Can municipalities enforce local Net Neutrality?

Jeff sez, "Instead of waiting for Congress to pass a bill to enforce Net Neutrality, net activists should take a cue from Pittsburgh, whose city council recently passed groundbreaking legislation banning fracking (an environmentally polluting form of natural gas drilling). While fracking and Net Neutrality have little in common, Pittsburgh's ordinance uses powerful legal concepts that may be useful for preserving Internet freedoms. Like Pittsburgh has done with fracking, any community can enact an ordinance that enforces Net Neutrality at the local level, as the Internet Freedom, Broadband Promotion, and Consumer Protection Act of 2011 aspires to do at the federal level. And, they can do so now ... without waiting for Congress. Firstly, the Pittsburgh ordinance enforces the right of communities to democratic self-governance. Second, the ordinance strips corporations of their Constitutional rights if they seek to engage in fracking. The organization that assisted Pittsburgh in drafting the ordinance explains how these ordinances are designed to work:"

The ordinance seeks to undo over a hundred years' worth of law in the United States which gives corporations greater rights than the communities in which they do business. Those rights come in two primary forms -- first are corporate constitutional rights and powers (including court-bestowed constitutional rights of persons, or 'personhood' rights), and second, are corporate rights that have been codified by statewide laws, which liberate the corporation from local control in individual issue areas.

When a community makes a decision which runs afoul of either of those corporate rights frameworks, corporate decisionmakers use the courts to throw out the community's decision. If a municipality bans a State-permitted activity, it gets sued for 'taking' the corporation's property as a constitutional violation. If it attempts to legislate in an area in which the State has created a regulatory program which permits the activity, the community then gets sued by the corporation for violating preemptive state law.

I admit I'm not entirely convinced by this approach. I've been talking it over in email with Thomas Linzey, counsel for the Community Environmental Legal Defense Fund in Spokane, Washington. He suggests that the legal principle here expand the rights of natural people, and that this is fundamentally different from a "states' rights" approach that gives rise to, say, segregation. In the case of Net Neutrality, this seems mostly symbolic (since the FCC's jurisdiction is pretty clear), a way of reframing the debate and shifting opinion to make change at levels beyond the local.

Why Wait for Congress? Enforce Net Neutrality through Local Law (Thanks, Jeff!)

• [Anonymous]

  The conflict here seems to be between “we should try to do something to fight evil” and “doing anything is useless because you can’t win everything”.

  I’ve never understood why nihilists don’t just commit suicide, and spare themselves the terrible burden of having to interact with people who are willing to make an effort to change their world.

• [Jeff Reifman]

  @smncameron – another important element of CELDF’s work is that these kinds of ordinances provoke conflicts between corporations and communities with clear framing – i.e. who gets to decide what happens where we live? the people who live here or multinational corporations known for polluting and externalizing resources owned by global shareholders?

  When Courts side with corporations / overriding community values … it tends to upset people and make them more active in their community. e.g. Citizens United.

  These kinds of ordinances tend to spell out the roles of corporatists and communities in a democracy in a clear way so that we can have a deeper discussion of values – and who should be able to decide?

• [Clifton]

  “Can municipalities enforce local Net Neutrality?”

  No. They can’t. This is really really stupid. “Those who do not learn from history class are doomed to repeat it.” Any energy spent in this direction is a complete waste of time, and the telecomm companies must be snickering up their sleeves over it.

  The battle over that exact point was held in the late 1990s, with the FCC arguing inter alia that it had pre-emptive authority over all telecomm-related laws in every U.S. jurisdiction*, it went all the way to the Supreme Court, and the “good guys” lost. National Cable & Telecommunications Association v. Brand X Internet Services

  The US Supreme Court ruled, effectively, that only the FCC could enforce telecommunications related laws, that the FCC had complete discretion in how or whether they enforced them, and that as a government agency they were entitled to use their judgement to the point of enforcing the exact opposite of what the language of the law passed by Congress said.

  That is why 90% of us in the US are getting Internet service from your cable company or phone company and not from a competitive ISP, even though the cable companies are clearly operating a telecommunications service within the plain language of the law. (Telecommunications Act of 1996)

  * That part isn’t mentioned in the Wikipedia summary, but the FCC had also used their power earlier in the same case to vacate a local ordinance requiring open access to cable Internet and the Federal courts had upheld that.

• [billstewart]

  Ack, what a mess – different mandatory policies for internet access in each community? I watched the cable TV industry grow up on a town-by-town basis, with governments handing out monopolies not based on how visionary the different companies were about the future of telecommunications, but more often based on whose brother-in-law got the street construction contracts and how many public access channels the city council got. In New Jersey, that meant the usual small-town corruption; when I moved to California, I got to watch San Franciscans complaining about their lousy cable service for decades, and my town didn’t get cable modems for about five years after the rest of Silicon Valley (and didn’t have the Sci-Fi channel until Firefly was gone), and when the Comcasts and Time-Warners and other national companies bought up the town-by-town infrastructures they found that many locations were incompatible technology and all they’d really gotten was a franchise and a mess of bailing wire and cold solder joints.

  If you’re a business that wanted to get fiber access so you could have fast redundant Internet access in Silicon Valley, good luck if you lived near some town boundaries and needed three separate sets of zoning boards to let you tear up one of their streets, even if you didn’t need to cross Highway 101 at one of the few conduit crossovers, and there were towns that wanted to tax the fiber providers based on a percentage of the communication service charges, not just the right-of-way and street repairs. And those cable companies owned a lot of fiber and right-of-way but weren’t allowed to sell it for telecom services, though if you needed CNN in your lobby they could install it next week.

• [bolamig]

  I am learning not to trust the legal strategies I read here.

• [Anonymous]

  “In the case of Net Neutrality, this seems mostly symbolic (since the FCC’s jurisdiction is pretty clear)”

  The FCC is on record in denial of their jurisdiction in this matter. Or, more precisely, at least the majority of the commissioners have cast clear doubt on this. Of course this provided the implicit answer to the obvious question “so who’s jurisdiction is it?”: by default it remains in the control of corporations.

• [LennStar]

  There is no institution worldwide that is able to make a law for the whole internet.
  The highest posible level are countries. There are about 200 of them. Some of them are smaller then any top-10 city. So why should such a city not pass a law about the net?

• [Anonymous]

  Unfortunately, the telecoms are ahead of us on this. They are already mobilized to shut down net neutrality. See what’s happened in North Carolina this week. I am sure they are furiously lobbying throughout the country.

• [smncameron]

  While the effort is noble, the legal principles the activists are trying to invoke are nothing short of laughable.

  We do not give communities a line-item veto on the constitution, and for very good reason. As ridiculous as I find the idea of corporate personhood, the courts have ruled the corporations are indeed, persons. Do you really want to give municipalities the power to revoke personhood?

  • [AnthonyC]

    There is no item in the constitution which mentions corporate personhood, or corporations at all.

    Corporate personhood is a legal fiction: it arose purely through case law, because there wasn’t adequate law to settle legal questions with regard to corporations and legal disputes involving them.

    Legal fictions are a way to use existing rules to settle new questions that they weren’t intended to settle. At the very least *Congress* definitely has the power to revoke corporate personhood and define, specifically, the legal status of corporations. If they choose to. The only question is whether cities and states can do the same.
    States probably can, at least for corporations incorporated in that state, or which operate only in one state. They may also be able to regulate corporate personhood for the activities any corporation takes entirely within their borders.

    If SCOTUS disagrees, well, they’re sorely mistaken. If that was how law worked, then we’d still have people (in the UK) inventing fictional tenants to evict squatters, and pretending to owe a debt to the King to get their case heard faster.

    • [Anonymous]

      I don’t get corporate personhood. In effect, it means that one person is allowed to have multiple voices, or persons. You’re your own person, then you also exercise personhood through as many corporations as you own. That’s bizarre. It strikes me as violating equal-protection clauses. Can a corporation buy a gun? Can a corporation use that gun to kill someone? Can a corporation be imprisoned? If you bankrupt or otherwise shut down a corporation, are you a murderer?

• [Jeff Reifman]

  smncameron – Pittsburgh’s city council did just that – unanimously – they revoked the personhood rights of corporations. Read the ordinance http://www.celdf.org/downloads/Ordinance%20-%20Pittsburgh%20Protection%20from%20Gas%20Drilling.pdf

  I’d ask instead, do we really want to allow corporations to frack, poisoning our aquifers and leading to radioactive drinking water … not exaggerating …
  http://www.treehugger.com/files/2011/02/new-york-times-epa-fracking.php

  “The New York Times has published an explosive article in its Sunday edition that features unreleased government documents that show levels of radiation in drinking water in some places are significantly higher than previously recognized due to drilling for natural gas.”

• [Jeff Reifman]

  CELDF’s Executive Director Thomas Linzey will be in Seattle teaching an upcoming Democracy School June 17th – 18th (fri eve & Sat all day). If you are interested, you can learn more at http://peoplefirst.us

• [yrarbil cilbup]

  Don’t you think its time we reversed this curse of super korporate rights, or fascism as it is better known.

  The founding fathers made sure to outlaw giving korps personhood, then that hack lawyer Lincoln slipped it back and it has been downhill ever since.

  Either that or get used to that boot in your face.

• [Jardine]

  The corporations will drag them through the court system. Who has more money they’re willing to spend on this: Walla Walla or Comcast?

• [rjmccall]

  This is just decentralized government policy. It is not fundamentally different at all from “states’ rights”, except that you associate that term with specific state policies that you (rightfully) disapprove of. But of course you don’t actually care about decentralizing government policy — like most people, you want policy to be made by the largest level of government that’s likely to enact your personal preferences.

  Anyway. Just because the fundamental civil rights of entire classes of people shouldn’t be left to local governments to decide doesn’t mean that nothing should be.

• [smncameron]

  @Jeff Reifman
  They are neither the first, nor will they be the last, government to pass a statute that is unconstitutional. This means nothing unless it is upheld by the courts.

  And my stance is not for inaction. It is for different action. Surely you can understand that granting municipalities to ignore the constitution is not in our collective interest.

  Also – why do we have a constitution except to constrain the actions of elected governments? The notion that because you represent a group of people your actions should not be limited by the courts is hilarious.

• [Jeff Reifman]

  @smncameron – not sure I care what the Alito, Roberts, Scalia SCOTUS thinks of anything. SCOTUS tends to trail popular sentiment by about 50 years. These kinds of statutes push for change for rights for communities … I’m all for that.