Attorneys general representing 22 states and the District of Columbia asked a federal court to reinstate net neutrality, saying the Federal Communications Commission failed to properly consider the issues when removing the policy in 2017.
In a brief filed last night, the attorneys general argue that the FCC’s decision “will cause [inevitable harms] to consumers, public safety, and existing regulatory schemes” and that the commission “entirely ignored many of these issues” when overturning net neutrality.
In particular, the attorneys general say that the commission failed to consider public safety concerns that could come from the loss of net neutrality. That’s a critical problem, they say, because public safety is part of the agency’s forming statute.
The brief also says the obvious: that the FCC just outright ignored a lot of clear evidence that internet providers aren’t the honest lot they claim to be. The FCC accepted industry promises, they write, despite “substantial record evidence showing that [broadband] providers have abused ... and will abuse their gatekeeper roles in ways that harm consumers and threaten public safety.”
New York AG Barbara Underwood led the brief, which was also joined by attorneys general representing states from coast to coast, including Maine, Illinois, Iowa, New Mexico, and California. The filing lays out the states’ arguments in an ongoing lawsuit against the FCC, which is also being fought by Mozilla, Vimeo, Etsy, Free Press, the National Hispanic Media Coalition, and several others. Those groups also filed a brief last night, calling the FCC’s actions a “wholesale abdication of its statutory responsibilities.”
The lawsuit seeks to overturn the 2017 order that removed net neutrality by having it ruled “arbitrary and capricious,” which would mean that the FCC failed to fully consider the issues at hand when making its decision. While federal agencies are largely given deference to make policy as they’d like so long as it’s within their legal authority, the agencies do still have to justify their decisions. The question here is whether the FCC did so properly and fully, just two years after it had last considered the issue of net neutrality.
While the goal of the lawsuit is to have net neutrality reinstated, the states do have a backup request: that the court should allow them to make their own net neutrality rules. Even if the crux of the lawsuit fails and net neutrality remains in place, they ask that the court rule a portion of the FCC’s order that bars states from making their own net neutrality laws to be invalid. The commission, they write, “identified no valid authority” that would allow it to block states from making such rules.
The FCC failed in a similar attempt to block state rules that prevented cities from starting their own broadband networks back in 2016, which may speak to the states’ chances here.
In June, the order overturning net neutrality went into effect after being passed in late 2017. Legal challenges have been moving since the minute the vote happened. These filings are another step forward, but oral arguments are still yet to be scheduled.