States, Localities Deride 'Post Hoc' Public-Safety Defense of FCC Net Neutrality Pre-Emption
State and local challengers to FCC net neutrality pre-emption said responses of the commission and its defenders "erroneously dismiss the record evidence of potential harm to the public -- from consumer protection to public safety to government services -- as…
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sufficiently addressed by market forces." The "post hoc argument that market forces may protect public safety was not presented in the Order and cannot cure the Commission’s failure to fulfill its statutory duty to consider public safety," replied (in Pacer) officials of California's Santa Clara County and the state Public Utilities Commission, New York State's attorney general and others to the U.S. Court of Appeals for the D.C. Circuit Friday in Mozilla v. FCC, No. 18-1051. They disputed arguments the order's "sweeping preemption provisions" were authorized by FCC broadband jurisdiction, saying the commission "must instead identify affirmative statutory authority for preemption, which it has failed to do." The FCC "may not rely on conflict preemption as a source of regulatory authority, and its views on the matter are premature and invalid," they said. Intervenor Digital Justice Foundation replied (in Pacer) that it's not procedurally barred from challenging the order's "arbitrary-and-capricious transparency rule," saying the FCC didn't respond to the substance of its arguments. Others replied earlier (see 1811160051).