Mozilla, Consumer Groups Sue The FCC For Its Attack On Net Neutrality

from the litigation-nation dept

Mozilla and several consumer groups say they'll be joining 22 state Attorneys General in suing the FCC for its net neutrality repeal. While procedure dictates that lawsuits can't be filed until after the FCC's "Restoring Internet Freedom" order is posted to the federal register (which hasn't happened yet), Mozilla notes that it petitioned the United States Court of Appeals (pdf) out of an abundance of caution, kickstarting the process to determine which court will finally hear the case:

"As a process note, the FCC decision made it clear that suits should be filed 10 days after it is published in the Federal Register, which has not yet occurred. However, federal law is more ambiguous. Due to the importance of this issue, even though we believe the filing date should be later, we filed in the event a court determines the appropriate date is today. The FCC or a court may accept this order or require us and others to refile at a later date. In fact, we’re urging them to use the later date. In either instance, we will continue to challenge the order in the courts."

Mozilla's lawsuit was filed the same day as coordinating lawsuits from consumer groups like Public Knowledge and Free Press. In a statement of its own, Public Knowledge notes it similarly filed its petition early as a preliminary and protective legal move:

"While we believe that under the best reading of the rules the FCC's Order is not ripe for challenge until it is published in the Federal Register, in the past the judicial lottery -- which determines which appellate court will hear a challenge to an FCC action -- has been run based on premature petitions. Thus, to protect our rights, we have filed today.

In other words, this is a purely procedural move, and we would not object if all early-filed petitions were held in abeyance by the FCC and the lottery is conducted based only on challenges filed after Federal Register publication. Of course, we will file to challenge the FCC at that time, as well."

The Open Technology Institute also says it also filed its own lawsuit against the FCC early, hoping to ensure a favorable court selection during the Panel on Multidistrict Litigation (MDL) lottery. All told, four of the net neutrality lawsuits were filed in the United States Court of Appeals for the District of Columbia Circuit, while the Free Press lawsuit was filed in the United States Court of Appeals for the First Circuit.

This is just the opening salvo in what will be a long-standing legal standoff between people who'd prefer the internet remain healthy and competitive, and ISPs eager to abuse a lack of competition in the broadband last mile to their own, additionally anti-competitive advantage. All of the lawsuits will attempt to prove that the FCC violated the Administrative Procedure Act by engaging in an "arbitrary and capricious" reversal of extremely popular policy without proving that the broadband market changed dramatically enough in just two years to warrant it.

As we've noted previously, the lawsuits will also focus on how the FCC turned a blind eye to identity theft and comment fraud during the FCC's open comment period, and efforts by some group or individual to try and downplay the massive public opposition to the FCC's handout to the telecom sector. Expect more details on the origins (and potentially funding) of these efforts as the legal fight moves forward over the coming months and years. Though some ISPs surely won't be able to help themselves, expect ISPs to try and remain on their best behavior for a while to avoid undermining their arguments in court.

Should they win in court however, it can't be understated how the attack on net neutrality is just one small part of an over-arching ISP lobbying effort to remove nearly all meaningful state and federal oversight of some of the least-liked, least-competitive companies in America. That involves efforts to pass loophole-filled fake net neutrality laws with one goal: preventing tough, real rules from being passed down the road by a less Comcastic Congress or FCC.


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  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 18 Jan 2018 @ 10:58am

    HOW MANY TIMES are you going to re-hash this hash?

    Taking out all the duplication, all of 142 pieces boil down to: Google HATES net neutrality except when Google LIKES net neutrality. (And I remind that Mozilla was funded by Google up to a stated $900 MILLION, so that covers likely motives for it too.)

    You haven't got ONE bit of harm to show -- that'll be needed TOO, no organization can just slap down sheets of paper and say "we're not likin' this!"

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Jan 2018 @ 11:01am

      Re: HOW MANY TIMES are you going to re-hash this hash?

      yawn

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Jan 2018 @ 11:35am

      Re: HOW MANY TIMES are you going to re-hash this hash?

      I’m pretty sure if you plot all of blues tantrums on a line graph, you will get an exact match for when he’s off his schizophrenia medication.

      reply to this | link to this | view in chronology ]

    • icon
      ShadowNinja (profile), 18 Jan 2018 @ 12:06pm

      Re: HOW MANY TIMES are you going to re-hash this hash?

      Ctrl + F shows that the first mention of the word 'Google' on this page is in your comment, claiming this article is about google hating net neutrality.

      Maybe Internet trolls/bots should pay attention to the content of the stories they post their boiler plate responses defending the death of net neutrality.

      reply to this | link to this | view in chronology ]

      • identicon
        ryuugami, 18 Jan 2018 @ 12:26pm

        Re: Re: HOW MANY TIMES are you going to re-hash this hash?

        Ctrl + F

        The only thing you have proven is that you are an illegal haxx0r and should be prosecuted to the full extent of CFAA, DMCA, and YMCA.

        :)

        reply to this | link to this | view in chronology ]

    • icon
      ShadowNinja (profile), 18 Jan 2018 @ 12:09pm

      Re: HOW MANY TIMES are you going to re-hash this hash?

      Forgot to reply to this part.

      You haven't got ONE bit of harm to show -- that'll be needed TOO, no organization can just slap down sheets of paper and say "we're not likin' this!"

      It hasn't been repealed yet, hence they CAN'T point to harm before the law is repealed.

      But there's plenty of harm from before net neutrality became the law a few years ago that we can point at, do some googling. Look at how Verizon and Comcast made Netflix pay ransoms to stop their site from being throttled.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Jan 2018 @ 4:13pm

      Re: HOW MANY TIMES are you going to re-hash this hash?

      No harm to show, huh. The same could be said of the dying movie industry that brings in record-breaking profits every year, yet here we are.

      out_of_the_blue just hates it when due process is enforced.

      reply to this | link to this | view in chronology ]

  • identicon
    Kevin Hayden, 18 Jan 2018 @ 11:02am

    Is class action a possibility?

    Just wondering if it would be possible for someone like the EFF to file a class action lawsuit on behalf of all Americans against the Net Neutrality repeal. If enough interested folks signed on, the sheer size of the class (possibly tens of millions if everyone signs up) might be enough to convince a court and possibly lawmakers that the FCC-run comment period was really the bogus, self serving travesty that everyone but Ajit Pai and the rest of the ISPs' shills say it was.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Jan 2018 @ 7:07pm

      Re: Is class action a possibility?

      " file a class action lawsuit "

      Probably about the same as somebody filing a class action against Mozilla for all of the consumer data their browser dumps without users informed consent.

      reply to this | link to this | view in chronology ]

  • identicon
    Iggy, 18 Jan 2018 @ 12:08pm

    Loopholes

    So the proposed NN law has loopholes? So does the FCC order. Do the states have to let ISPs discriminate against web traffic? Yes. But they don't have to give these ISPs access to public rights of way, government contracts, or subsidies. Why would states need to deal with information services anyway? Information services like Verizon, Charter, and Comcast can continue to compete they way startup ISPs are expected to now: Buying up adjacent private properties for rights of way, developing wireless technology, and waiting for a breakthrough in internet over powerlines. America is a free country after all. In the meantime, actual Internet companies can fill in the void based on individual state regulations and lay next generation networks in partnership with local governments.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Jan 2018 @ 12:59pm

    I doubt it ultimately matters, but this is a completely frivilous lawsuit - from a standing perspective. You have to have an injury to have standing, and you know how I can guarantee mozilla has no injury? Because the new rule has not gone into effect.

    Even after the rule is in effect, I doubt mozilla can prove immediate injury. Worries about what might happen dont count. Actions taken by the company in anticipation of bad future effects dont count. Mozilla has to show it was harmed day one of publishing, which given billing cycles and reaction time will be impossible. What a waste.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Jan 2018 @ 1:18pm

      Re:

      Normally, I'd tend to agree with thinking that's true, but I'd tend to think in this case if that were true that a lot of these entities would be aware of that fact as would techdirt probably have pointed it out. But I don't know the relevant law to really say, I'm only guessing this situation is somehow different.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 18 Jan 2018 @ 1:29pm

        Re: Re:

        Also remember that when the rules first went into effect in 2015, big ISPs also sued to stop the rules and they had not yet been 'injured' by the rules. Documented injury isn't the only thing that will give you standing to bring a lawsuit.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 18 Jan 2018 @ 2:12pm

          Re: Re: Re:

          The injury to the ISPs was that it constrained their activities and affirmatively required them to act in certain ways. That counts as injury. Here, the rule change removes those constraints, so there is no one to stand up and say "this rule is forcing me to do something I do not want to do."

          There is no.standing here, people are just ivereager to be leading the challenge. And presumably, the FCC wont bother to attack standing because eventually some parties will eventually have standing and Pai would want the courts to rule on the validity of the rule sooner rather than later. And all this really is about is formality. If a court says the APA was not satisfied, Pai will just do it all over again. Unlike the original incantations of NN regulation, there is no question a out.the FCCs authority to not classify broadband as title II.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 18 Jan 2018 @ 2:59pm

            Re: Re: Re: Re:

            Then by that logic, everyone has standing because ISP's can now force me to pay extra for content that I am already getting under my current subscription. That forces me to pay more which is an injury. Therefore I, and every other citizen and company, have standing. And that's only one way, there are other ways these people have standing.

            Your logic as to why they wouldn't attack standing doesn't hold up. If you are correct, there's no guarantee anyone with standing would be willing to bring a lawsuit, so attacking standing would be the quickest thing to get it dismissed.

            That aside, you basically shot down your own argument by acknowledging that a court could rule the APA was not satisfied. Since that is one of things people are suing about, that must mean they have standing to sue at least on that point. And as TD and other outlets have pointed out, there is a VERY good chance they will rule as such given all the shenanigans Pai's FCC has engaged in.

            If it is ruled the APA was violated, yes Pai can do it all over again, BUT the next time around he won't be able to ignore the massive amounts of evidence and comments that show not only was investment not harmed but that there are many reasons why NN rules should be left in place.

            As has been stated before, yes the FCC has the authority to classify broadband under whatever title it deems most appropriate. What it CAN'T do is arbitrarily re-classify broadband just because the current chair doesn't like it. And the short time period also plays a part. As part of that, he has to show that there was substantial harm done to ISPs in a mere two years (not even, since the lawsuits were only settled in 2016). Something not supported by the facts.

            reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 19 Jan 2018 @ 2:14am

            Re: Re: Re: Re:

            The injury to the ISPs was that it constrained their activities and affirmatively required them to act in certain ways.

            In other news, the law forcing people to pay for things is an injury, as it affirmatively requires them to act in certain ways.

            reply to this | link to this | view in chronology ]

          • icon
            Toom1275 (profile), 19 Jan 2018 @ 5:13pm

            Re: Re: Re: Re:

            "ivereager"

            If you'd RTFA you might have noticed that Mozilla et al are under a deadline to file - a deadline that passes *before* the repeal tales effect. It'd be nonsensical to require the kind of "injury" you say, because then by default it would *never* be possible to file sich a suit.

            reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 19 Jan 2018 @ 6:15am

    I wonder, if ill-intent can be proven (and it seems quite obvious to me), will Ajit Pai be properly punished for it (ie: lose his position or be fined)?

    reply to this | link to this | view in chronology ]

    • identicon
      Thad, 19 Jan 2018 @ 6:44pm

      Re:

      Basically, no.

      Bad faith is difficult to prove. And the Supreme Court has ruled that accepting money from lobbyists is A-OK; it's not a bribe unless they explicitly say that they're giving you the money in exchange for political favors.

      I think he'll get smacked down in court. But I don't think he'll suffer any personal or professional repercussions. He'll serve out the remainder of his term and go back to Verizon with a raise, because even if he loses in court (and I think he will), he's proven his loyalty.

      reply to this | link to this | view in chronology ]

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