State attorneys general line up to sue FCC over net neutrality repeal
Attorneys general from "across the country" will sue the Federal Communications Commission in an attempt to reverse
today's repeal of net neutrality rules.
"Today, I am announcing my intention to file a legal challenge to the FCC's decision to roll back net neutrality, along with attorneys general across the country," Washington State Attorney General Bob Ferguson
said. "We will be filing a petition for review in the coming days. Allowing Internet service providers to discriminate based on content undermines a free and open Internet. Today's action will seriously harm consumers, innovation, and small businesses."
New York Attorney General Eric Schneiderman is
leading the multi-state effort.
"The FCC's vote to rip apart net neutrality is a blow to New York consumers and to everyone who cares about a free and open Internet," Schneiderman said. "The FCC just gave Big Telecom an early Christmas present, by giving Internet service providers yet another way to put corporate profits over consumers. Today's rollback will give ISPs new ways to control what we see, what we do, and what we say online. That's a threat to the free exchange of ideas that's made the Internet a valuable asset in our democratic process."
Bans on blocking and throttling repealed
The FCC today eliminated rules that prohibit ISPs from blocking or throttling Internet traffic. The commission also eliminated a rule that prohibits charging websites for priority access over home and mobile Internet services.
The rollback "would enable ISPs to charge consumers more to access sites like Facebook and Twitter and give them the leverage to degrade high quality of video streaming until and unless somebody pays them more money," Schneiderman said.
It's not clear which other states will be involved in the lawsuit. We've asked Schneiderman's and Ferguson's offices that question and will update this story if we get an answer.
Officials from Santa Clara, California,
reportedly plan to sue the FCC over the repeal as well. Ultimately, it's likely that multiple lawsuits will end up being consolidated into one.
Nineteen attorneys general including Schneiderman and Ferguson previously
called upon the FCC to
delay its net neutrality vote because of fraud and impersonation in the public comments submitted to the FCC's net neutrality repeal docket.
Schneiderman has been investigating that fraud for six months, but the FCC has
refused to provideevidence for the investigation. That could play a role in the appeal, but the lawsuit is likely to challenge the FCC on several points.
Most notably for state governments, FCC Chairman Ajit Pai is
claiming the authority to preempt state and local governments from enacting their own net neutrality rules.
If the preemption is successful, states would not be able to impose bans on blocking, throttling, and paid prioritization. They wouldn't be able to require ISPs to be more
transparent with customers about hidden fees and the consequences of exceeding data caps. While the FCC is maintaining some disclosure rules that require notifying customers about network management practices, states would not be able to impose their own rules that go beyond the FCC's disclosure requirements.
The attorneys general will likely argue that the FCC doesn't have authority to preempt those types of consumer protection rules. The FCC's preemption powers aren't unlimited, as the commission
found last year when judges reversed an FCC decision that preempted state-level restrictions on municipal broadband networks.
Pai's FCC also failed to ask the public for input on preempting state rules before issuing the decision. The FCC's Notice of Proposed Rulemaking that led to today's repeal asked the public for comment on the repeal itself, but not on the question of preempting local regulations. State attorneys general could argue that this violates federal administrative procedure rules.
One California state senator today said he will
introduce a bill to impose net neutrality rules in California. That's the kind of state law Pai is trying to prevent with the preemption clauses in the net neutrality repeal order.