22 States, D.C. File Court Brief To Reverse FCC Net Neutrality Rollback 

by Samuel Abasi Posted on August 21st, 2018

Washington, DC, USA: Twenty-two state attorneys general and the District of Columbia have asked a U.S. appeals court to reinstate net neutrality rules that barred internet providers from throttling traffic or offering paid fast lanes.

The group, led by New York Attorney General Barbara Underwood, originally filed suit in January after the FCC voted in December to roll back the Obama-era policy. They state in a new brief filed Tuesday that a “free and open internet is critical to our democracy.”

“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,” Underwood wrote.

The brief argues that the “FCC’s order is arbitrary and capricious because it puts consumers at risk of abusive practices by broadband providers, jeopardizes public safety” and that it “unlawfully purports to preempt state and local regulation of broadband service.”

“For more than fifteen years, the Federal Communications Commission 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. The recent Order represents a dramatic and unjustified departure from this long-standing commitment,” the brief states.

The FCC was too credulous in accepting industry promises “to refrain from harmful practices,” the officials said, “notwithstanding substantial record evidence showing that [internet service] providers have abused and will abuse their gatekeeper roles in ways that harm consumers and threaten public safety.”

The coalition of 23 Attorneys General collectively represents over 165 million people and includes the Attorneys General of New York, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Mississippi, New Mexico, New Jersey, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.

In June, the Federal Communications Commission (FCC) put into effect a new rule, “Restoring Internet Freedom,” to replace regulation that ensured internet providers treated all websites and content equally.

FCC chairman Ajit Pai defended his agency’s policy shift in June, saying that the new rules will provide a “light touch approach” that produces “tremendously positive” benefits for consumers.

The legal briefs reflect a widening front in the multi-pronged campaign by consumer groups and tech companies to rescue regulations that originally barred providers from blocking websites or slowing them down. With the FCC’s changes, internet service providers may legally manipulate internet traffic as it travels over their infrastructure, so long as they disclose their practices to consumers.

Another group representing Mozilla — the maker of the Firefox web browser — as well as Etsy, Vimeo and a number of consumer organizations said the FCC’s core rule changes made no logical sense and improperly conflate high-speed internet service with online applications.

In justifying the deregulation, the FCC had said broadband is more like an information service than a telecommunications service. The distinction is important because the legal classification determines the extent to which the FCC may regulate the service providers. For example, the “telecommunications” classification allowed the FCC, in 2015, to apply stricter rules to internet service providers that not only banned the blocking of websites but also imposed new obligations on carriers meant to safeguard customer privacy.

The FCC said in its rule change last year that although many people no longer rely on their internet service provider for crucial applications such as email or search, many providers still maintain these applications.

What’s more, the agency said, all internet service providers perform tasks that fall under the definition of an information service, such as interpreting what a user means when they type “fcc.gov” into their browsers and translating it into an IP address that servers can understand. This system, known as the Domain Name System, is what enables people who are connected to the internet to get from one site to another.

“While many popular uses of the internet have shifted over time,” the FCC’s order said, “the record reveals that broadband internet access service continues to offer information service capabilities that typical users both expect and rely upon.”

But tech companies and consumer groups told the court Monday that third-party services routinely carry out those same functions, and that ISPs cannot lay claim to lighter regulation just because a portion of their business is involved in performing them.

“The FCC could not have reasonably concluded that a drop of DNS and caching in a sea of transmission transformed the service into something that could properly be called an information service,” the brief said.

The overall impression, the group said, is that of trying to deregulate all roads that lead to hotels by simply reclassifying the roads themselves as hotels.

“Never mind, continues the builder, that the road itself does not provide guests with any lodging, business conferencing, or beach recreation services,” the brief said. “That is the essence of what the FCC argues.”

The FCC has a court deadline in October to file its response.

EARLIER : FCC Net Neutrality Rollback Goes Into Effect

The Federal Communications Commission, FCC’s repeal of net neutrality rules, which required internet service providers to offer equal access to all web content, took effect on Monday.The Obama-era net neutrality/open internet rules prohibited internet providers from charging more for certain content or from giving preferential treatment to certain websites.

After the FCC voted 3-2 along party lines to repeal the rules in December, it faced a public outcry, legal challenges from state attorneys general and public interest groups, and a push by Democratic lawmakers to overturn the decision.

The opponents argued that the repeal would open the door for service providers to censor content online or charge additional fees for better service — something that could hurt small companies — and several states have taken steps to impose the rules on a local level.

“Now, on June 11, these unnecessary and harmful internet regulations will be repealed and the bipartisan, light-touch approach that served the online world well for nearly 20 years will be restored,” FCC chairman, Ajit Pai, earlier said.

“The agency failed to listen to the American public and gave short shrift to their deeply held belief that internet openness should remain the law of the land,” FCC commissioner Jessica Rosenworcel told reporters. “The FCC is on the wrong side of history, the wrong side of the law, and the wrong side of the American people.”

Trump’s pick to run the Federal Communications Commission, Ajit Pai, called the net neutrality rules “heavy-handed” and vowed to end them. His order, touted as promoting investment and broadband deployment, loosens the FCC’s regulation of ISPs, and instead gives the Federal Trade Commission jurisdiction to enforce violations. Pai says this system lets the FTC focus on “the bad apples” and allows other players “thrive in a free market.”

The new Trump FCC order permits ISPs to throttle, block, or be paid to prioritize certain sites or content, as long as they disclose that they are doing so.

Ajit Pai’s announcement  came right after a bipartisan group of Senators introduced a discharge petition, officially challenging the FCC’s rollback of the Obama-era net neutrality rules. The petition will require a majority vote in the Senate and House of Representatives, along with the signature of President Donald Trump, so it has a long way to go, but the vote could take place as early as next week.

The FCC’s decision was published in the Federal Register on February 22nd and as per the Congressional Review Act, the Senate had 60 days from that date to take action.

The Senate version of the bill to Ooverturning FCC’s Net Neutrality rollback passed 52-47. Three Republican Senators joined their Democratic colleagues in supporting the bill – Lisa Murkowski (Alaska) and John Kennedy (Louisiana) and Susan Collins (Maine).

Congressional Review Act (CRA) bills allow Congress to overturn agency decisions with majority votes in each chamber, and a signature from the president.

The legislative victory in the Senate  is fleeting because the House does not intend to take similar action, but Democrats are planning to carry the political fight over internet access into the 2018 midterms. Even if it passes the House, Trump is not expected to sign.

Regardless, House democrats led by Michael F. Doyle, Democrat, U.S. Representative for Pennsylvania’s 14th congressional district, said that he intends to launch a discharge petition in an order to force a House vote on reinstating the Federal Communication Commission’s (FCC) net neutrality rules – after the Senate passed a bill to overturn the repeal.

At the same press conference, House Minority Leader Nancy Pelosi (D-California) and Senate Minority Leader Charles Schumer (D-New York) called on Speaker Paul Ryan (R-Wisconsin) to bring the CRA to the House floor, urging Republicans to back it.

Most Republican lawmakers argue that the Obama net neutrality rules is a case of over regulation.

Across the country, state officials have moved to keep net neutrality rules in place on their turf. According to the National Council of State Legislatures, governors in six states — New Jersey, New York, Montana, Rhode Island, Vermont and Hawaii — have signed executive orders upholding net neutrality, and three – Washington, Vermont and Oregon — have enacted legislation that does so.

In January, attorneys general in 22 states and the District of Columbia filed a protective petition for review of the order.

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Samuel Abasi

Samuel Abasi

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