Net neutrality lawsuits to take 2 approaches

FCC’s reasons, the process expected to be attacked

The ink isn’t dry yet on the federal government’s decision to repeal its net neutrality rules, and yet many are already gearing up for what they say is an inevitable legal battle (once again) over the future of the web.

“I’m shocked — shocked! — that people are going to challenge this decision in court!” said Ajit Pai, chairman of the Federal Communications Commission, last week after his agency voted, 3-2, to repeal the Obama-era rules for internet providers.

Because of the potentially far-reaching consequences of the vote, consumer groups and some state attorneys general have vowed to sue the FCC to overturn its decision. The first suits could be filed in mid-January, according to some analysts.

“We’re suing because the FCC today broke essentially all the rules of administrative procedure,” New York Attorney General Eric Schneiderman told MSNBC last week after the vote.

“Agencies aren’t just allowed to make any arbitrary decision,” he said. “In fact, courts have held that if a decision is ‘arbitrary and capricious’ ... it has to be rejected.”

Opponents of the FCC are expected to make two broad categories of arguments, analysts say. One thrust is likely to target the FCC’s legal reasoning for undoing the net neutrality rules, and the other will concentrate on the decisionmaking process that led to the vote, which some critics claim had been “corrupted.”

The last net neutrality lawsuit also followed this pattern, but the sides were flipped: It was industry groups who argued that the FCC’s net neutrality rules were flawed and that the agency had violated the Administrative Procedures Act.

In that lawsuit, a threejudge panel upheld the regulations, giving the FCC the benefit of the doubt in part due to its technical expertise.

But that deference to agency decision-making could cut against supporters of the net neutrality rules this time even though it helped them in the last round, said Matthew Brill, a partner at the firm Latham and Watkins who represents NCTA — The Internet and Television Association, a major cable industry trade group.

Even if the courts rule for the FCC on its definition of internet providers, opponents of the agency hope to gain a victory by focusing on the public feedback portion of the decision-making process.

As many as 2 million comments may have been submitted under false names, according to FCC Democratic Commissioner Jessica Rosenworcel, who also alleged that some 500,000 comments came from Russian addresses and that 50,000 consumer complaints mysteriously vanished from the docket.