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23 State Attorneys General Sue the FCC to Preserve Net Neutrality

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The FCC’s rollback of Obama-era net neutrality rules was formally challenged in court on Thursday by a coalition of 23 state attorneys general who assert the rollback was passed in violation of federal law.

The leader of the coalition, New York Attorney General Eric Schneiderman, said in a statement that the Federal Communication Commission order, published in the federal register earlier Thursday, would permit broadband providers to “put corporate profits over consumers” by way of controlling what they “see, do and say online.”


“An open internet, and the free exchange of ideas it allows, is critical to our democratic process,” said Schneiderman.


In mid-December, the FCC’s Republican majority voted in favor of the “Restoring Internet Freedom” order, which overturned the commission’s net neutrality rules preventing internet service providers from blocking or throttling content or creating “fast lanes” to provide better service for companies that pay for it. It further rolled back the classification of ISPs that provided the basis for the rules, which passed in 2015 under a Democratic majority.


The coalition’s filing refers to the FCC’s order as “arbitrary” and “capricious” and challenges the agency’s ability to reclassify broadband without review under Administrative Procedures Act; it contends the order violations federal law, “including, but not limited to,” the US Constitution and the Communications Act of 1934; and further alleges that the order was promulgated in violation of agency rulemaking requirements.

The petition was cosigned by attorneys general in the following states: New York, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, and Mississippi, as well as New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.


The suit—or petition for review—was filed by the coalition’s legal team before the US Court of Appeals for the DC Circuit, where the public interest group Public Knowledge and New America’s Open Technology Institute filed protective filings, likewise challenging the order, last month. It is not yet known in which court the case will be invariably heard, however.

Free Press, a net neutrality advocacy group, filed its petition in the 1st Circuit Court of Appeals in Massachusetts last month and announce plans Thursday to refile soon. California’s Santa Clara County previously filed a petition in the 9th Circuit Court of Appeals.


Venue will ultimately be determined by lottery via the Judicial Panel on Multidistrict Litigation. Each court will be entered into the lottery once regardless of how many parties filed there. The outcome is determined randomly by computer. Parties interested in determining venue have 10 days to file, whereas those simply interesting in joining the suit have 60 days to do so.

Net neutrality advocacy continue to push for a vote on a congressional resolution to invalidate the Restoring Internet Freedom order. Congress has 60 “session days” as of today to force a vote on the issue, which requires a simply majority in both the House and Senate. Fifty senators, including one Republican, have so far come aboard, prompting the hashtag #OneMoreVote on Twitter.


The congressional resolution faces tougher odds in the House and it seems unlikely that President Trump would sign it. Even if the resolution failed, however, the vote itself would force every congressional lawmaker to openly declare a side on the issue, potentially arming political activists in the midterm elections; the issue being a potent tool for rallying young voters.

The Internet Association, a trade group representing 40 of the country’s biggest tech companies, including Google, Amazon, and Facebook, announced last month plans to intervene in the case against the FCC. While not a formal party to the suit, the IA will have the opportunity to demonstrate how the order might injure its member companies.