The Federal Communications Commission’s (“FCC”) repeal of net neutrality in December was certainly not the final word on the matter. The FCC’s decision to roll back Obama-era rules prohibiting paid preferences, throttling and blocking in the order captioned Restoring Internet Freedom (the “Order”), which became final on January 4, is currently under attack on multiple fronts and others are sure to come.
Massachusetts is one of the many states joining the fight to restore the rules on net neutrality reversed by the FCC last month. On January 16, 2018, Massachusetts Attorney General Maura Healey tweeted breaking news that Massachusetts would be suing the FCC to restore net neutrality and protect equal and open access to the internet. AG Healey was referring to a recently filed suit wherein Massachusetts, along with twenty-two other states, is petitioning the United States Court of Appeals for the District of Columbia Circuit to review the FCC’s recent Order. Specifically, the states filed a “protective petition for review,” which essentially reserves them a spot in court challenges against the FCC.
Back in December when the FCC issued the proposed order that was ultimately adopted, AG Healey joined a coalition of AGs from other states in sending a letter to the FCC urging it to obtain a full and accurate picture of the impact of the changes to the net neutrality policy before making any changes. After the FCC voted to implement the Order, AG Healey indicated that Massachusetts would be joining in such a lawsuit.
AG Healey further tweeted that “[Massachusetts is] challenging the FCC’s Order not only because it’s bad for consumers, students and small businesses – but because it is illegal.” Questions concerning the legality and consequences of rolling back net neutrality have dominated the news recently, and PS&H has analyzed these issues in previous blog posts.
The lawsuit seeks a determination that the FCC’s Order is “arbitrary, capricious, and an abuse of discretion” within the meaning of federal law and FCC regulations. As such, the lawsuit requests that the Court hold the FCC’s Order as unlawful.
The states’ lawsuit is only one line of attack. Some states have taken matters into their own hands by attempting to pass their own net neutrality laws. In the final version of the Order, the FCC not only repealed its own net neutrality rules, but it also claims the authority to prevent state and local governments from enacting their own similar net neutrality rules. However, Nebraska, California and New York are proposing to do just that.
Senator Adam Morefled proposed a Nebraska bill to prohibit internet service providers (“ISPs”) from “impair[ing] or degrad[ing] lawful Internet traffic on the basis of content, application or service or use of a nonharmful device, subject to reasonable network management.” The proposed Nebraska bill also bans paid prioritization except for in circumstances where the ISP can demonstrate that it benefits the public and “would not harm the open nature” of its Internet service.
Senator Scott Wiener introduced a California bill that would indirectly enforce net neutrality. That proposal requires that net neutrality be part of cable franchise agreements, as a condition to using the public right-of-way for Internet infrastructure. The proposed California bill would also strengthen the consumer protection laws and laws against unfair business practices in ways that support net neutrality. Another California senator, Senator Kevin de Leon, took a more aggressive approach and introduced a bill simply banning blocking, throttling and paid prioritization.
In New York, there is proposed legislation requiring state agencies and local governments to only do business with ISPs that adhere to net neutrality principles. There is a similar bill being considered in the Washington state legislature as well.
This state-by-state approach is far less effective than reinstating the federal requirements but could force the larger ISPs that do business in some of these states to follow to net neutrality principles.
Attacks continue to mount on other fronts as well. Several nonprofit public interest groups like the Free Press and Public Knowledge and the Mozilla Foundation, the group behind the Firefox web browser, filed lawsuits against the FCC. Additional suits are sure to come from the giant internet content providers like Netflix, Google and Apple.
The lawsuit filed by the states is joined by every state with a democratic attorney general. Moreover, Senate Democrats are doing what they can, employing a little known tool in the Senate called the Congressional Review Act to try and overturn the FCC’s Order. The Congressional Review Act requires a majority of the Senate’s support (51 votes) as a first step. The vote to overturn the FCC’s Order would then go to the House and the chance of it passing there is slim. Finally, President Trump would need to sign onto any action to overturn the FCC’s Order—an unlikely possibility considering the White House has expressed its support for the repeal of net neutrality. Although this process will ultimately be futile, the Democrats are seizing on the widespread public disagreement with the FCC’s decision to build political capital. Senator Markey of Massachusetts has stated that “[t]here will be a political price to pay for those on the wrong side of history. Momentum is on our side.”