Net Neutrality Fight Continues for State AGs, Other Supporters of Obama-Era Rules

August 22, 2018 – Some supporters of so-called net neutrality rules are not ready yet to give up the fight.

State attorneys general in 22 states and the District of Columbia, in a new filing Monday, want a federal appeals court to reinstate the rules passed under President Obama that prevent Internet Service Providers (ISPs) from blocking, throttling or prioritizing their own content or that from their partners.

The states filed the suit earlier this year, challenging the new, lighter-touch rules, which the Republican-led Federal Communications Commission passed in December 2017 and which went into effect in June. At the time, they called the FCC’s revoking of the Obama-era rules “arbitrary and capricious.”

In the new filing, submitted to the U.S. Court of Appeals for the District of Columbia, D.C. Court of Appeals, the attorneys general reiterate that claim citing concerns about public safety. To emphasize the concern, they note that Verizon Wireless throttled the Santa Clara (Calif.) County Fire Protection District when it was battling the Mendocino Complex Fire earlier this month.

Verizon said it has a practice of removing data speed restrictions in emergency situations, and that it should have done so in this case.

“In this situation, we should have lifted the speed restriction when our customer reached out to us. This was a customer support mistake,” Verizon spokesperson Heidi Flato said in a statement to USA TODAY.

The attorneys general say in the filing that the FCC’s measure also unduly prevents state and local laws that would conflict with the FCC regulations.

“The rollback of net neutrality will have a devastating impact on millions of New Yorkers and Americans across the country, putting them at risk of abusive practices while undermining state and local regulation of the broadband industry,” said Attorney General Barbara Underwood in a statement announcing the brief’s filing.

A collection of consumer and tech groups, along with companies Mozilla and Vimeo, filed their own legal brief Monday, charging the FCC abrogated its duty in overturning the 2105 rules. In the filing, the coalition argues the FCC also did not consider all the evidence it should prior to reclassifying broadband as an information service rather than a telecommunications service. That classification allowed the 2015 FCC to use Title II of the Communications Act of 1934 to oversee ISPs.

“The FCC chose to exclude evidence in its own possession from this proceeding, and for this reason alone the court should reverse the FCC’s decision to repeal Net Neutrality protections,” said Francella Ochillo, director of government and legal affairs for the National Hispanic Media Coalition, one of the parties in the filing.

In another net neutrality-related development, Rep. Frank Pallone, D-N.J., and Sen. Brian Schatz, D-Hawaii, have asked the Government Accountability Office to review the FCC’s reported distributed denial of service attacks (DDoSs) on its website in May 2017 during the public comment period on the repeal of the net neutrality rules.

Earlier this month the FCC’s inspector general released a report into the incident saying the agency “misrepresented facts” and found that the site was overwhelmed by an actual influx of traffic from potential commenters.

Subsequently, Chairman Pai told a Senate committee the IG’s office asked him not comment on the investigation as it proceeded. After the office released its findings, he called the agency’s handling of the incident “completely unacceptable.”

The issue has been a hot button because the attacks may have prevented the public from commenting on the issue, the congressmen say in a letter to the GAO. “Questions remain about the attack itself and more generally about the state of cybersecurity at the FCC – questions that warrant an independent review,” their letter says.

Need a net neutrality memory refresher? In February 2015, Tom Wheeler, a Democrat, was the FCC chairman, and he oversaw the passage of the Open Internet order, a set of tougher rules for ISPs. The measure was needed, Wheeler said, because ISPs had “both the economic incentive and the technological capability to abuse their gatekeeper position.”

Critics of the new rules called them heavy-handed for the reliance on Title II of the Communications Act of 1934 allowing the agency to oversee ISPs as if they are utilities or “common carriers” like the traditional landline phone system.

Donald Trump called the rules a “power grab” in 2014 and after his victory in the presidential election appointed as the new FCC chairman Ajit Pai, a Republican FCC commissioner who had voted against the rules. Calling the new rules an excessive burden on broadband providers, Pai led the drive for the new Restoring Internet Freedom order, which eased the protections and overturned. The FCC passed the measure last year and the rules went into effect two months ago.

By Mike Snyder, USA Today
Read More Here