Net Neutrality logo on gavel

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Can states save net neutrality?

States are teaming up to take on the FCC.

 

Brenden Gallagher

Tech

Published Dec 18, 2017   Updated Jan 27, 2021, 11:59 pm CST

The internet is reeling following Thursday’s 3-2 vote along party lines to end net neutrality. The decision is not at all unexpected, as FCC chairman Ajit Pai had proclaimed his intention to do away with it for months. In addition to mourning the loss of a free and open internet, people are asking what possible actions can be taken in hopes of turning back to the tide of a corporation-dominated online world. One possible path to savingf it is through the courts.

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But, how likely is it that lawsuits could have a meaningful impact?

As of Friday morning, nineteen state attorneys general, led by New York AG Eric Schneiderman, have come out with scathing indictments of the FCC’s decision. A number of them announced that they intend to file lawsuits against the government commission.

Washington State attorney general Bob Ferguson’s statement reflects the position of the various states opposed to the ruling: “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 … 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.”

So far, the exact details of the case against the FCC are unclear. However, there are a number of approaches that have been floated by various AGs that could make their way into a suit. The speculation is that once states coalesce around a strategy, they will combine their case into one suit and push back as hard as they can against the FCC.

There are some compelling aspects to the cases these states could make. However, each approach comes with caveats that make a wholesale reversal of the FCC decision unlikely. Even so, there are potential opportunities to chip away at Pai’s new policy.

In the run-up to the vote, it was widely known that millions of bots were leaving public comment against net neutrality. A number of people found profiles created using their information to post comments. This created the illusion that the wildly unpopular move to repeal net neutrality laws actually had support.

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When New York AG Schneiderman attempted to investigate the use of bots, he says he was “stonewalled” by the FCC. Unfortunately, public comment doesn’t officially impact the FCC ruling. To commission is merely obligated to take comments under advisement. Unless it is proven that the bots were ordered by Pai or another FCC associate, it’s hard to imagine this would invalidate the decision.

As FCC Commissioner Michael O’Reilly put it, “…the fact of the matter is that fake comments are not unique to this proceeding and had no impact on the substance or propriety of the decision.”

Ajit Pai has also claimed that he has the authority to preempt state and local governments from making their own net neutrality laws. This preemption would not only apply to laws around net neutrality but also to internet privacy. There is an argument to be made that such preemptions constitute federal government overreach, and could provide the foundation for the suits. Federal preemptions tend to hold up in court. For example, earlier this year the FCC overruled state classifications of broadband. The exception, an attempt to stop municipalities from setting up their own broadband, gives states some hope. Already having won at least one victory against preemption, state and local governments could try for some more victories. This wouldn’t put an end to Pai’s plans, but could narrow the scope of the damage he can do.

While it is unlikely that the preemption argument will totally undo the FCC’s plans, it could give states the space to pass some consumer protection regulations. Lawsuits around preemption could create room for laws that would effectively deter insidious actions by companies like Comcast and Verizon. California and Washington officials have floated passing laws that would penalize ISPs who throttle speeds or block websites in the form of tax penalties or fines.

Another angle, espoused by Washington AG Bob Ferguson, is that states could allege that the FCC has violated the Administrative Procedure Act. The law bans federal agencies from issuing “arbitrary and capricious” rules. Courts often defer to federal agencies on a wide range of matters, so it is unlikely that this approach would wholly reverse the FCC’s decision.

Corynne McSherry of the Electronic Frontier Foundation told Motherboard, “The legal challenge would likely be based on the Administrative Procedures Act, pointing to the FCC’s willful refusal to acknowledge both the economic and technical evidence, and also the numerous flaws in the comment process.”

In addition to state-level suits, a number of other groups are considering legal action against the FCC. The ACLU’s legal approach is still emerging, but a piece published Thursday on their website focused on the repeal of net neutrality as a form of discrimination. ACLU policy analyst Jay Stanley wrote, “With network neutrality protections stripped away, the telecoms will be free to discriminate in how they treat data crossing their networks. What can they discriminate based on? Basically anything they want.” The piece focuses on potential short-term congressional action, but there has been speculation online that legal action is also possible.

A trade group representing a number of big internet content players like Google and Facebook is also weighing their legal options. The details of if and how they will bring a case against the FCC hasn’t yet been made clear. Internet and speech advocacy groups like Free Press and Electronic Frontier Foundation are reportedly preparing suits of their own as well.

The full picture of the various legal approaches that could be taken on behalf of net neutrality aren’t yet totally clear, but the pieces in play don’t look incredibly promising. While there is a precedent for some small victories using these tactics, it’s unlikely they will amount to a shift in the FCC decision. The best-case scenario seems to be states fighting against various preemptions in an attempt to regulate the internet on a state level until Democrats regain control of the FCC at some point in the future.

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*First Published: Dec 18, 2017, 8:16 am CST