Mozilla, Consumer Groups Sue The FCC For Its Attack On Net Neutrality

from the litigation-nation dept

Mozilla and several consumer groups say they'll be joining 22 state Attorneys General in suing the FCC for its net neutrality repeal. While procedure dictates that lawsuits can't be filed until after the FCC's "Restoring Internet Freedom" order is posted to the federal register (which hasn't happened yet), Mozilla notes that it petitioned the United States Court of Appeals (pdf) out of an abundance of caution, kickstarting the process to determine which court will finally hear the case:

"As a process note, the FCC decision made it clear that suits should be filed 10 days after it is published in the Federal Register, which has not yet occurred. However, federal law is more ambiguous. Due to the importance of this issue, even though we believe the filing date should be later, we filed in the event a court determines the appropriate date is today. The FCC or a court may accept this order or require us and others to refile at a later date. In fact, we’re urging them to use the later date. In either instance, we will continue to challenge the order in the courts."

Mozilla's lawsuit was filed the same day as coordinating lawsuits from consumer groups like Public Knowledge and Free Press. In a statement of its own, Public Knowledge notes it similarly filed its petition early as a preliminary and protective legal move:

"While we believe that under the best reading of the rules the FCC's Order is not ripe for challenge until it is published in the Federal Register, in the past the judicial lottery -- which determines which appellate court will hear a challenge to an FCC action -- has been run based on premature petitions. Thus, to protect our rights, we have filed today.

In other words, this is a purely procedural move, and we would not object if all early-filed petitions were held in abeyance by the FCC and the lottery is conducted based only on challenges filed after Federal Register publication. Of course, we will file to challenge the FCC at that time, as well."

The Open Technology Institute also says it also filed its own lawsuit against the FCC early, hoping to ensure a favorable court selection during the Panel on Multidistrict Litigation (MDL) lottery. All told, four of the net neutrality lawsuits were filed in the United States Court of Appeals for the District of Columbia Circuit, while the Free Press lawsuit was filed in the United States Court of Appeals for the First Circuit.

This is just the opening salvo in what will be a long-standing legal standoff between people who'd prefer the internet remain healthy and competitive, and ISPs eager to abuse a lack of competition in the broadband last mile to their own, additionally anti-competitive advantage. All of the lawsuits will attempt to prove that the FCC violated the Administrative Procedure Act by engaging in an "arbitrary and capricious" reversal of extremely popular policy without proving that the broadband market changed dramatically enough in just two years to warrant it.

As we've noted previously, the lawsuits will also focus on how the FCC turned a blind eye to identity theft and comment fraud during the FCC's open comment period, and efforts by some group or individual to try and downplay the massive public opposition to the FCC's handout to the telecom sector. Expect more details on the origins (and potentially funding) of these efforts as the legal fight moves forward over the coming months and years. Though some ISPs surely won't be able to help themselves, expect ISPs to try and remain on their best behavior for a while to avoid undermining their arguments in court.

Should they win in court however, it can't be understated how the attack on net neutrality is just one small part of an over-arching ISP lobbying effort to remove nearly all meaningful state and federal oversight of some of the least-liked, least-competitive companies in America. That involves efforts to pass loophole-filled fake net neutrality laws with one goal: preventing tough, real rules from being passed down the road by a less Comcastic Congress or FCC.

Filed Under: fcc, lawsuit, net neutrality
Companies: free press, mozilla, open technology institute, public knowledge

Senate Push To Save Net Neutrality Needs Just One Vote, But You Still Shouldn't Get Your Hopes Up

from the reverse-the-reversal dept

A Congressional effort to reverse the FCC's attack on net neutrality needs just one vote to move forward, but still faces a very steep uphill climb toward success. Fifty senators have endorsed a legislative measure to use the Congressional Review Act to reverse the FCC's repeal of the rules. The CRA can be used to reverse any regulatory action with a majority vote in Congress, provided the vote occurs within 60 days of the regulatory action in question. With 49 Democrats and one Republican (Maine's Susan Collins) now supporting the effort, it needs just one Republican vote to forward, notes Senator Ed Markey:

"Momentum is building,” Sen. Ed Markey (D-MA) told reporters at a Boston press conference on Tuesday. "There will be a vote on the floor of the U.S. Senate to restore net neutrality as the law of the land,” Markey said. Under the Congressional Review Act it takes just 30 votes to bring a resolution to a vote and there would be a “price to pay” for lawmakers to side with the FCC. “Access to a free and open internet is and should be a 21st right—net neutrality forms the foundation of both our democracy and our economy."

The chance of this gambit's success have been consistently and routinely over-hyped by the well intentioned. Should the effort pass the Senate it still needs to secure floor time and win a vote in the House, where lawmakers like Marsha Blackburn have pretty routinely made protecting AT&T, Verizon and Comcast revenues their very top priority. Pennsylvania Representative Mike Doyle issued a statement listing the supporters currently signed on in the House, though that support remains well short of the threshold needed to run the gauntlet of ISP-beholden lawmakers there:

"We’ve made good progress so far in getting Members to sign on as original cosponsors of our bill to restore Net Neutrality, and I will continue to seek additional cosponsors in the weeks ahead,” Congressman Doyle said today in releasing the list of names. “There’s overwhelming public support for preserving Net Neutrality, so it’s no surprise that there’s strong support in Congress as well. I’m confident that if there’s enough public pressure, Congress will overturn the FCC’s order killing net neutrality."

Unlike the Senate, there's no rule that lets a minority of members force a vote, meaning even getting floor time could prove problematic. House supporters could use a discharge petition to bring a vote, but it would require a majority of members (218) to force a vote on the issue. Given this is the same House where members of both parties consistently trip over themselves to give sloppy kisses to AT&T, Verizon and Comcast, this could prove a tall order. Expectations should be in line with this reality.

If the effort gets through the House it would still need the signature of President Donald Trump. Activists I've talked to hope that should it get past Congress, Trump's tendency to bend whichever way the "populist" wind is blowing could get him to sign off on the proposal. But giving such a notable middle finger to his own FCC would be uncharacteristic given all the ISP money being spent on gutting all meaningful state and federal oversight of incumbent ISPs, and there will be plenty of well-funded pressure to ensure that doesn't happen.

While success here has long odds (though this shouldn't discourage you from contacting your lawmaker anyway), the gambit does have the practical purpose of forcing AT&T, Verizon and Comcast's lackeys in both houses to put their disdain for the public down on the public record. That's going to prove particularly useful during the looming midterms, where net neutrality is very quickly becoming a wedge issue. That's especially true among Millennial voters, who seem to have a more innate understanding of why letting Comcast run amok isn't a particularly great idea.

The entire effort again highlights the stupidity of viewing net neutrality through a partisan lens. Despite a healthy, competitive internet being in everybody's best interest, ISPs have spent fifteen years successfully framing net neutrality as a partisan issue to help sow dissent and stall progress on meaningful rules. Survey after survey however have indicated that the concept has broad, bipartisan support among the public at large. Anger at being ignored will drive voter turnout, and lawmakers (as well as Ajit Pai, whose post-FCC political ambitions couldn't be clearer) are going to figure that out the hard way.

All of that said, there's still plenty of ways to bring net neutrality back to the table should this effort fail. While it will take a while, the looming lawsuits have a solid chance at reversing the FCC's repeal given the FCC's numerous procedural and ethical missteps. A massive shakeup in Congress could also finally drive support for a real net neutrality law down the road, provided ISPs aren't successful in passing their own, entirely bogus legislation first.

Filed Under: congress, fcc, house, net neutrality, senate