Net neutrality rally at FCC.

In December 2017, the Federal Communications Commission, led by former Verizon executive and Trump-appointee Ajit Pai, issued its order to reverse the Obama-era net neutrality rules enacted in 2015. The FCC claimed its reversal promoted internet freedom and free-market competition and would spur innovation and investment in new technologies. The reversal also treats Internet Service Providers (ISPs) as telecommunications services like radio, television, and phone companies, rather than as a public utility like water or electricity.

The concern proffered by many net neutrality proponents is twofold: (1) a lack of net neutrality allows ISPs to control, limit, and even prohibit access to legal information at their sole discretion; and (2) a lack of net neutrality allows ISPs to prioritize certain content over others, granting faster access to well-funded sites or customers that could pay extra for premium speeds, and slowing or even terminating access to content hosted by smaller or independent sites.

On Jan. 16, 2018, 21 Democratically led states and the District of Columbia filed a petition for review with the District of Columbia District Court arguing that the FCC’s order was “arbitrary, capricious, and an abuse of discretion” in the hopes of nullifying and invalidating the FCC’s reversal. While the FCC incorporated a provision into their order itself that it could not be challenged by the states, many states have not only still challenged the legality of the order itself, but also the procedural manner in which it was obtained – as well as the FCC’s power to regulate (or deregulate) the internet in general. Below is a quick primer on the legal aspects of each challenge, and their potential for success:

Is the Reversal Order Legal?

In short, yes. People easily forget that “net neutrality” has been a hotly debated topic since the mid-1990s, and both sides have vigorously parlayed Congress for decades without lasting result. In fact, this is the third time in seven years that the courts have confronted an effort by the FCC on net neutrality. But until now, the FCC was fighting to compel internet openness (i.e., heavy regulation and net neutrality).

Courts have held that the FCC has the power to compel ISPs to adhere to certain open internet practices under § 706 of the Telecommunications Act. However, there has been disagreement among the courts regarding whether the FCC also has the authority to re-classify the internet as a “telecommunications service” subject to common carrier regulation under Title II of the Communications Act (giving the FCC sole power), or as “information services” classification under Title I of the Communications Act. The Title I Classification potentially gives the Federal Trade Commission control, loosens regulations, and allows competitive behavior to occur. But to go back to the question, the FCC changing its stance on the internet is not only legal, but frequent.

Was the Public Comment Period Conducted in Compliance with FCC Regulations?

Probably not. After the FCC received over 22 million comments during the Notice of Proposed Rulemaking Period for the order rolling back net neutrality, which it ignored as “merely one factor to consider,” many analysts and even the New York Attorney General began taking a closer look into the process. What it found was that most unique comments (more than 60 percent) strongly opposed rolling back net neutrality, and that while both sides of the debate had extensive use of bots posting the same comments thousands of times, the posts supporting the reversal of net neutrality were largely composed of identities used without the owner’s permission from spam databases, as well as the identities of the deceased. There were also roughly 500,000 comments submitted from (here we go again) Russian sources, and roughly 47,000 spam comments supporting the reversal of net neutrality in the final five minutes of the comment period. The FCC has publicly refused to comply with any investigation into how so many fraudulent comments were posted.

In response, New York Attorney General Eric Schneiderman has filed suit, claiming that the FCC violated the Administrative Procedures Act, which requires the FCC to solicit and seriously consider relevant comments from the public during the Notice of Proposed Rulemaking period. Rather, New York, along with 20 other states, have alleged that the FCC used the spam and fraudulent comments as an excuse to completely ignore the legitimate and staunch public opposition against reversing net neutrality, and thus, they argue, the FCC did not comply with the Administrative Procedures Act.

The FCC is also facing a lawsuit which alleges it completely ignored numerous Freedom of Information Act requests pertaining to the fake comments, and at this time, the FCC has yet to comment as to why those FOIA requests were not honored.

Does the FCC have the Sole Authority to Regulate the Internet?

Again, this depends on how it’s classified. The FCC retains sole authority to regulate the internet (theoretically) when the internet is classified as a Title II “telecommunications service,” but (theoretically) the internet could be regulated by the FTC if it was classified as a Title I “information service.”

The most interesting part about this debate is Title II authority permits whoever is in office – Republican or Democrat – to modify the classification as they see fit, meaning that in four (or eight) years, the classification is free to change again with the politics of whoever is running the administration.

The only group that could stop the political pendulum of internet classification is Congress, but they have been trying without any bipartisan success since 2006. Hopefully, Congress can get it together and enshrine rules against internet blocking and throttling, and finally settle the dispute over who controls the internet. But until then, enjoy as many cat videos as you can.

Michael A. Holmes is a senior business and technology attorney at Godwin Bowman, & Martinez. His practice includes representing clients in data security, privacy and cybersecurity matters.