State attorneys general line up to sue FCC over net neutrality repeal

Enlarge/ Demonstrators rally outside the Federal Communication Commission building in Washington, DC, to protest the end of net neutrality rules on December 14, 2017.Getty Images | Chip Somodevilla

Attorneys general from "across the country" will sue the Federal Communications Commission in an attempt to reverse today's repeal of net neutrality rules.

"Today, I am announcing my intention to file a legal challenge to the FCC's decision to roll back net neutrality, along with attorneys general across the country," Washington State Attorney General Bob Ferguson said. "We will be filing a petition for review in the coming days. Allowing Internet service providers to discriminate based on content undermines a free and open Internet. Today's action will seriously harm consumers, innovation, and small businesses."

New York Attorney General Eric Schneiderman is leading the multi-state effort.

"The FCC's vote to rip apart net neutrality is a blow to New York consumers and to everyone who cares about a free and open Internet," Schneiderman said. "The FCC just gave Big Telecom an early Christmas present, by giving Internet service providers yet another way to put corporate profits over consumers. Today's rollback will give ISPs new ways to control what we see, what we do, and what we say online. That's a threat to the free exchange of ideas that's made the Internet a valuable asset in our democratic process."

Bans on blocking and throttling repealed

The FCC today eliminated rules that prohibit ISPs from blocking or throttling Internet traffic. The commission also eliminated a rule that prohibits charging websites for priority access over home and mobile Internet services.

The rollback "would enable ISPs to charge consumers more to access sites like Facebook and Twitter and give them the leverage to degrade high quality of video streaming until and unless somebody pays them more money," Schneiderman said.

It's not clear which other states will be involved in the lawsuit. We've asked Schneiderman's and Ferguson's offices that question and will update this story if we get an answer.

Officials from Santa Clara, California, reportedly plan to sue the FCC over the repeal as well. Ultimately, it's likely that multiple lawsuits will end up being consolidated into one.

Nineteen attorneys general including Schneiderman and Ferguson previously called upon the FCC to delay its net neutrality vote because of fraud and impersonation in the public comments submitted to the FCC's net neutrality repeal docket.

Schneiderman has been investigating that fraud for six months, but the FCC has refused to provide evidence for the investigation. That could play a role in the appeal, but the lawsuit is likely to challenge the FCC on several points.

Most notably for state governments, FCC Chairman Ajit Pai is claiming the authority to preempt state and local governments from enacting their own net neutrality rules.

If the preemption is successful, states would not be able to impose bans on blocking, throttling, and paid prioritization. They wouldn't be able to require ISPs to be more transparent with customers about hidden fees and the consequences of exceeding data caps. While the FCC is maintaining some disclosure rules that require notifying customers about network management practices, states would not be able to impose their own rules that go beyond the FCC's disclosure requirements.

The attorneys general will likely argue that the FCC doesn't have authority to preempt those types of consumer protection rules. The FCC's preemption powers aren't unlimited, as the commission found last year when judges reversed an FCC decision that preempted state-level restrictions on municipal broadband networks.

Pai's FCC also failed to ask the public for input on preempting state rules before issuing the decision. The FCC's Notice of Proposed Rulemaking that led to today's repeal asked the public for comment on the repeal itself, but not on the question of preempting local regulations. State attorneys general could argue that this violates federal administrative procedure rules.

One California state senator today said he will introduce a bill to impose net neutrality rules in California. That's the kind of state law Pai is trying to prevent with the preemption clauses in the net neutrality repeal order.

The FCC could also face lawsuits from consumer advocacy groups and industry consortiums that represent companies that could be harmed by the repeal.

"This rulemaking has been full of procedural missteps, too, from the agency's failure to provide proper explanation and notice of its legal theories, or proper recognition for the complaints it received under the 2015 rules, to its widely publicized failure to accept real public input and clean up fraud in its systems for doing so," Free Press Policy Director Matt Wood said today.

Courts have generally given broad deference to FCC decisions about whether broadband should be classified as "telecommunications," the key legal question in the repeal. Pai's FCC will argue that the same deference should apply here, while lawsuit filers will say that the FCC made mistakes in the repeal process.

"We'll have plenty to say in court about the legal mistakes littered throughout this decision," Wood also said. "It's willfully gullible and downright deceptive to suggest that nondiscrimination rules are no longer needed—despite the massive power of the cable and phone companies that control broadband access in this country."

The fight moves to Congress, too

The FCC's repeal takes effect 60 days after publication in the Federal Register. Federal Register publication doesn't happen immediately. In 2015, when the current net neutrality rules were imposed, publication occurred more than six weeks after the FCC vote.

Litigants will probably file lawsuits even before the Federal Register publication, just to make sure they don't miss a deadline, thanks to a somewhat convoluted process described in this Gizmodo article.

Congressional Democrats plan to file legislation that would reverse the repeal and reinstate the rules. Although some Republican lawmakers objected to today's FCC vote, legislation to reinstate the rules entirely has little chance of success in the Republican-controlled Congress.

"We will fight the FCC's decisions in the courts, and we will fight [them] in the halls of Congress," Sen. Ed Markey (D-Mass.) said upon announcing the legislation. "Our Republican colleagues have a choice—be on the right side of history and stand with the American people who support net neutrality or hold hands with the big cable and broadband companies who only want to supercharge their profits at the expense of consumers and our economy."

Markey said his legislation will be filed upon the repeal's publication in the Federal Register.

Instead of restoring the same net neutrality rules that were repealed, Republican lawmakers will likely propose a new, weaker set of rules. Republicans have previously submitted several proposals that would strip the FCC of regulatory authority the commission can use to protect Internet users from ISPs.

"Now that the FCC has acted to reverse an ill-conceived regulatory scheme, Congress must take the lead in setting a clear path forward through bipartisan legislation to avoid the risk of regulatory back and forth," Sen. John Thune (R-S.D.) said today. "As I did before the Obama administration first put its rules into place in 2015, I favor Congress enacting net neutrality protections and establishing sensible limits on the power of regulators. I call on Democrats and Republicans who want to preserve a free and open Internet to work together on permanent consumer protections."

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