The Independent View: Big Tech to Join Legal Fight Against Net Neutrality Repeal

An Industry Group that represents the Country’s biggest Technology companies said on Friday that it planned to join a looming Legal fight against the Federal Communications Commission (FCC) over its Repeal of so-called Net Neutrality Rules.

In its announcement, the group, the Internet Association, made clear for the first time that Facebook, Google, Netflix, and other large Tech firms would put their reputations and financial clout behind the challenge.

Lawsuits seeking to Block the Commission’s New Policy, which was approved in December, are expected in the weeks ahead, once the Rules take effect. The Rules will let Internet Service Providers (ISP) Block Online Content, or Charge Websites for Faster Delivery to Consumers, by Rolling Back the Protections against such actions that were adopted in 2015.

Several Public Interest groups, including Free Press and Public Knowledge, and some Start-Ups had announced plans to Challenge the Commission’s move weeks ago, but the Internet Association had been undecided about how to respond. Before the Commission voted on the Repeal, some of America’s biggest Tech companies, Facebook and Google in particular, took a back seat during Public Protests over the issue.

On Friday, a day after the Commission released the 539-page Final Rules, the Internet Association said it would join the coming Legal Case against them.

“The rule defies the will of a bipartisan majority of Americans and fails to preserve a free and open internet,” Michael Beckerman, the Association’s Chief Executive, said on Friday.

Netflix, whose Data-heavy Video Streams could face extra charges by ISPs, also said it would support a Legal Challenge. “In 2018, the Internet is united in defense of #NetNeutrality. As for the FCC, we will see you in court,” the company said in a message posted on Twitter.

The issue of Regulating ISPs to maintain an Open Internet has wound through the Courts and the Commission for more than a decade. The Repeal in December, led by Ajit Pai, the New Commission Chairman, attracted strong opposition. Pai has said the New Rules would encourage more Investment and Innovation by ISPs. He has also argued that the change would withstand any Legal Challenge, as it essentially Restores the Rules to what they were before 2015.

Democratic Lawmakers in Washington hope to reverse the Commission’s Action by using the Congressional Review Act, and they have introduced numerous Bills that could Replace the Agency’s Rules, although the prospects for those efforts appear weak. States Lawmakers in California, New York, and Washington are also considering Bills that would recreate the 2015 Net-Neutrality Rules in those States.

Public Interest Groups are trying to make Net Neutrality an issue in this year’s Midterm Elections. They have deployed Text and Email Campaigns meant to pressure Lawmakers to support a Congressional Reversal of the Commission’s Action. “We’ll be going to court soon to challenge the FCC and ramping up pressure on Congress to throw the rules out altogether,” said Craig Aaron, President of Free Press. Mr. Pai, he said, had “awakened the public.”

From the FCC Announcement

The framework adopted by the Commission today will protect consumers at far less cost to investment than the prior rigid and wide-ranging utility rules. And restoring a favorable climate for network investment is key to closing the digital divide, spurring competition and innovation that benefits consumers. The Declaratory Ruling, Report and Order, and Order adopted by the Commission takes the following steps to achieve these goals:

Declaratory Ruling

-Restores the classification of broadband Internet access service as an “information service” under Title I of the Communications Act—the classification affirmed by the Supreme Court in the 2005 Brand X case.

- Reinstates the classification of mobile broadband Internet access service as a private mobile service.

- Finds that the regulatory uncertainty created by utility-style Title II regulation has reduced Internet service provider (ISP) investment in networks, as well as hampered innovation, particularly among small ISPs serving rural consumers.

- Finds that public policy, in addition to legal analysis, supports the information service classification, because it is more likely to encourage broadband investment and innovation, thereby furthering the goal of closing the digital divide and benefitting the entire Internet ecosystem.

- Restores broadband consumer protection authority to the Federal Trade Commission (FTC), enabling it to apply its extensive expertise to provide uniform online protections against unfair, deceptive, and anticompetitive practices.

Report

- Requires that ISPs disclose information about their practices to consumers, entrepreneurs, and the Commission, including any blocking, throttling, paid prioritization, or affiliated prioritization.

- Finds that transparency, combined with market forces as well as antitrust and consumer protection laws, achieve benefits comparable to those of the 2015 “bright line” rules at lower cost.

- Eliminates the vague and expansive Internet Conduct Standard, under which the FCC could micromanage innovative business models.

Order

- Finds that the public interest is not served by adding to the already-voluminous record in this proceeding additional materials, including confidential materials submitted in other proceedings.