It should be noted that every AG listed in the suit is a member of the Democratic party. In December 2017, immediately after the vote, these AGs stated their intention to file a lawsuit, so the actions taken last week did not come as a surprise.
State attorneys general across the country have different reasons for wanting to sue the FCC. Bob Ferguson, Washington state’s AG, stated he has issues with the comment period. He believes that there is a case because the FCC violated the Administrative Procedure Act, which allows for public participation in in the rule-making process.
This would be a tough case to make, as the commenting period was open for the required amount of time, and all comments were accepted. The issue with the public comments is that many of them — millions — were found to be fraudulent and issued under false identities. Reissuing a new public comment period doesn’t appear to be a great solution, as it could all just happen again. On Jan. 9, 2018, the Government Accountability Office told Congress they would look into fraudulent commenting practices across all federal agencies.
Other attorneys general want to sue because they believe that the FCC overreached their authority. This would be another hard argument to make because the rules were put in place the same way. Meaning, if the reversal of the rules were an overreach, then their implementation in the first place was as well. This is one of those you can’t have it both ways situations.
The underlying issue is really this: What is the role of federal agencies and what is the role of Congress? FCC Chairman Ajit Pai (R) originally stated he planned to roll back the net neutrality rules because he believed that an agency’s job was not to legislate, but to let Congress do that.
In a statement released upon the FCC’s decision to enact net neutrality rules prior to becoming chairman, Pai stated that, “I am therefore disappointed that today, rather than turning to Congress, we have chosen to take matters into our own hands. It is all the more disappointing because we have been down this road before. Our prior two attempts to go it alone ended in court defeats. Even with the newfangled tools the FCC will try to pull out of its legal grab-bag, I am skeptical that the third time will be the charm.”
It will be interesting to see how it all unfolds, and CDE will be sure to keep you updated if, and when, any lawsuit moves forward. In the meantime, while the Internet remains in limbo, check out our piece on “Three Things District Leaders Should Think About Now that Net Neutrality Rules Are Reversed.”
