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Why You Can’t Sue Your Broadband Monopoly

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Email updates on news, actions,and events in your area.DEEPLINKS BLOGShare ItEFF Legal Fellow Josh Srago co-wrote this blog postThe relationship between the federal judiciary and the executive agencies is a complex one. While Congress makes the laws, they can grant the agencies rulemaking authority to interpret the law. So long as the agency’s interpretation of any ambiguous language in the statute is reasonable, the courts will defer to the judgment of the agency.For broadband access, the courts have deferred to the Federal Communications Commission’s (FCC’s) judgment on the proper classification of broadband services twice in the last several years. In 2015, the Court deferred to the FCC when it classified broadband as Title II in the Open Internet Order. In 2017, it deferred again when broadband internet was reclassified as Title I in the Restoring Internet Freedom Order. A Title II service is subject to strict FCC oversight, rules, and regulations, but a Title I service is not.Classification of services isn’t the only place where the courts defer to the FCC’s authority. Two Supreme Court decisions – Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, LLP, and Credit Suisse Securities (USA) LLC v. Billing – have established the precedent that if an industry is overseen by an expert regulatory agency (such as broadband being overseen by the FCC) then the courts will defer to the agency’s judgment&nbsp;on competition policy because the agency has the particular and specific knowledge to make the best determination.In other words, civil antitrust law has to overcome multiple barriers in applying to broadband providers, potentially denying it as a remedy for monopolization for consumers. EFF's conducted an on this issue. For a summary, read on.What this creates is circular deferential reasoning. The FCC has the authority to determine whether or not broadband will be subject to strict oversight or subject to no oversight and the courts will defer to the FCC’s determination. If the service is subject to strict rules and regulations, then the FCC has the power to take action if a provider acts in an anti-competitive way. Courts will defer to the FCC’s enforcement powers to ensure that the market is regulated as it sees fit.However, if the FCC determines that the service should not be subject to the strict rules and regulations of Title II and a monopoly broadband provider acts in an anticompetitive way, the courts will still defer to the FCC’s determination as to whether the bad actor is doing something they should not. If the courts did otherwise, then their determination would be in direct conflict with the regulatory regime established by the FCC to ensure that the market is regulated as it sees fit.What this means is that individuals and municipalities are left without a legal pathway when a broadband service provider abuses its monopoly powers under our antitrust laws. A complaint can be filed with the FCC regarding the behavior, but how that complaint is handled is subject to the FCC’s decisions, not on whether the conduct is anti-competitive.The best path forward to resolve this is for Congress to pass legislation that overturns Trinko and Credit Suisse, ensuring that people, or representatives of people such as local governments, can protect their interests and aren’t being taken advantage of by incumbent monopoly broadband providers. But what will that world look like? EFF analyzed that question and theorized how things could improve for consumers. You can. As Congress debates reforming antitrust laws with a focus on Big Tech, there are a lot of downstream positive impacts that can stem from such reforms, namely in giving people the ability to sue their broadband monopolist and use the courts to bring in competition.Share ItIn response to the very real pressures that online news outlets are facing, Congress continues to believe the very flawed Journalism Competition and Preservation Act (JCPA) is a magic solution. It is not. In fact, it is actively dangerous. And there’s a available....In May, Senators Mike Lee, Amy Klobuchar, Ted Cruz, and Richard Blumenthal introduced the “.” The bill, also called the “Digital Advertising Act” or just “DAA” for short, is an ambitious attempt to regulate, and even break up, the biggest online advertising companies...Westlaw, the world’s largest legal research service, is very likely to face antitrust liability. A federal court has ruled that ROSS Intelligence, a tiny rival offering new research tools (which Westlaw forced out of business with a copyright infringement suit) could proceed with claims that Westlaw uses exclusionary and anticompetitive...In December, 2020, Apple did something insanely great. They changed how iOS, their mobile operating system, handled users’ privacy preferences, so that owners of iPhones and other iOS devices could indicate that they don’t want to be tracked by any of the apps on their devices. If they did, Apple...The California Senate Energy, Utilities, and Communications Committee will soon be the first to consider new and terrible amendments to Assemblymember Quirk-Silva’s A.B. 2749—which is backed by AT&amp;T and other telecommunications interests. The legislation would prohibit the state from implementing affordable broadband rules for broadband companies receiving state subsidies as...The state of California is primed to bring 21st-century fiber access at affordable rates to every Californian. Last year’s means every California community has the resources available to chart a long-term course toward building fiber networks. The Department...There is a lot to appreciate in the recently published “Notice of Funding Opportunity” (NOFO) by the Department of Commerce’s National Telecommunications Information Administration (NTIA). It is arguably the first federal government proposal that seeks to promote infrastructure policies focused on the future, rather than the usual subsidizing “good enough...Imagine if your boss made up hundreds of petty rules and refused to disclose them, but every week, your pay was docked based on how many of those rules you broke. When you’re an online creator and your “boss” is a giant social media platform, that’s exactly how your compensation...The European Union’s Digital Markets Act (DMA) is a proposal for bringing competition and fairness back to online platform markets. It just cleared a major hurdle on the way to becoming law in the EU as the European Parliament and the Council, representing the member states, reached a ...The European Union’s (DMA) allows new messaging services to demand interoperability (the ability to exchange messages) from the internet's largest messaging services (like WhatsApp, Facebook Messenger, and iMessage). Interoperability is an to promote competition and prevent monopolists from shutting down user-empowering innovation. But...Share It

Email updates on news, actions,and events in your area.DEEPLINKS BLOGShare ItEFF Legal Fellow Josh Srago co-wrote this blog postThe relationship between the federal judiciary and the executive agencies is a complex one. While Congress makes the laws, they can grant the agencies rulemaking authority to interpret the law. So long as the agency’s interpretation of any ambiguous language in the statute is reasonable, the courts will defer to the judgment of the agency.For broadband access, the courts have deferred to the Federal Communications Commission’s (FCC’s) judgment on the proper...

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Why You Can’t Sue Your Broadband Monopoly

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