Barbara Underwood, the chief law officer for the state of New York, filed the complaint yesterday in a US appeals court against the Federal Communications Commission (FCC) and the US government.
She was joined by the attorneys general of 21 other states and the District of Columbia, and by Mozilla plus Vimeo and a number of other internet organisations.
The FCC had “no valid authority” for its anti-net neutrality order, which was announced in 2017 and came into effect in June 2018, says Underwood’s petition. It says it will cause “inevitable harms … to consumers, public safety, and existing regulatory schemes”. The order “entirely ignored many of these issues, including public safety, in violation of the agency’s statutory mandate”.
Underwood, who was appointed attorney general in May 2018, said: “By repealing net neutrality, the FCC is allowing internet service providers to put their profits before consumers while controlling what we see, do, and say online.”
She added: “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. We’ll continue to fight to protect consumers’ right to a free and open internet.”
The coalition of 23 attorneys general includes the chief law officers of California, Illinois, Massachusetts, New Jersey and Virginia, with a total population of over 165 million people – approximately 50% of the US population.
Their petition focuses on two issues: first, “that the FCC’s order is arbitrary and capricious because it puts consumers at risk of abusive practices by broadband providers, jeopardises public safety, and more”.
Secondly, “that the FCC’s order unlawfully purports to pre-empt state and local regulation of broadband service”.
Underwood and her fellow attorneys general said that for more than 15 years, the FCC “has agreed that an open internet free from blocking, throttling, or other interference by service providers is critical to ensure that all Americans have access to the advanced telecommunications services that have become essential for daily life”.
They said the net neutrality banning order “represents a dramatic and unjustified departure from this long-standing commitment”.
Mozilla’s COO Denelle Dixon wrote in a blog after filing the action: “For the first time in the history of the public internet, the FCC has disavowed interest and authority to protect users from ISPs, who have both the incentives and means to interfere with how we access online content.”
She added: “We are proud to be a leader in the fight for net neutrality both through our legal challenge in Mozilla v FCC and through our deep work in education and advocacy for an open, equal, accessible internet.”
Dixon said that others would be joining the action against the FCC between now and November 2018. “After that process is complete, oral arguments will take place and the court will rule,” she wrote.
Meanwhile the US Senate’s Committee on Commerce, Science, and Transportation has been questioning FCC chairman Ajit Pai on the circumstances around reports of an alleged distributed denial of service (DDoS) attack on the regulator’s website in May 2017, when the net neutrality debate was at its height.
The comments section on the FCC’s website was apparently affected by something that prevented public comments on net neutrality. Pai said it was a DDoS attack but now it appears he was misinformed by the FCC’s then chief information officer.
Pai knew that the story was false in January 2018 but withheld the information on the instructions of the Office of the Inspector General (OIG), which oversees US government agencies.
One committee member, Senator Brian Schatz, said: “It just seems odd that the moment your CIO says something, that you run with it and you ran with it quite aggressively all the way up until… last week when you said, ‘well, I was duped’.”
The OIG apparently told Pai that there was the possibility that the former CIO would be prosecuted. Pai told the Senate committee: “I made the judgment that we had to adhere to the OIG’s request even though I knew we would be falsely attacked for having done something inappropriate.”
