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January 17, 2018 Comments closed

Over 20 State Attorneys General Sue the FCC over Net Neutrality

in Hashing Out Cyber Security

The opening salvo of what will likely be a long court battle has been fired.

More than 20 state Attorneys General have filed a lawsuit to stop the Federal Communications Commission’s decision to rescind the Obama-era Net Neutrality rules on Tuesday.

“The repeal of net neutrality would turn internet service providers into gatekeepers — allowing them to put profits over consumers while controlling what we see, what we do, and what we say online,” New York Attorney General Eric Schneiderman said in a statement announcing the lawsuit.

Net Neutrality was an Obama-era regulation approved in 2015. It requires all internet service providers (companies like AT&T, Verizon, and Comcast) to treat all content the same. It specifically bars acts of favoritism towards the companies’ own content as well as creating internet fast lanes to popular websites. It was created with internet users in mind and it helps small businesses to compete with larger ones by virtue of giving their content an equal footing. Obviously, there’s still SEO and marketing budgets to contend with, but the premise was that the internet should be fair and open.

Last month the Republican-led FCC voted down party lines, 3-2, eliminating the rules and opening the doors for ISPs to have greater control of the internet. The entire thing was pitched as a way to stop the federal government from micromanaging the internet.

The repeal has made waves around the internet and the political sphere. Senator Ed Markey of Massachusetts claims to have cobbled together support from 50 senators (just one shy of the number needed to pass) on legislation that would overturn the FCC’s decision. That legislation would also have to pass the House and be signed into law by President Donald Trump, who has supported the FCC’s repeal efforts.

Some states, such as New York, Washington, and Massachusetts are also debating laws that would enforce the principles of net neutrality within their own borders.

As for the lawsuit from State Attorneys General, this looks to be just the opening salvo of what will undoubtedly be a long and drawn out litigious process.

“The repeal of net neutrality is being waged on different fronts, one of which is the lawsuit filed by the attorneys general of 21 different states alleging that the FCC’s actions were “arbitrary and capricious” and therefore their actions were illegal,” said Steve Weisman, a lawyer and college professor who teaches Media Law at Bentley University. “Lawsuits challenging regulations on this ground are not often successful, but it is impossible to determine how a court would rule and there is a precedent for the arguments of the attorneys general.

“While the Supreme Court in the case of Perez v. Mortgage Bankers Association in 2015 removed greater procedural requirements when a federal changed its prior interpretation of federal regulations,  the court did say that the law “requires an agency to provide more substantial justification when its new policy rests upon factual findings that contradict those which underlay its prior policy” and that not to do so, which could well be argued here, would constitute arbitrary and capricious action that could lead to the new regulations being rescinded.”

Even if this case does go anywhere, don’t look for it to happen quickly.

“It is unlikely that an Appeals Court would rule on this within a year and an appeal to the Supreme Court, assuming the court chose to exercise jurisdiction would take even longer,” said Weisman.

• #Net Neutrality