FCC just voted to kill Net Neutrality. Now we will SUE THEM and FIGHT in Congress! We are Free Press & friends. AMA

What specifically are you planning on suing them for? I completely agree with your motion by the way, I just want more information.

Failure to properly follow the Administrative Procedures Act, for starters.

First off, I would like to say thank you guys. As a lawyer myself, I think this is one of the most righteous causes to fight for at the moment, and if you guys would ever like assistance from a lawyer who has a background in electrical engineering, has done legal work for telecommunications companies, and has a strong understanding of con law, please let me know and I'd be happy to help out.

Second, I know that you responded to a follow-up question below, but I have a more nuanced question that I'd like to ask. You say that the FCC failed to properly follow the APA. What sections and/or clauses of the APA are you asserting that they failed to follow? More specifically, can you tell me what legal arguments you would make in response to this comment by /u/InquisitorialRetinue posted here and reproduced below.

Based on what procedural mandate, and on what theory? The AGs can’t even cite the APA correctly (“Procedure” is not plural). How is this different from interest groups urging the writing of form letters to an agency making identical points, most of which are disregarded by agency staff anyway? (The agency need only consider a significant point, not its redundant iterations.)

For one, it’s not a popularity contest. See, e.g., U.S. Cellular Corp. v. FCC, 254 F.3d 78, 87 (D.C. Cir. 2001) (an agency “has no obligation to take the approach advocated by the largest number of commenters” and “may adopt a course endorsed by no commenter.”). For two, the APA “has never been interpreted to require the agency to respond to every comment, or to analyse every issue or alternative raised by the comments, no matter how insubstantial.” Thompson v. Clark, 741 F.2d 401, 408 (D.C. Cir. 1984); see also Vermont Yankee (“administrative proceedings should not be a game or a forum to engage in unjustified obstructionism by making cryptic and obscure reference to matters that ‘ought to be’ considered and then, after failing to do more to bring the matter to the agency’s attention, seeking to have that agency determination vacated on the ground that the agency failed to consider matters ‘forcefully presented.’”).

Here, the AGs point to comment spam, but then don’t elaborate on how they are material to the validity of the proposed rule. They don’t even articulate a theory! Sure sounds to me like cryptic obstruction of the Vermont Yankee variety.

While this comment is pointed at halting/pausing the vote on the repeal due to the allegedly fraudulent comments, the cited case law (as well as precedential case law such as Citizen's United) does make a compelling argument in favor of the FCC. And, as an engineer, given the standard of arbitrary and capricious, it seems like the FCC has provided enough information to jump that incredibly low hurdle. So while I think it's the wrong outcome, the law does seem to indicate that the FCC will win.

Long story short, I would like to know how you all are planning to respond to those rules and arguments and what other legal theories/arguments you are planning on posing.

Thanks!

Sure! Quick caveat that though you're bringing up very interesting issues we can't hash out the whole legal theory in this AMA.

The state of the record raises a lot of issues only some of which are justiciable and only some of those will be directly relevant to challenging this rule making.

On process challenges in general, here's one we've made public: The agency completely failed to notice the authority upon which the weak transparency rule rests. It's a huge problem for the rules. https://ecfsapi.fcc.gov/file/1207948529615/Section%20257%20ex%20parte%20Dec%207%202017.pdf

Howso?

My only understanding of the matter is that the FCC enacted Title 2, so why can't they unilaterally get rid of it?

Agencies actually can't "unilaterally" do anything. By law they must engage in reasoned decision making and follow the process in the Administrative Procedures Act. Agencies that don't often get their regs overturned. Those requirements include things like providing the public advanced "notice" of their proposed actions and providing adequate evidence for their descision.

Is there a particular aspect of the rollback/ change in regulation that you feel meets the arbitrary and capricious language?

The most straightforward is that the "evidence" they relied on for this rule making - their investment data is bogus: https://www.freepress.net/blog/2017/05/24/fcc-chairman-pai-doesnt-know-how-measure-investment

Seconding Nathan at Access. We disagree with the FCC on their interpretation of the Communications Act. We believe the FCC didn't justify its action with any real facts for abandoning Title II classification for broadband ISPs. Then there are the huge problems with the FCC's process in this proceeding like not meaningfully engaging with the comments and not giving adequate notice about their plan to kill all the rules save some weaksauce transparency provisions. For starters that is.

Is weaksauce official legal terminology? =P

You should really see the things we say about AT&T's legal theories in the official FCC record.

Now cable and phone companies are free to block.

This is by far the biggest issue. Everyone is up in arms that their Netflix/FB/Instagram might get throttled. But I don't think any ISP in their right mind would do that because they would either be facing riots or hemorrhaging customers. (Edit: see edit below)

Blocking information in the internet allows ISPs to manipulate and groom their customers for whatever agenda they want. This is beyond just a politics. This is a violation of 1st amendment rights.

Are you guys thinking along these lines?

Edit

Okay to clarify - they may not be hemorrhaging customers, but if you do anything to take entertainment away from Americans you will not have a good time. Its like the kid that wants candy at the grocery store. They are gonna start yelling and screaming to make a scene.

But my main point here is people seem so fixated on the Netflix/Fb/etc. But the real problem is that ISPs can now control knowledge/information. Now apply Murhy's law.

Definitely. ISPs are now in a position of exceptional power as the gatekeepers to the internet. We (and others) have argued for years that Net Neutrality is integral to free speech. https://www.freepress.net/blog/2014/06/23/net-neutralitys-impact-free-speech

Has anything like this (from the FCC or other regulatory organization) been overturned in court? If so, how long could it take? The courts are very slow of course, but could public interest increase the speed? Are you thinking within 2 years? 4 years / in the next administration?

*edit: fixed some spelliing

The FCC like other agencies have a long history of their decisions being challenged in court. In fact, we are where we are today because the ISPs kept challenging the FCC's Net Neutrality regulations in court over the last decade. The ISPs have won this round at the FCC but turnabout is fair play and we'll undoubtably challenge the agency on some of the same grounds they did.

As far as timing - we can't go to court until the FCC's decision is published in the federal register so this whole thing will kick off sometime early next year. And then it could be a year or more until its resolved.

Can ISPs act immediately or do they have to wait until their decision is published in the federal register?

I'd love an answer on that too. It would be almost catastrophic if they could act immediately!

They can act. FCC regulatory action has the force of law and the order makes it clear they will no longer investigate the practices of broadband ISPs. The agency has completely abdicated its responsibility to protect telecom customers from unfair practices.

This is why having Congress overturn the FCC's action is so important.

To what extent does the FCC's decision to disregard (1) the quantity of pro net neutrality comments, and (2) the "cyberwar" campaign to flood the site with fake comments affect whether a court will conclude today's vote was arbitrary and capricious?

The "arbitrary and capricious" doctrine sets a high standard of proof necessary to prevail in a civil action.

Without telegraphing (ha!) the exact contours of our legal arguments regarding A&C review the agency must examine the relevant data and articulate reasons for the decisions it makes. There is plenty of evidence in the comment record that the FCC didn't do that.

There are also other standards the FCC must meet. For example, the agency must not have a "closed mind" when it begins a rule making. Months ago Chairman Pai stated that overturning Net Neutrality is a fight he "intends to win". We think that's a serious problem for the FCC.

Do you think that the video he released recently making fun of NN supporters and the other FCC member stating it was already a done deal will also hurt their chances of winning? Or are those two things not substantial enough?

The video was in poor taste (and lame) but it won't have an effect on the litigation.

What can the average broke citizen do? Sincerely. Everything thus far has been of no consequence. We are failing. We are losing.

What can come next?

Tell me what to do.

Check out Team Internet and www.battleforthenet.com in the description above. Congress can now pass a resolution disapproving of the FCC's action and overturning it restoring the old rules. That's the Congressional play now and all it takes is persistent calls to members of Congress.

The FCC chairman has claimed there is no proof of bandwidth throttling, yet I do recall that Netflix and Comcast had many issues in the past.

What proof will you bring to your case? Or do you have any tech experts on your side? Can you get Bill Gates?

You're right that there are many examples of the big ISPs violating NN for their own financial gain, but I doubt they are going to lay out their evidence to anyone before the actual case proceedings in court.

Here's an non-exhaustive list of their violations: https://www.freepress.net/blog/2017/04/25/net-neutrality-violations-brief-history

Do you think there is a chance of success of repealing the repeal?

Sure, both in the courts and in Congress. As we've said, there are serious legal defects with the order and Rep Doyle and Sen. Markey have stated they're going to introduce a bill disapproving of the FCC's vote today and restoring the 2015 rules.

Serious question. Did you sue them before 2015? If so what was the outcome? Is that how we got NN originally?

The ISPs sued again and again over the last decade as the FCC tried to enforce Net Neutrality rules. We ended up with the 2015 order when the courts made it clear that if the FCC wants to enforce Net Neutrality rules it must do so under Title II of the Communications Act.

What's to stop every state from just making their own ISPs that don't charge for fast lanes? How is Comcast stopping them?

The FCC created a policy about a week ago preventing states from setting policies that would supersede the repeal, and other future actions as well.

Edit: Source- https://arstechnica.com/tech-policy/2017/11/fcc-will-also-order-states-to-scrap-plans-for-their-own-net-neutrality-laws/

Yes, it's a provision in this new order. The FCC is asserting very broad preemption over states and municipalities.

Hey, I've supported NN regulation unwaveringly for awhile. Recently I've started seeing some articles that are providing counter arguments to some popular pro-NN points. Primarily a) it's going to help competition b) the examples of NN violations in the past were over-exaggerate and/or eventually fixed themselves and c) fast lanes and zero ratings aren't that big of a deal and won't really hinder innovation. I'm curious what the counter-counter argument would be. Secondly, will it be legal for comcast (for example) to throttle all other services other than NBC or would that be considered anti-competitive? Thanks!

a) it's going to help competition

There's actually been a historic level of investment since the 2015 order. We've catalogued that here: https://www.freepress.net/press-release/108079/its-working-free-press-documents-historic-levels-investment-and-innovation-fccs

We've also heard that argument and I just can't connect the dots on that one. I'd have you challenge or investigate the claim that giving ISPs the power to block, throttle or create fast lanes increases competition. It'll likely work to create an incumbency protection racket where ISPs can work with big content providers to secure fast lanes thereby relegating start ups to a worse and harder to access tier of the internet.

b) the examples of NN violations in the past were over-exaggerate and/or eventually fixed themselves

Here's a list of notable violations. https://www.freepress.net/blog/2017/04/25/net-neutrality-violations-brief-history

One thing to keep in mind is that these violations occurred in an environment where the FCC was committed to overseeing the behaviors and protecting consumers from the unfair practices of ISPs (whether that was under a Title I or Title II regime). Today the FCC has said it will completely abdicate its oversight role over ISPs. It's a whole new chapter in the ISP shenanigan game.

c) fast lanes and zero ratings aren't that big of a deal and won't really hinder innovation

These practices distort the market and encourage further consolidation. We're now in a world where a company like Comcast owns both access to the network and is a huge content creator (NBC) as well. Under the new regime Comcast can privilege its own affiliated content crowding out newcomers and other media.

Secondly, will it be legal for comcast (for example) to throttle all other services other than NBC or would that be considered anti-competitive?

Let's call this an open question. I'll note that this kind of anti-trust litigation can take years during which companies like Comcast can reap the benefits of gaming the network. This is why bright line rules are better than post-hoc enforcement.

Thanks for doing this. I think a legal challenge is going to go a long way towards clawing back an open internet.

Given that there was a public comment period and Pai has indicated they were considered in some form (especially given that at least two members have clearly taken public opinion and common sense into consideration), do you think the court will agree that the FCC was derelict in its duty? In some way, do the liberal members of the FCC voicing their dissent hurt your chances on that argument?

In terms of the Communications Act and the 1996 Telecommunications Act, given that the FCC has a pretty broad jurisdiction on what and how it can regulate, how do you plan on getting around their interpretation?

Finally, which jurisdiction are you going to file in? Any concerns about possible judges/panels?

Doing these in reverse order to mix it up a bit.

Finally, which jurisdiction are you going to file in? Any concerns about possible judges/panels?

Venue is often a literal lottery and is certainly one for the makeup of a panel. So to that I'll say we're not yet sure.

In terms of the Communications Act and the 1996 Telecommunications Act, given that the FCC has a pretty broad jurisdiction on what and how it can regulate, how do you plan on getting around their interpretation?

Without going too into it: telecom vs information service (TII vs TI) classification is a fact-based inquiry that we believe the agency got wrong.

Given that there was a public comment period and Pai has indicated they were considered in some form (especially given that at least two members have clearly taken public opinion and common sense into consideration), do you think the court will agree that the FCC was derelict in its duty? In some way, do the liberal members of the FCC voicing their dissent hurt your chances on that argument?

There are multiple issues with how the FCC dealt with the comments and only some of those will be justiciable and/or directly relevant to challenging the FCC's decision today. The minority members of the Commission were in great form today and nothing they said will adversely affect the litigation.

I heard it mentioned more than once in the proceedings that the current law allows for ISPs to throttle/block/provide "fast lanes," but they aren't. The argument they are making is that repealing NN title 2 legislation will not suddenly spur these ISPs to take these actions for fear of consumer backlash. What are your thoughts on this?

So ISPs have been prohibited from throttling/blocking/creating fast lanes for some time now. Those rules were placed on the solid legal foundation of Title II in 2015. It's only just now that those rules have been wiped away.

As for ISPs to actually taking these actions - Comcast has already removed their promise not to create fast lanes from their website. https://arstechnica.com/tech-policy/2017/11/comcast-quietly-drops-promise-not-to-charge-tolls-for-internet-fast-lanes/

If you fail here, is there any realistic chance of Net Neutrality being restored under a new presidential administration?

Only if we support politicians that support the open internet!

What do you believe is going to be the biggest change if the vote to throw out net neutrality holds? Also what (if anything) can we do to get ahead of the repercussions?

The first thing to change looks like it'll be the creation of fast lanes which will further entrench the power of incumbents and stifle innovation online. Paid prioritization also rewards companies like Comcast that also own content providers (NBC in this case). After that - the world's their oyster unfortunately and they now have the power to block access to websites for whatever reason.

Will net neutrality be in place or not while it’s being debated in the Courts?

With this vote the FCC's said it will no longer police the practices of ISPs totally abdicating their role of protecting consumers from ISPs' unfair behavior. ISPs are now free to block and throttle traffic subject to the FCC's weak transparency requirements.

If you manage to have the lawsuit work, what can you implement so this doesn't happen again?

That's up to everyone else out there. Support candidates that support the open internet.

What are the chances that this gets repealed on a congressional level?

Excuse me while I go pack my things and move to Canada.

Senator Markey and Rep. Doyle have made it public that they'll introduce a bill to overturn the FCC's vote today and restore the Title II Net Neutrality protections (through a mechanism called the Congressional Review Act). Moving's expensive and calling your member of Congress and getting them on board is much cheaper. Give that a shot!

How soon can we vote these people out? Can this decision be reversed in future?

As far as the Commissioners themselves they're on terms of varying lengths and no one's up soon. Rep Doyle and Sen Markey have a bill ready to go to reverse the FCC's decision today. If that passes we win.

I imagine there's a lot of work that goes into this, which translates into some late nights in the office. Do you have a favorite cheese that helps you power through the work?

You know, I've really gotten into fried haloumi lately. So good.

As far as for late-night lawyering, most any cheese'll do so long as it's on a pizza.

If our representatives support net neutrality and are already working on overturning today’s decision, what else can we do?

Educate your friends and family. There's plenty of people that don't know how important Net Neutrality is. Tell people why it's important to you now so those people don't shrug their shoulders when ISPs start playing games with internet traffic.

Can I donate to your legal expenses?

Sure! Here's our link: https://act.freepress.net/donate/internet_nn_lawsuit/?source=reddit

Also consider the other great organizations above.

The internet was perfectly fine before 2015, when net neutrality was created. This seems nothing more than false outrage. Why do we need more government overreach in our daily lives?

Despite Chairman Pai's assertions Net Neutrality existed long before 2015.

In the broadband era (until just now) the FCC has committed itself to policing ISP practices and ensuring the open internet. The debate until 2015 was how exactly to protect those principles in law. After the ISPs challenged various legal regimes the courts made it clear to the agency that if it wanted to protect Net Neutrality it must do so under Title II of the Communications Act - and that's exactly what it did.

Here's a great breakdown of the long history of Net Neutrality: https://www.wired.com/story/how-the-fccs-net-neutrality-plan-breaks-with-50-years-of-history/