The FCC Officially Published Its Net Neutrality Repeal ... Now the Lawsuits Begin

The path forward is filled with lawyers and lobbyists.

Karl Bode

Image: US Department of Agriculture

While the Trump FCC voted last fall to kill net neutrality, the 3-2 partisan vote was really only the beginning of an entirely new chapter in the quest to keep the internet open, competitive, and free from the iron grip of regional duopolies like Comcast.

While the repeal vote occurred last December 14, the repeal itself doesn’t take effect until 60 days after it’s published in the Federal Register. Since that publication occurred this week (you can find the full repeal order here), the actual repeal will now take effect sometime in late April.

While many have been discouraged by this blatant handout to some of the least-liked and least-competitive companies in America, there’s plenty of reasons to remain optimistic.

There’s numerous efforts still underway to block the FCC’s attack on the rules, several of which have a good chance of succeeding. Many of them couldn’t truly begin until the rules were published in full. With that done, we can now move on to the more productive part of the program: actually trying to overturn the repeal either by lawsuit or Congressional action.

The first effort to reverse the FCC’s attack on net neutrality is via the Congressional Review Act, which can be used to overturn a regulatory action with a simple majority vote in Congress. Activists say they’re just one vote away from bringing it to a vote in the Senate, and are planning a major push on February 27 to bring pressure to bear on lawmakers.

That said, the CRA effort still faces a steep uphill climb. While it may pass in the Senate, getting a majority vote (or even floor time) in the House is going to be a tall order. Even if it passes the House the law will need to be signed by President Trump, something that’s simply not likely.

"The FCC’s decision to overturn the 2015 rules violates both federal law as well as harms internet users and innovators"

The CRA repeal still has a functional purpose: It will force ISP-loyal lawmakers to put their corruption on proud display via a formal vote. And since net neutrality has broad, bipartisan support, doing so could prove useful during the midterm battles to come. It’s your best opportunity to purge Congress of myopic telecom lackeys that disregard the public interest.

That said, the most likely path toward reversing the FCC’s unpopular effort remains via lawsuit.

The posting of the repeal in the federal register begins a 60-day shot clock for impacted parties to begin filing lawsuits to overturn the repeal. Mozilla, consumer groups, and 22 State Attorneys General say they’ll all be filing suit, arguing that the FCC ignored the experts, the public, and all objective data during their rushed handout to the telecom sector.

“As we’ve said before, the FCC’s decision to overturn the 2015 rules violates both federal law as well as harms internet users and innovators,” Mozilla said of its lawsuit. “The decision does not simply ‘roll back’ to an unregulated internet, instead, it removes affirmative protections for the public despite the fact that many people in the U.S. suffer from a lack of choice in broadband high speed internet access.”

Under the Administrative Procedures Act, the FCC will need to prove that the broadband market changed so dramatically since the rules’ creation 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 justify such a severe policy reversal.

That’s why you’ve probably seen ISPs trying to claim that the FCC’s net neutrality rules demolished sector investment, something simply not supported by the facts. SEC filings, earnings reports, and numerous statements by industry CEOs to investors prove those claims to be false, something that will play a starring role in the looming lawsuits.

The lawsuits also have a good shot at showing how the FCC violated agency procedure as it desperately tried to downplay the severe public backlash to its extremely-unpopular policy.

A big focus of these lawsuits will be how the FCC ignored the rampant identity theft and fraud that occurred during the open comment period, an apparent ham-fisted attempt to undermine trust in the public feedback process. The FCC told me there was nothing it could do after someone used my identity to falsely support the FCC’s agenda.

Keep in mind that in addition to these lawsuits, the FCC is facing two separate Government Accountability Office inquiries into why the FCC didn’t do more to police the fraud, and why it appears to have made up a DDOS attack out of whole cloth as part of a bizarre attempt to downplay agency website troubles caused by millions of angry Americans.

FCC boss Ajit Pai is also now facing an FCC Inspector General investigation into whether the FCC boss is a little too cozy with the industries he’s supposed to be holding accountable.

Even if incumbent ISPs and the FCC dodge the Congressional Review Act reversal, numerous ethical inquiries, and survive court challenge, they still have to find a way to prevent any future FCC or Congress from just passing tough rules again. That’s why ISPs are pushing Congress to pass net neutrality laws in name only.

You’ll begin to see a big push by ISP allies for such legislation over the next few months as they begin to worry about a potential court loss

ISPs (and the lawmakers paid to love them) insist these fake net neutrality laws are sincere efforts to put the multi-year debate to rest “once and for all.” But they only serve one real purpose: prevent real, tough rules from being passed later by first passing legislation with so many loopholes as to be arguably useless.

You’ll begin to see a big push by ISP allies for such legislation over the next few months as they begin to worry about a potential court loss. That will involve all manner of telecom-funded op-eds in major news outlets nationwide (like this one) telling you bad laws are the only real path forward. Don’t believe it. ISPs are just looking to codify federal apathy into law.

The FCC and incumbent ISPs are also facing backlash on the state level, where more than half U.S. states are now either passing new net neutrality legislation, or have signed executive orders banning states from winning state contracts if they violate net neutrality.

And while the FCC included language in its repeal trying to ban states from taking such action (at direct ISP lobbying behest), the FCC’s legal authority on this front is murky at best. As such, states could wind up protecting net neutrality in the wake of federal apathy.

It's a battle that will always rage so long as incumbent ISPs continue their ham-fisted efforts to abuse a lack of competition for additional financial and anti-competitive gain

FCC Commissioners that voted against the repeal were quick to issue statements urging net neutrality supporters to keep fighting the good fight as numerous efforts at walking back the FCC’s repeal take root.

“Today it is official: the FCC majority has taken the next step in handing the keys to the internet over to billion-dollar broadband providers by publishing the Destroying Internet Freedom Order in the Federal Register,” FCC Commissioner Jessica Rosenworcel said in a statement.

“I am both disappointed and hopeful,” she added. “Disappointed that this is one more anti-consumer notch on this FCC’s belt, but hopeful that the arc of history is bent in favor of net neutrality protections. “Whether it is litigation, state action, or some other mechanism that brings it about, I am sure that robust net neutrality protections will prevail with the American public.”

As the battle moves forward it’s worth remembering that net neutrality violations (like privacy violations, high prices, and awful customer service) are really just a symptom of a lack of competition in the broadband market. As such, the battle doesn’t magically begin or end with the creation or destruction of government protections.

And there’s plenty that users can do on the local, grass roots level, including the support of local attempts to build and operate community-owned broadband networks. More directly accountable to the public they serve, these networks not only tend to offer better service at lower prices, these ISPs tend to actually respect net neutrality and consumer privacy.

The fight for net neutrality didn’t end last fall. And it doesn’t end when the most of the repeal takes effect on April 23. In fact, it’s a battle that’s only just heating up, and one that will always rage so long as incumbent ISPs continue their ham-fisted efforts to abuse a lack of competition for additional financial and anti-competitive gain.