No sooner had the Federal Communications Commission voted 3-2 along party lines to repeal net neutrality regulations than New York Attorney General Eric Schneiderman announced he was leading a multi-state lawsuit to bring them back.
As has been reported at length, the rolling back of the Obama-era open Internet rules could mean Internet service providers can put the breaks on, block or speed up access to certain websites and more for a price.
Slate reports that the filing of the lawsuits most likely won’t stop the implementation of the repeal and that net neutrality could start to disappear almost immediately. Slate also dug into the legal standing of the FCC Chairman Ajit Pai’s highly controversial new rules.
While Pai contends that the Internet should be classified as an information service, not a communications one, and, therefore, not subject to consumer-protection requirements, some legal experts state that this is conflict with past court decisions. Per Slate:
“According to Phillip Berenbroick, senior counsel at Public Knowledge, [Pai’s proposal] is in conflict with a 2005 Supreme Court interpretation that ruled it is up to the FCC to determine how the internet would be classified, which the FCC did in 2015, with the network neutrality rules Pai is trying to repeal. It also bucks a recent federal circuit court decision that reaffirmed the FCC’s authority to regulate the Internet.”
Berenbroick goes on to say that the courts may show deference to the FCC’s decision, but the agency will have to “show that it isn’t acting in an arbitrary and capricious way and that there’s evidence in the record to support the analysis and defend the policy change.”
That’s the first of two points that the courts may push back on. The second is the matter, or the “shady mess,” of the net neutrality public-comment process. Apparently, the FCC didn’t address problems with the process before going ahead with a vote, including a cyberattack on those comments that is currently being investigated.
Furthermore, opponents of the repeal see another problem with the proposal. Gaurav Laroia, policy counsel with Free Press, states in the Slate report:
“Internet providers only need to alert customers about their plan to act in non-neutral ways, like by saying they ‘reserve the right’ to block access to websites, in order to do so lawfully.”
According to Ars Technica, US Senate Minority leader Chuck Schumer has pledged to force a Senate vote on a bill that would reinstate net neutrality rules. However, the odds are not in the Democrat’s favor as they are still in the minority. Additionally, Republican lawmakers are expected to submit their own net neutrality legislation this week although it has not yet been announced what it will include.
John Paul Jones famously said in 1799, “I have not yet begun to fight.” The uproar to the net neutrality repeal has the same sentiment. This is only the beginning of a long fight in the courts and elsewhere to bring back net neutrality.