FCC Net Neutrality Repeal Challenged in Court

Ajit Pai 1 - FCC Newseum Talk - Getty - H 2017
Getty Images

The fight to prevent telecom giants from engaging in content discrimination through practices like blocking and throttling is now being put to a federal appellate court. On Tuesday, several challenges were made to the FCC's recent decision to repeal net neutrality rules.

Legal action following the FCC's vote in December to take broadband out from under Title II of the Telecommunications Act was expected by nearly everyone, but the rush to court is happening a bit sooner than anticipated. The FCC's so-called "Restoring Internet Freedom" order hasn't yet been published in the Federal Register. Nevertheless, in the interest of establishing jurisdiction and protecting the right to challenge the agency's controversial deregulatory move, 21 state attorneys general (plus the one in D.C.) have filed at the U.S. Court of Appeals for the DC Circuit. Separately, open-source web browser provider Mozilla Corporation has also made a petition for review there, while Free Press has placed its own challenge before the 1st Circuit Court of Appeals.

The petitioners argue that the DC Circuit properly exercised its authority to reclassify broadband services under Title II back in 2015 and that the FCC's departure is arbitrary and capricious within the meaning of the Administrative Procedure Act. 

The lawsuit from the state attorneys general is being led by New York's Eric Schneiderman. He is joined by AGs in California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Mississippi, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington and the District of Columbia.

Here's the petition.

More expansive court papers will follow Tuesday's initiation of proceedings. The petitioners will likely argue the FCC oversaw a flawed comment period and ignored sound reasoning on the road to a net neutrality rollback. Further challenges may also object to the FCC's attempt to preempt state authority on the subject of internet regulation.

In anticipation of an FCC argument that Tuesday's filings are premature, those petitioning point to the 2015 rush to court and the FCC's ultimate semi-acceptance when the agency at the time was on the verge of publishing its "open internet" rules.

FCC chairman Ajit Pai hasn't immediately commented on Tuesday's filings, but in the past, he has expressed confidence in surviving the legal challenges.

The subject of net neutrality could also be impacted by any legislative development as Democrats in Congress have been rallying in recent weeks behind a restoration of the net neutrality rules.