22 State Attorneys General File Suit Against The FCC For Its Net Neutrality Repeal

from the legal-fisticuffs dept

The legal fight over the FCC’s historically unpopular decision to kill net neutrality has begun. An announcement by New York Attorney General Eric Schneiderman’s office indicates that 22 State Attorneys General have filed suit against the FCC. The AGs says the multi-state coalition has filed a petition for review in the U.S. Court of Appeals for the D.C. Circuit, the first of what’s expected to be numerous lawsuits in the weeks and months to come.

The announcement makes it clear the suit intends to focus on the FCC’s potential violation of the Administrative Procedure Act. Under the Act the FCC will need to prove that the broadband market changed so substantially since the passage of the original rules in 2015 to warrant such a stark reversal (tip: it didn’t). Under the Act, a decision can be declared “arbitrary and capricious” (Ajit Pai’s agenda is undeniably both) if the regulator in question can’t prove such a dramatic change, which is why you’ve watched industry lobbyists and their BFF Pai routinely and falsely claim that the modest rules somehow devastated sector investment.

Schneiderman quite correctly documents the potential pitfalls of gutting meaningful oversight of some of the least-competitive companies in America:

“An open internet ? and the free exchange of ideas it allows ? is critical to our democratic process,? said Attorney General Schneiderman. ?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. This would be a disaster for New York consumers and businesses, and for everyone who cares about a free and open internet. That?s why I?m proud to lead this broad coalition of 22 Attorneys General in filing suit to stop the FCC?s illegal rollback of net neutrality.”

You’ll recall that Schneiderman’s office is also conducting an investigation into who’s behind the flood of bogus comments filed during the public comment period of the FCC’s repeal order. Millions of the bogus comments were clearly filed by some group or individual hoping to erode trust in integrity of the comments in the hopes of downplaying massive public opposition to the FCC’s plan. When Schneiderman’s office contacted the FCC to get some help identifying the culprits the FCC refused nine different times over a period of five months, according to an open letter to the FCC by Schneiderman late last year.

Numerous lawsuits are expected to follow once the FCC’s repeal hits the Federal Register (expected in the next month or so).

All of these suits will highlight the numerous instances of FCC incompetence or fraud, ranging from the fake DDoS attack the FCC apparently manufactured to downplay the John Oliver effect, to why the FCC turned a blind eye while somebody stole the identity of dead people to forge bogus support for the FCC’s agenda. Also likely to be highlighted is how the FCC ignored the public, ignored the experts, ignored the industry’s startups, and used bogus lobbyist data to prop up what may just be the least popular tech policy decision in the history of the modern internet.

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Comments on “22 State Attorneys General File Suit Against The FCC For Its Net Neutrality Repeal”

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67 Comments
Iggy (user link) says:

Re: Re:

It’s hard to see what these pro ISP congressmen could do now? Explain the excellent reasons why all Republican congressmen are magically for repeal while their constituency mostly isn’t? Admit to being paid corporate sock puppets and ask their voters for forgiveness? A few might break ranks but probably most will just double down and hope other issues pop up before next election.

Thad (user link) says:

Re: Re: Re:

A few might break ranks but probably most will just double down and hope other issues pop up before next election.

Ding ding ding.

They’re going to dig in and assume that Republicans will still vote for them anyway. Net neutrality is an important issue, but good luck getting people to consider it before abortion, immigration, guns, etc. when they decide who they’re going to vote for.

Anonymous Coward says:

This, and similar measures that are taking place in Congress are great and all, but don’t lose sight of the forest for the trees here: this is simply people in elected positions forcing real or potential opponents into taking a side on a issue that has largely crossed bipartisan lines to use as campaign capital.

Federal, state, and local officials have all had plenty of time to do something, anything, to more permanently make net neutrality either law, or improve competition so as to make it unnecessary. And at best, most politicians have stood idly by and at worst, have cozied up to Telco lobbyists.

While I appreciate these efforts, don’t let these politicians off so easily. This is more for their gain than ours. We deserve better than posturing and grandstanding.

Thad (user link) says:

Re: Re: Re:

there’s not much the attorneys can do about it, except maybe sue.

That’s…sort of a baffling statement. "There’s not much they can do about it, except maybe the thing that’s their primary job description."

If I have a clogged drain, there’s not much a plumber can do about it, except maybe unclog it.

If I’m trying to sell my house, there’s not much a realtor can do about it, except maybe list it, find a buyer, and arrange the sale for me.

If somebody’s casting an action movie about a gruff old guy who’s trying to save his wife or child, there’s not much Bruce Willis or Liam Neeson can do about it, except maybe star in it.

Toom1275 (profile) says:

Ars Technica notes that each of the states suing the FCC has a Democrat Attorney General. As of yet, no Republican AGs have filed suit.

New York, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Mississippi, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington.

Anonymous Coward says:

Re: Re: Re:2 Re:

OK. Johnny Grammar is at the plate. He is looking at an Oh and one count.

The pitcher looks over to first to see if Who is taking a big lead. He shakes off the call from the catcher. Johnny steps out of the box and looks into the dug out.

Johnny steps back in and the catcher flashes a new sign. And here comes the pitch.

Wow! It looks like Johnny Grammar was certainly swinging for the fences that time, but he wasn’t ready for the inside change ball. Another swing and a miss.

The count is now Oh and two and, yes, we can see that Johnny Grammar is getting red in the face.

I.T. Guy says:

Re: Re: Re:2 Re:

“Some Red states” Implies more than one.

https://www.washingtonpost.com/news/the-switch/wp/2018/01/15/the-senates-push-to-overrule-the-fcc-on-net-neutrality-now-has-50-votes-democrats-say/

If Adam Morfeld were really concerned he’d join with Sen. Susan Collins of Maine and get the votes to save NN no?

His bill is nice, but let him put his money where his mouth is.

Anonymous Coward says:

Re: Re: Re:

Sounds likely that a lot of red states are for net neutrality. But since the republican-lead FCC has sworn to fight state-wise net neutrality to their death, the red states are likely to move very slowly on this issue since it could tear the party a new one.

Since Blackburns “solution” is unlkely to go anywhere, the democratic “repeal the repeal” is even less effective at changing the legislation and net neutrality is a nice gift to be able to run a mid-term election on, the current federal moves will be zero to none.

The only thing I can see happen is a coordinated effort by red states to bring a common solution through their legislature and it will probably be coordinated with Blackburn. But the red states have little wiggle-room to act on this issue since the congress is stunned by the never-Trump loyalists: Collins, Flake and McCain and the FCC has been so zealous about their cause.

Anonymous Coward says:

Re: Re:

If anything you have state and local governments passing anti-competitive rights of way laws that prevents competitors from entering the market which creates the whole need for net neutrality in the first place.

No one wants to actually fix the problem, everyone wants to point fingers and blame each other. The federal government blames the states for passing anti-competitive laws while the states blame the federal government for not passing net neutrality laws. The public gets the worst of both worlds.

Anonymous Coward says:

Re: Re: Re:

Infrastructure is not a good area for competition in its provision,and what most countries have done is to use regulation to force monopoly supplies of the infrastructure to allow competing provision of services over that infrastructure.

So the choices are to either use regulation to force net neutrality, or to force sharing of the infrastructure.

Anonymous Anonymous Coward (profile) says:

Re: Re: Re: Re:

Personally, I see nothing wrong with forcing the sharing of the infrastructure. We have paid into Universal Funds and subsidized various plans for improvement that have not been spent in the way they were intended.

A big hit will take place on the balance sheets of various corporations where they list certain infrastructure as assets, and the big ones would take hits in income as they lose customers and invariably find the need to reduce prices in order to compete. Some shareholders, who bought stock at the wrong time will also be affected.

But I see nothing wrong with any of that, as the vast majority of US citizens will benefit. And if you are worrying about government intrusion into businesses, think about how the government failed to enforce anti monopoly laws that allowed us to get to this situation.

PaulT (profile) says:

Re: Re:

Because the nature of the internet means that they will always be affected by traffic crossing state lines? Because they see how it ended up for other industries that tried doing such things (companies just congregate headquarters in the least restrictive states)? Because necessary utilities are an area where it makes sense to have some national standards rather than a potentially huge discrepancy depending on where in the country you happen to live?

Anonymous Coward says:

Re: Re: Re:

“information” crossing state lines does not constitute a commercial activity and therefore does not constitute a federal government right to “regulate” it.

If an ISP only operates locally they cannot be forced to be regulated by the fed. They can connect to a backbone provider operating across states where the backbone provider can be regulated by the feds.

Its the same reason that a gun mfg can avoid federal regs if they only make and sell their guns inside the state. Then it is the rules of the state that prevail.

Anonymous Coward says:

Re: Re: Re: Re:

Except that ISPs and gun manufacturers are apples to oranges.

By necessity, an ISP has to provide interconnection across state lines, otherwise it’s worthless.

And all of the big ISPs (Charter, ATT, Verizon, Comcast, CenturyLink, etc…) do operate across state lines and many are in fact their own backbone providers. So why shouldn’t they be subject to federal regulation?

PaulT (profile) says:

Re: Re: Re: Re:

Information perhaps not, but a major use of the internet is for commerce, and it’s more likely in most cases that a person will be trying to access sites not in their home state. Comparison to physical goods is a red herring since its the transport being regulated not the end product. Unless you’re saying that every site needs to have a presence in every state, it’s totally different.

Anonymous Coward says:

Re: Re: Re:3 Re:

I read it, your post still doesn’t make sense.

OP asked why don’t states pass their own net neutrality laws (some of them are attempting to), Ryunosuke responded that it is because Republicans in general are in the pocket of big ISP’s so the Republican controlled states generally resist any such laws.

I still see nothing to do with the Constitution here. As long as state laws don’t conflict with federal laws, they can pass anything they want to. And there are no federal laws stating they can’t pass net neutrality laws (unless Pai’s order and pre-emption is upheld but that’s a HUGE if).

I read the post, got to you, now what?

Anonymous Coward says:

Re: Re: Re:5 Re:

Except this is not that. The state regulation only states that while operating within the state, they have to abide by net neutrality rules. ISP’s can do whatever they want in the next state over.

That’s why it would be such a pain for ISP’s to have state level NN rules and not federal level because each state could have varying levels of NN rules they would have to comply with versus one federal standard.

It’s not interstate commerce regulation, it’s INTRAstate commerce regulation, which is permitted by the Constitution.

Anonymous Coward says:

Re: Re: Re:7 Re:

Merely accessing or routing information across state lines is not in and of itself “interstate commerce”. It can be, especially if that particular information is being bought or sold, but simple access to the internet has not been traditionally defined or treated as interstate commerce.

Aspects of ISPs do make them able to be regulated by federal interstate commerce laws and states can not supersede that. At the same time, states can impose additional rules and regulations for companies that wish to operate within a particular state, provided those laws do not conflict with their federal counterparts.

If federal regulations prohibit states passing net neutrality laws then you have a valid point. However, currently, they do not. And even if they did, states could still refuse to do business with companies unless they abide by net neutrality rules. Which is what some are trying to do, just in case Pai’s pre-emption order gets upheld.

Anonymous Coward says:

I think you are being a little loose with the “arbitrary and capricious” standard. You may think this repeal is such, but the legal standard is way way way more deferential to the agency. If the agency puts forward some evidence (which does not have to be convincing or overwhelming), engages in deliberation under the rules (like having a comment period, andI takng comment), and the agency’s conclusion can logically follow (note, not that the agency is right, or picks the best option, just that its conclusion is not conpletely unsupportable), then the court should uphold it.

The FCC loses in court all the time on its rulemaking and they could very well lose on this one. It should be noted that for the past several years the FCC has been trying to do lots of things with no or questionable statutory authority. Classifying broadband as not title two is one of the few things the courts have repeatedly told the FCC can actually do.

That One Guy (profile) says:

Re: Re:

If the agency puts forward some evidence

Still waiting on that, as repeatedly debunks assertions like ‘The rules decimated investment!’ don’t count.

engages in deliberation under the rules (like having a comment period, andI takng comment)

You mean like the one where they ignored blatant and widespread fraud, and took time off to mock those that disagreed with them? Yeah, I’d say that qualifies only technically in that people were able to comment.

and the agency’s conclusion can logically follow (note, not that the agency is right, or picks the best option, just that its conclusion is not conpletely unsupportable)

The ‘evidence’ was bogus and the legitimate comments were overwhelmingly against their chosen action. The logical conclusion to that is not ‘go ahead as planned’.

Classifying broadband as not title two is one of the few things the courts have repeatedly told the FCC can actually do.

… What? The courts most certainly said that they could reclassify broadband as Title II, what they kept getting slapped down on was trying to regulate it without Title II classification.

Anonymous Coward says:

Re: Re: Re:

Look, I get that you have an opinion, and I am not going to argue it either way. But in this glorious administrative state, the whoke system is alligned to assume the agency is the expert and to defer all technical considerations to it. If the agency jumps through the right hoops and stays within its statutory authority, its rules are virtually impossible to overturn in court. And everything Pai has done furthers that hoop jumping (this is why he is pounding broadband investment, his justification does not have to be right, it just has to be established).

I dont know why folks focus on the comments. The APA only required that an agency solicit comments, and read them. The FCC did that. There is NO requirement that an agency follow comments, treat them as votes for or against a rule, or even care whether the comments are all fake. All of those things are meaningless under the APA.

Same with evidence. The courts dont weigh wether the FCCs analysis is right or wrong. They only look to support. Pai has his broadband investment studies. Many people can dispute their accuracy or relevance, but the court wont get there. It will leave the analysis of the studies to the agency.

You can get all worked up about this, but never pretend that a rulemaking is a fact finding process or a guarantee to get the best or most popular rule put in place. It is a bureaucratic checklist that the agency must follow to do whatever it wants, within its statutory authority.

That One Guy (profile) says:

Re: Re: Re: Re:

Same with evidence. The courts dont weigh wether the FCCs analysis is right or wrong. They only look to support. Pai has his broadband investment studies. Many people can dispute their accuracy or relevance, but the court wont get there. It will leave the analysis of the studies to the agency.

I would be greatly surprised were that the case, given he has to show that there has been a significant shift in the market to justify killing the rules, and doing so will require him to present his ‘evidence’ for the court to look over, ‘evidence’ which has been repeatedly debunked and shown to be false by the very people whining about how it hurt their investment.

If the courts simply took the agency at it’s word then the last time the FCC was challenged, when it was implementing the rules, it would have been over with in a day. ‘The FCC says the rules are needed, who are we to say otherwise, therefore they are allowed to do whatever they want.’ No, they actually have to show evidence, not merely make baseless assertions.

Anonymous Coward says:

Can the old dogs learn new tricks?

I am wondering: If big ISP and the FCC loses these cases and the courts find that there weren’t ground for this change (as they should), would there be anything preventing them from trying again in a couple of years and at that time ISP’s will hold back on major investments and then blame it on NN?
I mean, it seems like they are so close here and even with the overwhelming opposition, the lies, and everything that is so wrong with this whole thing, really has no effect on the outcome… the only thing we have to really hold on to, is a decision by the courts about investment. This is just a single problem, and it is a problem the ISP’s can affect completely if they want to.
They have tens or hundreds of billion in their coffers, so I am quite sure that a couple of years taking a small hit for a chance of a huge score in the end, is no problem for them.
Would there even be anything left that could prevent a similar situation very soon? A precedent set in court or something?

Anonymous Coward says:

Re: Can the old dogs learn new tricks?

Likely because if they did that their stocks would plummet and they would lose a LOT of money in the short run. Not to mention it would effectively kill any semblance of them actually trying to build out to poor or underserved areas which would provide fodder for supporters of net neutrality. Plus, their profit margins would actually increase because they are spending less but getting the same amount of revenue.

ShadowNinja (profile) says:

All of these suits will highlight the numerous instances of FCC incompetence or fraud, ranging from the fake DDoS attack the FCC apparently manufactured to downplay the John Oliver effect

This one leaves me scratching my head more and more overtime.

There’s literally nothing for the FCC/ISPs to gain by denying the John Oliver effect. Especially when they’re just going to ignore all the millions of signatures in support for Net Neutrality that the Oliver effect created. All they accomplished was making themselves look like a bunch of idiots who ought to be fired from their jobs due to incompetence.

Not to mention who knows if they broke any laws with this BS claim. It’s against the law to file false police reports. It wouldn’t surprise me if the FCC violated a law by falsely claiming they were a DDOS attack victim.

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