Twenty-one states and the District of Columbia filed the first major lawsuit Tuesday to block the repeal of the Federal Communications Commission’s net neutrality rules, marking the start of a high-stakes legal battle over the future of the Internet.
The FCC's rules had prohibited Internet providers from slowing down or blocking websites. New York Attorney General Eric Schneiderman, who is leading the suit, said that the FCC’s repeal of the net neutrality rules was “arbitrary" and "capricious” and violates federal law.
The multi-state lawsuit comes just a day after Democrats in the Senate said they were inching closer to the votes needed for a legislative measure to help overturn the FCC’s rules. The resolution aims to reverse the FCC's decision and block the agency from passing similar measures in the future. It has garnered the support of all 49 Democratic senators as well as one Republican, Sen. Susan Collins of Maine.
Tuesday’s lawsuit, which includes California, Virginia, Pennsylvania and Illinois, seized on that momentum and represents another avenue for supporters of the net neutrality rules to undo the repeal.
The net neutrality rules were dismantled in a December vote led by Republican FCC Chairman Ajit Pai. Republicans had argued that the existing rules stymied industry investment, while Democrats maintained that they served as a vital consumer protection.
“An open internet – and the free exchange of ideas it allows – is critical to our democratic process,” said Schneiderman in a statement. “The repeal of net neutrality would turn internet service providers into gatekeepers – allowing them to put profits over consumers while controlling what we see, what we do, and what we say online."
In Tuesday’s filing, the attorneys general requested that an appellate court review the FCC’s new policy and determine that it is illegal and unconstitutional.
The FCC is expected to defend its decision by pointing to prior cases in which the agency had changed its mind on how to regulate businesses under its jurisdiction. Lawyers representing the broadband industry have said the FCC will have a strong case if it can demonstrate solid reasoning.
The FCC gets a “significant amount of discretion” to switch directions on policy, said Matthew Brill, a partner at the firm Latham and Watkins who represents NCTA — The Internet and Television Association, a major cable industry trade group, in a recent interview.
“When the court ruled [last time],” said Brill, “it emphasized it wasn't assessing the wisdom of that policy — it was just upholding the agency's decision-making under the broad leeway it gets.”
Until the FCC decision is published in the Federal Register — a process that could take days or weeks — appeals courts may reject any lawsuits submitted on net neutrality, on the grounds that it is too soon to file. But the state attorneys general said they issued their challenge in order to ensure their suit is included in the judicial lottery, the process that determines which court will hear the case.
Outside defenders of the FCC, meanwhile, could launch their own court petition to have the rules reviewed. Doing so would allow industry groups to try to "win" the judicial lottery by having the case heard in a court that is considered friendlier to business interests.
Tuesday's suit was filed in the U.S. Court of Appeals for the District of Columbia. That court upheld the FCC's net neutrality rules in 2016, handing the telecom industry a major defeat.
All 22 attorneys general listed in the lawsuit are Democrats. In addition to the District and the states already mentioned, the states that have joined the legal challenge include: Connecticut, Delaware, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Mississippi, New Mexico, North Carolina, Oregon, Rhode Island, Vermont and Washington.
Other supporters of net neutrality, including Mozilla and Public Knowledge, also filed suits in the same court Tuesday, out of an abundance of caution.
"We filed in the event a court determines the appropriate date is today," said Mozilla in a blog post. "The FCC or a court may accept this order or require us and others to refile at a later date."
The FCC declined to comment.
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