Success Of Net Neutrality Lawsuit Depends On Role Of Precedent In FCC Decisions

Jan 22, 2018

Following the controversial Federal Communications Commission’s decision to repeal net neutrality, a coalition of 22 attorneys general, including Pennsylvania’s Josh Shapiro, filed a petition for review of the decision in the D.C. Circuit Court of Appeals on Tuesday.

“At the end of the day, gutting net neutrality undermines our democracy. I think the internet is free speech in action, and they have really taken the power away from individuals,” Shapiro said.

However, professor of information systems management at Carnegie Mellon University Rahul Telang said he believes that the FCC will be successful.

Rahul explained that in the initial installation of net neutrality in 2015, the Obama administration FCC exercised their right to label the internet as a telecommunication service, which requires heavy regulation. The current FCC has done the same thing, instead labeling the internet as an information system, which is lightly regulated.

“If you just look at the precedence, I think that FCC is likely to prevail,” Rahul said. “However, I guess if these attorney generals [sic] can convince [the judges] that net neutrality is really fundamental to the welfare of consumers and businesses, and that the FCC is undermining that, who knows?”

Passed on Dec. 14, 2017, a 3-2 vote along party lines by the FCC repealed the Obama-era regulations placed on internet providers in 2015. This measure would allow internet companies to prioritize their own content while blocking competitor’s content, or charging consumers to view other content. They would also be allowed to charge for higher quality service or speed.

“The FCC vote last month on net neutrality threatens to undermine the internet, and really end the internet as we know it,” Shapiro said. “We think that the FCC violated the administrative procedures in the way in which it went about the vote to gut net neutrality. I think the agency acted in an arbitrary and capricious manner, and we’re taking them to court to stop this action.”

The news of the lawsuit comes following the announcement from Senate Democrats last week that they have reached 50 endorsements of their motion to override the repeal in their own effort to combat the decision. Sen. Susan Collins of Maine was the first Republican to join all 49 Democrats in their resolution, which requires one more Republican endorsement.

However, the House would have to pass a similar bill for Congress to successfully overturn the repeal. Pittsburgh’s Democrat Rep. Mike Doyle is leading the House effort, which has 80 House Democrats on board so far and requires 218 signatures to make it to the floor.

The FCC has pointed to the fact that as a part of the order, until the new changes have been entered into the federal registry there can be no legal action against the repeal, which may happen in the coming weeks.

The additional controversy surrounding the repeal is due to the 2 million fraudulent comments submitted to the FCC concerning net neutrality, influencing their decision. 

Shapiro estimated that 100,000 of these fake comments came from Pennsylvanians, and launched badcomments.attorneygeneral.com so consumers can see if their name was used without their permission.