Net neutrality repeal prompts lawsuits and legislation from government officials and private groups

The Federal Communications Commission repealed 2015 net neutrality regulations on Thursday in a 3-2 vote — and the widely unpopular decision is already being challenged.

The 2015 net neutrality regulations ensured fair and open access to the internet by preventing internet service providers from restricting or limiting access to websites based on the ISPs biases or how much the consumer is paying for service. Repealing the regulations — a move that is opposed by approximately 83% of Americans — could result in slower, more expensive internet service and put smaller companies at a disadvantage, Mic previously reported.

As tech companies and other net neutrality proponents speak out against its repeal, lawmakers and attorneys general throughout the country, along with private groups, are going one step further and taking action, either by proposing new legislation or lawsuits challenging the decision. Here are some of the current legal and legislative responses to the FCC’s controversial decision.

State legislation

While the federal government may be trying to overturn net neutrality, lawmakers are already taking steps to protect their constituents at the state level.

California State Sen. Scott Wiener published a Medium post Thursday responding to the net neutrality repeal, vowing to introduce legislation that would mandate net neutrality in California when the state Senate reconvenes in January.

“My legislation will bring net neutrality requirements to California,” Wiener explained in his post, which noted that he would be working with the Electronic Frontier Foundation, the American Civil Liberties Union and other organizations to craft the legislation.

There are several ways we can bring net neutrality to California. California can regulate business practices to require net neutrality, condition state contracts on adhering to net neutrality, and require net neutrality as part of cable franchise agreements, as a condition to using the public right-of-way for internet infrastructure, and in broadband packages.

“If the FCC won’t stand up for a free and open internet, California will,” Wiener wrote.

In Washington state, Democratic Gov. Jay Inslee announced similar efforts to preserve net neutrality at the state level. Inslee’s proposal, which stops short of explicitly mandating net neutrality, would, rather, incentivize ISPs to adhere to net neutrality principles and strengthen consumer protection laws to integrate the principles of net neutrality.

“We will make net neutrality rules to protect Washington consumers and businesses,” Inslee said, as quoted on his website. “I look forward to working with legislators and the attorney general on the parameters of our actions, but make no mistake, we are moving forward on net neutrality in this state.”

Washington state lawmakers are pursuing their own legislative actions on net neutrality in addition to Inslee’s proposal. Democratic State Rep. Drew Hansen and Republican Rep. Norma Smith are both intending to file legislation that would require ISPs to treat all web traffic equally, the Chronicle reported.

New York State Sen. David Carlucci also promised to take action at the state level on Thursday, writing on Twitter that he is “looking into state-level legislative solutions that will keep access to the internet free and open for everyone.” Gov. Andrew Cuomo promised on Twitter that the state of New York “will take all necessary steps to preserve net neutrality.”

How effective this state legislation will be, however, remains to be seen. The FCC’s proposal repealing net neutrality included a provision that the repeal would supersede any conflicting state or local laws that preserve net neutrality due to the interstate nature of the internet and ISPs, Ars Technica reported in November.

“The order makes plain that broadband will be subject to a uniform, national framework that promotes investment and innovation,” Republican FCC Commissioner Michael O’Rielly said before Thursday’s vote, as quoted by CNET. “Broadband service is not confined to state boundaries and should not be constrained by a patchwork of state and local regulations.”

The Washington state policies outlined by Inslee, however, are designed to circumvent the FCC’s restriction on states, Wired noted, perhaps providing a blueprint for other states to follow. It also remains unclear how well the FCC’s provision would hold up against a legal challenge. In an interview with City & State NY, Columbia University professor Tim Wu, who first coined the term net neutrality, said that the question of who has legal authority over net neutrality is a “gray zone,” adding that FCC Commissioner Ajit Pai’s arguments in favor of pre-empting state legislation were not “bulletproof.”

“There’s been a lot of litigation not just with the FCC but with other agencies about federal preemption,” Marc Martin, chair of law firm Perkins Coie’s communications practice, told Wired. “Courts often look askance at it. It’s an aggressive tactic.”

State and local lawsuits

As lawmakers attempt to navigate legislative paths toward net neutrality, attorneys general throughout the U.S. are instead planning to take up the fight against the FCC in court.

New York Attorney General Eric Schneiderman announced his intention Thursday to file a multi-state lawsuit against the FCC to stop the rollback of net neutrality. Schneiderman previously led an investigation into fraudulent comments on the FCC’s website in support of the net neutrality repeal, which found that stolen identities were used for two million of the comments.

“New Yorkers deserve the right to a free and open internet. That’s why we will sue to stop the FCC’s illegal rollback of net neutrality,” Schneiderman said in a statement, adding, “This is not just an attack on the future of our internet. It’s an attack on all New Yorkers, and on the integrity of every American’s voice in government — and we will fight back.”

Attorneys general that have already announced their intention to participate in the multi-state lawsuit include officials in Washington, Illinois, Oregon and Massachusetts. Iowa Attorney General Tom Miller announced on Twitter that his office would “consult with other state attorneys general in the wake of the FCC’s decision to repeal,” adding that a “multistate legal challenge” is likely.

More states are expected to join the lawsuit, as attorneys general from 17 states and Washington, D.C., previously signed a letter calling on the FCC to delay its net neutrality vote. In addition to the states that have already committed to the lawsuit, with the exception of New York, attorneys general from California, District of Columbia, Delaware, Hawaii, Kentucky, Maryland, Maine, Mississippi, North Carolina, Pennsylvania, Rhode Island, Virginia and Vermont all signed the letter, suggesting they could potentially participate in the lawsuit.

Schneiderman alleged in his statement that the FCC’s “deeply corrupted” public comment process and the fake identities that were used was a violation of New York law, perhaps suggesting part of the legal basis that will be used in the lawsuit. Washington Attorney General Bob Ferguson also noted in a statement that the FCC’s repeal violated the Administrative Procedure Act, which “governs the process by which federal agencies develop and issue regulations,” according to the Environmental Protection Agency.

In addition to the state challenges, Santa Clara County in California — which includes tech hub Silicon Valley — is filing its own lawsuit, NBC News reported.

Private lawsuits

Many major tech companies, including Twitter, Google and AirBnB, have announced their opposition to the net neutrality repeal, vowing to “fight back” and speak out against the repeal.

Several private organizations, however, have signaled that they’ll be taking action by mounting or participating in legal efforts against the ruling.

The Internet Association, which counts Google, Amazon and Microsoft among its members, said in a statement Thursday that it was “currently weighing our legal options in a lawsuit against today’s Order.” Public Knowledge also said that the organization was “prepared to take part in a challenge to this ruling.” The National Hispanic Media Coalition announced its intention to “seek judicial review of the FCC’s Net Neutrality repeal to ensure that Latinos and other marginalized communities continue to have access to an open Internet.”

While it didn’t announce a specific legal effort, the Electronic Frontier Foundation said on Twitter that it would “fight in the courts, in the states, and in Congress to restore net neutrality.” The ACLU, similarly, said that the organization and its allies “will be fighting back in every possible arena to restore these crucial protections.”

Fighting for net neutrality in Congress

The most straightforward path toward overturning the FCC’s net neutrality vote is through Congress — and though the legislative body’s Republican majority will make that trickier, members of Congress are already taking action.

Sen. Ed Markey (D-Mass.) has announced his intention to file a Congressional Review Act resolution against the FCC’s decision, which he referred to as a “historic mistake.” CRA resolutions allow Congress to overturn regulations by federal agencies through a majority vote in the House and Senate, Mass Live noted.

A similar resolution is expected to be proposed in the House by Pennsylvania Rep. Mike Doyle, Mass Live noted. The Congressman previously acted on net neutrality effots by delivering a letter signed by 118 Members of Congress that called on Pai to delay the FCC’s net neutrality vote.

Markey’s proposal is being backed by a number of other Democratic Senators, including Sens. Ron Wyden (D-Ore.), Maria Cantwell (D-Wash.), Brian Schatz Hawaii), Richard Blumenthal (D-Conn.), Sheldon Whitehouse (D-R.I.), Jeff Merkley (D-Ore.), Kirsten Gillibrand (D-N.Y.), Tammy Baldwin (D-Wisc.), Martin Heinrich (D-N.M.), Maggie Hassan (D-N.H.), Amy Klobuchar (D-Minn.), Gary Peters (D-Mich.), Debbie Stabenow (D-Mich.), Patrick Leahy (D-Vt.) and Bernie Sanders (I-Vt.). 

Although the Republican majority in Congress — and the fact that any CRA resolution would need President Donald Trump’s signature — makes congressional efforts against the repeal less likely, several Republicans have signaled their desire to see action being taken to either preserve net neutrality or legislate its core principles.

Republican Rep. Mike Coffman of Colorado announced on Twitter Thursday that he would be submitting “legislation pertaining to net neutrality.” The Republican Congressman was the first from his party to ask the FCC to delay their vote on Tuesday, citing the potential “significant unanticipated negative consequences” that the net neutrality repeal could have.

Tennessee Rep. Marsha Blackburn has spoken out in favor of the net neutrality repeal, saying on Twitter that the “internet was not broken, and did not need the federal government to enforce overbearing regulations to ‘fix’ it.” The Republican representative, however, still promised that Congress would take steps to protect consumers and preserve the “free and open Internet.”

“You can look for legislation next week where Congress will do its job,” Blackburn said in a video posted to Twitter Thursday. “We will codify the need for no blocking, no throttling and making certain that we preserve that free and open internet.

“Action today from the Federal Communications Commission. Action next week will begin with Congress,” Blackburn said.