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Multiple challengers take on the FCC’s net neutrality repeal

22 attorneys general take on the FCC's net neutrality repeal

Mark Jansen
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After months of speculation and widespread protests, the FCC officially repealed net neutrality on December 14. The reaction was immediate, with industry bigwigs and influencers alike taking to the internet to express their views. Nothing may have changed yet, but regardless of which side you took in the battle, it’s likely the repeal will force big change in the internet — leading some to fear an end to the open internet we’ve come to know, and others believing just the opposite.

But it’s not over yet. Moments after the Restoring Internet Freedom declaratory ruling was passed by the FCC, a handful of individual states rose to challenge the decision, led by noteworthy supporters of the net neutrality bill. These challenges range from legal challenges by state attorneys general to lawmakers in California and Washington pledging to propose net neutrality-style laws for their own states.

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The legal challenge from New York State Attorney General Eric Schneiderman comes after his own investigation into allegedly faked comments left by a bot during the FCC’s public feedback process. This bot posted thousands of identical messages, using the names of thousands of unaware Americans — an act Schneiderman claims would have given the FCC a false impression of the popularity of the repeal. His open letter to the FCC was joined by attorneys general from 18 states, and it’s fairly safe to assume at least a few of those states will sign on to Schneiderman’s lawsuit against the FCC.

Two months after Schneidermann issued his challenge, the legal fight began in earnest on Tuesday, January 16. Now joined by 21 other state attorneys general (bringing the total to 22), Schneidermann is challenging the repeal on the grounds that it broke federal law. Calling it “arbitrary and capricious”, Schneidermann hopes to prove that by repealing net neutrality, the FCC has reversed its policy of preventing internet providers from blocking websites or charging for faster loading times, and essentially handed the companies the chance to become gatekeepers to the internet.

Another challenging the legality of the repeal is Washington Attorney General Bob Ferguson; an official news release on Dec. 14 stated his intention to challenge the ruling. Claiming the repeal violates the Administrative Procedure Act, Ferguson is following the line set by Washington Governer Jay Inslee, who announced before the vote that Washington would be looking to introduce regulations to protect consumers in its state.

California State Senator Scott Weiner, a democrat, is also looking to introduce new regulations. Shortly after the vote, Weiner wrote on Medium that he would introduce legislation to mimic net neutrality in his state. Scott echoed the fears of many opponents of the repeal, stating “providers are now free to manipulate web traffic on their networks, which means they can speed or slow traffic to certain sites and even block access” — fears that were exacerbated in November when Comcast retracted part of its open internet pledge, and in July when Verizon was accused of throttling video services as a “test.”

Firefox creator Mozilla has also announced that it has filed a lawsuit against the FCC, joining Schneidermann and the Free Press association, which announced its lawsuit back in December.

Perhaps the largest foe of the repeal is the entire Democratic party. The Democrats have been staunch supporters of net neutrality — which makes sense, since they put it in place. The Hill reports that the Senate Minority Leader Charles Schumer is planning on using the Congressional Review Act (CRA) to reverse the FCC’s decision. The CRA was extensively used by Republicans to roll back a lot of later Obama-era legislation at the start of the year, so it’s ironic for the Democrats to now use that same tactic against the Republicans.

The FCC’s vote clearly wasn’t the end for the fight for the internet — and the battle for net neutrality is only just beginning.

Update: The legal challenge has begun as Schneidermann takes on the repeal, claiming it broke federal laws. Also added details on the legal challenge by Mozilla and the Free Press.

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“Under the Constitution, states do not regulate interstate commerce -- the federal government does," Attorney General Jeff Sessions said in a statement denouncing California's bill. "Once again the California legislature has enacted an extreme and illegal state law attempting to frustrate federal policy. The Justice Department should not have to spend valuable time and resources to file this suit today, but we have a duty to defend the prerogatives of the federal government and protect our Constitutional order.  We will do so with vigor. We are confident that we will prevail in this case -- because the facts are on our side.”

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California is closer than ever to restoring net neutrality. A bill to bring ease back into the hearts of California web surfers, SB-822, sailed through the state's legislative bodies and is now heading to the governor's desk for a signature.
Jerry Brown, who is a Democrat, has not said whether he intends to sign the bill — but Brown rarely comments on legislation before it arrives at his desk. By state law, the governor has 30 days to act on the legislation.
A bill enacting net neutrality protection would have important ramifications for the United States, since the U.S. Senate voted to reverse a Federal Communications Commission (FCC) decision to kill national net neutrality rules set in place under the Obama administration. The Congressional Review Act seeks to overturn the December 2017 decision, but it still must go through the House of Representatives. Meanwhile, the FCC's quest to "restore internet freedom" is still slated to go live in June. 
California's bill aims to set net neutrality rules on a state level. The bill prohibits internet service providers from offering different quality of service levels outside specific conditions. It allows the state's Attorney General to investigate and take action against those service providers in violation of the prohibitions. 
According to Section 1776 of the bill, internet service providers cannot block lawful content, applications, services, or non-harmful devices. Providers also cannot alter internet connections between devices and "lawful" sources, which would prevent throttling and paid fast lanes for specific media. The list goes on to include the ban of third-party paid prioritization, application-specific differential pricing, and more. 
Without rules, an internet service provider offering its own video streaming service could relegate Netflix and Hulu to "slow" lanes even if they provide better content. This bill, if passed, would prevent that type of prioritization. It would also prevent service providers from picking and choosing services that don't count toward the customer's data consumption. 
"Large ISPs such as AT&T don’t like this bill. They’ve mustered a series of absurd arguments that have been repeatedly rebutted. And yet, they came very close to convincing lawmakers to weaken the bill in their favor," the Electronic Frontier Foundation (EFF) said on Wednesday. 
Internet service providers like AT&T and Comcast don't want net neutrality reinforced because the rules will "cut into their bottom line." In other words, they won't be able to charge extra for prioritization stemming from faster lanes, unfiltered content, and throttle-free connections. Their argument, according to the EFF, is that if they can't generate revenue from those streams, internet subscription prices may rise. 
An argument can be made that internet service providers didn't practice content filtering, throttling, or paid fast lane access prior to the net neutrality rules. Many providers claim they won't change once the rules cease in June. But given how intensely they lobby against California's new bill and the effort to reverse the FCC's decision, activists can't help but worry about an internet without net neutrality. 
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Updated on 9/01/2018: Updated with news that the bill had passed both legislative chambers and is awaiting Brown's signature. 

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