s dismantling of net neutrality protections for Americans included saying that the FCC had no power to enforce or stop anything around telecoms. Suddenly arguing that the FCC and the Trump administration had the power to step all over state’s rights to regulate themselves was a special kind of cow pie only developed by conservatives. On Tuesday, only the telecom industry was present, as Biden’s DOJ has dropped the case entirely.
According to the Hollywood Reporter, Judge Mendez’s questions for telecom lawyers made it clear he wasn’t buying what they were selling. Mendez brought up the California wildfires and specifically Verizon’s infamous attempt at throttling the Santa Clara County Fire Department’s service. “Throttling” is the term used when internet service providers (ISPs) like Verizon slow down one’s service, saying that a consumer must pay more for more data usage. It’s a practice, when unregulated, seems to include “unlimited data” plans. Go figure.
Like every conservative giveaway to the wealthiest and most powerful in our society, the promises made—that Americans would feel the trickling of wealth all over their lives—have not appeared. Broadband investment and expansion has slowed down, not gone up, as CEOs and shareholders have pocketed bigger profits, paid less taxes, and waited for the government to force their hands to do something in service of the country in the future. Even as our country and the planet earth began to fall under the (hopefully) once in a hundred years global pandemic, the FCC sans any power of enforcement, had to scramble to get ISPs to do what net neutrality laws stipulate they must do.
California’s SB-822 has been considered more of a gold standard for net neutrality because not only does it prohibit ISPs from blocking or throttling lawful internet traffic, it prohibits ISPs from charging fees to prioritize or deliver websites or other online services, which means Verizon or AT&T cannot force your small business to have to pay some fee in order to have your website accessible to the public. Another important regulation in the California law is banning the practice of “zero-rating.” This is when an ISP exempts certain services (i.e. applications or programming) from “data caps.” AT&T owns Direct TV, they can—and many ISPs try to do—say that any data use by Direct TV will not count against your bill. The telecom industry has tried to pretend this is just “free data,” being given to consumers, but all evidence and studies say the opposite. People in countries that allow zero-rating practices pay a lot more for internet services than ones that do not.
Judge Mendez, who was appointed by George W. Bush, made a very important point during his decision, saying “This decision today is a legal decision and shouldn’t be viewed in the political lens. I’m not expressing anything on the soundness of the policy. That might better be resolved by Congress than by federal courts.” Congress needs to pass a federal net neutrality law that protects every consumer across the country. Biden’s FCC can do many things but a law of the land would be a much better solution.